On 4 June 2013, the Department of Fisheries provided the Parliamentary Portfolio Committee on Fisheries with an update on its increasingly ad hoc, chaotic and plainly unlawful rights allocation process.
The presentation was led by the department's acting DDG of Fisheries, Mr Desmond Stevens. There were a number of notable highlights during the presentation that simply confirmed that the department's senior managers remain woefully out of touch with reality and ignorant of a concept sometimes referred to in dark corners as the "rule of law".
Firstly, there is the bizarre, sudden and inexplicable shift to now include more than 7300 subsistence fishers in the KZN and Eastern Cape provinces under the banner of small-scale commercial fishers and, according to Stevens, they have been identified as the primary potential beneficiaries of the next long term rights allocation process! Where on earth did that come from? The current (unsustainable) number of small scale fishers is approximately 2200 of which the absolute majority are located in the Western Cape where the majority of inshore resources are found!
The 7300 subsistence fishers principally target economically or/and biologically marginal resources such as the Eastern Cape's abalone (which has essentially been completely wiped out from the inter-tidal zone and thus biologically unsustainable for any small-scale allocation - just ask those divers who were hired to dive recent "experimental" abalone quotas), oysters, the crisis-ridden linefishery and east coast rock lobster (which cannot be sold legally and when they are sold illegally, they earn the harvester about R5 a lobster). In short, none of these fisheries are firstly eligible for allocation under the 2013 draft fishing policy and none of these sectors (other than for the commercial linefishery and oysters) are up for allocation at the end of 2013. Not to mention that neither Eastern Cape abalone nor east coast rock lobster can legally be harvested and sold for commercial purposes. Unless DAFF intends bussing these 7300 subsistence fishers to the Western Cape for the allocation process, granting them fishing rights in Western Cape-based fisheries and then bussing them back to KZN and the Eastern Cape!
So, this sudden decision to now include 7300 subsistence fishers under the present 2013 rights allocation process is not only unlawful but again, another ad hoc thumb suck to please populist rantings.
Stevens also stated (wrongly but what can one expect from someone who is not remotely qualified to head-up fisheries) that South Africa does not allow foreign fishing vessels into SA waters to fish. Some one may want to tell him about the foreign vessels that are allowed into SA waters to harvest our tunas in terms of the Large Pelagic Fishing Policy (and no they are not re-flagged as South African vessels!). Of greater concern, however, was Stevens' statement that when applicants are considered for long term fishing rights under the proposed process, all applicants will be considered as having a "clean slate". Now this is simply wrong and Stevens is contradicted on this score even by the badly drafted 2013 general fisheries policy, which makes it clear that current right holders will be competitively scored and compared with other right holders in the same sector and they certainly will not be evaluated on a "clean slate" basis! If this was the case, then application forms would be not be needed!
Finally, Mr Stevens presented his department's timeline for the allocation of fishing rights and this is where we all need to be extremely worried! This is the proposed timeline which they are sticking to!
▪Comment due date (with extension) 14 June 2013. All comments on the draft policies and the draft MLRA Amendment Bill are due on 14 June 2013.
▪Gazette final general policy and sector-specific policies 28 June 2013. The department intends gazetting the final policies within 14 days after the closure of comments! This is so unrealistic that it is more worrying that the Portfolio Committee did not object to this. The final policies cannot be lawfully gazetted without prior approval by Cabinet and Cabinet can only consider the policies, together with final set of application fees and application forms, which have not even been gazetted for comment yet. The final policies must first be submitted to Cabinet for approval in terms of the Constitution.
▪Appointment of service providers 1 July 2013. But were these service providers not to have been appointed in March 2013 according to the Department's own previous timeline?
▪Application forms simplified 14 June 2013 (translated into four languages). We can only assume that the "simplified" forms will be gazetted on 14 June 2013 for public comment?
▪Agreement on level of application fee if any (CFO & Treasury): possible exemption for small-scale fisheries. Allowing free applications will simply be a recipe for disaster. What stops any tom, dick or harry chancing it if there are no fees to be paid? Suddenly, the department will face not thousands of applications, but tens of thousands of applications. And why must high value fishing quotas be allocated for free?
▪Call for applications 1 July 2013. This is not only practically impossible but legally impossible as not only will Cabinet not have approved the final policies in the next 19 days(!!!) but the entire rights allocation process is premised on the allocation of fishing rights to "communities" and co-operatives which are not permitted under current laws. Essentially, the call for applications can only be made once Cabinet approves the final policies and, furthermore, Cabinet CANNOT approve these policies until such time as the MLRA amendment bill which makes provision for the allocation of fishing rights to communities/co-operatives has been proclaimed as an Amendment Act by the President. Should Cabinet approve the final policies with provision for the allocation of rights to communities or co-operatives, these policies would be plainly unlawful.
▪MLRA Amendments approved 30 September 2013. Perhaps this is a typo and meant to read September 2014! It is inconceivable how an amendment bill (even a substantially revised and reduced bill) could be passed within 90 days! Lets quickly remind ourselves how bills are supposed to be processed, passed and then assented to by the President!
- The current amendment bill out for comment is a substantial and incredibly badly drafted piece of work. If it is substantially reworked and redrafted (for example, if it is substantially reduced in length and amended from its current form) it will have to put out for comment again. Either, way, subsequent to closure of the comment period on 14 June 2013, the draft bill must be submitted to Cabinet, debated in Cabinet and if agreed to by Cabinet, the Minister of Fisheries (assuming the Minister of Environmental Affairs consents) will introduce the draft amendment bill to Parliament.
- Once introduced into Parliament, Parliament's "tagging committee" will consider the bill and determine whether it is a section 76 or section 77 bill. We have previously stated that the current draft amendment bill directly impinges on the constitutional functional areas of the provinces and as such it is a section 76 Bill, which will require separate approval from at least 5 provinces in the National Council of Provinces (NCOP).
- All bills must also be scrutinized and certified by the State Law Adviser.
- Once certified by the State Law Adviser (which could take months and not a couple of weeks), the draft bill must be published by the National Assembly for public comment. Noting that the draft bill in its current form has substantial consequences for fish farmers, subsistence fishers and small-scale fishers, the National Assembly will be duty-bound to undertake a comprehensive consultation process.
- Assuming that the National Assembly concludes the consultation process in 60 days, and assuming no further comments or changes are required to the draft amendment bill, the fisheries (and environmental affairs committees) will then have to proceed with a "line-by-line" debate and acceptance of each of the proposed amendments. Nothing prevents a committee member from requesting additional amendments.
- Assuming again that the draft amendment bill is adopted by the fisheries and environmental affairs portfolio committees, the draft bill MUST then proceed to the NCOP for further debate and adoption. The NCOP can undertake a further consultation process if considered necessary. The NCOP must also adopt the draft amendment bill - either by a simple majority of votes or by a minimum of 5 provinces voting in favour of the draft amendment bill, depending on whether the bill is a "section 75" or "section 76" Bill.
- Even once passed by Parliament, the draft amendment bill must then still be prepared and submitted to the Presidency for proclamation.
It is therefore simply not possible (even if one believes in Peter Pan, Captain Hook and the Easter Bunny) that the draft amendment bill can be passed in 90 days by both houses of Parliament and proclaimed into law by the President. Indeed, it would require the wholesale abandonment of the Constitutional legislative process for the 30 September 2013 deadline to be met.
The fact that the fisheries portfolio committee was happy to swallow and accept this nonsense is perhaps what should really worry us! The Chairperson of the Committee concluded the meeting by saying he was happy with the process as presented by DAFF!
▪Closing date for applications 30 September 2013. Again, this deadline simply confirms an unlawful process. This deadline accepts that an entire rights allocation policy and application process would have concluded even before the proclamation of the requisite MLRA amendment bill allowing fishing rights to be allocated to communities and co-operatives!
▪Verification and assessment proceed 1 October to 30 November 2013. DAFF has budgeted 60 days to receive, process and evaluate perhaps 5,000 - 10,000 applications (if a properly structured application fee regime is in place; maybe 20,000 plus if not) MANUALLY as it has not made provision for the submission and receipt of any applications via electronic means. How is that process going to be undertaken? Did anyone a Portfolio Committee member interrogate this? NO, of course!
So imagine a hundred untrained, semi-literate, fisheries illiterate staff on minimum wage at PC's (not a MAC in sight) having to insert data from thousands of applications ... into an Excel spreadsheet! Not only will this take a few years to complete, but the data-capturing error rate alone would render the process ridiculous (remember the error-ridden performance review process which resulted in the department having to publicly confirm that it could not use any of the data for decision-purposes as it knew the data was entirely flawed). The other simpler option is to employ Stevens' once vaunted "uncompetitive rights allocation" methodology and allocate fishing rights to the "right" applicants.
How is it possible that DAFF could not even run this timetable passed an Administrative Law 101 student first?