Monday, November 23, 2020

What is Going to Happen on 1 January 2021 With Fishing "Rights"?

With less than 30 fishing days left before the end of 2020 and the official termination of more than 1000 commercial and small-scale commercial fishing rights, the Department of Fisheries and its Minister continue to remain silent on what will happen come 1 January 2021. The last time the Minister mentioned "fishing rights" was back on 23 July 2020 when she promised that the small-scale commercial fishing allocations in the Western Cape will be completed before the end of 2020. That is another failed undertaking.

Of course, for most of the fisheries, such as tuna, hake trawl, small Pelagics and hake long line, we fully expect the unlawful issuance of "exemptions" which will authorise incumbent right holders to continue fishing despite the termination of section 18 fishing rights. These erstwhile right holders will nonetheless have to apply for section 13 fishing permits and other permits, such as export permits, to continue operating during 2021. 

Of concern however, is what is to become of the 225 traditional line fishers, 150 abalone divers and 50% of hake handline fishers and 25% of squid businesses who stand to lose their authorisations to fish in a month's time because of the Minister's threat to allocate 50% of the effort in all three of these fisheries (and 25% in squid) to "small-scale" co-operatives? 

And which 50%/25% (as in the case of squid) of existing operators will lose their ability to fish in 2021? How is the Minister going to select the "lucky" abalone divers, traditional line fishers, hake handliners and squid fishers? 

Given that the Minister has yet to even understand what is required from the infamous socio-economic impact analyses, she will not know that the average abalone diver supports 3 support crew. The average traditional line fisher employs 10 crew and the average hake handliner, 5 crew. The average squid operation employs approximately 20 crew and support staff. This means that no less than 4000 crewmen will lose their jobs this "festive season". 

AND NO, NONE OF THESE LOST JOBS WILL BE REPLACED BY SMALL-SCALE CO-OPS as none of the existing co-ops in the Northern Cape or Eastern Cape have created a single job or fished a single kilogram of their own quotas. Every right has been hawked to a large fishing company in the case of the Northern Cape lobster co-ops. In the Eastern Cape, the rights are worthless and have not generated a Rand in income as far as we have been able to determine.  

We fully anticipate the squid, abalone and traditional line fisheries to interdict the Minister and halt any attempt at arbitrarily denying current right holders their fishing rights next season. 

The small-scale fishing sector led by the South African United Fishers Front (SAUFF) is also disputing the legality of the Minister's proposals. 

We need to be clear. The Minister's quota split proposal is unlawful and will not stand. To arbitrarily threaten more than 4000 crewmen their jobs given the current hostile social and economic environment in which this country finds itself (thanks to the shocking policies of the ANC) is criminal. To suggest that collapsed fisheries such as abalone and the traditional line fishery, which is a fishery governed under section 16 of the MLRA, can accommodate another 10,000 fishers through the co-operative model is a direct attack on the economic, ecological and biological sustainability principles recorded in section 2 of the MLRA. 

Tuesday, November 10, 2020

A Revised FRAP 2021 Timetable: Simply Impractical and Unachievable

On 10 November 2020, a month after the minister failed to honour her undertaking of gazetting the draft fishing sector policies for "FRAP 2021", a new set of timelines were presented to Parliament. 

In short, the new timelines are 6months delayed BUT confirms that all fishing rights and appeals will be completed before 31 December 2021. In other words, the revised timeline is even more ridiculous than the previous one.  

Here is the convoluted thinking of the revised timeline:

  • Appointment of FRAP Service Providers: Nov 2020 – Jan 2021 (A key problem with the types of service providers who services have been identified is that there is no business analyst or process experts to be appointed. In addition, the advertisement does not seek to appoint any IT specialists which means the FRAP will certainly be an ancient hard copy application process).
  • Finalise Small-scale resource splits and Commencement of Allocation of Fishing Rights: Nov 2020 (This is entirely unlikely as the traditional line fish, squid and abalone sectors have confirmed that they would oppose any splitting of the resource given that any allocation of small-scale rights to co-operatives in the squid and abalone sectors would be entirely unlawful).
  • Review and Finalisation of current Fishing Policies: Jan-July 2021 (The glaring anomaly is the sudden removal of any mention about compliance with the SEIAS that are required FOR EACH OF THE 12 FISHING SECTORS. 6 months to review, draft, consult on and finalise 12 individual fishery sector policies, application forms, fees and allocation processes is simply not practically possible given that the department has not achieved less over the past 18 months).
  • Invitation for Commercial Fishing Rights: June/July 2021 (See previous bullet. If the ambitious policy review and finalisation process is set to be completed in July, the simultaneous commencement of the application process is simply impossible. More so, given the next bullet point!)
  • Adjudication of Applications and Allocation of Fishing Rights: July – Nov 2021 (Does this mean applicants will be given mere days or hours to complete application forms before they are submitted and simultaneously evaluated AND decided! The Minister is committing to evaluate and decide 1000s of applications across 12 fishing sectors in less than 5 months when she has failed to decide 70 appeals in hake inshore trawl in 18 months and failed to allocate 300 abalone rights since 2013. Ok). 
  • Appeals Process: Oct - Dec 2021 (Legally impossible given that rights allocation processes (and no mention of the quantum allocation process consultation and finalisation will still be ongoing and that a minimum 30 day period must pass between each applicant receiving its decisions and the submission of appeals. This is then followed buy the preparation of mandatory appeal reports on each appeal before these are forwarded to the Minister for consideration. Again 90 days to DECIDE appeals is legally and practically impossible. A extremely efficient appeals process that complies with all legal requirements would take between 4 and 6 months to complete). 

This timetable has been produced by people who simply do not understand fisheries, administrative law obligations and practical considerations pertaining to a fishing rights allocation process. Compliance with the public consultation and administrative law requirements of the Promotion of Administrative Justice Act alone renders this timetable unattainable. 

This FRAP timetable is dead in the water... Again. 


Sunday, October 25, 2020

The Ongoing Stupidity of Robbing Peter to Pay Paul

In May 2019, the previous Minister of Fisheries proposed allocating 50% of rights in the abalone and line fish sectors and 25% of squid rights to the small scale fishing sector. That proposal - we thought - died a natural death, as it should have. 

In May 2019, we wrote an article explaining why allocating any rights to small-scale fishers in the squid fishery would be impractical, unaffordable, unlawful and only create a class of community fronts who would have to beg commercial vessel owners with the crew to actually fish the rights. 

Squid is certainly not small-scale fishery as we explain below in red font. 

The full article is available here. The current Minister, Barbara Creecy, has now rekindled this daft proposal (GG Notice No. 1129 of 23 October 2020) by proposing to allocate 50% of rights and effort in the traditional linefishery and abalone sectors, and 25% of effort in the squid sector, to the "small-scale" fishing sector.

The following extracts of that article remain applicable. 

"On 13 May 2019, the [erstwhile] Minister of Fisheries, Senzeni Zokwana, published a notice in the government gazette calling for comments on the proposed splitting of effort allocation levels between "commercial fishing" and "small-scale" fishing in the traditional line fish and squid fishing sectors and the intention to declare the oyster, white mussels and hake handline as small-scale fishing sectors. 

We have repeatedly pointed out for probably a decade now that these fisheries (except squid) have always been small-scale in nature with fishing rights historically only ever allocated to individual fishers who depend on them for their livelihoods. In fact, the most substantial deviation from allocating small-scale fishing rights exclusively to small-scale fishers came in 2013 when that woefully unlawful and corrupt fishing allocation process opened up small-scale fishing rights to large companies. The careful fishery cluster system designed in 2004 to protect small-scale fishers from having their rights exploited by fishing companies was decimated in 2013 and that is why we currently have a number of hake handline fishing rights for example allocated to a large fishing group and its subsidiary company.  

The first point therefore is that the hake handline, oyster, white mussel and traditional line fish sectors ARE small-scale commercial fishing sectors and have always been small-scale. Success by right holders in these fishery sectors have one thing in common - the successful fishers run their own fishing operations and personally manage their crew. These fishery sectors are "the real deal" fisheries where income is earned from hard-work by the right holder himself. There can be no paper quotas or selling of rights to the highest bidder as we see in lobster or other high value fishing sectors. 

To believe that [these] sectors can in any way support the dozens of large community-based co-operatives that have sprung up along the coast is exemplary socialist thinking. What we will achieve is an equal spread of poverty.  

To insist on allocating small-scale fishing rights exclusively to co-operatives is misguided and impractical. And every fisherman knows this. For example, when I was advising the Minister of Fisheries on the West Coast rock lobster appeals in late 2018, we had a number of instances where an appellant could elect to either have an individually allocated lobster fishing right or participate in a community co-operative. Not a single appellant opted for participation in the "community co-operative" system and for obvious reason. For one, these community co-operatives are just another vehicle for patronage and corruption (As we have seen with similar entities over the past). Second, the same amount of fish that was available to a few individuals who made a living off the individual small-scale right, must now be shared amongst dozens, if not hundreds more, people. Third, there is simply no accountability with the co-operative structures (Again as past experience and failure have shown). 

Finally, turning to squid and the proposal to allocate 25% of the effort in that fishery to small-scale co-operatives. Our view is that any attempt to do so would be unlawful as the Marine Living Resources Act defines "small-scale fishing" (in a very convoluted way) to mean fishing undertaken by a "small-scale fisher" who is a member of "small-scale fishing community" that - 

  • traditionally operates in near-shore fishing grounds; 

  • predominantly employs traditional low technology or passive fishing gear (which squid does not - it employs expensive vessels with efficient jigs and expensive freezing and on-board processing capabilities); 

  •  undertake single day fishing trips (the average squid fishing trip is between 2 and 3 weeks and cant be a single-day trips); and 

  • is engaged in consumption, barter or sale of fish or otherwise involved in commercial activity, all within the small-scale fisheries sector. (South African squid is block-frozen and exported and hence none of the consumption, barter or sale of squid occurs in the small-scale fisheries sector).

Squid therefore cannot be considered a small-scale fishing sector and any attempt to allocate small-scale squid fishing rights would be unlawful. " 

Accordingly, any attempt to allocate squid rights to the small-scale fishing sector would be unlawful.

The proposal to allocate 50% of the effort to small-scale fishing (ie co-operatives) in the traditional line fish and abalone fisheries would be unlawful for, inter alia, the following reasons.

  • The proposal to split the resource effort essentially will rob peter to pay paul. There has not been any prior socio-economic impact assessment or any understanding of the impacts of such a proposal. It is an arbitrary and irrational thumb-suck;
  • The decision to add 1000s of people as dependents in these two fisheries would fall foul of a number of the Section 2 MLRA objectives, particularly those pertaining to responsible and sustainable fisheries management. Both the abalone and line fisheries are in a state of environmental emergency. Line fish has been in this state of official emergency since 29 December 2000; 
  • The complete and unequivocal failure of fishing co-operatives to date should be reason alone to stop the perpetuation of failure at such great social, economic and biological cost. How many of the Eastern Cape co-operatives that were allocated squid earlier this year are fishing their hake, abalone and squid rights? None;
  • To further split the woefully inadequate abalone TAC of 50 tons between amongst individual divers and co-operatives will not only further accelerate poaching but it will lead to even greater socio-economic declines in communities. The average abalone diver today catches his entire season's quota in less than a single day! To essentially cut this in half will not only halve income but will make legal diving for the quota simply uneconomical, which will create a vacuum to be filled by poachers. 
The Minister's statement that the proposal will further transformation is false. 90% of all abalone fishing rights are held by historical divers who also happen to be black. More than 58% of line fish rights are held by black fishers. More than 95% of all crew on line fish boats are black. Crew on line fish boats earn 50% of the gross total value of every landing. 

The claim that adding more right holders to these two fisheries would further transformation is patently false. Adding any additional right holders would increase poverty, disempower every current right holder even further and increase unemployment and intra-community conflict. 

Members of the squid, abalone and line fish sectors have 30 days until 24 October 2020 to submit formal comment on these proposals. 

If the Minister insists on implementing these, there is little doubt that they will be challenged. There is little doubt that a decision to allocate these splits is arbitrary, unscientific and therefore unlawful. 

Wednesday, October 21, 2020

Are You a New Entrant Seeking Access to the Fishing Industry?

New entrant investors seeking to access the South African fishing industry via the next round of fishing rights allocations scheduled for 2021 (or possibly even 2022), should not wait until the finalisation of the scoring evaluation criteria before structuring their businesses to comply with these criteria. 

Having advised on fishing rights allocations before, the contrived "restructuring" of businesses once the scoring and weighting criteria are published or shortly after the final invitations to apply for rights are gazetted, are clear indications of application fronts. This applies particularly to the ownership and management profiles of companies. 

It is well known that companies are being fraudulently set up with black female domestic workers and gardeners to front for their masters. This is the consequence of black economic empowerment laws. These laws have unquestionably harmed more than they could conceivably have helped. 

New entrants (And even existing right holders) need to ensure that their businesses align substantively with the six key scoring criteria that we know will be used to score applicants. 

Our advice is that given the delay in the FRAP, new entrant applicants and existing right holders should use the next 6-8 months to substantively restructure their businesses so that they broadly comply with these six scoring criteria well before the commencement of any future FRAP. 

Saturday, October 10, 2020

The 2016 FRAP For Horse Mackerel Implodes & the Consequences for New Entrants

Toward the end of 2019, the Minister of Environment, Forestry and Fisheries conceded a review application brought by Seavuna Fishing Company (Pty) Ltd & Others in the hake inshore trawl fishery. The consequence was that rights granted to new entrants by the Minister at the time were set aside and the minister was instructed to reconsider the appeals filed. More than 12 months later, the Minister has failed to fix this. The appeals remain outstanding more than 4 years after rights were first allocated. New entrant right holders in this fishery remain in limbo as their quota proportions remain unconfirmed. This prevents investment, long-term business planning and of course any possible job creation. 

And now we face the prospect of an even more significant High Court decision which will set aside in its entirety the allocation of 30 new entrant rights in the horse mackerel fishery. This High Court application was brought by Blue Continent Products (Pty) Ltd, Sea Harvest Corporation (Pty) Ltd and Irvin & Johnson Ltd in 2019. 

The Minister failed to file a notice of opposition in the matter. Consequently, there has not been any answering affidavit from her either. Unfortunately, more than a dozen new entrant right holders, desperate to protect their newly allocated 15 year rights, were provided with poor legal advice and entered opposition notices which exposed them to a costs order and to opposing a matter they could never effectively oppose. We have advised a few of these new entrant respondents to withdraw their opposition notices and await the court's decision. 

The applicants in this matter - Blue Continent Products (Pty) Ltd, Sea Harvest Corporation (Pty) Ltd and Irvin & Johnson Ltd - will now make application to a judge in chambers this coming week to compel the respondents (including the Minister to file an affidavit within 5 days), failing which the applicants will obtain an order which will -

  • set aside the decision to allocate commercial horse mackerel fishing rights to the 30 new entrant companies; 
  • set aside the quantum allocation methodology which allocated some 60% of the TAC to these new entrants; and
  • compel the Minister to decide the appeals afresh within 7 months of the order. 

What the decisions in the hake inshore trawl and horse mackerel sectors show is how destructive government conduct is toward to "empowerment", economic stability and growth. There were 30 new entrants granted rights in the horse mackerel fishery which has been singularly dominated by the Oceana Group and its super trawler, the MFV Desert Diamond. The 2016 allocation provided an opportunity for government to sustainably introduce a cohort of new entrants who would establish themselves as operators of smaller trawler vessels that would target horse mackerel for on-land processing and increase domestic consumption (as opposed to block freezing and exporting the entire catch). 

But due to ANC factionalism and utter incompetence, the entire horse mackerel allocation of 2016 is now rendered moot (in so far as new entrants are concerned). So let's not tolerate vacuous statements from this incompetent cadre-infiltrated government about "empowerment" and "transformation". The ANC is the greatest threat to any substantive transformative effort in SA fisheries history. 

These adverse court decisions against the Minister now substantially limit her ability to introduce new entrants to the hake deep-sea trawl, South Coast rock lobster, small pelagic and other commercial fishing sectors when these rights are re-allocated (if indeed they ever are). 

Thursday, October 8, 2020

Is a FRAP Failure Avoidable? Here's a 5-Step Allocation Process Fix

On 8 October 2020, the Department of Environment, Forestry and Fisheries invited all and sundry to participate in a Socio-Economic Impact Assessment Study (SEIAS) Virtual Workshop hosted by a department within the presidency charged with overseeing this policy requirement. 

In short, 4 days before the Minister's promised gazetting of draft fishing policies for the next Fishing Rights Allocation Process (FRAP), the department was trying to understand how it should lay the foundations for a 12 storey building whose first floor must be cast on 12 October 2020! 

To say that the minister lied about her department's state of preparedness in response to parliamentary questions on this subject matter to the Official Opposition is now patently obvious. 

In 12 months' time fishing rights in 12 fishing sectors would have to have been allocated for some time. The appeals processes ought to be in full swing. The South Coast Rock Lobster fishing rights and appeals processes would have had to have been completed more than 30 days ago as their season starts on 1 October every year. 

It is inconceivable that a department that has failed to allocate a mere 300 abalone rights since 2016 can remotely achieve their own deadlines. The fishing rights allocation processes for horse mackerel and hake inshore trawl remain outstanding more than 4 years after rights were first allocated! 

You have to be extremely naive to believe that the lot in charge of fisheries (including the Minister) can remotely meet any deadline - never mind allocate a single right legally and legitimately. At the very best we are likely to see a repeat of the catastrophically corrupt and unlawful FRAP 2013. The same incompetent cadres that were in charge of that process remain in place now! The key difference is that the current FRAP allows them to extort millions in bribes from compliant fishing companies in the mega value hake trawl, small pelagic, South Coast rock lobster and hake long line fisheries. 

The question that has been put to me over the past few days by dozens of right holders is whether FRAP failure is avoidable. Unfortunately, my short answer is NO. At least not if the current crop officials remain in charge of driving these processes and that includes an invisible and knowledge-deficient minister. These processes are not driven and insulated from maladministration by civil servants. The successful 2001 and 2005 processes were led by Minister Valli Moosa (and to an extent Minister van Schalkwyk). 

Given the huge social and economic risks to the Western Cape (more so considering the massive social and economic losses incurred to the province's tourism sector because of COVID-19) and to the fishing industry that is largely based in this province, organised fishing industry led by FISH-SA, SADSTIA, SASMIA, SAPFIA, SCRLIA et al need to urgently stand up and be counted. The Western Cape government led by Premier Alan Winde will certainly support the Western Cape based fishing industries protect their employees', shareholders' and investment interests in this province. 

So, how can FRAP failure be avoided? The current minister and her senior executive team at Fisheries MUST STEP ASIDE and let the professionals step in and fix their mess ... again. 

Step 1: Undertake 12 urgent SEIAS for every sector to understand the socio-economic and biological impacts of current policies. These SEIAS could be issued for input by 15 October 2020 with responses due by 11 December 2020. This has to be done BEFORE new draft policies can even be contemplated. In July 2018, and on the request of Minister Zokwana, I prepared 12 separate SEIAS questionnaires (at no fee). Here is the complete SEIAS for hake deep sea trawl. This questionnaire (And 11 others) should have been issued to each industry sector body and every right holder by the end of July 2018, which would have ensured that by October 2018, draft fishing policies could have been gazetted for comment in preparation for FRAP 2020. 

HDST Fishery Socio-Economic Impact Analysis

July 2018


The purpose of this questionnaire is to understand the socio-economic and biological impacts of having allocated long-term fishing rights in this fishery in 2005 and to develop appropriate and adequate policy criteria and objectives for the allocation of fishing rights for the next 15 years.

In 2005, specific sector objectives were set for the allocation of fishing rights in the hake deep-sea trawl fishery. This socio-economic analysis seeks to understand –

The extent to which these policy objectives were met; and

To the extent that they were not met, what policy and criteria are needed to achieve these objectives (if they remain applicable) and to set new policy objectives for the next period of fishing rights; and

What socio-economic impact the allocation of fishing rights has had on right holders, their employees and the communities in which they operate; and

What positive socio-economic impacts future fishing right allocations and policy could have.


This questionnaire is primarily aimed at current right holders in this fishery and also recognised industrial bodies and interest groups operating in the fishery. 

The questionnaire must be completed by individual right holders and returned to the department. Interest groups and recognized industrial bodies are welcome to submit responses that may be relevant to specific questions. This questionnaire must be returned to the Department via email (________________________), alternatively delivered to the Customer Services Centre located at Ground Floor, Foretrust Building, Martin Hammerschlag Way, Foreshore, Cape Town by not later than 15h00 on ______ August 2018.  All data provided herein is treated confidentially and will not be published or used in a manner that would prejudice individual right holders’ commercial, financial, proprietary and trade secrets or personal data.


In 2005, the following policy objectives were determined for this fishery:

Notably improve the transformation profile of the hake deep-sea trawl fishery by increasing black ownership of the TAC and to redistribute the TAC so as to affirm right holders with smaller allocations in this fishery that are transformed and have performed well; 

Create an environment that attracts investment and stimulates job creation; and 

Support the economic viability and environmental sustainability of the fishery.


1. In your opinion has black economic empowerment in this fishery increased or decreased since 2005? Please substantiate your response. 

2. As a right holder, -

2.1 What percentage of shares / members’ interest is owned by black persons?

2.2 What percentage of shares / members’ interest is owned by women?

2.3 What percentage of shares / members’ interest is owned by persons with disabilities? 

2.4 What percentage of shares / members’ interest is owned by employees and/or community based organisations? Please specify. 

2.5 What percentage of shares / members’ interest is owned by persons under the age 36? 

2.6 What percentage of your board of directors are – 



Physically disabled?

Under the age of 36? 

2.7 How many permanent and seasonal employees did you employ in 2017 and during the current 2018 fishing season? Please provide separate numbers for permanent and seasonal employees. 

Permanent Employees Seasonal Employees

2017:                         2017:

2018:                         2018:

2.8 What is the average monthly salary / wage paid for permanent employees during the 2017 and current fishing seasons?

Permanent Employees: Average Monthly Wage/Salary

2017: ZAR

2018: ZAR

2.9 What are the employment-related benefits provided to permanent employees during the 2017 and current fishing seasons?

Permanent Employees: Benefits Provided



2.10 What is the average monthly salary / wage paid to seasonal employees during the 2017 and current fishing seasons?

Seasonal Employees: Average Monthly Wage/Salary

2017: ZAR

2018: ZAR

2.11 What percentage of your turnover was spent on CSI in 2017 and is intended to be spent in 2018? 

2.12 Are you presently a designated employer under the Employment Equity Act? 

2.13 Have you invested in any enterprise development and investment initiatives since 2005? Please provide as much detail as possible regarding any of these initiatives. 

2.14 Have you supported the development of smaller quota holders in this fishery or other less capital-intensive fisheries? If you have please provide details of the support provided. 

2.15 In your view, to what extent can members of local communities in which you operate be better integrated in fishing-related processes, including catching, processing, marketing of fish or in fishery related support service industries such as gear manufacture, vessel maintenance, transportation of fish etc? 


3. As a right holder in this fishery what investments have you undertaken over the past 10 years in – 

Vessels and gear?

Processing facility upgrades or technologies?

Markets and product diversification and change? 

Greener technologies and sustainable fishing systems? 

Reducing by-catches and unsustainable fishing practices? 

Investment Category Brief Description of Investment ZAR Value

Vessels & Gear                                                                 ZAR

Processing Facility & Technologies                         ZAR

Markets                                                                         ZAR

Green Technologies                                                 ZAR

By-Catch Reduction & Sustainability                         ZAR

4. What is the current hull age of the vessel(s) you use?

5. What are your legal interests in the vessel(s) you use in this fishery? Do you – 

5.1 Own equity in the vessel / vessel owning company? If so, please specify number of shares / parts and ZAR value. 

5.2 Have a catching / charter agreement? 

6. To what extent are you directly involved in –

6.1 Determining the catching / harvesting strategy of your quota, including 


6.2 Determining the processing and marketing strategies related to your seafood?

7. How much income (before tax) did you generate from your HDST fishing right generally in 2017  and specifically from –

7.1 Hake

7.2 Monk

7.3 Kingklip

7.4 Ribbonfish

7.5 Snoek, 

        during the 2017 HDST fishing season? 

8. Do you operate your HDST fishing right in an economic consortium or formal operating joint venture with other right holders? If, so how many participants are there in this consortium / JV and what is its current total operating HDST quota (2018 season)?


9. Where was your fish primarily landed in 2017? If it was landed at more than one harbour, please specify estimated proportions of landing at each harbour? Do you anticipate that this will remain the similar in 2018?

10. Where was your fish primarily processed? If it was processed at more than one facility, please specify estimated proportions processed at each facility? Do you anticipate that this will remain the similar in 2018?

11. Please specify the principal market destinations of your product in 2017, including type of seafood exported and export value.

Seafood Product Type Market Destination & Percentage     ZAR Value



12. In your view, which are the principal criteria that should be used during the 2020 allocation process to determine – 

12.1 which current right holders should be granted long term fishing rights in this sector?

12.2 which current right holders should be excluded from future fishing rights in this sector?

12.3 whether new entrants should be permitted into the fishery?

12.4 how the HDST TAC should be allocated amongst qualifying right holders?

13. In your view, should there be a minimum quota / percentage allocation in this fishery? What would that be and why would that be reasonable? 

14. Would you support a paperless, electronic only application submission and fishing right allocation process for this fishery in 2020?

 15. The ex-post facto verification of data by applicants has proved tedious and costly,         would you support independent audited verification of applicant data prior to application submission for the 2020 process?

(ALSO PART OF STEP 1: Appoint the necessary business, data and IT experts to develop the IT platforms to ensure that FRAP 2021 can be managed and decided entirely electronically without the need of a single hard copy application to be received, protected, stored or managed. The department's current IT systems are woefully inadequate and cannot be trusted).

Step 2: Based on the above analytical data, prepare draft fishery sector policies, inclusive of objectives and allocation criteria, rights application process and application forms. Publish these drafts for a 60-day notice and comment period.  Draft policies could be published by 15 January 2021 with comment due by 15 March 2021. In order to meet these analytical and drafting deadlines, each sector should be chaired by fishery specialists aided by three roving constitutional and administrative law experts that oversee policy development, coherence, legality and policy alignment. 

Step 3: Finalise each draft policy, rights process and application form after further consultation with specific industry sector bodies and issue the final invitations to apply for rights across each of the 12 fishery sectors by the middle of May 2021. 

Step 4: Make provision for the return of applications on a staggered return date basis between 1 July 2021 and 30 August 2021 and ensure a completely electronic submission process. For small-scale fisheries like mussels, oysters, hake handline, abalone & line fish the electronic submission process is explained here. Because the application data is submitted electronically, evaluation of small-scale fishing applications could be scored, weighted and ranked within 24 hours of submission, requiring individual decision-makers to scrutinise data integrity and ensure validity of results before publishing decisions within 5 days of submission of applications. 

Step 5: Allocate the last of the fishing rights by not later 31 November 2021 with appeals set for completion by not later than the end February 2022. 

FRAP 2021 could realistically happen but it requires the current Minister and her ANC cadres to acknowledge their failures and limitations and do what is in the best interests of South Africa and its fishing industry. This is why FRAP 2021 will not happen or if does miraculously happen, it will epitomise failure. 

Thursday, October 1, 2020

The Legitimacy of a Fishing Rights "Extension"

On 20 June 2020, Minister Creecy issued a government gazette which purported to confirm that the duration of period of an undefined category of fishing rights was extended to 31 December 2021. The gazette in question stated that - 

"Cabinet supported the decision to extend the timeframes for dealing with the fishing rights allocation process in commercial fishing sectors, which will expire on 31 December 2020. The timelines were accordingly extended to 31 December 2021."

We have repeatedly set out the bases on which we believe that any attempt by the minister or Cabinet to "extend" the validity period of fishing rights is ultra vires and thus unlawful. See, for example, our opinion piece on this subject matter here and here. The wording of the above-mentioned gazette does not explicitly confirm any authorisation by Cabinet that the fishing right termination dates for fisheries (30 September 2020 for South Coast Rock Lobster and 31 December 2020 for the remaining 11 sectors) has in any way been extended. The Cabinet authorisation speciifcally speaks to the extension of "timeframes for the dealing with the fishing rights allocation process". Extending the timelines for the fishing rights allocation process and actually extending the validity periods for fishing rights are two entirely separate matters and it would appear that Cabinet authority was obtained for the former and not the latter. Cabinet is of course fully entitled authorise the amendment of timelines for the granting of fishing rights. The Minister must then proceed to prepare the necessary draft amendment bill for presentation to Parliament seeking an amendment akin to section 18(6)A. 

Further, the Minister has not expressed how she intends exercising this unlawful and non-existent authority to "extend" the validity periods of fishing rights outside of an amendment to section 18(6)A of the MLRA. 

One can only assume that the Minister has been advised that she can use the power under section 81 to issue exemptions to more than 1000 current commercial and small-scale fishing right holders. This will (she must have been advised) then simply allow all these current right holders to continue fishing operations despite their section 18 fishing rights having terminated and reverted back to the state. 

We do not believe that the provisions of section 81 can be used in such a manner, which effectively seeks to undermine the provisions of Section 2 and Section 18 of the MLRA. The abusive use of section 81 to avoid allocating fishing rights is evident in the mismanagement of the abalone and lobster resources. Section 81 exemptions have been allocated to arbitrary and secretive lists of "interim relief" lobster quota holders since 2008 - an abuse of section 81 spanning 13 years now and which has effectively become the second longest unofficial "rights allocation" regime in SA fishing history. 

However, even if Section 81 can be utilised in such a manner and used to authorise commercial fishing in the 11** affected fisheries beyond 31 December 2020, the Minister has to formally issue a gazette granting the exemptions and the justifications for doing so. In our view, the Minister would have to issue a gazette proposing the granting of exemptions and explaining her rationale and reasons for doing so. The Minister would have to subject these proposals to public scrutiny and comment in terms of the provisions of the Promotion of Administrative Justice Act. Her final decision would be subject to judicial scrutiny and review. 

**On 30 September 2020, the 15yr long fishing rights in the South Coast Rock Lobster fishery terminated and reverted to the state in terms of section 18 of the MLRA. Accordingly, as of 1 October 2020 (today) no entity may operate a commercial SCRL fishing operation.