140212. Cape Town. Line fishermen are seen fishing near Simon's Town. The majority of traditional line fishermen in South Africa entered 2014 without the legal right to continue their operations. This comes after the Department of Agriculture, Forestry and Fisheries (Daff) denied their applications to have their rights renewed. Old rights expired at midnight on New Year’s Eve 2013. Picture Henk Kruger/Cape Argus

Sufficient resources, planning and time not given to the socially and economically valuable process of rights allocation, writes John Yeld.

Part 1

Hindsight is a perfect science, they say, and people understandably dislike hearing “We told you so!”. So there’s no delight in analysing the failure of the rights allocation process for eight commercial fisheries by the Department of Agriculture, Forestry & Fisheries under the political leadership of minister Tina Joemat-Pettersson, despite the warnings given over a long period and that ultimately proved correct.

The outcome of this now abandoned rights process, known collectively as Frap2013, is a wasted cost of millions of rand to taxpayers; a huge waste of many people’s time; unnecessary anxiety, trauma and expense imposed on probably hundreds of fishermen, their families and business associates; and the likely but as yet unquantified further damage to valuable fish stocks.

The failure of Frap2013 is spelt out in detail in the independent audit that Joemat-Pettersson commissioned in February, following allegations of irregularities, manipulation, unlawful or arbitrary decision-making and unprocedural conduct in the awarding of the new rights in these eight fisheries.

The audit report, by legal firm Harris, Nupen and Molebatsi, was delivered to the minister last month.

The authors did not find evidence to support these allegations, although they have sent some allegations relating to possible corruption to unspecified “relevant authorities” who must decide whether these should be sent on to the Special Investigating Unit.

They also argued that there was no legal basis to the challenges raised in the current High Court interdict application against Frap2013 brought by unsuccessful linefish rights applicants. However, they found that administrative shortcomings had rendered the process vulnerable to a successful legal challenge.

In particular, their report outlines a serious administrative failure of the department – and by implication the leadership failure of the minister – over a sustained period: it failed to allocate sufficient resources, planning and time to be able to award these economically and socially valuable rights within the statutory time frame.

There was a good start, with the first general submission about the appointment of external service providers for Frap2013 made way back on October 31, 2011.

The report describes this submission as setting out a “well thought-through, extensive and legally compliant process” to support the department in the rights allocation process that was known to be “legally and administratively complex, time-consuming, controversial, and requiring thorough planning, sufficient advance timing of core activities, together with independent, qualified and duly-appointed service providers”.

According to this initial time frame, these service providers should have started work in April 2012.

Applications for new rights should have been submitted by the end of March last year; applications should have been evaluated by the end of May; rights awarded by the end of July; appeals could be submitted and adjudicated in August and September; and court reviews heard between October and December.

But the outsourcing was only approved after a three-month delay, on February 3, 2012.

Then, crucially, nothing happened, “until April 3, 2013, a delay of some 14 months...”, the audit report notes.

This delay, together with the limited role of independent service providers and the lack of planning “led to a rushed process with limited resources”.

A tender for a service provider to support the fishing rights verification process in the eight fisheries was eventually awarded on June 18, but was cancelled less than three weeks later on July 4 as the successful bidder was found to be “severely conflicted”.

Another service provider, ORCA, already contracted to the department, was appointed in July to do some Frap2013 work at a cost of R3.7 million, and on October 21 it was given a second contract worth nearly R3.7m, without going to tender.

A second tender for a service provider was advertised, cancelled, and re-advertised. Eventually, a R5.8m contract was awarded to Colefields Investments in late November and it started working in mid-December – less than three weeks before the December 31 deadline.

“… soon after taking over the files (from ORCA) of the applications, (Colefields director Roger Latchman) and his team had realised that it would be almost impossible to complete the award process by 31 December 2013… ”

The department’s own Frap2013 steering committee only met for the first time in May last year – less than eight months before the new rights allocations had to be completed – and the audit report notes: “An ongoing theme of concern throughout Frap2013 is the relatively short time allocated to the process, which meant that good governance requirements, such as recording the decisions made and the manner in which they were reached, were not complied with.” It recommended that a department steering committee should be appointed “perhaps three years in advance” of any rights allocation deadline.

Several major issues emerge from Frap2013 and the audit report:

* Is the department going to be ready to award further new fishing rights allocations that are on the horizon, or will they be forced to postpone these? If so, for how long? New rights in seven very high-value fisheries with a landed catch value of more than R1.5 billion must be re-allocated by mid-2015, and new abalone rights by the end of July.

* Exactly how, and when, will Frap2013 be set aside legally? Then, what is going to happen to those new entrant rights holders who had been successful and who had invested in equipment? Can they sue for damages?

* Until Frap2013 is set aside, both successful applicants and many unsuccessful applicants (by virtue of an agreed High Court order) will be fishing legally. Unless restricted, their combined catches will almost certainly exceed the scientifically calculated sustainable total quotas.

Just how will this all be done?

* Part two will look at the department’s response to the questions raised.

** John Yeld is the environment & science writer for the Cape Argus.

Cape Argus