The decision today by the Fisheries Department to accommodate all traditional line fishers who were wrongly excluded on 30 December 2013 via an interim exemption process is certainly a victory for the line fishers who stood united against a clearly unlawful and unjust decision that summarily excluded 335 of the 450 right holders on the eve that their 8-year long fishing rights expired.
However, the decision to suddenly accommodate line fishers signals a recognition by the Department and its Acting DDG, Desmond Stevens, that the 30 December 2013 decisions were not only unlawful and susceptible to successful judicial review, but these decisions were morally outrageous.
Until late last week, Stevens and officials from DAFF continued to maintain that these disastrous decisions of 30 December 2013 were fair and Stevens himself maintained that he could not understand why fishers were so outraged!
The climb-down by Stevens and DAFF however signals that his decisions in other sectors, most notably the shark demersal, tuna pole and hake handline fisheries, are similarly impugned and right holders who have been summarily excluded from these fisheries now stand an equally good chance of getting back to sea. Our advice to right holders in the shark demersal fishery - in particular - is to immediately launch a urgent review application as it is entirely unlikely that DAFF would be able to defend these woefully illegal decisions. An urgent application in the shark fishery should focus on -
1. The unlawful decision to allocate a shark right to Unathi-Wena which did not nominate a suitable shark demersal fishing vessel;
2. The lack of rational scoring and decision-making - there are still no scoresheets and evaluation sheets and it appears as though scoresheets are only being prepared after the decisions of 30 December 2013;
3. The fact that the shark demersal policy (and each of the other sector policies) is invalid and unlawful as it was never passed by Cabinet as required by the Constitution.
Returning to the exemptions that will be granted to line fishers, in order to qualify for an exemption, unsuccessful right holder applicants will have show that they fished the total number of days set out below over the period 2007-2012 depending on the area where they are based:
Cape Peninsula: 300 days
Gansbaai: 120 days
Struisbaai/Arniston: 120 days
Stilbaai: 120 days
Mossel Bay: 120 days
St Francis Bay: 120 days
Jeffreys Bay: 120 days
Port Elizabeth: 120 days
Port Alfred: 120 days
East London: 120 days
Southern KZN: 150 days
Northern KZN: 150 days
The pressure is however back on the department and Desmond Stevens. Stevens has made the following undertakings:
1. That the exemption forms that need to be completed will be made available to right holders by 8 January 2014;
2. That exemptions will be processed on an expedited basis and that right holders will be able to put their boats to sea by 10 January 2014;
3. That the Minister will deal with appeals within a 30 day period once appeals are submitted. The obvious problem with the appeals procedure is that only 18 fishing rights are available for allocation on appeal, which will not address the fact that more than 300 right holders need to be accommodated and granted long term fishing rights.