MINISTER’S BOMBSHELL COURT APPLICATION TO SET ASIDE SMALL-SCALE FISHING RIGHTS ALLOCATIONS
On the 5th March 2021 under case number 4020/21 in the Western Cape High Court, the Minister of Forestry, Fisheries and the Environment applied to the High Court to have the allocations (effectively her own decisions) of small-scale fishing rights in the Western Cape set aside on review. A shocking development on a number of levels.
Firstly, since her Department was ordered in 2007 by the Equality Court to develop a small-scale policy to include small-scale fishers in the access to marine living resources which they traditionally fished, it took another 5 years to finalize a small-scale fishing policy in 2012, a further 2 years to amend the MLRA, a further 2 years to pass small-scale fishing regulations and then a further approximately 3 years to allocate small-scale fishing rights. On top of these delays is now this court application and the start of the process afresh.
Secondly, despite the large scale systemic flaws in the small-scale allocation process (as stated by the Minister in her founding affidavit in the Court application), the Minister only chose to set aside the Western Cape small-scale allocations – her answer may be that most of the complaints were received in the Western Cape area and hence she only contracted an independent audit to investigate the Western Cape process/allocation.
However, when one views in detail the submissions of the Minister, the findings of the internal audit report, and the fact that the same process, forms and criteria would have been applied by the same Department in all the provinces, there is a high probability that small-scale allocations in all the provinces have the same underlying flaws which would justify the setting aside of the small-scale allocations in all the provinces.
The conclusion of the report as found in the executive summary thereof states that:
“Based on our verification of the processes, listings and documents, we have concluded that the process followed in the assessment of the applications for recognition of small-scale fishers was wholly inadequate, and the results of these assessments cannot and should not be relied on for any decision making purposes in terms of the regulations.”
Therefore, once the internal audit report for the Western Cape had been received with such a conclusion, one is left wondering why the Minister did not immediately extend the mandate of the independent auditors to investigate all of the provinces.
There were 6 underlying systemic flaws referred to in the independent audit and in the submissions of the Minister in the court papers.
- There were inconsistencies between the policy and regulations which led to confusion around the criteria applicable to small-scale fishing applications and the interpretation of these criteria.
- The criteria used to assess applicants was not objective and clearly defined.
- The small-scale fisher verification form was a key factor in the independent audits overall conclusion that the process was flawed and open to legal challenge in that the form was not aligned to clear objective criteria and as such applicants were therefore not fully aware of the criteria or the impact of their responses.
- The assessment process was inconsistent and not fairly and transparently applied.
- The appeals process was inconsistent and may be considered unfair.
- The data records of the applications and appeals processes were grossly inaccurate and unreliable.
In conclusion, we have not as yet seen any explanation from the Minister as to why the investigation was limited to the Western Cape and in particular why it was not extended to all the other provinces taking into account the underlying systemic nature of these major flaws.