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.