On 17 July 2013 at 18h00 the department of fisheries issued an email confirming that the final general fisheries policy for 2013 and 8 sector specific fishing policies had been gazetted.
We have previously stated that the gazetting of these policies within the timetable provided by the fisheries department was not legally practical. We reiterate this view.
The gazetting of the "final policies" is grossly unlawful for the following reasons.
The gazette is illegal and a violation of section 85(2)(b) of the Constitution. Only Cabinet can consider and approve such policy. I am not aware that Cabinet considered and approved these policies. The last Cabinet meeting was on 26 June and these policies were not considered or approved by it according to the Cabinet minutes.
Further, the policies make provision for the allocation of fishing rights to "co-operatives". Section 18 of the MLRA as at today's date does not allow for this, hence this policy provision is illegal and ultra vires the authority of the Minister of Fisheries. Policy cannot and does not trump "original legislation" such as an Act of Parliament. Each policy that makes provision for the allocation of fishing rights to co-operatives would therefore be unlawful on this aspect alone.
Further, none of the policies state that they repeal or replace the 2005 policies that were adopted as section 85(2)(b) national policy by Cabinet. The 2005 policies are legally enforceable until amended or replaced by repealing national policy issued by Cabinet. As such, we appear to now have two general fishery policies and two of each of the 8 sector specific policies. So which policy is it?