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The Department of Fisheries recently unlawfully elected to amend the deadline by which applications for the transfer of fishing rights had to be submitted. That date was brought forward from 31 December 2020 to 11 December 2020.  The decision unsurprisingly has not elicited a legal challenge from the fishing industry given the industry's ongoing reluctance to challenge an increasingly unlawful and failing Fisheries Department.  However, bureaucratic failure and incompetence does not end commercial and trade realities.  So, what happens if a shareholder or member of a fishing corporation wishes to sell their shares/member's interest? The short answer is that from 1 January 2021 the department and its minister will have absolutely no jurisdiction over regulating the sale of these shares or interest because section 21 of the Marine Living Resources Act and the 2009 Transfer of Commercial Fishing Rights Policy only applies to the sale of shares/interest involving corpora...

 On 30 October 2020, the Minister of Environment, Forestry (and Fisheries) signed a "performance agreement" with the President some 20 months after being appointed to this position. The performance agreements for all cabinet minister appear to have been published on either the 7th or 8th of December. Minister Creecy's agreement is accessible here . The agreement is completely silent on anything related to fisheries management, ocean governance, marine protected areas, aquaculture .... and critically a fishing rights allocation process worth an estimated R140 billion rand affecting 12 fishery sectors and thousands of fishers, fishing companies and jobs! Silent.  The agreement perhaps gives away the lie that the minister and her department is even seriously planning to allocate fishing rights before 2024 (the end date of the performance agreement)!  It is quite something to digest that the Minister of Environment, Forestry (and Fisheries) is prepared to publicly state she h...

South Africa's Broad-Based Black Economic Empowerment Commission confirmed on 25 November 2020 that it had found African Tuna Traders CC, owned and operated by Chris Hamel and Jonathan van Breda, to have used Umbhalo Trading (Pty) Ltd and Homotsego Trading (Pty) Ltd as black-operated fronts in contravention of the Broad-Based Black Economic Empowerment Act ("B-BBEE Act").   The Commission's investigations revealed that black employees were presented as black shareholders for the purposes of obtaining the fishing rights that African Tuna Traders CC currently trades with in the fishing industry, with no participation or economic interest for these black employees.  The consequences could be severe for African Tuna Traders CC, Umbhalo Trading (Pty) Ltd and Homotsego Trading (Pty) as their fishing rights could now be cancelled in terms of section 13A of the B-BBEE Act, read with section 28 of the Marine Living Resources Act.  According to the investigation, African Tuna T...

          On 24 November 2020, the Fisheries Department under the signature of Sue Middleton (Acting DDG of Fisheries) issued an undated  and (unlawful) retrospective  exemption notice to all current right holders in those fishery sectors where rights are set to expire on 31 December 2020 and to the former right holders in the South Coast rock lobster fishery. These fishing rights expired on 30 September 2020 and operators in that fishery have effectively been fishing unlawfully since that date.  The exemption notice is unlawful and invalid in so far as it seeks to apply retrospectively to the South Coast rock lobster sector and regularise fishing from 1 October to 24 November 2020. Neither the DDG (as delegatee), nor the Minister (As the original repository of authority), has the authority to issue exemptions that apply retrospectively. The Marine Living Resources Act does not permit the retrospective application of such powers and as such t...

With less than 30 fishing days left before the end of 2020 and the official termination of more than 1000 commercial and small-scale commercial fishing rights, the Department of Fisheries and its Minister continue to remain silent on what will happen come 1 January 2021. The last time the Minister mentioned "fishing rights" was back on 23 July 2020 when she promised that the small-scale commercial fishing allocations in the Western Cape will be completed before the end of 2020. That is another failed undertaking. Of course, for most of the fisheries, such as tuna, hake trawl, small Pelagics and hake long line, we fully expect the unlawful issuance of "exemptions" which will authorise incumbent right holders to continue fishing despite the termination of section 18 fishing rights. These erstwhile right holders will nonetheless have to apply for section 13 fishing permits and other permits, such as export permits, to continue operating during 2021.  Of concern however...

On 10 November 2020, a month after the minister failed to honour her undertaking of gazetting the draft fishing sector policies for "FRAP 2021", a new set of timelines were presented to Parliament.  In short, the new timelines are 6months delayed BUT confirms that all fishing rights and appeals will be completed before 31 December 2021. I n other words, the revised timeline is even more ridiculous than the previous one .   Here is the convoluted thinking of the revised timeline : Appointment of FRAP Service Providers: Nov 2020 – Jan 2021 ( A key problem with the types of service providers who services have been identified is that there is no business analyst or process experts to be appointed. In addition, the advertisement does not seek to appoint any IT specialists which means the FRAP will certainly be an ancient hard copy application process ). Finalise Small-scale resource splits and Commencement of Allocation of Fishing Rights: Nov 2020 ( This is entirely unlikely a...

In May 2019, the previous Minister of Fisheries proposed allocating 50% of rights in the abalone and line fish sectors and 25% of squid rights to the small scale fishing sector. That proposal - we thought - died a natural death, as it should have.  In May 2019, we wrote an article explaining why allocating any rights to small-scale fishers in the squid fishery would be impractical, unaffordable, unlawful and only create a class of community fronts who would have to beg commercial vessel owners with the crew to actually fish the rights.  Squid is certainly not small-scale fishery as we explain below in red font.  The full article is available here . The current Minister, Barbara Creecy, has now rekindled this daft proposal (GG Notice No. 1129 of 23 October 2020) by proposing to allocate 50% of rights and effort in the traditional linefishery and abalone sectors, and 25% of effort in the squid sector, to the "small-scale" fishing sector. The following extracts of that arti...

New entrant investors seeking to access the South African fishing industry via the next round of fishing rights allocations scheduled for 2021 (or possibly even 2022), should not wait until the finalisation of the scoring evaluation criteria before structuring their businesses to comply with these criteria.  Having advised on fishing rights allocations before, the contrived "restructuring" of businesses once the scoring and weighting criteria are published or shortly after the final invitations to apply for rights are gazetted, are clear indications of application fronts. This applies particularly to the ownership and management profiles of companies.  It is well known that companies are being fraudulently set up with black female domestic workers and gardeners to front for their masters. This is the consequence of black economic empowerment laws. These laws have unquestionably harmed more than they could conceivably have helped.  New entrants (And even existing right hol...

Toward the end of 2019, the Minister of Environment, Forestry and Fisheries conceded a review application brought by Seavuna Fishing Company (Pty) Ltd & Others in the hake inshore trawl fishery. The consequence was that rights granted to new entrants by the Minister at the time were set aside and the minister was instructed to reconsider the appeals filed. More than 12 months later, the Minister has failed to fix this. The appeals remain outstanding more than 4 years after rights were first allocated. New entrant right holders in this fishery remain in limbo as their quota proportions remain unconfirmed. This prevents investment, long-term business planning and of course any possible job creation.  And now we face the prospect of an even more significant High Court decision which will set aside in its entirety the allocation of 30 new entrant rights in the horse mackerel fishery. This High Court application was brought by Blue Continent Products (Pty) Ltd, Sea Harvest Corporati...

On 8 October 2020, the Department of Environment, Forestry and Fisheries invited all and sundry to participate in a Socio-Economic Impact Assessment Study (SEIAS) Virtual Workshop hosted by a department within the presidency charged with overseeing this policy requirement.  In short, 4 days before the Minister's promised gazetting of draft fishing policies for the next Fishing Rights Allocation Process (FRAP), the department was trying to understand how it should lay the foundations for a 12 storey building whose first floor must be cast on 12 October 2020!  To say that the minister lied about her department's state of preparedness in response to parliamentary questions on this subject matter to the Official Opposition is now patently obvious.  In 12 months' time fishing rights in 12 fishing sectors would have to have been allocated for some time. The appeals processes ought to be in full swing. The South Coast Rock Lobster fishing rights and appeals processes would have ...

On 20 June 2020, Minister Creecy issued a government gazette which purported to confirm that the duration of period of an undefined category of fishing rights was extended to 31 December 2021. The gazette in question stated that -  "Cabinet supported the decision to extend the timeframes for dealing with the fishing rights allocation process in commercial fishing sectors, which will expire on 31 December 2020. The timelines were accordingly extended to 31 December 2021." We have repeatedly set out the bases on which we believe that any attempt by the minister or Cabinet to "extend" the validity period of fishing rights is ultra vires and thus unlawful. See, for example, our opinion piece on this subject matter here and  here . The wording of the above-mentioned gazette does not explicitly confirm any authorisation by Cabinet that the fishing right termination dates for fisheries (30 September 2020 for South Coast Rock Lobster and 31 December 2020 for the remaining ...

The Department of Environment, Forestry and Fisheries continues to lurch toward yet another (albeit substantially greater) FRAP failure. Despite having ONLY had 15 years advance notice of the need to prepare for the 2020 fishing rights allocation process, we are witnessing an increasingly rapid march toward FRAP failure.  As is the normal ANC refrain on failure, the reason for the current FRAP delay (unlawful as we have pointed out repeatedly on these pages here , for example) is the failures of the previous crop of apparently corrupt and inept cadres. In this case, we are told by Minister Creecy and her coterie of cadres, it was Minister Zokwana and his DDG of Fisheries, Ms Siphokazi Ndudane. And before them of course, failure was attributed to the eternally corrupt Tina Joemat-Pettersson, Desmond Stevens (still employed by DEFF despite his legendary corruption, failure and incompetence) and his lackeys. And so the ANC blame shuffle will continue.  But we digress. FRAP 2020 o...

 We have been advised that persons pretending to be consultants / advisers in the fishing industry are trying to convince applicants to "structure" their businesses to apparently meet departmental requirements for the allocation of fishing rights. The apparent "structure" is supposed to promote "BBBEE" and requires applicants to have the following representation:  92% women 31% youth (under 35 years) 72% black African  1 disabled if possible Names  ID’s  Addresses Directors: 3 women, (2 black) And apparently, it comes on the advice of Feike or myself (Shaheen Moolla). This is false.  Firstly, neither the department nor the Minister of Environment, Forestry and Fisheries has yet issued any criteria or requirements for the upcoming rights allocation process.  Secondly, to require such racial and gender representation (which has admittedly been previously mooted by this department) would be challenged as it would only promote fronting, the abuse of people...

South Africa has been subject to an increasingly unlawful and irrational harsh lockdown since 27 March 2020. We have been subjected to incredibly bizarre and irrational lockdown provisions, which have severely affected the fishing industry, including its largest component, the recreational fishing industry.  Recreational fishing has not been permitted under lockdown level 5 (27 March - 30 April 2020) and continues to be banned under lockdown level 4 (1 May 2020 - current). The basis of that decision is recorded in a directive dated 14 May 2020 issued by the Minister of Environment, Forestry and Fisheries. She records that -  " Given the health risks associated with COVID-19 and in alignment with the restrictions already implemented for public recreational activities in terms of the Regulations, recreational fishing is not allowed." This directive completely contradicts the framework regulations which implemented the Level 4 lockdown regulations which explicit...

If ever an appellate authority remained committed to repeating a comedy of errors, the Minister of Fisheries' repeated unlawful and irregular decision-making processes in the hake inshore trawl and sole fishing sectors are cases in point. Bad decisions in law and fact were made repeatedly since July 2017. The comedic errors are of course far from funny. These bad decisions simply annihilate any confidence left in the beleaguered fisheries regulator. They harm legitimate private capital interest in the sector. Instead, what we do see is an increase in illicit capital looking at ways to launder their cash and bribe their way to fishing rights.  These bad decisions have a profound negative impact on right holders trying to keep people employed and ensuring investments return a decent income.  The question is, given these multiple unlawful decisions, a multiplicity of review applications and adverse orders against the Fisheries Minister (the only hake inshore trawl fisher...

On 19 February 2020, the National Prosecuting Authority addressed correspondence to the Fisheries Branch seeking urgent clarification as to whether the Fisheries Branch has -  1. Ringfenced the US$7.45 million (±R111 million) that were repatriated by the Government of Jersey (United Kingdom) for the purpose of investing the monies for the singular objective of recovering depleted fish stocks, particularly West Coast rock lobster; and 2. Established the required Marine Living Resources Fund sub-accounts into which the repatriated funds would be transferred; and 3. Established the Project Implementation Committee, responsible for overseeing the implementation of the marine living resources recovery projects which would be funded by the "Bengis Funds".  The NPA reminded the Fisheries Branch that it has been more than 6 months since the Jersey Government had transferred these funds and the Governments of Jersey and the United States require an update as to whethe...

It is incredible! The Minister of Environment, Forestry and Fisheries has now apparently issued her appeal decisions which have been outstanding since August 2019 when Minister Zokwana's fourth set of decisions in the hake inshore trawl and sole fishery were reviewed and set aside by the Western Cape High Court. What is patently obvious is that we seem completely content to rely on appallingly bad legal advice. The extent of the illegality of this decision is actually quite breathtaking. In December 2018, Minister Zokwana decided to allocate a total of 36 hake inshore trawl and sole fishing rights. Of these, 17 were granted to existing or historic right holders. The remaining 19 rights were allocated to new entrants. Zokwana's decision in December 2018, followed an unlawful July 2017 decision which was reviewed and set aside on at least 3 separate occasions. These 19 new entrants had in the interim entered into various types of commitments to have their 15-year fishing righ...