Friday, December 27, 2013

FRAP: Seriously What are the Options?

The Fisheries Department's ardent arrogance and contemptuous incompetence has confirmed what Feike has been for more than 12 months now. This bunch of hapless cadres led by the most incorrigible of Ministers could never have lawfully and timeously allocated fishing rights even if an Idiot's Guide to Allocating Fishing Rights was tailor drafted for them 3 years ago!

I recall being telephoned while on an overseas assignment for the European Union in March 2011. The caller was one Selby Bokaba - the Fisheries Minister's then spokesperson. Dear Selby bemoaned the fact that a recent blog article referred to the Minister as either "dishonest" or "incompetent" or "both"! Selby wanted to know if I could meet at the Minister's office at 120 Plein Street to instead discuss how we could work together "rather than against each other". My first meeting upon returning to SA was at 120 Plein Street and to this day, I cant recall the discussions we had without giggling! I had to answer questions such as what does "WWF" stand for. Could abalone not be found in Kwa-Zulu Natal? Then the Minister's complaint was that the staff at DAFF were all trying to make her fail and that is why she was not succeeding.  BLA BLA BLA. I nonetheless agreed that I would try and assist. Suffice-it-to-so, it was like trying to firm up a pap snoek. It was my fault for even thinking they could be helped

Its the 27th of December 2013. More than 1000 fishing rights across 8 commercial and artisinal fishery sectors terminate in less than 5 days. More than 7000 jobs will be lost with many having been shed already already due to the complete lack of communication by the Department and the resulting uncertainty. (Note the silence from the ANC-aligned unions like FAWU looking after the workers' rights).  

The Department is continually "rumoured" to state that fishing rights will be allocated before 31 December 2013. But that is only a rumour. They are cowards. They are unable to face the SA fishing industry with honesty and integrity as these are values and virtues none of these officials possess. How could these officials not even allocate fishing fishing rights in tiny sectors like KZN Prawn Trawl where only 1 (YES 1) right holder operates or in the mussel sector where a maximum of 7 rights can be allocated? This is incompetence on a grand scale. 

But even if fishing rights are allocated today, it will be too late. For one, there still is no gazette stipulating the proposed grant of fishing right fees. In terms of section 25(1) of the Marine Living Resources Act, 18 of 1998, a fishing right can only be granted or issued issued against the payment of the fees determined by the Fisheries Minister in consultation with the Minister of Finance.

In other words, a fishing right CANT be granted or issued until and unless the Minister of Fisheries, in consultation with the Minister of Finance, has determined the "grant of right" fees provided for under section 25(1). 

And in terms of the Promotion of Administrative Justice Act, read with the applicable regulations, the gazette stipulating these fees MUST first be published for comment or consulted on publicly first for a period of not less than 30 days. Which means further, that before any fishing right can be granted or issued the Fisheries Minister, in consultation with the Finance Minister, must publish for comment for a period of not less than 30 days, a gazette proposing the various fees for the granting of fishing rights in each of the 8 sectors. Once this comment period expires, the Minister of Fisheries, in consultation with the Minister of Finance, must then gazette the final fees gazette. This cannot realistically take place before the middle of March 2014 given that Ministers (such as the Finance Minister) are on annual leave until mid-January and then of course the treasury is fully committed to preparing the annual budget for delivery in early February 2014.

Any attempt to grant or issue a fishing right before this occurs, will be illegal and immediately reviewable. 

Then of course the Department's workforce is presently on leave! For any fishing right to be utilised, one needs a fishing permit. The Department's contingency plan was clearly that they would go and leave and screw the fishing industry. How does a department close during such a time of crisis? Who is going to process and issue more than 1000 fishing permits should fishing rights be granted today? - Nevermind the law and what section 25 requires! And what about right holders who have held rights over the past 8 years who are suddenly not granted fishing rights! What happens to the jobs they sustain, the investments they have made and the servicing of debt obligations? How are these to be dealt with within hours before 31 December when the department has had 8 years to get its house in order and prepare for this rights allocation process? 

Increasingly, right holders' only option will be to approach the High Court for urgent relief forcing the Fisheries Minister to allow them to continue fishing until such time as fishing rights are properly allocated. Understanding that the costs of doing so may be prohibitive for a single right holder, our advice is that right holders in the same sector make joint applications, allowing for the sharing of initial costs.  

Applications for exemption are quite frankly a waste of time and effort as it is unclear that one can even apply for an exemption from the provisions of section 13(1) of the Marine Living Resources Act, which clearly states that no person may perform any activity under the MLRA without a permit issued under section 13. Accordingly, one needs a section 13 permit to perform any activity authorised under section 81 (the exemption). 

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