Are You a New Entrant Seeking Access to the Fishing Industry?

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 holders) need to ensure that their businesses align substantively with the six key scoring criteria that we know will be used to score applicants. 

Our advice is that given the delay in the FRAP, new entrant applicants and existing right holders should use the next 6-8 months to substantively restructure their businesses so that they broadly comply with these six scoring criteria well before the commencement of any future FRAP. 

The 2016 FRAP For Horse Mackerel Implodes & the Consequences for New Entrants

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 Corporation (Pty) Ltd and Irvin & Johnson Ltd in 2019. 

The Minister failed to file a notice of opposition in the matter. Consequently, there has not been any answering affidavit from her either. Unfortunately, more than a dozen new entrant right holders, desperate to protect their newly allocated 15 year rights, were provided with poor legal advice and entered opposition notices which exposed them to a costs order and to opposing a matter they could never effectively oppose. We have advised a few of these new entrant respondents to withdraw their opposition notices and await the court's decision. 

The applicants in this matter - Blue Continent Products (Pty) Ltd, Sea Harvest Corporation (Pty) Ltd and Irvin & Johnson Ltd - will now make application to a judge in chambers this coming week to compel the respondents (including the Minister to file an affidavit within 5 days), failing which the applicants will obtain an order which will -

• set aside the decision to allocate commercial horse mackerel fishing rights to the 30 new entrant companies; 
• set aside the quantum allocation methodology which allocated some 60% of the TAC to these new entrants; and
• compel the Minister to decide the appeals afresh within 7 months of the order. 

What the decisions in the hake inshore trawl and horse mackerel sectors show is how destructive government conduct is toward to "empowerment", economic stability and growth. There were 30 new entrants granted rights in the horse mackerel fishery which has been singularly dominated by the Oceana Group and its super trawler, the MFV Desert Diamond. The 2016 allocation provided an opportunity for government to sustainably introduce a cohort of new entrants who would establish themselves as operators of smaller trawler vessels that would target horse mackerel for on-land processing and increase domestic consumption (as opposed to block freezing and exporting the entire catch). 

But due to ANC factionalism and utter incompetence, the entire horse mackerel allocation of 2016 is now rendered moot (in so far as new entrants are concerned). So let's not tolerate vacuous statements from this incompetent cadre-infiltrated government about "empowerment" and "transformation". The ANC is the greatest threat to any substantive transformative effort in SA fisheries history. 

These adverse court decisions against the Minister now substantially limit her ability to introduce new entrants to the hake deep-sea trawl, South Coast rock lobster, small pelagic and other commercial fishing sectors when these rights are re-allocated (if indeed they ever are). 

Is a FRAP Failure Avoidable? Here's a 5-Step Allocation Process Fix

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 had to have been completed more than 30 days ago as their season starts on 1 October every year. 

It is inconceivable that a department that has failed to allocate a mere 300 abalone rights since 2016 can remotely achieve their own deadlines. The fishing rights allocation processes for horse mackerel and hake inshore trawl remain outstanding more than 4 years after rights were first allocated! 

You have to be extremely naive to believe that the lot in charge of fisheries (including the Minister) can remotely meet any deadline - never mind allocate a single right legally and legitimately. At the very best we are likely to see a repeat of the catastrophically corrupt and unlawful FRAP 2013. The same incompetent cadres that were in charge of that process remain in place now! The key difference is that the current FRAP allows them to extort millions in bribes from compliant fishing companies in the mega value hake trawl, small pelagic, South Coast rock lobster and hake long line fisheries. 

The question that has been put to me over the past few days by dozens of right holders is whether FRAP failure is avoidable. Unfortunately, my short answer is NO. At least not if the current crop officials remain in charge of driving these processes and that includes an invisible and knowledge-deficient minister. These processes are not driven and insulated from maladministration by civil servants. The successful 2001 and 2005 processes were led by Minister Valli Moosa (and to an extent Minister van Schalkwyk). 

Given the huge social and economic risks to the Western Cape (more so considering the massive social and economic losses incurred to the province's tourism sector because of COVID-19) and to the fishing industry that is largely based in this province, organised fishing industry led by FISH-SA, SADSTIA, SASMIA, SAPFIA, SCRLIA et al need to urgently stand up and be counted. The Western Cape government led by Premier Alan Winde will certainly support the Western Cape based fishing industries protect their employees', shareholders' and investment interests in this province. 

So, how can FRAP failure be avoided? The current minister and her senior executive team at Fisheries MUST STEP ASIDE and let the professionals step in and fix their mess ... again. 

Step 1: Undertake 12 urgent SEIAS for every sector to understand the socio-economic and biological impacts of current policies. These SEIAS could be issued for input by 15 October 2020 with responses due by 11 December 2020. This has to be done BEFORE new draft policies can even be contemplated. In July 2018, and on the request of Minister Zokwana, I prepared 12 separate SEIAS questionnaires (at no fee). Here is the complete SEIAS for hake deep sea trawl. This questionnaire (And 11 others) should have been issued to each industry sector body and every right holder by the end of July 2018, which would have ensured that by October 2018, draft fishing policies could have been gazetted for comment in preparation for FRAP 2020. 

HDST Fishery Socio-Economic Impact Analysis

July 2018

INTRODUCTION

The purpose of this questionnaire is to understand the socio-economic and biological impacts of having allocated long-term fishing rights in this fishery in 2005 and to develop appropriate and adequate policy criteria and objectives for the allocation of fishing rights for the next 15 years.

In 2005, specific sector objectives were set for the allocation of fishing rights in the hake deep-sea trawl fishery. This socio-economic analysis seeks to understand –

• The extent to which these policy objectives were met; and

• To the extent that they were not met, what policy and criteria are needed to achieve these objectives (if they remain applicable) and to set new policy objectives for the next period of fishing rights; and

• What socio-economic impact the allocation of fishing rights has had on right holders, their employees and the communities in which they operate; and

• What positive socio-economic impacts future fishing right allocations and policy could have.

AT WHOM IS THIS SOCIO-ECONOMIC ANALYSIS AIMED?

This questionnaire is primarily aimed at current right holders in this fishery and also recognised industrial bodies and interest groups operating in the fishery. 

The questionnaire must be completed by individual right holders and returned to the department. Interest groups and recognized industrial bodies are welcome to submit responses that may be relevant to specific questions. This questionnaire must be returned to the Department via email (________________________), alternatively delivered to the Customer Services Centre located at Ground Floor, Foretrust Building, Martin Hammerschlag Way, Foreshore, Cape Town by not later than 15h00 on ______ August 2018.  All data provided herein is treated confidentially and will not be published or used in a manner that would prejudice individual right holders’ commercial, financial, proprietary and trade secrets or personal data.

POLICY OBJECTIVES SET IN 2005

In 2005, the following policy objectives were determined for this fishery:

• Notably improve the transformation profile of the hake deep-sea trawl fishery by increasing black ownership of the TAC and to redistribute the TAC so as to affirm right holders with smaller allocations in this fishery that are transformed and have performed well; 

• Create an environment that attracts investment and stimulates job creation; and 

• Support the economic viability and environmental sustainability of the fishery.

TRANSFORMATION OF THE FISHERY

1. In your opinion has black economic empowerment in this fishery increased or decreased since 2005? Please substantiate your response. 

2. As a right holder, -

2.1 What percentage of shares / members’ interest is owned by black persons?

2.2 What percentage of shares / members’ interest is owned by women?

2.3 What percentage of shares / members’ interest is owned by persons with disabilities? 

2.4 What percentage of shares / members’ interest is owned by employees and/or community based organisations? Please specify. 

2.5 What percentage of shares / members’ interest is owned by persons under the age 36? 

2.6 What percentage of your board of directors are – 

• Black? 

• Women? 

• Physically disabled?

• Under the age of 36? 

2.7 How many permanent and seasonal employees did you employ in 2017 and during the current 2018 fishing season? Please provide separate numbers for permanent and seasonal employees. 

Permanent Employees Seasonal Employees

2017:                         2017:

2018:                         2018:

2.8 What is the average monthly salary / wage paid for permanent employees during the 2017 and current fishing seasons?

Permanent Employees: Average Monthly Wage/Salary

2017: ZAR

2018: ZAR

2.9 What are the employment-related benefits provided to permanent employees during the 2017 and current fishing seasons?

Permanent Employees: Benefits Provided

2017: 

2018:

2.10 What is the average monthly salary / wage paid to seasonal employees during the 2017 and current fishing seasons?

Seasonal Employees: Average Monthly Wage/Salary

2017: ZAR

2018: ZAR

2.11 What percentage of your turnover was spent on CSI in 2017 and is intended to be spent in 2018? 

2.12 Are you presently a designated employer under the Employment Equity Act? 

2.13 Have you invested in any enterprise development and investment initiatives since 2005? Please provide as much detail as possible regarding any of these initiatives. 

2.14 Have you supported the development of smaller quota holders in this fishery or other less capital-intensive fisheries? If you have please provide details of the support provided. 

2.15 In your view, to what extent can members of local communities in which you operate be better integrated in fishing-related processes, including catching, processing, marketing of fish or in fishery related support service industries such as gear manufacture, vessel maintenance, transportation of fish etc? 

INVESTMENT & FINANCIAL DATA 

3. As a right holder in this fishery what investments have you undertaken over the past 10 years in – 

• Vessels and gear?

• Processing facility upgrades or technologies?

• Markets and product diversification and change? 

• Greener technologies and sustainable fishing systems? 

• Reducing by-catches and unsustainable fishing practices? 

Investment Category Brief Description of Investment ZAR Value

Vessels & Gear                                                                 ZAR

Processing Facility & Technologies                         ZAR

Markets                                                                         ZAR

Green Technologies                                                 ZAR

By-Catch Reduction & Sustainability                         ZAR

4. What is the current hull age of the vessel(s) you use?

5. What are your legal interests in the vessel(s) you use in this fishery? Do you – 

5.1 Own equity in the vessel / vessel owning company? If so, please specify number of shares / parts and ZAR value. 

5.2 Have a catching / charter agreement? 

6. To what extent are you directly involved in –

6.1 Determining the catching / harvesting strategy of your quota, including 

by-catch?

6.2 Determining the processing and marketing strategies related to your seafood?

7. How much income (before tax) did you generate from your HDST fishing right generally in 2017  and specifically from –

7.1 Hake

7.2 Monk

7.3 Kingklip

7.4 Ribbonfish

7.5 Snoek, 

        during the 2017 HDST fishing season? 

8. Do you operate your HDST fishing right in an economic consortium or formal operating joint venture with other right holders? If, so how many participants are there in this consortium / JV and what is its current total operating HDST quota (2018 season)?

LOCAL & REGIONAL ECONOMIC DEVELOPMENT

9. Where was your fish primarily landed in 2017? If it was landed at more than one harbour, please specify estimated proportions of landing at each harbour? Do you anticipate that this will remain the similar in 2018?

10. Where was your fish primarily processed? If it was processed at more than one facility, please specify estimated proportions processed at each facility? Do you anticipate that this will remain the similar in 2018?

11. Please specify the principal market destinations of your product in 2017, including type of seafood exported and export value.

Seafood Product Type Market Destination & Percentage     ZAR Value

 

THE 2020 FISHING RIGHTS ALLOCATION PROCESS

12. In your view, which are the principal criteria that should be used during the 2020 allocation process to determine – 

12.1 which current right holders should be granted long term fishing rights in this sector?

12.2 which current right holders should be excluded from future fishing rights in this sector?

12.3 whether new entrants should be permitted into the fishery?

12.4 how the HDST TAC should be allocated amongst qualifying right holders?

13. In your view, should there be a minimum quota / percentage allocation in this fishery? What would that be and why would that be reasonable? 

14. Would you support a paperless, electronic only application submission and fishing right allocation process for this fishery in 2020?

 15. The ex-post facto verification of data by applicants has proved tedious and costly,         would you support independent audited verification of applicant data prior to application submission for the 2020 process?

(ALSO PART OF STEP 1: Appoint the necessary business, data and IT experts to develop the IT platforms to ensure that FRAP 2021 can be managed and decided entirely electronically without the need of a single hard copy application to be received, protected, stored or managed. The department's current IT systems are woefully inadequate and cannot be trusted).

Step 2: Based on the above analytical data, prepare draft fishery sector policies, inclusive of objectives and allocation criteria, rights application process and application forms. Publish these drafts for a 60-day notice and comment period.  Draft policies could be published by 15 January 2021 with comment due by 15 March 2021. In order to meet these analytical and drafting deadlines, each sector should be chaired by fishery specialists aided by three roving constitutional and administrative law experts that oversee policy development, coherence, legality and policy alignment. 

Step 3: Finalise each draft policy, rights process and application form after further consultation with specific industry sector bodies and issue the final invitations to apply for rights across each of the 12 fishery sectors by the middle of May 2021. 

Step 4: Make provision for the return of applications on a staggered return date basis between 1 July 2021 and 30 August 2021 and ensure a completely electronic submission process. For small-scale fisheries like mussels, oysters, hake handline, abalone & line fish the electronic submission process is explained here. Because the application data is submitted electronically, evaluation of small-scale fishing applications could be scored, weighted and ranked within 24 hours of submission, requiring individual decision-makers to scrutinise data integrity and ensure validity of results before publishing decisions within 5 days of submission of applications. 

Step 5: Allocate the last of the fishing rights by not later 31 November 2021 with appeals set for completion by not later than the end February 2022. 

FRAP 2021 could realistically happen but it requires the current Minister and her ANC cadres to acknowledge their failures and limitations and do what is in the best interests of South Africa and its fishing industry. This is why FRAP 2021 will not happen or if does miraculously happen, it will epitomise failure. 

The Legitimacy of a Fishing Rights "Extension"

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 11 sectors) has in any way been extended. The Cabinet authorisation speciifcally speaks to the extension of "timeframes for the dealing with the fishing rights allocation process". Extending the timelines for the fishing rights allocation process and actually extending the validity periods for fishing rights are two entirely separate matters and it would appear that Cabinet authority was obtained for the former and not the latter. Cabinet is of course fully entitled authorise the amendment of timelines for the granting of fishing rights. The Minister must then proceed to prepare the necessary draft amendment bill for presentation to Parliament seeking an amendment akin to section 18(6)A. 

Further, the Minister has not expressed how she intends exercising this unlawful and non-existent authority to "extend" the validity periods of fishing rights outside of an amendment to section 18(6)A of the MLRA. 

One can only assume that the Minister has been advised that she can use the power under section 81 to issue exemptions to more than 1000 current commercial and small-scale fishing right holders. This will (she must have been advised) then simply allow all these current right holders to continue fishing operations despite their section 18 fishing rights having terminated and reverted back to the state. 

We do not believe that the provisions of section 81 can be used in such a manner, which effectively seeks to undermine the provisions of Section 2 and Section 18 of the MLRA. The abusive use of section 81 to avoid allocating fishing rights is evident in the mismanagement of the abalone and lobster resources. Section 81 exemptions have been allocated to arbitrary and secretive lists of "interim relief" lobster quota holders since 2008 - an abuse of section 81 spanning 13 years now and which has effectively become the second longest unofficial "rights allocation" regime in SA fishing history. 

However, even if Section 81 can be utilised in such a manner and used to authorise commercial fishing in the 11** affected fisheries beyond 31 December 2020, the Minister has to formally issue a gazette granting the exemptions and the justifications for doing so. In our view, the Minister would have to issue a gazette proposing the granting of exemptions and explaining her rationale and reasons for doing so. The Minister would have to subject these proposals to public scrutiny and comment in terms of the provisions of the Promotion of Administrative Justice Act. Her final decision would be subject to judicial scrutiny and review. 

**On 30 September 2020, the 15yr long fishing rights in the South Coast Rock Lobster fishery terminated and reverted to the state in terms of section 18 of the MLRA. Accordingly, as of 1 October 2020 (today) no entity may operate a commercial SCRL fishing operation. 

FRAP 2021: A Failure on the Horizon

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 or 2021 or perhaps even 2022 or "FRAP Never" certainly seems doomed to simply implode into a pit toilet of ANC failure. And before the eternal optimists start wagging their desperate woke fingers, let's remind ourselves of the following:

• Abalone fishing rights that were supposed to have been allocated in 2013 (YES! 8 years ago) remain unallocated. An attempt was made to allocate rights in 2016 but that simply never happened. 
• Hake inshore trawl appeals dating back to 2017 remain outstanding. There are less than 100 appeals and 4 years and probably 5 adverse court orders later, shtoom! Nada. Zero finality. 
• Horse mackerel. The entire horse mackerel allocation looks set to be set aside because the current minister is completely incapable of even filing an answering affidavit in response to the Blue Continent Products (BCP) review application, which is an exceptionally convincing set of arguments and not too dissimilar to the arguments by industry and government before the constitutional court back in 2004 in the Bato Star matter. The Minister is of course unable to depose to an affidavit as none of the information which she needs to rebut the allegations made by BCP are known to her or her staff and due to ANC factionalism and the war between herself and Zokwana, the former Minister is unlikely to provide a confirmatory affidavit or depose to the principal affidavit explaining his decision. 

To further compound the looming failure, we have the same senior management team leading the Fisheries Management Branch that so completely wrecked the 2013 FRAP. It took me and two other colleagues a full 12 months between 2015 and 2016 to fix the ruin they created. And let us not forget the extent of the social and economic harm they caused with that ruinous FRAP. And yet, every single one of those staffers responsible for FRAP 2013 remain gainfully employed at DEFF and will now spearhead a multi-billion rand fishing rights allocation process. 

Is the threat of the approaching iceberg becoming clearer? Not yet? 

You may recall that back in July 2018, the Department issued an actual Gazette informing the fishing industry that they would commence with the reviewing of all 12 sector policies, applications and the General Fisheries Policy of 2013. A 25 page Socio-Economic Impact Assessment guideline was also published. Two years later and absolutely nothing has been accomplished on any of these gazetted undertakings. There is an actual 2018 presentation of commitments available here, stating that draft sector policies would be gazetted for public comment and consultation during "late 2018"! 

Most recently, the Minister had budgeted a period of 90 days (July 2020 to end September 2020) to simultaneously develop 12 fishery sector policies and a general fishing policy to regulate and manage the FRAP 2021 AND undertake the complex task of analysing the social and economic impacts of fishing on no less than 52 coastal villages, towns and cities from Port Nolloth to Richards Bay. The social and economic impact studies are obviously incredibly detailed and complex analyses that require many months to complete and then analyse and then interpret the results as they concern 12 very different commercial and small-scale commercial fisheries that affect very different geographic locations.

The Minister's Gazette of 26 June 2020 had undertaken that on 12 October 2020 the draft fishing sector policies, application forms and application fees would be published for comment. Given that no socio-economic impact studies and assessments have even commenced, this self-imposed consultation date is simply no longer attainable. And given that the legal validity of the entire FRAP will be built on the legal, social and economic soundness of the fishery sector and regional specific SEIA's (as these studies will inform key fishery sector objectives, scoring criteria and allocation process rules), "FRAP WHENEVER" is unlikely to succeed on any possible matrix of imagination. 

The legal and process failures demonstrated by the decision-making in the horse mackerel and hake inshore trawl fishing sectors are clear indicators of what can be expected... if a FRAP is ever in fact commenced. It is increasingly likely that as we have seen with "Interim Relief" and abalone, the department will simply issue "exemptions" as opposed to fishing rights for the foreseeable future. 

ALERT ABOUT FAKE NEWS

 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 and of course rent-seeking.  

In the coming weeks and months as applicants prepare for the allocation of fishing rights, we strongly urge current right holders and prospective new entrant applicants to engage the services (if required) of reputable and known advisors and lawyers. 

If SSC applicants require any help or advice, you are welcome to contact Feike directly for advice. We do not charge members of the SSC fishing sector for our time. This includes the traditional line fish sector. 

UPDATE ON FISHING IN COVID-19 SOUTH AFRICA

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 explicitly allowed "ALL FISHING ACTIVITIES" to be pursued. Given that the Marine Living Resources Act, 1998, recognises "fishing" to include commercial, foreign, small-scale and recreational fishing, the Directive issued by the Minister on 14 May 2020 is unlawful as it contradicts a regulation. Ministerial "directives", as with policy, cannot overrule or contradict a prescribed regulation. 

Furthermore, the justification for the ongoing prohibition of recreational fishing is irrational and nonsensical. The growing scientific and medical expert view is increasingly that the South African lock down regulations are unnecessary, arbitrary and unconnected to anything related to the prevention of the spread of a virus. For example, the regulations prohibit the purchase of certain clothes and retail products; prohibit exercising except during 3 hours each day (As if the virus is asleep during these hours!). 

Although permitted to continue with operations, commercial fishing is depressed as international and local demand for seafood has nosedived around the world. There have been pockets of significant activity such as in the local linefishing sector with the recent snoek run, which was reportedly the best snoek run in recent memory. 

The South African fishing industry has also demonstrated its incredible commitment to social justice during these trying times by making available thousands of seafood parcels to local fishing communities.