Tuesday, August 20, 2019


Subsequent to Minister Zokwana's legally flawed appeal decisions of December 2018 in the hake inshore trawl fishery, two review applications were brought by right holders in the Category A & Category B sectors (Case number 3330/19) ("the Seavuna matter") and one by Letap Fishing CC (Case number 400/2019). 

The Seavuna matter was finally conceded by Minister Barbara Creecy in early August 2019. Given the concession by the Minister in the Seavuna matter, she will undoubtedly have to concede the review application by Letap Fishing CC as well.

The terms of the order in the Seavuna matter are brief and simple and as follows:

1. The Minister's appeal decision of 10 July 2017 for the Hake Inshore Trawl Sector stands and is of full force and effect insofar as it establishes that Category A right-holders will share 70% and Category B and C right-holders will share 30% of the total allowable catch for the Hake Inshore Trawl fishery;

2. The First Respondent's appeal decision of 7 December 2018 is reviewed and set aside in its entirety; and the Category B and C appeals are remitted to the First Respondent for her to reconsider allocating 30% of the total allowable catch in the Hake Inshore Trawl fishery to these new entrants.

3. There is no order as to costs.

The effect of this concession is rather significant for those new entrants who were granted section 18 hake inshore trawl fishing rights in December 2018. It effectively means that they have now lost their fishing rights. They must halt all fishing and their section 13 hake inshore trawl fishing permits are a nullity. Any fishing on these permits post the date of the court order would be unlawful. 

The appeals filed by Category B and Category C appellants must be reconsidered in their entirety and the Minister can only consider an allocation of no more than 30% of the hake inshore trawl TAC to these two category of right holders. 

All Category B and C right holders are entitled to harvest hake inshore trawl and sole quotas as determined post the 10 July 2017 appeals process, pending finalisation of yet another failed attempt at resolving the hake inshore trawl appeals process. 

(It is hoped that the Minister does appoint a legal team capable of providing legally defendable decisions as opposed to continually retaining expensive "legal" counsel that provides such fundamentally flawed legal advice. It is actually unforgivable for senior lawyers to provide such legally flawed advice to Ministers).

Monday, July 22, 2019

South Africa's Large Pelagic Fishery Failure

The Department of Fisheries recently confirmed that despite its various promises over the past 2 years, the large pelagic fishery and particularly our Southern Bluefin tuna (SBT) catches, has confirmed how poor our fisheries management policies are and how they continue to deterring foreign and domestic investment in our fisheries economy. 

The Department has confirmed that 75% of the 2018 SBT has not been caught. A mere 15 of the more than 50 right holders are fishing. What happened to the thousands of jobs we were promised when the Commission for the Conservation of Southern Bluefin Tunas (CCSBT) announced South Africa's additional SBT quota? 

Our ongoing failure to attract the vessels and professional experts to harvest our large pelagic quotas is directly rooted in the fact that foreign vessel owners and investors have identified South Africa as being entirely unattractive and in fact a significant risk to investment. 

We need to urgently review how we manage this fishery; what measures are considered completely untenable to investors and South African right holders; we need to urgently halt the aggressive and confrontational fisheries compliance approach that has come to define the relationship between fishery control officers and vessel officers and crew. 

We need to realise that we need investors in this and other fisheries more than they need us. 

Wednesday, July 17, 2019

Can the Fisheries Minister Postpone FRAP 2020?

As is unfortunately the norm in the South African fishing industry, the ongoing reluctance by government to issue clear and regular statements on key policy matters only allows for confusion, rumour-mongering and conspiracy theories to occupy conversations. 

The failure by the Fisheries Minister to issue a definitive statement about her intentions with regard to the 2020 fishing rights allocation process is one such example. During her first address to "stakeholders" in fishing industry, she stated that she would postpone the 2020 fishing rights allocation process (FRAP). Then during her budget speech, she stated that she is reviewing the 2020 FRAP. 

Can the Minister postpone the allocation of fishing rights in terms of the Marine Living Resources Act, 1998?  

The short answer is a definitive NO

The Minister cannot simply decide to postpone a fishing rights allocation process beyond the date on which fishing rights expire (majority on 31 Dec 2020) because the MLRA does not authorise her to simply "extend" or roll-over fishing rights. 
Should fishing rights not be timeously reallocated, then rights will expire and fishing will have to stop, resulting in job losses, a halting of exports, availability of fish for domestic sale, etc. Section 81 of the MLRA does not authorise the granting of "exemptions" for this purpose. 
In 2000, Minister MV Moosa petitioned Parliament to amend the MLRA to allow a single roll-over at the time to enable the department to prepare adequately for the 2001 medium term rights allocation process. That resulted in an amendment to the MLRA & promulgation of S18(6)(A). 

Section 18(6) states that all rights granted shall be valid for the period determined by the Minister, whereafter it shall automatically terminate and revert back to the State to be reallocated in terms of the provisions of the MLRA. 
Accordingly, it's not within the authority of the Minister to extend the validity period of fishing rights already granted as such an "extension" would be ultra vires & a violation of the doctrine of separation of powers. Only Parliament can extend the validity periods by passing a further amendment to section 18(6) of the MLRA. 

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.