The Department of Environmental Affairs is without doubt on a roll but most definitely not in a good way! DEA has now unilaterally decided to de-list abalone from CITES Appendix III. It issued a notification to CITES that South Africa will de-list abalone within a matter of months but it took the decision without consulting the Department of Fisheries, TRAFFIC, the abalone industry or any other stakeholder. It is beyond comprehension as to the arrogance displayed by this department that continues to embarrass this country.
The decision is unlawful on two basic grounds. The first is that the decision fails to comply with the Promotion of Administrative Justice Act of 2000 which requires consultation in such an instance. The second is that in terms of section 231 of the Constitution, DEA could not have taken this decision without Cabinet approval.
But what is particularly concerning is this department's (and its Minister's) complete and utter contempt for the rule of law and co-operative governance. In this latter regard, how could the department and its Minister consciously elect to undermine the Department of Fisheries and its Minister by not even consulting them? It is the Department of Fisheries that is responsible for the management of abalone. It is the Department of Fisheries that will have the necessary research data to determine whether stocks have recovered to such a level to warrant de-listing from CITES Appendix III. On what basis then did DEA make the submission to CITES? What reasons could they have given if they are not responsible for abalone fisheries management?
There can be little doubt that DEA has been motivated by ulterior motives because if its motives were valid and legitimate it would not have acted in this unlawful and capricious manner.
To legally de-list abalone from CITES, the Department of Fisheries would have to have been convinced that based on its research and its abalone recovery strategy (which does not exist) that abalone has recovered from the levels of commercial extinction it was said to have been at in 2007 when the listing was initially requested. It is common cause that abalone has not recovered to justify a de-listing. In addition, the Department of Fisheries would have to have undertaken an extensive public consultation process and would require the support of TRAFFIC, the abalone industry, NGO's such as WWF and SEAWATCH and other stakeholders. Should a decision to de-list be supported, the Department of Fisheries would have to request that DEA prepare a Cabinet memorandum to obtain Cabinet's authorisation to amend CITES Appendix III by removing abalone.
DEA essentially decided to ignore these procedures and gave the middle finger to due process.