19/09/2005: As the Minister
of Environmental Affairs and Tourisms Delegated
Authority, Deputy Director-General: Marine
and Coastal, Dr Monde Mayekiso has decided
on late lodgements for Cluster A- fisheries.
In the Cluster A fisheries (Hake Deep Sea
Trawl, Hake In-shore Trawl, Horse Mackerel,
South Coast Rock Lobster, Small Pelagics,
KZN Prawn and Patagonian Toothfish) the closing
time for the submission (lodgement) of applications
was set at 17h00 on 2 August, 2005. Of the
479 applicants who had registered to apply
in these fishing sectors 36 did not submit
their applications in time. A further number
of applicants did not lodge complete applications
for a number of reasons. This announcement
does not deal with that group.
Those who applied to me as the Ministers
Delegated Authority to condone the late submission
of their application did so in terms of Section
81 of the Marine Living Resources Act. This
section provides that: If in the opinion of
the Minister there are sound reasons for doing
so, he or she, subject to the conditions that
he or she may determine, in writing exempt
any person or group or organ of state from
a provision of this Act, explains Dr Mayekiso.
Each one of these applications directed to
the DDG and the particular circumstances of
each applicant was considered. In coming to
a decision he has had regard to the carefully
designed application process for long term
fishing rights.
I have taken into consideration a number of
factors including the fact that the deadline
for lodgement had been extended at the request
of some of the applicants. In my letter to
those who applied to me to have late applications
accepted I explained the reasons why I believe
that they should be refused.
The allocations of fishing rights is a time
bound process, aimed at ensuring rights are
granted in time for commencement of the next
fishing season. Failing to do so would have
market and economic consequences for the industry
and those dependent on it.
The allocation of fishing rights is a competitive
process. The process of comparing applicants
with each other cannot take before all the
applications are received and assessed. A
deadline is the most effective mechanism to
ensure that all the applicants are considered
together.
The deadline further aimed at ensuring effective
planning. Allowing late applications will
of necessity require a further process to
be set up in order to provide late applicants
with a proper opportunity to justify condonation.
This process will have to set up for all applications
regardless of whether the application is one
minute late or several days late.
But even that process will require a further
deadline (a deadline within which to submit
late applications for condonation), another
receipting process, another assessment process,
decision making process and appeal process.
In other words it will require a parallel
process to investigate the reasons and assess
the applications for what amounts to no more
than the applicants failure to comply with
simple and advertised deadlines.
The lodgement requirement ensures that applicants
are treated equally by stipulating a fixed
point in time for the completion and submission
of the applications.
A list of those applicants whose application
has been refused is attached as well as a
copy of the general reasons for the decision
to refuse the late submission of applications.
LISTS OF APPLICANTS:
CLUSTER A EXEMPTIONS APPLICANTS
NONAME OF APPLICANT
1ALBERTS FISHING CC
2ANG-JERRY FISHING CC
3Bay Side Fishing CC
4Cape Fish Processors(Pty)Ltd
5CARINA FISHERIES CC
6Carpensis Fishing Industries (Pty) Ltd
7CSM Fishing (Pty) Ltd
8D CHRISTY & SONS (PTY) LTD
9DMA FISHING ENTERPRISES (PTY) LTD
10ELAPA VISPRODUKTE BK
11EXCALIBUR EXPLORATIONS (Pty) Ltd
12Gerombe Fishing Enterprises cc
13Humansdorp Community Factory Workers
14Impala Fishing (Pty) Ltd
15Imvusa Trading 894 CC
16In Line Trading 18 (Pty) Ltd
17INKQUBELA FISHERIES AND MARINE DEVELOPMENT
CORP
18Kaytrad Commodities (Pty) Ltd
19KNYSNA FISHING COMPANY (PTY) LTD
20LAINGVILLE FISHERIES PTY LTD
21Mullins Fishing CC
22NOORDKAAP VISSERMAN ONDERNEMING BPK
23OFFSHORE FISHING COMPANY (PTY) LTD
24PALM SPRINGS FISHING CC
25Port Nolloth Fisheries (Pty) Ltd
26Privaat Booteienaars (Pty) Ltd
27Protem Fishing (Pty) Ltd
28RD Summers Fisheries CC
29SACO FISHING (PTY) LTD
30Sea Haven Fishing Holdings(PTY)LTD
31Sisisa Investments
32TARKA FISHING (Pty) Ltd
33Thembalodumo Fishing
34TRAWL INVESTMENTS CC
35UKULOBA KULUNGILE INVESTMENTS (PTY) LTD
36Umoya Fish Processors (Pty) Ltd
37Vasco Da Gama Fishing cc
GENERAL REASONS FOR THE DECISION TO REFUSE
THE LATE SUBMISSION OF APPLICANTS
APPLICATION FOR AN EXEMPTION IN TERMS OF
SECTION 81 OF THE MARINE LIVING RESOURCES
ACT 18 OF 1998: CLUSTER A FISHERY
A.Introduction
1. The Minister of Environmental Affairs
and Tourism (the Minister) has delegated the
power to grant exemptions in terms of section
81 of the Marine Living Resources Act 81 of
1998 (the MLRA) to the Deputy Director General
(the DDG) of the Department of Environmental
Affairs and Tourism, branch Marine and Coastal
Management. Section 81 of the MLRA provides
as follows:
81Exemptions
(1) If in the opinion of the Minister there
are sound reasons for doing so, he or she
may, subject to the conditions that he or
she may determine, in writing exempt any person
or group of persons or organ of state from
a provision of this Act.
(2) An exemption granted in terms of subsection
(1) may at any time be cancelled or amended
by the Minister.
2. Upon consideration of the exemption applications
it has become apparent that some of the applicants
for exemptions have sought to challenge the
constitutional validity, the lawfulness, the
procedural fairness or the reasonableness
of the applicable policies and instructions
in order to justify their failure to submit
their applications within the applicable time
period.
3. It is not necessary to deal with these
challenges to the policies in order to deal
with the application for an exemption. For
the purpose of an application for an exemption
the validity of the policies must be accepted.
Section 81 of the MLRA should not be interpreted
to allow the carefully designed application
process for long term rights to be circumvented.
However, I set out the background to the applications
for exemptions in Cluster A, the justification
for the policies and instructions, as well
as the purpose of section 81 of the MLRA within
the context of the long term rights allocation
process, before turning to the specific motivation
of the applicant for an exemption.
B.Background to exemption applications
4. For present purposes, the relevant components
of the application process are the following:
4.1a registration process; and
4.2a lodgment process.
5. The original deadlines for registration
and lodgement published in GN 931 of 2005
(GG 210003, 15 June 2005) and in the instructions
to the application forms published in the
same Government Gazette, were set at 1 July
2005 and 15 July 2005, respectively. These
deadlines were extended under GN 1095 of 2005
(GG 27755, 1 July 2005). In terms of the notice,
persons wishing to apply for Cluster A commercial
fishing rights had to register by no later
than 17h00 on Friday 8 July 2005 and had to
lodge their applications on Monday, 1 August
2005 (between 08h00 and 19h00) or on Tuesday,
2 August 2005 (between 08h00 and 17h00) at
the Good Hope Centre in Cape Town.
6. The final deadline for the lodgement of
applications for long term commercial fishing
rights in the Cluster A fisheries was therefore
set at 17h00 on 2 August 2005. In other words,
all applicants were afforded an extra two
weeks to lodge their applications.
7. The doors of the Good Hope Centre venue
were closed at 17h00 on 2 August 2005. Al
persons in the immediate vicinity of the door
were warned about the imminent closure for
several minutes before 17h00. The events were
recorded by the Rights Verification Unit (the
RVU) inter alia on videotape and with photographs.
8. A total of 479 applicants registered for
Cluster A long term commercial fishing rights.
Of these, 422 lodged their applications. There
were 57 companies and close corporations that
registered but did not lodge their applications.
Of these, 13 are existing Medium Term Right
Holders and the remaining 44 are potential
New Entrants.
9. Representatives of a small number of this
group were in the venue before closing time.
A number of other applicants were in the venue
with incomplete applications. Some of these
chose to lodge and others not. Representations
were made and these were recorded by the RVU
at the venue.
10. After closing day, a number of entities
(including some of those that were in the
venue without applications, or with incomplete
applications) made representations on a number
perceived deficiencies in their applications,
including lateness. These representations
were made to the Delegated Authorities, the
Minister, the Rights Verification Unit and
the Department. Some applied for exemptions
in terms of section 81 of the MLRA, whilst
others simply made representations.
11. A notice was then published on the Departmental
website, inviting applications for exemptions
from the requirement to lodge applications
within the prescribe time period, in terms
of section 81 of the MLRA to be submitted
to the Deputy Director General, by no later
than 17h00 on Wednesday 17 August 2005. The
notice was published in order to facilitate
the administration of the exemption applications,
to enable applicants to properly motivate
the applications and to treat all applicants
fairly and equally.
12. Only some of the applications for exemption
deal with lateness. As is clear from the notice,
the applications for exemption were not invited
in respect of the failure to comply with other
lodgement requirements, material defects or
essential requirements. Many such applications
have been received. I am not dealing with
those applications in this letter.
C.The applicable policies and instructions:
late applications must be refused
13. The time period for lodgement was determined
by the Minister in accordance with section
18(2) of the MLRA, the General Policy on the
Allocation of Long Terms Fishing Rights (the
General Policy) and the applicable sector-specific
policies. The policies were the result of
an extensive public consultation process and
they were ultimately approved by Cabinet.
The final policies were also published (GN
931 of 2005 (GG 210003, 15 June 2005). The
Minister also consulted with the public and
stakeholders in particular, regarding the
application form and in the instructions contained
therein.
14. The powers to grant commercial fishing
rights and quantum or effort to each successful
applicant in the Cluster A sectors were subsequently
delegated in terms of Section 79 of the MLRA,
to three senior officials in the Department
(the Delegated Authorities). The Delegated
Authorities are required to allocate commercial
fishing rights in accordance with the guidelines
determined in the policies by the Minister.
15. In the General Policy, in section 6.3(j)
it is stated that [i]n Cluster A, applicants
will be required to submitted the completed
CD and printed versions of the application,
annexures and copies by hand at a stipulated
venue and during a stipulated period in Cape
Town . Under section 6.3(m)(ii) it is stated
that [i]nformation submitted after closing
day will not be considered, unless requested
by the Rights Verification Unit, the delegated
authority or the Minister as part of the rights
allocation or the appeal process. It is further
stated under section 6.4(a) that an application
is improperly lodged if it was received late
and that [t]he Delegated Authority and the
Minister has no discretion to condone non-compliance
with the lodgement requirements.
16. Reference is made to the exclusionary
criteria pertaining to the lodgement of applications
in each of the Cluster A sector specific policies.
17. In the Instructions in each of the Application
Forms (headed IMPORTANT INFORMATION) it is
stated in item 13, after listing the lodgement
times that [a]n application not submitted
by hand within the above times, on the above
dates at the above address will be refused.
In item 14 it is stated, under the heading
Improper Lodgement that An application is
improperly lodged if it is received late and
that improperly lodged applications will be
refused.
18. The requirements relating to lodgement
of applications contained in the General Policy,
the fishery specific policies and the Instructions
are peremptory. The language clearly excludes
any discretion or power to condone non-compliance
with the requirement of timeous lodgement.
19. Accordingly, the Delegated Authorities
cannot and will not entertain late applications
or applications for condonation in respect
of a failure to submit the application timeously.
D.Justification for the deadline for lodgement
20. The purpose of imposing a deadline for
lodgement is four-fold.
21. Firstly, the allocation of fishing rights
is a time-bound process. The Minister and
the delegated authorities will deal with the
many thousands of applications across the
various fisheries in terms of a timetable
which is intended to ensure that fishing rights
are granted in time for the commencement of
the next fishing seasons. If rights are not
allocated timeously, there will be serious
market and economic consequences for the industry
and those dependent on it. For example, the
fishing season in the South Coast Rock Lobster
sector starts in October.
22. Secondly, the allocation of fishing rights
is a competitive process. The process of comparing
applicants with each other cannot take before
all the applications are received and assessed.
A deadline is the most effective mechanism
to ensure that all the applicants are considered
together.
23. Thirdly, the deadline is aimed at ensuring
effective planning. It is impossible to plan
without a fixed deadline for the receipt of
applications in each Cluster. This is because
a detailed process has to be worked out, a
budget has to be approved, resources have
to be allocated and time has to be booked.
This has to be done in advance.
24. Fourthly, allowing late applications
will of necessity require a further process
to be set up in order to provide late applicants
with a proper opportunity to justify condonation.
This process will have to set up for all applications
regardless of whether the application is one
minute late or several days late. But even
that process will require a further deadline
(a deadline within which to submit late applications
for condonation), another receipting process,
another assessment process, decision making
process and appeal process.In other words
it will require a parallel process to investigate
the reasons and assess the applications for
what amounts to no more than the applicants
failure to comply with simple and advertised
deadlines.
25. Fifthly, the lodgement requirement ensures
that applicants are treated equally by stipulating
a fixed point in time for the completion and
submission of the applications.
E.Purpose of section 81 of the MLRA
26. In terms of section 81 of the MLRA, the
Minister may exempt any person from a provision
of the MLRA if, in the opinion of the Minister,
there are sound reasons for doing so. As stated
above, the power to grant exemptions has been
delegated to me in terms of section 79 of
the MLRA.
27. This discretion to exempt persons from
provisions of the MLRA is qualified by the
requirement that there are sound reasons for
doing so. These reasons have to be present
in the opinion of the Minister.
28. In deciding whether to grant an exemption,
I took cognisance of the fact that the deadline
requirement was set by the Minister after
taking into account the above factors and
fully aware that the lodgement would result
in late applications being excluded. The exemption
provisions should not be used to circumvent
the carefully crafted application process
or for revisiting policy decisions.
