Monday, October 3, 2016

An Overview of the SA Shark Cage Diving Sector

On 14 September 2016, Feike provided a presentation to the Southern Africa CITES Shark & Ray Conservation Symposium on the economic importance of white shark shark eco-tourism as opposed to consumption-based shark harvesting fisheries. 

The data that follows is an adaptation of my presentation to the CITES Symposium. 

The South African shark cage diving sector was started in the 1990's by a group of entrepreneurs who identified the opportunities of taking tourists out to sea to experience white sharks in their natural environments. South Africa's white shark eco-tourism sector attained international attention shortly after the Discovery Channel produced "Air Jaws" which documented the "flying" great white sharks of the False Bay. This documentary featured Chris and Monique Fallows of Apex Predators, which is a leading white shark cage diving tour operation based in Simonstown, Cape Town. 

Feike is the legal adviser to the South African Great White Shark Protection Foundation, which represents 11 of the current 13 white shark cage diving operators. 

The SA white shark cage diving industry is regulated by the Dept of Environmental Affairs under the Marine Living Resources Act, 1998. All of the 13 operators are presently conducting their businesses  in terms of permits that are valid until August 2017. A permit re-allocation process is scheduled to take place before that date.  

The SA shark cage diving industry is relatively small in size, highly regulated and concentrated in two centres in the Western Cape, namely the False Bay and at Kleinbaai outside of Gansbaai. Of the 13 operators, 8 are located in the tiny harbour of Kleinbaai and 3 operate out of Simonstown in the False Bay. 

The SA white shark cage diving sector carries out an average of between 200 dive trips per annum (False Bay operators) and 375 trips per annum for Kleinbaai operators. The operators employ over 100 people directly. And the industry generates an estimated gross turnover of ±R60 million with sector expenditure at ±R48 million. 

For more information about South Africa's Great White Shark Protection Foundation and who its members are please visit its website at 

Wednesday, September 28, 2016

The Growing Horse Mackerel Experimental Fracas

There is no doubt that the current litigation brought by the South African Deep Sea Trawling Industry Association (SADSTIA) and former right holders in the horse mackerel fishery (excluding the largest current operator, Blue Continent Products (Pty) Ltd) against, inter alia, the Minister of Fisheries and Global Pact Trading 193 (Pty) Ltd (the recipient of the experimental permit) is newsworthy and of legal interest. For one, the litigation will determine the scope and extent of Ministerial power under Section 83 of the Marine Living Resources Act, which gives the Minister a wide discretion to permit any scientific or practical experiment. 

It is no secret that I was recently re-appointed by the Minister to advise him defend the case brought by SADSTIA and various members of the horse mackerel industry (the Applicants). The Minister had sought my services - as I understand - because of my previous successful advisory role as Chairperson of the 2013 Fishing Rights Allocation Process appeals committee (June 2015 - May 2016). As chairperson of the appeals committee, together with my colleagues Prof Julian Smith and Attorney, Mamakhe Mdhluli, we successfully navigated the treacherous appeals waters and prevented the Minister facing any litigation. 

In addition, my publicly stated support for the restructuring, expansion and re-alignment of the Horse Mackerel fishery has long been on record. As part of the drafting team who penned the 2005 Horse Mackerel Fishing Policy, I had personally drafted the "Objectives" clause of that Policy document which mandated the horse mackerel industry to re-think the way South African horse mackerel is processed and marketed. To this very day, our entire horse mackerel stock is caught by a single dedicated mid-water trawler on behalf of the entire industry. This catch is block-frozen at sea, transhipped and exported to countries such as Angola, Zambia and the DRC without creating a single job on South African soil. None of this low-value but protein rich fish is made available to poor South Africans (or any person living within our borders, for that matter).  

Unfortunately, the South African horse mackerel fishing industry maintained this status quo despite the above mentioned key policy objective of the long term horse mackerel fishing rights allocation. And of course, the Fisheries Department - for whatever reason - chose to support the maintenance of the status quo ... until at least December 2015 when an experimental permit was granted to Global Pact Trading 193 (Pty) Ltd to investigate the possibility of (a) expanding the size and extent of the horse mackerel fishery to the West Coast of South Africa and (b) landing horse and processing horse mackerel on South African soil and selling horse mackerel to South Africa's rural poor communities. 

The Global Pact application for an experimental horse mackerel permit was first made in August 2012 and was motivated and supported by Feike as consultants to Global Pact Trading 193 (Pty) Ltd and a Namibian fishing enterprise called Kuiseb Fishing. Unfortunately, this application was rejected by DAFF and subsequently the Minister at the time, Tina Joemat-Petterssen. In 2014, Global Pact, on the advice of a Cape Town-based attorney's firm subjected a fresh application which resulted in the successful issue of the current exploratory permit in December 2015. 

In July 2016, SADSTIA and the Applicants filed an application to interdict the Minister and Global Pact from fishing the exploratory permit and secondly to review and set side the Minister's decision to reject SADSTIA's appeal against the December 2015 decision to grant the permit. The SADSTIA application was authored by Dr Johan Augustyn, who had served as the Department's Chief Director of Fisheries Research until August 2014, whereafter he left government to join the Fishing Industry as the Secretary of SADSTIA. 

The State Respondents will be filing their answering affidavit in response to the SADSTIA application papers shortly. It is therefore impermissible for me to discuss or debate the content or nature of the answering papers. 

However, what is worth mentioning is that SADSTIA has seen fit in a supplementary affidavit to allege an apparent conflict of interest involving my role as the Minister's consultant adviser. It is quite ironic for SADSTIA and Dr Augustyn to make such an allegation given that there is no direct or indirect conflict of interest involving Feike or myself (as neither I nor Feike had any role to play in the decision to refuse or grant the permit application by Global Pact and of course the application we submitted on behalf of Global Pact Trading and Kuiseb Fishing in 2012 was rejected ... by Dr Augustyn in January 2013). 

And therein lays the irony of the allegation of a conflict of interest by SADSTIA and Dr Augustyn. Between 2012 and 2014 Dr Augustyn presided over a series of applications and decided against Global Pact (and thus maintained the status quo in the horse mackerel fishery which undeniably was in SADSTIA and the Applicants' collective interest).  

Dr Augustyn then resigned as Chief Director of Fisheries Research and took up employment as the secretary of SADSTIA, which is the very body he was responsible for overseeing and regulating as Chief Director. 

The allegations by SADSTIA and the Applicants that I am somehow conflicted in providing advisory services to the Minister on a matter I had no part in deciding does however further confirm the weakness of the substantive merits of their case. One raises vexatious and spurious allegations in a bid to distract judicial attention from the actual merits of ones case. 

Remember, while the Applicants have loudly proclaimed their decision to take the Minister on review in the media, they have conveniently been quiet of the fact that they had already abandoned their Part A application to seek an interdict against the Minister. One leg down, second to follow shortly. 

Tuesday, September 20, 2016

Is SA's Lobster on the Verge of Collapse?

Are our famous West Coast rock lobster stocks on the verge of complete collapse? The sense by fishermen who attended a briefing by the Fisheries Department on 16 September 2016 seems to confirm an appreciable sense of panic by researchers and fisheries managers. 

The headline numbers for the fishery appear desperate. The TAC will be cut by no less than 30% this coming season to a global TAC of 1270 tons! The proposal is to further cut the TAC in 2017/2018 to 790 tons - that is a further 37% cut, equating to a 70% cut in catch allowances and income in 24 months! The economic hardship that this will cause in West and Southern Cape Coasts villages and towns will be massive. 

The TAC for areas 3&4 (Doring Bay, Lamberts Bay and Elands Bay) has been reduced by 42%. The TAC for areas 5%6 (St Helena Bay, Paternoster and Saldanha) has been reduced a whopping 65%. To make financial matters even worse for quota holders is that the allotted fishing months has been severely curtailed and fishing in most areas will be possible only when the usual lobster prices are at their seasonal lowest (between US$25/KG to US$32/KG). 

But these measures are certainly unavoidable - the alternative options are to either maintain catch limits or reduce it slightly with a complete biological failure of the stock in 3 to 5 years' time. 

However recovery of the fishery is far from certain. The biggest threats to the fishery are over capacity (too many quota holders exploiting smaller and smaller quotas) and poaching by both right holders and non-right holders. 

I have stated this repeatedly from day one when the Equality Court ordered the department in 2005 to accommodate an initial 800 more quota holders in the fishery. This number has escalated to more than 1900 today over and above the 840 nearshore right holders and 240 commercial operators who were legitimately granted long term fishing rights in 2004/2005. If ever there is a lesson for why courts and judges must not involve themselves in matters they are not qualified to understand and appreciate, the tragedy of our WCRL fishery is that lesson and case study. 

Back in 2004 before long term fishing rights were granted, the department's lobster scientists, compliance officers and fishery managers carefully and scientifically planned and determined the maximum sustainable number of quota holders that could be accommodated and managed in both the nearshore, small-scale and commercial fisheries. At that time South Africa's lobster stocks were  healthy having just recovered from decades of pillaging by companies such as Hout Bay Fishing Industries. Of course, not everyone who applied for a lobster fishing right - let alone every fisherman - could be accommodated and granted a fishing right. A fishing right is not a basic human right to which South Africans are entitled under our Constitution. It certainly is not an alternative to a social grant for the unemployed. But of course, the Equality Court (and the NGO's that egged them on) knew better and insisted that government must accommodate all fishermen who were denied fishing rights! 

And now thanks to that ill-conceived decision, lobster stocks are at less than 2% of historical pristine levels and poverty will surely be the defining characteristic of lobster fishermen from Port Nolloth to Arniston as their quotas are slashed by 70% over the next 2 seasons. 

But as quotas have been reduced (And will be reduced further over the next 2 seasons), poaching has skyrocketed. According to the department, illegal fishing has doubled over the past 3 years. Observing lobster vessels in Hout Bay harbour tells you that poaching is in fact the norm today. The landing of undersized and illegal catches are par for the course. 

Everyone and his dog knows about illegal lobster in bags sold openly in Paternoster. But large "legitimate" operators in the lobster fishery are themselves complicit in the illegal trade. So while the "interim relief" lobster fishers of Paternoster have been over-catching by an average of 90 tons a season (yes, 90 tons when their TAC is only 11 tons!) over the past 2 seasons, the question that we should be asking is, who is buying, processing and exporting these illegal harvests? 

The consequences for lobster fishermen are clear. In 2008, we were catching an average of 58 lobsters per trap in deep water Area 8. This season, average catches per trap have dropped to an uneconomical 20 lobsters. The lobster fishery has effectively volunteered to stop fishing well-before the 30 September regulated closure of the season. Of greater concern is that baby lobsters have repeatedly being brought up in the traps causing them stress and harm to their bodies, which means these young will be spending more time and energy recovering from these stresses than growing, which will mean even slower lobster biomass recovery rates - even if poaching was to be significantly reduced. 

As the country's most infamous poacher and wildlife criminal, Mr Bengis of Hout Bay Fishing Industries admitted to Marine and Coastal Management officials many years ago before he was incarcerated in a US Federal Prison, "if you thought I was a big poacher, think again..."

If we are going to seriously contemplate a lobster recovery DAFF will have to do three critical things immediately: 

1. Deal with illegal fishing by quota holders and non-quota holders. ALL Fishery Control Officers need to be independently monitored and subjected to lifestyle audits. The current system of deploying and managing fishery monitors who record catches needs complete overhauling. Monitors cannot be related to fishers and certainly cannot live in the same streets and towns as fishers and poachers. 

2. Reduce the number of people catching lobsters, whether in the interim relief, small-scale or commercial fishery sectors - but these numbers are just too large to sustainably support the available fish. 

3. The entire compliance management strategy needs overhauling - and not just for lobster monitoring and compliance. 

Right holders who are implicated in illegality serious permit violations must be immediately subjected to criminal processes and administrative penalties must include the termination of their lobster fishing rights and these persons should be disqualified from the upcoming 2016 lobster fishing rights allocation process. 

PS: See our tweets on the subject by following us on the Feike Handle @feikemanagement 

Monday, June 13, 2016

What is the Status of SA's Whale Watching and Shark Cage Diving Permits

South Africa's boat based whale watching and shark cage diving sectors are each represented by industry bodies formally recognised and authorised to represent members under the Marine Living Resources Act, 1998, which is the law governing whale watching and shark cage diving. The whale watching industry is represented by the SA Boat-Based Whale Watching Industry and the shark cage diving sector by the Great White Shark Protection Foundation. Feike is an advisor to both bodies.

The department responsible for these two sectors is the Department of Environmental Affairs. In early 2015, Industry representatives met with officials from DEA to remind them that permits in both sectors were set to expire at the end of June 2016 for the whale watching sector and at the end of August for the white shark diving sector. Industry offered to assist where possible with preparations for the permit re-allocation and renewal process. Both the whale watching and shark cage diving sectors undertook at their own cost substantive socio-economic surveys of their respective sectors and membership profiles. These surveys profiled members in areas such as black empowerment, investments in assets such as markets, boats, people and brands, areas that restricted growth, employment, profiles of tourists that undertake these eco-activities and tourist spend.

With two weeks to go before the whale watching permits are set to expire, DEA has confirmed that it has extended the validity of the whale watching sector and shark cage diving sector permits for another 12 months, valid until 30 June and 30 August 2017, respectively.

So, it is official, all SA whale watching and shark cage diving will continue beyond June 2016. Dont cancel your bookings .... please! 

For the list of permitted and authorised boat-based whale watching operators see the 
SABBWWA site here

For the list of permitted and authorised white shark cage diving operators, see the Foundation's site here.

Tuesday, June 7, 2016

In Summary: The FRAP 2013 Appeals

My next Maritime Review Africa article will provide a summation of the FRAP 2013 appeals process, including an analysis of the line fish appeals process that led to the publication of the Minister's final traditional line fish decisions in May 2016 . The FRAP 2013 appeals process took 10 months to conclude, highlighting that such administrative processes, if undertaken legally and diligently, take substantial planning and time. To rush these processes only causes significant harm to both the fishing industry and communities, on the one hand, and to the overseeing regulator - DAFF.

My article addresses the key mechanisms and processes that were implemented when evaluating and deciding the 567 traditional line fish appeals in particular. The article also addresses where the decisions leave the small-scale community-based fishing sector process and how the additional anticipated effort from these communities could conceivably be accommodated without decimating staple line fish species in each of the 3 main management zones. 

The article concludes with a summary of key FRAP 2013 appeals data, including the number of successful appeals by sector and the final black ownership profile of the successful appellants. The headline appeal numbers for the 8 fisheries are as follows.

"Over the 10-month appeals evaluation process, the Minister considered and decided a total of 1038 appeals. Of these, 333 appellants (or 32%) were successful. The average black economic empowerment profile of the 8 fisheries post the appeals stands at 66.57%."

The article will be available here shortly.

Wednesday, May 25, 2016

China's Defence of 3 IUU Vessels. Is it Valid?

The Daily Dispatch reports that China has officially stated that its arrested fishing vessels were fishing legally and had the necessary permits and China was seeking "prompt and appropriate settlement” of the investigation “in line with the friendship and cooperation between our countries”.

While it is clear that the arrested fishing vessels,  the MFV Fu Yuan Yu 7880, MFV Fu Yang Yu 7881 & MFV Run Da 617, are authorised by the South Pacific Regional Fishery Management Organisation to harvest fish in the South Pacific Convention Area only. These vessels are authorised to use pole and line gear when fishing in the Convention Area waters.

This High Seas fishing license certainly does not authorise these vessels to enter South African waters and more importantly does not permit these vessels to fish in SA waters.

As none of the arrested vessels had section 39 licenses issued by the Fisheries Department under the Marine Living Resources Act to enter our EEZ, the vessels committed a serious violation of our law. It is akin to a foreign national crossing a South African terrestrial border illegally through a hole in the proverbial border fences. Such a violation carries a R5 million penalty plus possible forfeiture of the IUU vessel, arrest of the Captain and officers, and forfeiture of all fish on board the vessel.

There are numerous other less serious violations that the vessels may be guilty of under the MLRA and other SA laws.

China - as the flag state - should provide the South African fisheries department with all VMS data for each of the arrested vessels from the time these vessels entered our waters to determine if they were illegally fishing while having entered our waters illegally (i.e. without having been granted permission under section 39 of the MLRA). The VMS data will conclusively establish the intentions of these vessels while in SA waters.

Wednesday, May 18, 2016

What if Lobster is Downgraded to SASSI's Red List?

What if our famed West Coast Rock lobster is downgraded to SASSI's Red List? Or should the question instead read "When..."?

Will that save lobster stocks from complete decimation? What will the socio-economic consequences be? Of course, strictly speaking that is not SASSI's mandate or direct concern. SASSI's colour coding of fish stocks is determined by the biological and ecological health of the fishery concerned. However, given that our lobster stocks have been sitting at between 3% and 2% of pristine for some time now, that SASSI had not red listed lobster a few years ago, confirms that the organisation is indeed mindful of the socio-economic impacts of red-listing such a crucial small-commercial fishery. 

Indeed, if abalone has been on the red list for years now, why has lobster similarly not been classified as red? 

The reality is that while placing lobster on the red list may have little to no consequences for the export-driven offshore commercial fishery, the small-scale fishery (which has much higher levels of mortalities) depends substantially more on local consumers, including fish mongers, restaurateurs, hoteliers and some retailers to buy their frozen whole or tailed products. 

Listing lobster on the red list may not only hurt the legal small-scale nearshore fishery by reducing the pool of responsible local consumers, but will certainly reduce the market value of locally available lobsters. This is in turn will almost certainly increase the illegal trade in lobsters given that small-scale fishers will seek to make up the loss in income through increasing lobster catches. 

The only viable solution to fixing the lobster crisis is to urgently reduce the number of persons who harvest nearshore stocks and re-examine how inshore fishery compliance for high value stocks is undertaken. The number of persons accessing lobster (whether through section 18 rights or via the interim relief process) grew from just more than 800 small-scale fishers back in 2004 (when the lobster TAC was at its highest in South African history) to more than 2500 today, which includes an estimated 1700 interim relief fishers.