Thursday, May 30, 2019

A New Minister for Fisheries & A New Departmental Configuration

The announcement on 29 May 2019 by the President of South Africa that South Africa's fisheries department will be amalgamated once again with environmental affairs (as it was pre-2009) is to be welcomed given that the 2009 decision to separate and disintegrate oceans and coastal management from fisheries was widely denounced by experts in the field, including Feike.

Complementing the re-configuration of the department, the President has appointed a new Minister to lead the Department of Fisheries, Environment and Forestry, Ms Barbara Creecy (former MEC responsible for Finance, Gauteng Province). Her appointment must be tentatively welcomed but her her tasks are substantial and immediate as 1000's of jobs are hanging by a thread, particularly in the lobster, abalone and pilchard fisheries given years of instability, maladministration, in-fighting and corruption. The current DDG of the Fisheries Branch, Ms Siphokazi Ndudane, will no doubt be relieved to be rid of the DG of Agriculture and should now be free to start cleaning out the Augean Stables of corruption, and we believe Ms Creecy must support Ms Ndudane as Valli Moosa backed his management team at the time to clean out the rot at the same department in 1999 and 2000.

The urgency with which this clean-out is required cannot be overemphasised. Ms Ndudane herself described the Fisheries Branch as being in "meltdown" earlier this year as corruption, in-fighting and maladministration crippled the branch from even undertaking the most basic of administrative functions.

Only once the Branch returns to a semblance of functionality, and Ms Ndudane has established a strong management team she and the Minister can trust, can serious preparatory work commence on the allocation of the multi-billion rand fishing rights allocation process, dubbed "FRAP 2020". This process in itself requires substantial policy development, process renewal and regulatory review. For one, the entire system of fishing levies requires revision (noting that these have not been revised or updated since September 2010). The 1998 Fisheries Regulations are outdated, impractical and simply not applicable to modern-day fisheries management.

Then, the entire administrative system underpinning fisheries administration is anachronistic and anti-small-scale fishing and fishers resident outside of the Cape Town metropolitan area. Why hard-copy fishing permit applications are still required in this day and age is beyond explicable (not to mention the requirement of all those irrelevant "supporting documents" like company registration documents and catching agreements etc).

We have already expressed our views on the simplicaftion of the fishing rights allocation process for small-scale commercial fishing sectors in (the old) Cluster C and Cluster D management system. These systems need to be developed to support a simpler, more efficient and more applicant-friendly fishing rights application and administration process. The greater the process is removed from the clutches of staff, the greater its integrity and insulation from corruption and manipulation. 

Minister Creecy will have to become personally involved in the nitty-gritty details of these issues with extreme urgency. And to complicate matters, she will have to quickly develop a plan to integrate the many duplicate management positions created when Marine and Coastal Management was artificially split into the "Fisheries Branch" and the "Oceans & Coasts Branch". 

Tuesday, May 28, 2019

The Foreign Fishing Vessel Bogeyman

The Sunday Times on 26 May 2019 correctly highlighted the ongoing frustration by South Africa's commercial fishing industry with confused and contradictory messaging and policy emanating from the South African government. 

The government commands that it wants to "transform" the fishing industry and introduce "new black" right holders to the commercial fisheries but then refuses to allow for foreign vessels and foreign investment into an industry that is overwhelmingly stagnant, incestuous and monopolistic. 

Feike has repeatedly called for the substantive restructuring of the South African fishing industry on this platform and via our Twitter feed. Allocating fishing rights to additional and new entrants may be a start but it is of little benefit if the very government that allocated these new rights strangles the same right holders by forcing them to enter into suffocating and oppressive agreements with the same vessel owners, processing companies and marketers that have always controlled the South African fishing industry. 

The South African tuna long line and horse mackerel fisheries are typical examples of sectors where new entrant right holders see little benefit or opportunity from the 2016 allocation of 15-year fishing rights because the department may have granted them a theoretically valuable 15-year right with one hand but instantaneously destroyed the values of the rights by refusing to allow for strategic and critical structural changes to these industries. 

The horse mackerel fishery in particular requires bold fisheries management leadership and urgent structural change. The use of a dominant single large mid-water trawler cannot be considered economically, biologically or socially sustainable given the objectives of the 2016 fishing rights allocation process. 

New entrants to these fisheries will be able to properly benefit from the allocation of fishing rights to them only if they are allowed to enter into competitive and sustainable joint ventures with the owners of foreign fishing vessels. The current structure of the South African fisheries economy simply does not permit competitive negotiation by smaller right holders in need of access to fishing vessels, processing factories and foreign markets for their fish. 

Monday, May 27, 2019

The Ongoing "Small-Scale" Fishing Rights Confusion

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 manages 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 our tiny hake handline, oyster and mussel 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). 

It is as if we have never heard of the "tragedy of the commons". And yet, the decade-long failed experiment with "interim relief" in the west coast rock lobster fishery should have been more than enough evidence that "collective" allocation of fishing rights is just another failed socialist experiment with a nation's hugely important natural resources. But, South Africa as a country seems to become uncontrollably excited at the thought of adopting and implementing widely proven failed economic and social policies. 

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.  

Friday, May 3, 2019

Small Scale Fishers and Fishing Rights Application Processes

The next 12 months marks a critical period (yet again) for South Africa's small-scale fishers who have to re-apply for their fishing rights. With memories of the catastrophic and damaging 2013 rights allocation process process still fresh in many small-scale fishers' minds, the upcoming allocation process is again being met with trepidation and uncertainty. For example, I have been advised that fishers were apparently told by departmental staff that right holders above a certain age would not qualify for fishing rights. This is despite the fact this unlawful and irrational criterion was abandoned by the Minister during the 2018 west coast rock lobster appeal process.

Three key concerns are the ongoing uncertainty as to how the application process will unfold; what criteria will be used to evaluate applicants; and how will the concept of small-scale co-operatives be accommodated, especially since the two most important small-scale fisheries - lobster and abalone - have been decimated by a decade of mismanagement and illegal fishing. 

This Blog will address possible evaluation criteria in greater detail over the coming weeks and months, especially as they need to be applied to specific fisheries. However, it is important to note that we have repeatedly advised the department and Minister that unlike the 2013 and 2016 processes, evaluation criteria and scoring rules need to be determined specifically for individual fisheries. The generic criteria and rules that have been developed for the past 2 allocation processes are intellectually lazy and highly ineffectual to properly determine who should qualify for 15 year long fishing rights. How do you have the same evaluation criteria for an oyster harvester and for a hake handline fisher for example? 

Possible evaluation criteria for each small-scale fishery sector will be discussed over the coming weeks. 

A significant and recurring concern raised by small-scale fishers remains the apparent complexity of the application forms. Again, a principal problem we have found when attempting to remedy the flaws of the allocation processes in 2013 and 2016 has been the use of inappropriate "generic" application forms for very different fishery sectors. These generic and unnecessarily lengthy forms are more a hindrance than a help. Much of the information requested from small-scale fishers is unnecessary (such as copies of ID's, compliance with employment equity laws, skills development laws, complex salary tables for "employees", contributions of CSI etc). 

Small scale fishers spread across of the country's coastline do not have the resources, time or inclination to complete these application forms. Many are forced to use consultants or fishing companies who then tie them into repressive catching, processing or marketing contracts in lieu of payment for their "services". 

A simple solution instead is for the department to require small-scale fishers to complete an on-line fishery specific application form accessible from any smart phone. And only very necessary data is needed and can be provided in the language of choice (because the form is completed via a smart phone application, the submitted form can be automatically translated into English if necessary). In addition, because the form is submitted electronically, key evaluation and scoring data sets can be generated within hours of the forms being submitted and without the need for expensive and time-consuming human evaluation of individual applications that can take weeks to complete. An allocation of fishing rights in the white mussel, oyster, hake handline and even abalone and line fish sectors could take between 5 and 20 days to complete. 

We dont believe that a small-scale application form should take more than 45 minutes to complete and the principal questions should include the following (for existing right holder applicants):

    • Name, Contact Data and Identity number;
    • Current fishing right number;
    • Fishing area and landing site applied for;
    • The Race & Gender by which the applicant self-identifies;
    • The degree to which the applicant relies on the fishery concerned for his/her total annual income;
    • Fishing performance for the past 3 seasons;
    • Amount of fishing levies paid annually for the past 3 seasons;
    • Nature of access to fishing vessel and vessel details (not relevant for sectors such as white mussels and oysters);
    • Number of people employed and in what positions for the past 3 seasons;
    • The amount of money invested in fishing gear, vessels, electronic equipment, processing or marketing of fish over the duration of the right. 
There is no need for small-scale fishers to submit any supporting documents. Those applicants provisionally identified for fishing rights, can be randomly selected to provide vessel access agreements, tax certificates etc for verification before the final decisions are taken. 

Similarly, for new entrant applicants, only specific targeted questions need to be asked, including requesting an explanation of their understanding of the fishery and requiring a fishing plan which should set out key elements to demonstrate an ability to fish the species concerned. 

Tuesday, April 23, 2019

Fishery Seminar at the Lord Charles Somerset - What's the Point?

On 23 and 24 April 2019, the Fisheries Branch of the Department of Agriculture, Forestry and Fisheries (DAFF) will be holding a 2-day seminar to "stimulate discussions and thoughts on issues [aimed at] broadening participation in the fishing industry in an equitable and fair manner guided by the need to restructure and transform the sector, investments and development finance for small businesses and new entrants, aquaculture and agro-processing (diversification of the fishing sector), seafood trade and regulation."

The stagnation and collapse of significant parts of the South African fishing industry have occurred at a staggering pace over the past 2 years. Not only do we see the the factionalised corruption-fuelled battles at a national macro-level playing out in the Fisheries Branch, but a substantial consequence of this has been the mismanagement and collapse of fisheries like the lobster, abalone and pilchard fisheries. The single most important fishing rights allocation process (FRAP) since 2005 - the 2020 FRAP - looks set to collapse into failure like the 2013/2014 FRAP. 

The current infighting, corruption and maladministration afflicting the DAFF does not present an environment for a successful seminar or an ethically defendable FRAP 2020. The allocation of additional fishing rights to new entrants in the large pelagic, hake inshore trawl and horse mackerel fisheries in 2016 confirmed that allocating additional fishing rights without ensuring a proper and functioning department only supports paper quotas and fronting. The failure to restructure the horse mackerel fishery, for example, as was advised in order to support the allocation of new fishing rights, has created a fishery dominated by single vessel and fishing company that has easily been able to hold an entire fishery hostage. Those new, predominantly black right holders who have elected to try and utilise their paper rights have been offered as little as 96 cents a kilogram for their fish on a "take-it or leave-it" basis, while counterparts in Namibia are currently negotiating with Icelandic, Russian, Chinese, Namibian and Spanish vessel owners at prices between R1,80/kg and R3,20/kg - a consequence of competition. 

The collapse of the pilchard fishery - due principally to climactic reasons - has been on the cards for some time but nothing has been done to mitigate the annual contraction of the TAC to the current point where it is effectively zero. An effective and pro-active department would have opened up a red-eye herring fishery and chub-mackerel fishery and long understood what were the bottlenecks to additional investments in fish-meal processing factories given that the anchovy TAC has increased substantially but we lack the processing capacity for such a TAC.

The SA West coast rock lobster fishery may never recover from a decade of mismanagement and the addition of unsustainable numbers of fishers to the fishery who will continue to legally and illegally fish our stocks to complete collapse. The same applies to abalone. We may as well confirm these two  iconic small-scale West Coast fisheries to doppies and empty shells on our beaches. Why have we done nothing to urgently reduce the illegal trade in these two fishery sectors? We keep talking about the re-establishment of the specialised "green courts" but nothing has materialised after more than 2 years talking (it took us 6 months from conceptualisation to opening the first green court in 2003 and another 3 months for the second court in PE). 

And tuna. We all recall how elated we all were when CCSBT confirmed South Africa's substantial 450 ton CCSBT TAC (up from 40 tons). In 2016, we allocated dozens of additional fishing rights and yet today we continue to not harvest our full Southern Bluefin tuna allocation and most fishing rights remain in envelopes in the draws of right holders. Again, because fishing rights were allocated without the department ensuring that the right policy and regulatory frameworks were in place to support vessels, investments and market access. 

The problem is not "transformation" or a lack of investors or too few right holders. We need DAFF to fix itself, eliminate the in-house and institutionalised corruption and ensure that the few honest and committed staff left are supported to their jobs. 

Friday, November 9, 2018

Dead Fishers and Fishing Rights

During the course of my three month appointment as Chairperson of Minister Zokwana's West Coast rock lobster appeals advisory team charged with advising on the more than 2000 appeals submitted to the Minister for decisions, it became apparent that the Fisheries Management Branch had strangely decided to declare applicants for fishing rights who passed away either just before or after submitting fishing right applications persona non grata and summarily refused their applications. 

Although my advices to the department that follow below were intended for the consumption of my client's staff, it has become evidently clear that a staff member who was a recipient of various such "confidential" advices and documents shared these with her partner who coincidentally is employed by a large South African fishing group. I have seen the evidence of this unlawful conduct on whatsapp chats. Even though these patently unlawful and corrupt communique's have been shared with the department, there has not been any consequences for the corrupt official concerned and I can thus only assume the employer approves of such corrupt and unlawful disseminations of confidential advices to certain corrupt fishing interest groups. Given that these advices are now in the "public" realm and openly for sale to corrupt parties (and thus no longer confidential), it cannot be fair to law-abiding right holders and interested parties to not know that the departmental practice of refusing dead applicants fishing rights is unlawful. This is particularly important given that small-scale commercial applicants will shortly be applying for their fishing rights in sectors such as abalone, line fish, oysters, mussels and hake handline. 

My reasoning follows. 

The decision to refuse applicants fishing rights simply because they had died prior to the submission of their application or after the submission of an application for a fishing right appears to be premised on an incorrect conflation of two separate and distinct decision making processes, which need to be made under separate binding departmental policies. 

Importantly, in terms of our laws of succession (correctly encapsulated under the General Policy of 2013), the rights and interests of the deceased right holder / applicant transfers automatically upon death to his / her executor who represents the “late estate”. Accordingly, any decision on an application for a fishing right by a deceased individual must follow the following 2-stage process - 

1. Step 1 is to enquire whether the applicant (i.e. the deceased person) qualifies for a fishing right under the MLRA and policy and criteria for that specific fishery based on the content of his/her application and history. If yes, the right MUST be granted to the LATE ESTATE represented by the EXECUTOR and the EXECUTOR must then see to transferring the right in terms of the Laws of Succession (i.e. whether to a beneficiary named in a valid will (testamentary succession) or if no will, then the law of intestate succession will apply). 

2. Step 2 will be for the department to then decide a section 21 transfer application filed by the legal beneficiary of that right (whether in terms of testate or intestate succession) and the department must then decide whether the transferee meets the stated criteria of the Transfer Policy and section 21 of the MLRA. 

Accordingly, a deceased applicant cannot automatically be refused a right in terms of section 18 of the MLRA. But neither is the lawful beneficiary of that right automatically entitled to a positive decision to have the fishing right transferred to him/her under section 21 of the MLRA. 

Wednesday, October 17, 2018

SA West Coast Rock Lobster Appeals Process Completed

On 16 October 2018, the SA Minister of Agriculture, Forestry and Fisheries, Senzeni Zokwana, completed the process of deciding 1741 appeals in South Africa's West Coast rock lobster (WCRL) nearshore commercial fishery. By 30 August 2018 - less than 30 days after having been appointed - the Minister issued his decisions on 272 appeals filed by the WCRL offshore fishery appellants. In total, 2013 appeals were considered, evaluated and decided over a period of 60 days. 

The Minister's official decisions and his record setting out the reasons for his decisions on the appeals filed in the WCRL nearshore fishery (ZONE F)  have now been made public on the Department of Agriculture, Forestry and Fisheries' website. 

A total of 739 appeals in Zone F were filed against the initial decisions taken by the Deputy Director-General: Fisheries Management in her capacity as the Delegated Authority on 31 July 2017. 

As is the case with the WCRL Offshore, the nearshore commercial fishery remains a highly competitive fishery sector with substantially more demand for fishing rights than can be sustainably accommodated, particularly in fishing zones adjacent to large population centres. 

The Minister received, considered and determined a total of 739 appeals for fishing rights in the WCRL Nearshore Fishing Zone F.

The Minister decided to allocate a total of 84 additional fishing rights in Zone F. Of these 84 successful appellants, 6 were excluded for failing to disclose an admission of guilt of fine, 14 were refused rights purportedly for being “medically unfit”, 22 were excluded because they were 65 years or older and 42 were initially refused rights on the basis of comparative score balancing.

Each right holder in Zone F will be entitled to a maximum of 0.23% of the WCRL Nearshore TAC determined in any one season for Zone F. 

Should any appellant require further reasons for the Minister’s decision, they may address these requests to requesting reasons under section 5 of the Promotion of Administrative Justice Act, 2000.