Friday, June 1, 2012

Why Fishing Harbours Must be Removed from the Destructive Clutches of DAFF

This statement was issued by the Democratic Alliance, explaining why it is necessary that our fishing harbours be rescued from the dysfunction that defines DAFF currently. 

National government is inadequately equipped to deal with the management of the 12 small fishing harbours in the Western Cape. It should cede this responsibility to local government as per Schedule 4 (B) of the Constitution. Small harbour management currently falls under the jurisdiction of the National Departments of Public Works and Fisheries.

Earlier this year, the DA asked a parliamentary question about whether government has made any progress in restoring sound management to these harbours (given the commissioning of a report in 2007 with very clear recommendations). The reply to our question revealed that, five years on, no progress has been made to restore these dilapidated harbours. 

The report cost the taxpayer R4.8 million. It was commissioned by the Department of Fisheries in 2007, written by Ernst & Young, and released in 2008. 

Government’s reply that ‘an inter-departmental Harbours Steering Committee has been established to implement the findings and recommendations of the Harbour Feasibility Study’ is inadequate. We are still awaiting answers to the following questions in this regard:

Who is on this committee? 
What terms of reference they will be operating under? And;
Why it has taken 4 years to establish?  

Most jarring of all is the department’s assertion that ‘implementation plans with timeframes will be developed for each harbour’. At this rate, given that the department has already had five years to deliver return to taxpayers on their R4.8 million tab, we are not likely to see results soon. It is a typical non-answer. Meanwhile, the commercial opportunities that could otherwise be made available to poor fishing communities are being forgone.

As the attached pictures indicate, Hout Bay Harbour is in a particularly poor state. The report shows that ‘there is inadequate and poor maintenance of infrastructure within harbours’, ‘inadequate security’ and ‘ineffective lease management’. This is rather euphemistic language. It is another way of saying that the harbours are not working and that poachers may come and go as they please. 

Poor harbour management crowds out responsible, job-creating commercial activity and crowds in opportunities for the criminal underworld. Small harbours in the Western Cape are hotbeds for abalone poaching, which is tearing apart the social fabric of poor communities across the province. Government is allowing this decay to flourish under their watch.

Many young unemployed people in poor fishing communities have little choice but to partake in poaching. A diver can be paid up to R600 for one dive. Good governance of small harbours, on the other hand, would create the kind of commercial activity that provides alternative employment.
The Departments of Public Works and Fisheries are bent on leaving a legacy of complacency instead of competence. Ceding the running of these harbours to a more competent jurisdiction would ensure that job-creation will flourish. 

Private Members Bill

In light of the preceding context, the DA has submitted a private member’s bill to parliament. The bill proposes that legislation be written to give effect to Schedule 4 (B) of the Constitution. Harbours are to be conferred upon local government in the following terms: ‘Pontoons, ferries, jetties, piers and harbours, excluding the regulation of international shipping and national shipping and matters relating thereto’. 

There is no legislation currently in existence which regulates the municipal exercise of the Schedule 4 (B) harbour competency. Moreover, legally justified concern exists as to whether the regulations under the Marine Living Resources Act of 1988 that pertain to small harbours are unconstitutional. A 2004 legal opinion in the DA’s possession states that the municipality has the legislative and executive authority over the harbour functions. Therefore, the fact that national government departments are currently performing some of these functions is in conflict with the Constitution because a national performance of the functions exceeds the regulatory competency of section 155 (7). 

Additionally, reading the Constitution together with the Integrated Coastal Management Act of 2008, the powers of local government with respect to harbours, excluding national ports as defined in the National Ports Act, indicate that local government has legislative and executive authority in respect of harbours within its jurisdiction, subject to the Constitution and the Municipal Systems Act. 

To complement the 2004 opinion, a 2012 memorandum of advice confirms that legislation should be introduced by Parliament that will transfer the ownership and management functions of small harbours to a municipal competency. 

The 2012 Memorandum of Advice states that neither the National Ports Act of 2005, nor the Integrated Coastal Management Act No. 24 of 2008, bear on the relevance of the findings contained in the 2004 legal opinion. The memorandum concludes that:
‘it is problematic for regulations under the Marine living Resources Act to regulate matters pertaining to the municipal harbour constitutional competency, and that such regulations could, if challenged, be found to be unconstitutional’.

That no legislation regulating the municipal exercise of the Constitutional Schedule 4B harbour function is sufficient grounds on which to propose the creation of such legislation.

Developmental Benefits of New Legislation

Under the umbrella of Schedule 4 (B) of the Constitution, and in light of the fact that municipalities have the legislative and executive authority over the harbour functions, they have a free hand in exercising their authority and are bound only by the developmental principles of sections 152/153 of the Constitution. They are also bound by the principles of co-operative government and the Bill of Rights.

Every attempt that the City of Cape Town has made to meet with its national counterparts to discuss the management of Kalk Bay and Hout Bay harbours has been ignored by national government. A memorandum of understanding is even in place, ready to be signed by the National Departments of Public Works and Agriculture, Forestry and Fisheries, the Provincial Government of the Western Cape and the City of Cape Town.

The memo recognises the key economic and social assets that harbours constitute within their broader urban environment. It also makes the significant point that isolated planning, development, governance and management of fishing harbours within this broader urban environment is detrimental to economic growth, the realisation of optimal socio-economic potential, governance, law enforcement and social development.

As is recognised by the Constitution and mentioned above, the memo drafted by the City of Cape Town indicates that cooperative planning, governance and management is essential if the full economic and social potential of fishing harbours is to be optimised. 

The memo was created in order to bind all parties to the construction of a Spatial and Economic Development Plan for each of the fishing harbours in the City of Cape Town, and very clearly delineates what the roles and responsibilities of each party would be.


South Africa’s small harbours, particularly those in the Western Cape, are being wasted as public assets. Five years on from the commissioning of a report on the harbours, the Department of Fisheries and Public Works have made no progress. Economic opportunities are being forgone, deepening the reliance in nearby communities on the trade in poached abalone. Unemployed youth are easily caught in the snare of gangsterism because national government is failing them.

Every effort made by the City of Cape Town and the Provincial Government of the Western Cape to rectify the situation falls on deaf ears. 

The DA has therefore submitted a Private Members Bill to propose that legislation be drafted and enacted which gives effect to Schedule 4 (B) of our Constitution as it pertains to which sphere of government has authority over the harbours, namely municipalities.

Free from the clutches of National Public Works and Fisheries, we expect that the harbours will be employed to achieve their optimal socio-economic potential. Their flourishing, as part of a broader spatial economic development framework, will produce healthier social capital in communities that are currently being torn apart by the strife associated with unnecessary poverty.  

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