Wednesday, July 17, 2019

Can the Fisheries Minister Postpone FRAP 2020?

As is unfortunately the norm in the South African fishing industry, the ongoing reluctance by government to issue clear and regular statements on key policy matters only allows for confusion, rumour-mongering and conspiracy theories to occupy conversations. 

The failure by the Fisheries Minister to issue a definitive statement about her intentions with regard to the 2020 fishing rights allocation process is one such example. During her first address to "stakeholders" in fishing industry, she stated that she would postpone the 2020 fishing rights allocation process (FRAP). Then during her budget speech, she stated that she is reviewing the 2020 FRAP. 

Can the Minister postpone the allocation of fishing rights in terms of the Marine Living Resources Act, 1998?  

The short answer is a definitive NO

The Minister cannot simply decide to postpone a fishing rights allocation process beyond the date on which fishing rights expire (majority on 31 Dec 2020) because the MLRA does not authorise her to simply "extend" or roll-over fishing rights. 
Should fishing rights not be timeously reallocated, then rights will expire and fishing will have to stop, resulting in job losses, a halting of exports, availability of fish for domestic sale, etc. Section 81 of the MLRA does not authorise the granting of "exemptions" for this purpose. 
In 2000, Minister MV Moosa petitioned Parliament to amend the MLRA to allow a single roll-over at the time to enable the department to prepare adequately for the 2001 medium term rights allocation process. That resulted in an amendment to the MLRA & promulgation of S18(6)(A). 

Section 18(6) states that all rights granted shall be valid for the period determined by the Minister, whereafter it shall automatically terminate and revert back to the State to be reallocated in terms of the provisions of the MLRA. 
Accordingly, it's not within the authority of the Minister to extend the validity period of fishing rights already granted as such an "extension" would be ultra vires & a violation of the doctrine of separation of powers. Only Parliament can extend the validity periods by passing a further amendment to section 18(6) of the MLRA. 

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