Fishing Rights Allocation Process (FRAP) 2013 and 2015/16 Implementation of the findings and recommendations of the Harris/Nupen/ Molebatsi & Emang Basadi Reports 24 OCTOBER 2017 

Findings and Recommendations of Harris Nupen Molebatsi Report Presentation Outline Background Findings and Recommendations of Harris Nupen Molebatsi Report Status of Implementation of Recommendation of Harris Nupen Molebatsi Report Status of Implementation of Recommendations of the Emang Basadi Report

Background FRAP 2013: Fishing rights were allocated to 8 commercial fishing sectors, namely KZN Prawn Trawl, Demersal Shark, Squid, Tuna Pole-line, Hake Handline, Traditional Linefish, White Mussels and Oysters during FRAP 2013. The 2013 FRAP Process was the subject of controversy, with allegations and perceptions of irregularities, manipulation, unlawful or arbitrary decision making and un-procedural conduct. On top of that, the South African Traditional Linefishers Association brought an urgent application to set aside the allocation of Rights in the Traditional Linefish Sector. In light of these allegations and perceptions, Minister Joemat-Petterson commissioned an independent audit of the process to ascertain whether the concerns raised by certain parties in relation to the process had any substance and Harris Nupen Molebatsi Attorneys were appointed in February 2014. The findings are presented on slides No. 5 - 16.

Background (Continued) FRAP 2015/2016 Fishing rights were allocated in 9 commercial fishing sectors, namely Patagonian Toothfish; Hake Inshore Trawl; Horse Mackerel; Large Pelagics Longline; West Coast Rock Lobster (Nearshore and Offshore); Netfish; Seaweed; Abalone, KZN Beach Seine, as well as Fish Processing Establishments during FRAP 2015/2016. In order to ensure the Department’s (a) readiness to delivery on FRAP 2015/16; (b) to prevent the recurrence of the short-comings of the FRAP 2013 as identified by Harris et al and (c) to advise on how appeals should be handled, Minister Zokwana commissioned Emang Basadi to review and assess the Department’s capacity and work processes. The findings are presented on slides 17 – 19.

Findings and Recommendations The focus of the audit comprised of seventeen (17) critical areas that were prompted by either allegations or process mile stones. In each area, there were findings made and possible recommendations by the Auditing Team. Focus areas identified were: Validity of the Policies; Determination of Ration between new entrants and existing right holders The Application Forms; The Application Fee; Exclusionary Criteria Delegation of Powers; Balancing Criteria Appointment of independent Service Providers to assist with the Rights Allocations; Sampling Exercise Notification of Decisions Submission of Applications Grant of Right Fee Anonymous Tip-Off Line Appeals Verification of Application Forms Frap Steering Committee Operations Allocations of TAC/TAE

Recommendations and Status   Recommendation Status 1. Validity of the Policies, it has been recommended that the Department next time carefully considers when selecting venues for consultation on the policy review to ensure that all fishers and communities that are affected by the policies, are consulted. Implemented 2. The Delegated Authority should provide detailed reasons for the departure from the policies in respect of each fishery to Counsel for advice whether they constitute a rational basis for departure.

Recommendations and Status   Recommendation Status 3. In future, process of developing Application Forms, should be simultaneous with the process of developing policy criteria in both the General Policies and the Sector Specific Policies. Implemented 4. The Minister should consult with the Minister of Finance to determine Application Fees for Commercial and Small Scale-Subsistence Fishing Rights. If the administrative cost of processing the Commercial Application requires an increased fee, consultation should be done timeously.

Recommendations and Status 5. The following powers should not be delegated: a. The power to determine Total Allowable Catch and Effort (TAC and TAE) and the apportionment thereof between sectors (Commercial, Subsistence and Recreational) under Section 14(1) and (2) of the MLRA. This delegation has serious implications for conservation and it is critical that these decisions are taken at highest level. Not Implemented. The Senior Council opinion obtained from Budlender and Bawa did not support this recommendation & argued that the determination of TAC should not be done at Ministerial level as Minister is the Appeals Authority 6. Service Providers and their Terms of Reference, along with the Time Frames set out in the General Submission of the 30th November 2011, should be used as Template for future Rights Allocation processes and that the full submission is adhered to and applied. Implemented  

Recommendations and Status 7. The planning phase should make sufficient time for the procurement of the Service Providers, and if there are any deviations required, this should be done in accordance with Departmental procurement Policies. Implemented 8. The Anonymous Tip-Off Line should be active from the start of the Application Process, though to the end of the Appeals Process. 9. Complaints should be studied by an Independent Body, with each complaint being considered, investigated and addressed.  

Recommendations and Status 10. There is a need for further and detailed investigation of Tip-Offs received. Implemented 11. Immediate verification of all 2013 FRAP Applications is required. 12. Intensive verification needs to be done in future on all applications prior to allocation of scores to applicants. 13. Steering Committee members need to be officially appointed at least 3 years in advance and roles and responsibility of each member clearly defined. 14. There should be a proper schedule for meetings, and Action Plan with Time frames, and all meetings recorded and minuted and records to be kept by the FRAP Secretariat.  

Recommendations and Status 15. The process of granting exemptions under Interim Relief be urgently reviewed given the public criticism that this process is used to appease unsuccessful applicants and their employees Implemented 16. The Delegated Authority should provide detailed reasons for the decision in respect of each fishery and those reasons be submitted to Counsel for an opinion on whether they meet the requirements of a valid administrative action in terms of PAJA. 17. The decision of the apportionment between the New Entrants and Existing Right Holders ought to be taken by the Minister after consultation with the stakeholders. Implemented. The apportionment split between the commercial & small-scale was consulted with stakeholders  

Recommendations and Status 18. The decision not to exclude the applicants without vessels or suitable vessels cannot be dealt with by the Minister on Appeal. Rather an Application should be made to Court to set aside the granting of rights to those applicants who should have been excluded under the policy. Implemented. In FRAP 2015/16, access to a vessel was not exclusionary 19. Score sheets should not include Exclusionary Criteria and only applicants who have not been excluded should be scored. Implemented 20. The Delegated Authority should provide detailed reasons for the selection of criteria and weighting in respect of each fishery and those reasons submitted to Counsel for an opinion on whether they meet the requirement of valid administrative action in terms of PAJA.  

Recommendations and Status   Recommendation Status 21. There should be no need for deviation from the criteria contained in the Fisheries Policies as the criteria are informed by particular needs of the fishery. Although it is permissible for the Delegated Authority to depart from the Policy, all deviations must be justified and properly recorded. Implemented 22. Sufficient time needs to be set aside for drafting of letters with further checking and verification. Sufficient time also needs to be set aside to ensure that the correct list of successful applicants is properly checked and communicated.

Recommendations and Status   Recommendation Status 23. Sufficient time needs to be set aside for drafting of letters with further checking and verification. Sufficient time also needs to be set aside to ensure that the correct list of successful applicants is properly checked and communicated. Implemented 24. Delivering of the letter should be outsourced to a courier company with clear instructions of delivering the letter whether the applicant is at home or not. Not Implemented. Letters were delivered to local DAFF offices. Applicants individually contacted & advised to collect their letters in person.

Recommendations and Status   Recommendation Status 25. A Grant of Right Fee for the 2013 Allocations should be determined as soon as possible and successful applicants be notified. Implemented 26. For the next allocations, a Grant of Right Fee should be determined well in advance Implemented. Grant of Right Fee for FRAP 2015 was gazetted in advance & part of public consultation process 27. The Database, Application Forms and documents attached to each application should be made available to applicants as a matter of urgency.

Recommendations and Status   Recommendation Status 28. Legal advice should be sought on documents that may be considered confidential such as, marketing, business plans and financial performance. Implemented 29. Verification of applicants’ information should be conducted as soon as possible and run parallel with the appeals process. Independent auditing firm verified the capturing of applicant’s details during FRAP 2015/16

Emang Basadi Recommendations Status 1. Minister to extend all rights expiring in 2015 to allow more time to implement FRAP 2016/16 Implemented 2. General Policy and Sector-specific Policies to be reviewed and aligned with MLRA. Implemented Sector-specific Policies reviewed and consulted. General Policy to be reviewed for FRAP 2020 3. Minister to form Fisheries Transformation Council In progress 4. Development of Application forms should be simultaneous with development of Policies 5. The Minister should consult with the Minister of Finance to determine Application Fees

Emang Basadi Recommendations Status 6. The Minister to establish a Consultative Advisory Forum (CAF) Under consideration 7. Creation on an independent Appeals Team Implemented 8. The establishment of a FRAP Steering Committee and Executive Committee to oversee FRAP 2015/16 9. Minister to determine transformation levels Levels of Transformation were determined but later revised after public consultation 10. DAFF to adopt proposed FRAP process flow 11. Creation of additional capacity for FRAP process on 18 month contract & training of new staff

Emang Basadi Recommendations Status 12. The acquisition of a robust Information Technology System to administer, process & evaluation FRAP Implemented 13. There is a need for an adequate FRAP budget Not implemented due to budgetary constraints 124 Adequate & equipped FRAP office space 15. Various recommendations on the Small-scale Policy In the process of being considered & implemented 16. The settlement Agreement between SACLA and the Department to be implemented

Acronyms CAF Consultative Advisory Forum DAFF Department of Agriculture, Forestry and Fisheries FRAP Fishing Rights Allocation Process TAC Total Allowable Catch TAE Total Allowable Effort PAJA Promotion of Administrative Justice Act MLRA Marine Living Resources Act SACLA Southern African Computing Lecturers' Association

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