Monday, November 9, 2015

2015/2016 Lobster TAC Announced

The Fisheries Department has announced the TAC for the 2015/2016 lobster fishing season. The global TAC has been set at 1924.45 tons which translates to a 6.83% increase when compared to the  2014/2015 lobster TAC.

The global TAC for the 2015/16 west coast rock lobster fishing season has been apportioned as follow:

·        Commercial Fishing (Offshore): 1243.48 tons (previously 1120.25 tons);
·        Commercial Fishing (Nearshore): 376.10 tons (previously 376.10 tons);
·        Subsistence (Interim Relief Measure) Fishing: 235.30 tons (previously 230.10 tons);  and
·        Recreational Fishing: 69.20 tons (previously 69.20.5 tons)

The 2015/16 west coast rock lobster recreational fishing season will open on Sunday, 15 November 2015 and will close on Sunday, 28 March 2016. The 2015/16 WCRL recreational fishing effort will be restricted to 21 days and will be split as follow:

·        Fishing allowed from 15 November 2015 to 15 November 2015 (1 day)

·        Fishing allowed from 21 November 2015 to 22 November 2015 (2 day)

·        Fishing allowed from 5 December 2015 to 6 December 2015 (2 days)

·        Fishing allowed from 5 December 2015 to 6 December 2015 (2 days)

·        Fishing allowed from 12 December 2015 to 13 December 2015 (2 days)

·        Fishing allowed from 19 December 2015 to 20 December 2015 (2 days)

·        Fishing allowed from 26 December 2015 to 27 December 2015 (2 days)

·        Fishing allowed from 2 January 2016 to 3 January 2016 (2 days)

·        Fishing allowed from 9 January 2016 to 10 January 2016 (2 days)

·        Fishing allowed from 25 March 2016 to 28 March 2016 (4 days)

Recreational fishing times for WCRL will be from 08h00 until 16h00 and the bag limit is four per person per day and the size restriction is 80 millimetres carapace length.

No person catching WCRL with a recreational fishing permit may sell his/her catch and any WCRL caught, collected or transported must be kept in a whole state.

A maximum of 20 lobsters may be transported per day on condition that all the persons who caught such WCRL’s are present in the vehicle, vessel or aircraft during transportation and that such persons are in possession of valid lobster recreational fishing permits.

Sunday, August 30, 2015

Beware of the Rise of the Dubious Fisheries Consultant!

As we approach the possible commencement of the 2015/2016 fishing rights allocation process, Feike has been approached by a number of current right holders and potential new entrant applicants / investors wanting advice on preparatory steps that they should take in anticipation of the next fishing rights allocation process.

We have also been made aware of a number of "consultants" emerging to provide advice on completion of future application forms. The rate at which these "consultants" will emerge will surely gather momentum once greater clarity and certainty is available regarding the 2015/2016 rights allocation process.

As has been the case with past fishing rights allocation processes, Feike does not assist with the completion of forms and neither do we advise individual applicants on preparatory steps and measures. In deserving cases, we may provide legal and fisheries advice on a pro bono basis.

Accordingly, we can dispense the following advice without being concerned about slating potential "competitors".

Firstly, if a consultant is required to assist with the completion of the form or part of the form, check the history and track record of the consultant concerned. Do not use "new" consultants or those who have no track record and experience in the fisheries sector.

Secondly, before you agree to use the consultant's services, first check if they had assisted applicants during previous right allocation processes and how successful they were. Don't take their word for it. Contact the right holders concerned and confirm this and check if they will be using the same consultant again.

Thirdly, agree a fee in advance and reduce the appointment to writing specifying the services to be provided and deadlines to be achieved. Make sure that a failure to meet a deadline will result in a financial penalty to be deducted from the consultant's final payment. This is important as there has been a history of consultants using these processes to earn substantial fees but who take on too many clients. They are then unable to satisfactorily complete the application form ... or worse, they fail to submit the forms on time, resulting in the application being excluded.

Fourthly, if a consultant is appointed to prepare your application form, make sure that they are contracted to provide you with the final draft version at least 72 hours before the gazetted application deadline date and time to allow yourself to carefully scrutinise the information in the form and to obtain any additional information and data.

Finally, do not pay the full agreed fee upfront. Agree to make payments only upon the attainment of agreed milestones.

Abalone Fishery Extended

The Acting DDG of the Fisheries Branch, Ms Siphokazi Ndudane, has extended the 2014/2015 abalone season to the end of September 2015. The decision to extend the season, which normally ends at the end of July each year, was in response to a request by two current abalone divers, Messrs Michael Wurbach and Scott Russell.

The decision to extend the abalone season was justified because of the delayed commencement of the 2014/2015 abalone season and fewer than normal fishing days during the season because of bad weather.

The extension however only applies to those abalone divers who had not harvested their own individual fishing quotas by 30 July 2015. The current abalone transport and fishing permit conditions will continue to apply.

Tuesday, August 18, 2015

SA Fisheries Minister Announces Appeal Decisions in Prawn Trawl Fishery

This is the official press statement issued by the Minister of Agriculture, Forestry and Fisheries on 18 August 2015.

The purpose of this media statement issued by the Minister of Agriculture, Forestry and Fisheries, Mr Senzeni Zokwana, is to inform the South African public and the fishing industry in particular of the Minister’s decisions on appeals filed against decisions taken on 30 December 2013 in the KwaZulu-Natal Prawn Trawl fishery. The Minister will over the coming 8 weeks be issuing his decisions on appeals in the remaining 7 fishing sectors that were decided under the 2013 Fishing Rights Allocation Process (FRAP 2013).

True to the Minister’s commitment to redress the various concerns and problems that had plagued the FRAP 2013, the Minister has appointed three non-departmental officials to an Appeals Advisory Team to advise him on the FRAP 2013 appeals. These individuals include Advocate Shaheen Moolla; Professor Julian Smith and Attorney Mamakhe Mdhluli.

On Tuesday 11 August 2015 and Thursday 13 August 2015, Minister Senzeni Zokwana was briefed by members of his appeals advisory team on 17 appeals that were filed by appellants in the KwaZulu-Natal Prawn Trawl fishing sector. During the first meeting, the Minister was briefed by his advisory team on the processes and methodology adopted and that the appeals advisory team would be guided by certain core values and principles, including a commitment to legality, honesty and integrity.

At the end of December 2013, the Acting Deputy Director-General: Fisheries Management, decided to allocate a total of 5 fishing rights in this fishery. Of these 5 rights, two rights were granted authorizing trawling in both inshore and offshore waters. The remaining 3 fishing rights were allocated in offshore waters only. A total of two fishing rights (or vessels) remain available for allocation by the Minister.

Read the Minister's decisions here.

Monday, July 20, 2015

An Update From Feike

Please accept my apologies for temporarily abandoning our blog postings. As readers, clients and followers of the Blog are no doubt aware, I have been appointed to advise South Africa's Fisheries Minister on the administrative appeals lodged against decisions taken during the 2013 Fishing Rights Allocation Process (FRAP).

I am part of a 3-person advisory team, which includes an attorney - Ms Mamakhe Mdluli - and Prof Julian Smith, who served as Vice Rector of Stellenbosch University.

Since having commenced our brief to advise on the appeals that have been submitted, it became apparent that appellants were entitled to access a number of records and documents to which they had not had prior sight of in order to lodge proper appeals. Access to these records is presently being provided and appellants have been given until 16h00 on 31 July 2015 to supplement the appeals they had lodged in early 2014.

In addition, the Minister is presently engaging with the SA Commercial Linefishers Asscociation (SACLA) on a proposed settlement to the current review application brought by SACLA on behalf of traditional line fishers, which is presently before the Western Cape High Court. The review application is set down for hearing on 25 August 2015.

Thursday, June 11, 2015

2015 KZN Beach Seine Fishery Shows Promise

The prospects for the 2015 KwaZulu-Natal beach seine fishery are looking very promising. The KZN beach seine fishery is a tiny small-scale commercial fishery comprising 24 quota holders. Their 10-year fishing rights are set to expire on 29 February 2016.

The Fisheries Department is currently preparing for the re-allocation of fishing rights in this sector, as well as in 9 other commercial and small-scale commercial fisheries.

The fishery is completely dependent on the annual sardine run - also known as the "Greatest Shoal on Earth" - and sardine shoals coming sufficiently close to shore to be harvested by the crate load.

Quota holders were achieving good prices as at yesterday of R800 / crate. Each crate carries 40kg of sardines.

Saturday, April 18, 2015

DAFF Press Statement on FRAP 2013 Appeals

On 17 April 2015, the Fisheries Department (DAFF) issued a press statement confirming that the Fisheries Minister is set to process all appeals lodged against decisions taken in terms of the 2013 Fishing Rights Allocation Process, except for those appeals lodged in the traditional line fish sector. The line fish appeals cannot be considered in light of a current court order authorising all long term line fish right holders (as at 31 December 2013) to continue to operate until such time as the judicial review application is finally decided.

However, with respect to the appeals lodged in the remaining 7 sectors, including Hake Handline, Oysters, Mussels, KZN Prawn Trawl, Demersal Shark, Tuna Pole and Squid, appellants must note the following:

1. The Harris Nupen Molebatsi report confirmed that in so far as the appeals process is concerned, the Department’s refusal to make available all scoresheets and application forms pertaining to all other applicants in the fishery concerned is unlawful. Every appellant has a right to access these scoresheets.

2. Accordingly, appellants have a legal right to first obtain all the comparative scoresheets and any application forms and documents related to the decision-making process for that particular fishery BEFORE their respective appeals may be considered. As such, appellants must immediately lodge requests for the following documents from DAFF:

2.1 Scoresheets for all applicants in the fishery concerned;

2.2 Copies of application forms and annexures submitted by all applicants in the fishery concerned. Access can be provided by allowing appellants the right to view applications at DAFF’s offices;

2.3 Any other documents used during the decision-making process, such as databases, records of right holder catch returns, levy payments and so forth.

3. Once the appellant is provided with the requested documents, and even though the applicant may have lodged an appeal in 2014, the appellant has the right to supplement its appeal based on the additional documents provided.

4. Until all appellants are provided with the above requested documents and an appropriately determined revised appeal deadline date is provided by the Minister, no appeal can lawfully be considered and decided.

5. Key grounds of appeal that should be raised are the rational and lawful basis for setting aside the number of rights for appeals by the Acting DDG in December 2013, the legal basis upon which new entrants were permitted into the fishery, the failure to exclude applicants that failed to comply with exclusionary criteria such as the requirement to prove access to a suitable fishing vessel, the rationality for using certain criteria as “balancing” criteria and not scoring important criteria such as “investments in vessels and infrastructure", "reliance on the resource", "local economic development" and proximity of the applicant’s domicile to the applicable fishing grounds. These were all serious, if not fatal flaws, that were identified by the findings of the Harris Molebatsi Report.

6. Finally, there are numerous other findings in the Harris Molebatsi and Emang Basedi Reports concerning the 2013 FRAP process that cannot be cured by an administrative appeal process. These include an unlawful consultation process that preceded the allocation process, the fact that the application forms do not speak to the various fishing policies and criteria and the allegations of maladministration and possible corruption during the fishing rights allocation process.

DAFF's press statement can be viewed here.

Thursday, April 9, 2015

DAFF's Aquaculture "Concept" Bill

During March 2015, the Fisheries Department published an "Aquaculture Concept Bill" for public comment. The "concept" bill is really a very rough and incomplete draft set of ideas on fish farming regulation, which should eventually evolve into a white paper, then a draft Bill and perhaps thereafter an Act. 

However, the fact that DAFF published such a draft straw document is to be commended! This is how a government department is supposed to conceptualise and prepare complex policy ... by seeking  inputs from the public at the very conceptualisation of policy and ideas. This is what is required when preparing fishing policies and fishing rights allocation processes! 

The aquaculture concept bill is clearly a response to Government's latest big plan - Operation Phakisa - which has committed to increasing current farmed fish production levels (±3000 tons annually) to a whopping 90,000 tons within less than two decades. Coupled to this, Operation Phakisa also reckons that we will grow jobs concomitantly from the current 1900 jobs to 250,000! 

What is apparent from the concept bill is that DAFF wishes to have a stand-alone Act regulating both marine and freshwater fish farming and to "streamline" the application procedure. Currently, and in terms of the Constitution, marine resource management, including marine fish farming, is exclusively regulated by the National Government (DAFF) in terms of the Marine Living Resources Act, 18 of 1998. Fresh water fish farming is the regulatory prerogative of provincial governments. 

A copy of the concept bill is available from Feike - unfortunately a copy of the draft bill is not on the DAFF website. Our brief comments on the concept bill which were submitted to DAFF as provided below.


1.         Firstly, it is noted that the concept document is very much a draft document lacking many definitions and content under the various text headings. There are a number of definitions that require incorporation such as “antibiotics”, "fish veterinarians", “ fallowing", "anti-fouling measures", “pesticides", “pollution", “ponds", "sea cages”, "brackish water”, “fresh water”, "alien and invasive species”, "fish" etc.

2.          The concept document makes reference to section 27 of the Constitution but oddly makes no reference to the section 24 - the right to a healthy and safe environment. 

3.         The structure of the concept document does not adequately address the fact that marine based fish farming is the regulatory prerogative of the National Sphere of Government while the regulation of freshwater fish farming vests with the Provincial Sphere of Government. This distinction must be clearly defined and delineated in any Bill, failing which it would render the Bill confusing, if not unimplementable and unconstitutional. The Bill does not appear to also recognise the overarching application of the MLRA in terms of section 3 of the MLRA, which extends application of the Marine Living Resources Act to all fish which is found in waters that form part of the sea at any time. 

4.         With respect to the stated objectives of the Bill, no reference is made to the following important considerations: 
            4.1       Application of the precautionary principle and fish farming management in terms of the best available scientific evidence;

            4.2       The need to promote responsible trade in farmed fish and to identify key markets. This is crucial since issues of HACCP and other health certifications will apply to farmed fish destined for human consumption; 

            4.3       The farming of alien and invasive species;

            4.4       Maintaining genetic biodiversity of indigenous fish species and health of water bodies; 

5.         Perhaps one of the most glaring flaws of the draft bill is the contradiction between the stated intention of “streamlining aquaculture authorisations” and the extremely bureaucratic and administrative heavy institutional structures that are proposed in terms of chapter 2 of the Bill. For example, it is incomprehensible to understand how application processes will be streamlined when ONE of the decision-making bodies - the National Interdepartmental Authorisation Committee - comprises no less than 8 separate government departments! One need only consider the current paralysis with regard to decision-making concerning fishing harbours where DAFF and PWD are the two government departments that are supposed to facilitate harbour management. Requiring officials from 8 separate government departments to consider, understand and decide fish farming applications (which could number dozens or hundreds annually) will frankly destroy the industry.

6.         If indeed DAFF is serious about giving effect to the rather optimistic objectives set out in Operation Phakisa with respect to fish farming, our advice is to remove the various and unnecessary hurdles and regulatory licensing requirements for fish farming and to instead recognise that as with terrestrial animal farming, fish farming does not ordinarily pose any risk and harm to the environment and as such licensing should not be required if certain aspects of the fish farming venture exist. Our proposal would be to stipulate that fish farms that meet the following criteria SHOULD NOT REQUIRE ANY LICENSE OR PERMISSION FROM DAFF TO OPERATE:

            6.1       Farms that use brackish water, fresh water or sea water pumped into an on-land facility. Fish farming in the ocean (territorial waters and beyond) will require licensing and authorisation by DAFF);

            6.2       The farm produces less than 100,000 kg (for example) of fish annually; 

            6.3       The farm produces prescribed fish species only (for example, oysters, mussels, tilapia, abalone etc); 

            6.4       The farm commits to making available a percentage of its spat to facilitate and support small-scale fish farming start-ups in a bid to fast-track growth of small-scale and subsistence (Especially pond-based) fish farms. It is common cause that one of the largest barriers to fish farm start-ups is access to spat. 

            6.5       These farms must provide quarterly reports to DAFF on specified biological and ecological data and DAFF must maintain a publicly accessible register of these fish farms and what they are farming. 

7.         In addition, a revised Bill should make provision for industrial scale fish farmers (i.e. those producing more than 100 tons of fish annually) to claim reduced levy/regulatory fees if they provide technical, scientific and advisory support to small-scale and subsistence fish farmers, thus again facilitating and promoting small-scale fish farming, reducing the business risks associated with such ventures and reducing the administrative and cost burden on DAFF. 

8.         Finally, the Bill should consider addressing the increasingly important global concern of correct naming and labelling of farmed fish and farmed products, together with the certification of such products. In this regard, one should consider the work that has already been undertaken by SABS in this regard covering wild and farmed fish but which will be a voluntary mechanism once finalised. 

Wednesday, March 18, 2015

What does the Small Scale Fishing Policy & Regulations Actually Mean?

Over the past few days, I have repeatedly been asked for my analysis of and what my understanding of the Draft Small Scale Fisheries Regulations, policy and roll-up plan are.

The implementation of the Policy and Regulations is popularly justified as being the panacea for small-scale fishers and fishing villages. In particular, there has been substantial rhetoric about allocating small-scale fishing rights exclusively to co-operatives comprising hundreds and thousands of "fishers". We are told that the intention is to accommodate a whopping 30,000 "fishers"! The reality of course is that what we will achieve is poverty and resource destruction on a coastal scale.  

Don't believe me? Well, its awfully simple to understand.

Fact. We currently have some 2200 small scale fishers fishing for abalone, line fish, lobster, hake handline, mussels and oysters. 

Fact. The hake handline fishery is an extremely seasonal 3-month long fishery that operates in a very specific geographic area on the Southern Cape coast and can accommodate a maximum of 80 right holders. 

Fact. The abalone fishery is in serious biological decline currently accommodating a maximum of 300 right holders. Of the 7 fishing zones, the department's scientists repeatedly state that 4 of these zones need to be closed to fishing. 

Fact. With respect to lobster, the fishery was determined to be able to accommodate some 850 right holders back in 2004/5 each holding economically viable small-scale quotas. The inclusion of an additional 2000 "interim relief" fishers since 2007 has decimated stocks to the point where lobster is 97% overfished now. Not that these 2000 interim relief fishers have access to biologically or economically viable quotas. Their allocations are in fact nothing more than poverty traps worth less than R15,000 annually. 

Fact. There is therefore no additional fish to be allocated. So, the fish that was shared amongst 2200 fishers is now expected to be shared amongst 30,000 fishers! One does not have to be a rocket scientist to immediately appreciate the ensuing poverty. Consider this statistic. We currently have 850 nearshore commercial lobster fishers who each have some 500kg of lobster each season (500kg of lobster is worth R100,000 before tax). DAFF's proposal is to add an additional 30,000 "fishers" to the small-scale pool via co-operatives. Lets assume that of these 30,000 fishers, 10,000 "fishers" are located on the west coast where our lobsters are located. Simple maths would mean that each fisher would effectively get 42 kilograms of quota per season! This would earn each fisher an effective R8,500 per year! And let us not forget that the TAC for lobster has declined by 29% over the past 2 seasons alone. Within 5 years, annual allocations will be less than 30kg per person per season!

Line fishers would essentially get 1 snoek each per season to harvest! 

Unless DAFF intends to magically increase our nearshore fishery biomass 13-fold, it is incomprehensible as to how 30,000 fishers can be accommodated in our nearshore sectors ... and that is assuming that there are 30,000 fishers.

So, pray tell, can anyone who supports the proposed small-scale fisheries regulatory framework explain to me how it will alleviate poverty, recover our overfished and collapsed nearshore fish stocks and help coastal communities?  

Tuesday, March 17, 2015

That "EMANG BASADI" Fisheries Report!

It now emerges that in addition to the much talked about Harris Nupen Molebatsi Report on FRAP 2013, the Fisheries Department commissioned a second report by an unknown legal and forensics firm who styles itself as "Emang Basadi Legal and Forensics (Pty) Ltd". The Basadi report appears to not only be a report on the Harris Report, but it also seeks to provide some level of analysis with regard to the department's state of readiness with respect to preparing for the allocation of fishing rights in those fisheries where rights are set to expire in 2015 (now extended until 29 February 2016). 

Not having ever heard of Emang Basadi Legal and Forensics (Pty) Ltd before, a cursory web search does not reveal anything about such a firm, let alone that they have any prior experience or knowledge of fisheries management, quota allocations or are in any way experienced in fisheries administration. Which is bizarre when they are essentially trying to advise DAFF whether it is in a position to undertake a major fishing quota allocation process! How does one provide advice or analyse the institutional readiness of an organisation if the "expert" has never undertaken or been involved with such processes before? 

Incidentally, there is no Emang Basadi Legal and Forensics (Pty) Ltd listed on CIPC. The only reference to Emang Basadi Legal and Forensics (Pty) Ltd on the world wide web is in the 2013 annual financial statements for Mogale City (Krugersdorp), which records that the company was the recipient of a R900,000 tender by that municipal administration. 

Turning to the content of the Basadi Report, the following findings and recommendations are perhaps worth noting: 

1. Incredibly the Basadi Report recommends that South Africa should follow the Namibian example of fishing rights allocations! This is the first give away that the poor authors of the Report simply do not understand fisheries management or appreciate the significant legal and policy differences between the two countries. Not only is the Namibian quota system based on a quota rent system, but that system has essentially resulted in the creation of a substantial class of Namibian quota holding fronts who sell their entire quotas on to Spanish and South African businesses and then collect annual quota rents. Is that what we want to create in South Africa? A class of black quota holders who then simply hive off access to our marine resources to the highest foreign bidder? Surely not!

2. Although the Basadi Report regurgitates most of the Harris Report findings on the 2013 FRAP, this outstanding gem is presented as a key finding:
"d) Political Interference

Fisheries managers indicated that during the rolling out of the FRAP, there were several instances of political interference. For example, some FRAP applicants who failed to meet maximum qualifying criteria were issued rights because FRAP officials were ‘instructed’ to approve their application. If such allegations are substantiated, it could undoubtedly put the Department and its senior officials at political and legal risks.
3. FRAP officials were INSTRUCTED to approve certain applications! Stop the Presses and call the Public Protector!

4. With respect to the DAFF's ability to allocate fishing rights set to expire in 2015 (now February 2016), the Report unsurprisingly confirms that DAFF cannot do so timeously but then proceeds to propose the ill-advised extension of all fishing rights until 29 February 2016. Extending the validity of rights such as those in the lobster and tooth fish sectors until 29 February 2016 smacks of a lack of understanding of the seasonality of these sectors, the complexities of these fisheries etc. Not to mention that based on the department's own internal planning timeline (as stated in the Harris Report) and the independent findings of the Harris Report, 12 months is certainly not enough time to prepare for a fishing rights allocation process involving 10 extremely diverse fisheries (including abalone)! Certain of these fisheries are capital intensive offshore fisheries (horse mackerel, tooth fish and large pelagics). Others are high value, high demand nearshore fisheries (lobster and abalone). And yet others are economically marginal nearshore fisheries such as the trek net and KZN beach seine fisheries. And then very different to all of these is the seaweed sector.

Due to the different socio-economic, biological, ecological and geographic profiles of these fisheries, they will each require bespoke consultation and policy development processes as was undertaken back in 2003-2005. 

There is little doubt that the current extension period for fishing rights until 29 February 2016 will have to be extended beyond that date until 2017 or even 2018 depending on DAFF's willingness to accept actual expert advice from people who have previously managed and overseen quota allocation processes and to engage in dialogue with right holders and other interested parties in the review and preparation of policies. 

5. To further confirm DAFF's inability to undertake a rights allocation process in the near future, its budget is being slashed by 309% - that is THREE HUNDRED AND NINE percent. Preceding the announcement of the 309% budget cut, the Basadi Report records that DAFF had allocated a paltry R9 million to undertake the mammoth 2015/2016 fishing rights allocation process. By way of comparison, the 2004/2005 rights allocation process cost in excess of R40 million (and that was 11 years ago). R9 million will get you a rights allocation process in perhaps the large pelagic fishery, never mind the remaining 9 fishing sectors up for allocation as well. 

4. With respect to the implementation of the Small-Scale Fishing Policy (and giving effect to the 2014 MLRA Amendments), the Report oddly states that the SSC Fishing Policy must be implemented without delay even though the Report simultaneously concluded that the SSC Fishing Policy is ambiguous; that it contradicts the National Development Plan; there is no clarity with respect to how "co-management" is to be implemented; and there is a general lack of skill and understanding in communities with respect to the SSC Fishing Policy (and one can assume with respect to managing and running a complex co-operative comprising 100's of members!). 

5. The Basadi Report furthermore states that the Minister should establish an "appeals board” to deal with the appeals backlog. This advice is of course hopelessly illegal as the MLRA does not allow the Minister to delegate these functions! The Minister is the appellate authority and must personally consider and take these decisions, albeit that he may be advised by a legal adviser but establishing an “appeals board” would be ultra vires his authority and thus illegal. Perhaps some one should provide the Basadi legal team and DAFF with a copy of the 2004 SCA judgement in the Scenematic 14 (Pty) Ltd matter.

6. Finally, the lack of Basadi's knowledge of and experience in South Africa fisheries is awkwardly displayed by its firm recommendations that the Minister should establish both the Fisheries Transformation Council (FTC) and Consultative Advisory Forum (CAF). The FTC was relegated to dustbin of South African fisheries history having been responsible for some of the most corrupt and unlawful decisions on fishing quotas during the late 1990's. The CAF served little purpose other than acting as an additional bureaucratic layer that hindered rapid and effective decision-making in fisheries. It was was disbanded in 2003 by Minister Moosa. The initial draft MLRA amendment bill of 2013 had in fact proposed the removal of both fora from the statute books. 

Monday, March 16, 2015

Sunday Times Unpacks Report on 2013 FRAP

The Sunday Times yesterday published its analysis of the Harris Nupen Molebatsi Report into the 2013 Fishing Rights Allocation Process, which we have long said was an unmitigated failure and denial of due process to thousands of traditional small-scale fishermen and their crew.

Although Feike had published our analysis of the Findings and Recommendations Chapter of this report back in March 2014, the complete report was only made public last week after the Portfolio Committee on Fisheries demanded that DAFF make the full report available. Although DAFF relented by making the 120 page report available, none of the annexes were included. We understand that DAFF will not be allowed to table its budget vote this coming week unless all the annexes are provided to the Portfolio Committee.  

The 120-page Report does however detail a travesty of farcical errors, manipulation of outcomes and a litany of abuses of the rule of law. It confirms that the planning for the 2013 rights allocation process began extremely late. For example, one of the 2 service providers responsible for data collation and verification was only appointed in December 2013 and given 2 weeks to essentially do the work Deloitte Forensics took months to complete (accurately and efficiently) back in 2005. 

The result is confirmation that not a single annexure was studied or considered. In other words verification of data in the application form simply did not occur. 

The Report confirms that the process of scoring and evaluating applicants was profoundly illegal. Exclusionary and peremptory criteria such as demonstrating access to suitable vessels was never considered - explaining how it came to be that so many applicants were granted rights despite not having a vessel! Reliance on fishing was not considered, thus explaining how applicants (opportunists) from Johannesburg and other non-coastal towns suddenly became holders of fishing rights while fishermen with decades of experience were summarily removed from the industry!

The Report repeatedly requires Mr Desmond Stevens, who was responsible for the decisions to explain why criteria were ignored; how scores and weighings were determined; why certain decisions were taken, but he has steadfastly refused to provide any explanations or where he provided any, these were considered to be irrational or unsupported by the facts. 

Perhaps the most glaring deception is that when the FRAP 2013 results were criticised, the critics - including Feike and many line fishers - were predictably called racists and anti-"transformation" - whatever that word means anymore - by the likes of Stevens and his cronies who benefitted handsomely from the FRAP 2013 Farce. However, the report makes clear in a single table how the decisions actually substantially undermined "transformation" or black empowerment as the weighting scores allocated for "transformation" (and what was scored under the category of "transformation") were irrational, arbitrary and unrelated to the objectives of increasing black and female participation in any one of the 8 fishery sectors.   

The complete irrationality and illegality of the FRAP 2013 is of course confirmed by the fact that to this very day neither the Minister of Fisheries nor Mr Stevens is able to place a single word on oath in defence of the catastrophic decisions of 30 December 2013 that denied thousands of fishermen and their crew their rights to fish. They have still not filed a single affidavit against the SA Commercial Line Fishers Association's court case which was launched last year.  

Perhaps an even greater tragedy is that despite the department having commissioned this report and having had access to its findings for some 12 months now, its recent pronouncements on the proposed timetables for the allocation of fishing rights that were supposed to occur this coming year and the roll-out plan for the implementation of the small scale fisheries policy, only confirm that DAFF seems committed to repeating the failures of 2013. For one, it refuses to accept that one cannot prepare for fishing rights allocation processes in 12 months. The Molebatsi Report states clearly and without contradiction, an effective, legal and efficient process requires 3 years of advance planning

And secondly, many of the staff that were integrally involved in the FRAP 2013 Farce remain employed by DAFF, never having been disciplined or fired for what is the most illegal and damaging fishing rights allocation process ever undertaken in our history. 

By way of comparison, the timetable for the 2005 rights allocation process began in 2003 - more than 2 years before rights expired and after the Fisheries Department commissioned a comprehensive analysis of the 2001 rights process, which identified key policy and fishery sector objective gaps and public criticisms! The informal consultation and dialogue with industry lasted some 15 months alone which resulted in each industry body effectively writing their own sector policy, defining what suitable vessels should be; what ecosystem management considerations ought to apply; what were considered key targets and objectives by industry; what policy constraints required removal in order to encourage investments; what financial lenders had highlighted as key constraints to lending in that particular sector; what were the key faults and failures of the 2001 rights process etc.

The foundational problem at present is that DAFF continues to believe that it is the principal repository of policy solutions and ideas and it was ordained to draft fishing policies and then simply gazette these for comment! This type of top-down approach is anathema to effective and successful fisheries management which is dynamic and fluid. Any draft policy put out by DAFF on its terms will almost certainly be daft; out of date; irrelevant and out of kilter with the unique needs and constraints faced by each individual fishery sector. Policy development in our challenging fisheries economies has to commence via a process of dialogue, which itself has to be frank and honest and where participants must know that their views will not result in vindictive consequences as has happened in the past. 

In 2003, the department commenced this process with a series of broad policy-based questionnaires crafted specifically for each fishery sector. Thereafter, round table sessions were convened with industry bodies and representatives to iron out key policy differences and ideas on process. Only after substantial informal consultations, dozens of round table sessions where ideas and policies were openly and honestly (and very frankly) debated and dissected, were the formal draft policies gazetted for formal comment and consultation. Participants knew that despite their most honest and frank criticisms of any departmental proposal, they would never be at risk of "losing their fishing rights" or being targeted with vindictive section 28 proceedings or have their vessels arrested or summarily confiscated. 

Without there being an environment that actively encourages open and honest dialogue about fishing policy, it is impossible to commence a process of planning for any fishing rights allocation process. As we have repeatedly stated before, there is little point pretending to prepare for any fishing rights allocation process when the failures of the past are not internalised and actual measures implemented to prevent their recurrence.

In addition, let us not forget that DAFF is presently facing a 309% budget cut, which would effectively nullify their compliance, research and management budgets. Rights allocation processes are expensive affairs that require proper funding and it is simply inconceivable how the costs of fixing FRAP 2013, redoing the forgotten abalone rights allocation process of 2014, implementing the small-scale fisheries policy and allocating more than 2000 fishing rights for the 2015 rights process can be achieved in 11 months when absolutely nothing has been accomplished or fixed since the Harris Nupen Molebatsi Report was published in March 2014. 

And despite the cash-crunch, DAFF has failed to - 
  • gazette the peremptory grant of fishing right fees as required by section 25(2) of the MLRA, which ought to have raised sufficient funds to recover the costs incurred for FRAP 2013; 
  • charge the 2000 interim relief lobster fishers any money for permits, levies on fish landed or any other fees over the past 9 years. DAFF loses more than R3,3 million annually as a result; and
  • review and publish an amended fees and levies gazette since September 2010. This failure would have cost DAFF no less than R40 million over the past 5 years. 

Sunday, March 15, 2015

SAUFF Calls for Postponement of Consultation Process

The South African United Fishers' Front (SAUFF) has called for the immediate postponement of the consultation process on the draft small scale fisheries regulations. 

The draft regulations were recently promulgated for a 30-day comment period, which considering the extent of the regulations (57 pages), and the profile of the parties that are directly affected, such an abbreviated comment period is grossly unfair and prejudicial to small-scale fishers. 

This is the un-edited version of the SAUFF statement issued on 15 March 2015. 

Call for the IMMEDIATE SUSPENSION/POSTPONEMENT of DAFF consultation processes in respect of the Proposed Regulations relating to Small-scale Fishing (Gov Notice No.38536 dated 6 March 2015)

These proposed regulations are clearly intended to legitimize the small scale fisheries implementation plan.  For stakeholders to participate in any meaningful way it would be imperative that they (those directly affected by these regulations) completely understand the impact of these regulations.  This also implies that stakeholders need to completely understand and interpret the following in order that they may take informed decisions on matters which directly affect their livelihoods:

1.       The Small-Scale Fisheries Policy
2.       The Small-Scale Fisheries Implementation Plan
3.       The Small-Scale Fisheries Implementation Plan roll-out program
4.       The Proposed Regulations relating to small-scale fishing

It is clear that points 2-4 above are not understood by the majority of fishers and fishing communities or in certain cases like the Eastern Cape and possibly also Kwazulu-Natal this information has not yet reached many of the remote fishing communities in South Africa.

Embarking on a hastily packaged consultation process, in an environment where there is a clear information and awareness vacuum, carries pre-determined outcomes:

·         A complete waste of tax-payers money
·         A further waste of tax-payers money when the process MUST be repeated
·         Bulldozing through of regulations in an information vacuum created by the authorities
·         Complete and utter disrespect by authorities for “prior and informed consent by stakeholders”

Furthermore, as a Nation we have in recent months endorsed (and are signatories to) Continental and International instrument which offers Guiding Principals that focuses extensively on Small-scale fisheries and farming which appears to be almost completely ignored when one determines the course being set by the proposed regulations.  Among these instruments are:

·         FAO – SSF guidelines (revised 2015)
·         FAO – Voluntary Guidelines for the Responsible Governance of Tenure in Land, Forestry and Fisheries in the context of National Food Security.
·         AUC – CAADP processes “Pan African Fisheries and Aquaculture Policy Framework and Reform Strategy”

Below are just a few of the disturbing extracts from the proposed regulations:

Cover letter to proposed regulations, para 2

“interested persons are hereby invited to submit substantiated comments or representations regarding the proposed regulations within 30 days of the publication of this Notice”

With less than two weeks notice given to communities all over South Africa it is impossible (given remote areas in the Eastern Cape and Kwazulu-Natal) that stakeholders will have adequate time to prepare themselves for these consultations.  We have also learnt that subsequent to the Roll-out plan being introduced to fisheries representatives (Rantanga Junction) very few had been able to convene meetings in their respective communities to prepare for the consultation process.  It also means that the last “consultation” which takes place on the 23/03/05 in Cape Town City Hall will afford participants only 9 (nine) working days in which to submit “substantiated comments”.

Schedule pg.5 Purpose of regulations 2.(a) & (c)

(a)   “ensure equitable access to fish by small-scale fishing communities”
(c) “transform the inequalities of the past fisheries system; and”

Although the regulations speaks to the “demarcation” of certain community fishing boundaries it does not address the challenges of “shared resources” between commercial rights-holders and community allocations which is a guaranteed recipe for conflict in fishing communities. Also notably absent from these regulations, especially with respect to the bold statement to “transform the inequalities of the past” is how these regulations intend addressing the re-allocation of rights from industrial companies to communities.  Many of these rights, especially the small pelagics (sardine, anchovy, red-eye etc) which are well within the operational capacity of fishing communities, are critical species in terms of employment opportunities, sustaining local fish markets and most importantly contributing to enhanced food security programs for poverty stricken South Africans.
We have chosen to select just a few of the important challenges in these processes and to bring it to the attention of stakeholders and other interested parties.  The SAUFF will submit a comprehensive response to these proposed regulations in due course.

We encourage all stakeholders who may share these views to “reply to all” addressees in order to strengthen the call for a suspension or postponement of the consultation process in order that we can adequately prepare our constituents to respond in a meaningful and fully participatory manner when these consultation processes does unfold in their respective communities.


The “de-commercialization” of certain species in the Eastern Cape will certainly lead to increased forms of poverty as many of these species have, for a number of years, been bartered and traded by local fishers.  The trend by DAFF officials to exclude CSO’s from participating on behalf of their constituents is most disturbing and in stark contrast to international guidelines which encourages National Governments to support CSO’s in favour of participatory and inclusive fisheries management practices. This practice is clearly manifested in Interim Relief 9 Dispensation Permit Conditions where under para 15.1 it is stated “The Department will prefer to consult and communicate with the nominated caretaker/representative of the Interim Relief fishing community”.  Whilst controversy surrounds the appointed representatives currently claiming they have the support of the communities and in the absence of DAFF TOR’s for such representation (which we have asked for repeatedly over a number of years) CSO’s have a critical advocacy role in favour of fishers and fishing communities.

In the final analysis it would appear that at this juncture of the small-scale fisheries processes, the proposed regulations would rather further disenfranchise fishers and fishing communities and is more tuned into acting as a protection mechanism for the large and industrialized fishing sector.

Tuesday, February 17, 2015

Fisheries Management by Exemption: Is this the New Rule?

On 15 December 2014 and again on 10 February 2015, a select group of members of the South African fishing industry were invited to meetings with the Fisheries Department and the Fisheries Minister where the industry was briefed on issues afflicting the management of our commercial and small-scale fishery sectors.

The meeting on 10 February 2015 was led by the Fisheries Minister himself but was held a mere 18 days before the expiry of ten-year fishing rights in the high-value, capital intensive tuna long line fishery. 

At the 10 February 2015 meeting the Fisheries Minister announced that “… he will exempt all right holders whose rights are due to expire in 2015 from section 18(1) of the Act.” 

The Minister further stated in his press statement that “[t]his exemption will grant an extension for a period of one year.” The facts are however quite different. The only fishery that will benefit from a 12 month "extension" is the tuna long line fishery. The majority of fishing rights have been extended by 2 months (from 1 January 2016 until 29 February 2016). Lobster fishing rights have effectively been extended from 1 August until 30 September when the closed season commences and then the exemption will presumably commence again on 15 November (15 October for Zone A lobster fishermen) until 29 February 2016. The Minister's statement does not in any way explicitly address any of these nuances. I am simply presuming and doing a lot of "reading in" to make any sense of the statement.

The table below confirms the confusion and ongoing lack of clarity and appreciation that quota holders require certainty in order to invest, plan and manage their enterprises. It is unclear why "fish processing establishment rights" have been included in the table below as these rights have not been "extended". 

Duration of rights

Start date
Expiry date
Extended expiry date
1. Large Pelagics (Tuna and Swordfish Longline)
10 years

2. West Coast Rock Lobster (Offshore)
10 years
3. West Coast Rock Lobster (nearshore)
10 years
4. Patagonian Tooth Fish
10 years
5. Hake In-shore Trawl
10 years
6. Horse Mackerel
10 years
7. Seaweed
10 years
8. KwaZulu-Natal Beach Seine
10 years
9. Net Fish
10 years
10. Fish processing establishment
15 years
  Source: Ministry of Agriculture, Forestry & Fisheries (Press Statement issued on 11 Feb 2015)

What is unfortunately apparent from past experience is that the fishing industry can expect a number of ad-hoc and repeated extensions to the present set of exemption deadlines and management by exemption is going to be a part of fisheries management for some time to come. 

In our view - and this is a view we repeatedly expressed in the run-up to the 2013 FRAP Farce - the Fisheries Department will require no less than 24 months to implement a fair, transparent and legally defensible fishing rights allocation process for the above fishery sectors. However, given that DAFF will in all likelihood be ordered by the Western Cape High Court to redo the 2013 fishing right allocation process, the re-allocation of fishing rights in 9 sectors listed in the table above may have to be postponed and extended until at least 2020.