Tuesday, September 21, 2021

The Draft 2021 Fishery Sector Policies: A Case of 9 Bad Policies

 I have worked through the entire government gazette issued on 20 September 2021 containing 9 draft sector policies and the draft transfer of rights fishing policy. 

Should you require detailed advice and analysis on specific policies, you are welcome to contact me. It is simply not possible to draft a blog article setting out that level of analysis and detail. 

The overwhelming conclusion having read these draft policies is that they are the product of incorrigible poor intellect and knowledge of our fisheries sectors, economies and communities. None of these policies will withstand any half-decent judicial review. Like the Draft General Policy 2021, these draft policies are crap.

The construction of entire paragraphs is nonsensical and an awful abuse of the English language. 

Bad policy that will destroy value chains, jobs, investments and entire fisheries economies are prevalent. 

How can you create policy that will exclude an entire vessel fleet in an entire sector? Or deliberately exclude everyone of the top fishing vessels in the tuna pole fishery? Is this deliberate with the intention of sabotaging the fishery by allocating rights to cadres who will then lease out the rights to the excluded top-performers? Or is this incorrigible stupidity and incompetence rolled into sickening levels of arrogance?

Then there are yawning policy gaps. The drafts are silent on how COVID-19 compliance protocols will be considered and scored. This is key to worker safety. Nothing about compliance with COIDA and the Merchant Shipping Act such as the provision of crew contracts, paid leave and crew safety. Nothing is spoken about investments made in green technologies; ecological sustainability; funding of research and development of new fisheries; nothing about rewarding right holders who kept staff employed and paid during the COVID-19 pandemic... 

The draft policies are just bad. Badly written. Ambiguous. Unclear. Nonsensical. Zero understanding of the social and economic drivers of specific fisheries. It's so bad, the HAKE DEEP SEA TRAWL policy even gets the 2005 black ownership data shockingly wrong (The Minister could simply have read her predecessor, Marthinus van Schalkwyk's Appeal GPR on the HDST sector in 2006 to confirm the correct black ownership data).

Bad data (well actually no data) produces awful and economically destructive policy and objectives. 

Barbara Creecy is renowned for taking criticism as a personal attack on her. But her insistence on backing the stupid; the destructive; the incoherent and the corrupt warrants these attacks. Her refusal to be held accountable will destroy what is left of South Africa's commercial fisheries. The SA fishing industry has to call time now and if she refuses to listen to reason; our courts must step in and slap her down as they have done now repeatedly in the horse mackerel sector.

Creecy has the audacity to now include in black and white in a policy document that objective of her draft policy is to transform the industry by rewarding applicants that have included "military veterans" in their ownership and management structures! How is this even published? 

Industry bodies and their members will have to submit strong and well-reasoned responses to these draft policies. These submissions must include alternative, rational and socio-economically justifable policies and criteria to the Minister. Should she fail to abandon the irrational and arbitrary policies that dominate these drafts, industry will have the opportunity to then interdict this process and halt this farcical FRAP. 

Thursday, September 16, 2021

The 2021 Draft General Fisheries Policy: An Analysis

On the 13 September 2021, the Minister of Fisheries, Barbara Creecy, published the 2021 General Policy on the Allocation of Commercial Fishing Rights ("the General Policy"). There is a 30-day notice and comment period - effectively members of the fishing industry and other interested parties have until 14 October 2021 to comment. 

So how good or bad or acceptable is this draft policy? This is a brief analysis of the draft 2021 General Policy. 

Is this the 2019 DRAFT General Policy with a newish title and cover page? In February 2019, Minister Zokwana published a draft General Policy for comment. The 2021 General Policy is an identical copy of that 2019 draft! It took Minister Creecy nearly 3 years to publish a 2019 draft Policy. This is an incredible case of failure and prejudice to members of the fishing industry. 

To compound the failure, none of the industry submitted comments have been considered or included in the current 2021 draft General Policy. 

Minister Creecy must explain why it took her 3 years to publish an identical copy of the February 2019 draft policy and why none of the industry's comments and inputs were even considered.

What are the obvious legal flaws of the publication of the draft General Policy? 

The most glaring legal flaw of this draft is that because it is a duplicate of the 2019 (PRE-SEIAS PROCESS), its publication is an affront to the SEIAS process, which we now know was just a sham "consultative" process. Moreover, the publication of this draft policy while "Phase 2" of the SEAIS process remains outstanding is unlawful. 

Secondly, the draft policy gazetted on 13 September 2021 is available in English alone. In terms of the Promotion of Administrative Justice Act, the publication of the Draft Policy and notice of the invitation to comment MUST be published in at least two official national languages and the notice of invitation must also be published in at least one national newspaper. These are fatal legal procedural flaws as these are peremptory requirements.

Furthermore, the draft General Policy explicitly instructs affected parties on the cover page in BOLD UPPER CASE TEXT that the draft General Policy MUST BE READ WITH THE APPLICABLE. DRAFT FISHERY SPECIFIC POLICIES... None of the draft policies or critically the draft applications forms were published for comment. Accordingly, the 30-day notice and comment period CAN ONLY START RUNNING from the date these documents and forms are gazetted.  

Regulation 18(3) of the PAJA Regulations state that the notice published (ie the Gazette with the draft policy) must contain sufficient information about the proposed administrative action to allow for meaningful comment. 

So, its a very, very, very bad legal start for the Minister and the gazetting of the draft General Policy. Essentially, she must withdraw the Government Gazette 865 of 13 September 2021 and start again by ensuring compliance with PAJA. 

What is the Purpose of the Draft Policy? Paragraphs 1.2 and 1.3 tell you the same thing but dont. This seems to be the confused state of the Draft Policy. It aims to guide the allocation and granting of commercial fishing rights but so too will the (yet unseen) draft fishery specific policies. 

The Draft General Policy has a crisis of identity. What it should be is an overarching umbrella policy document that aims to explain the national government's policy and processes that will govern the allocation of commercial fishing rights. 

On the process side, it will be deficient as the department clearly does not not yet know how this process will unfold; how applications will be completed, submitted, verified, evaluated and decided. None of that detail, which is required as we know under law for meaningful comment and consultation according to PAJA, has been figured out yet. 

With respect to policy content, it is understandably vague, incoherent, wrong, unlawful and contradictory because there is zero understanding and knowledge of the economic and financial structure of each commercial fishery up for allocation. For example, if the basic economic structure of the hake trawl, hake long line or small pelagic fisheries was known, then the incredulous policy statements on "multi-sector involvement" & "entity and their subsidiaries involvement" would not be included. 

More pertinently, it is unclear if this 2021 draft policy replaces the 2005 and 2013 General Policies and furthermore why this 2021 text applies to fishing sectors already allocated fishing rights such as those in 2016? 

Where are we in 2021? A glaring gap key to the development of overarching and sector specific policies is the answers to the policy objectives set out in the 2005 and 2013 policy frameworks. How can the 2021 process even start to enunciate policy and objectives without first having understood the extent to which past policy objectives have been met and, to the extent that objectives have not been achieved, to understand the reasons for this?

The draft policy must set out these key socio-economic indicators as these will form the basis of justifying and explaining the policies, criteria, scoring and weighting adopted. Without this, any policy statement, criteria, scoring and wighting adopted will be arbitrary, irrational and subject to review. For example, consider the following:

  • Criterion - "Reliance": Firstly, this criterion applies to all applicants, including "Category C" applicants who by definition have no current or prior involvement in commercial fisheries! Secondly, the criteria will score applicants based on the income derived from fishing activities in and outside of South Africa. No South African fishing company holds rights in "fishing sectors outside of South Africa". 
  • Criterion - "Transformation": The policy statement in clause 7.3.6 states that the "2021 General Policy seeks to further transform and to improve on the levels of transformation already achieved..." While furthering transformation in certain sectors was and remains a valid policy objective, there are certain sectors where "furthering transformation" is not justified any longer. For example, the hake long line fishery is 90% black owned. In the white mussel sector, 85% of right holders are black individual harvesters. Accordingly, the admission of new entrants to any sector will only be lawful if further transformation of the sector is justifiable, the admission of new entrants gives effect to the attainment of past policy objectives not met and it gives effect to the section 2 policy objectives, on balance.    
  • Criterion - "Jobs": The draft General Policy states that it is a policy objective to create permanent jobs and "better quality" jobs, and further permanent jobs are preferred. This policy statement is however directly undermined by the Minister's proposed policy on "multi-sector" involvement which directly undermine permanency and "quality" jobs. Further, not every fishery operates year-round and thus such an overarching policy statement is not rational or attainable. 

How are we dealing with the small-scale and industrial commercial fisheries? The 2005 policy framework adopted a clustered approach to fisheries management with the aim of ensuring, inter alia, the small-scale commercial fisheries such as line fish, abalone, hake handline, mussels and oysters are not "infiltrated" by shareholders, directors and entities involved in the industrial commercial fisheries. The abandonment of that policy in 2013 allowed large commercial enterprises to successfully apply for dozens of hake handline rights to the detriment of individual line fishers! 

The Draft General Policy fails to protect small-scale fishermen from the intrusion of larger players who can easily out-compete individual small-scale fishers. The cluster management approach also ensures that fishing rights allocation processes and systems are properly designed to cater for the different financial and human resources available to large industry and individual small-scale commercial enterprises.  

The Draft policy must re-introduce the cluster fisheries management system so as to protect small scale fishers applying for rights in the traditional line fish, hake handline, oyster and mussel sectors.  These sectors must be reserved for individuals and must exclude any person that is a director/member/shareholder of an entity applying for an industrial commercial fishing right in any of the historically referenced "Cluster A" or "Cluster B" fisheries. 

Will New Entrant Applicants be wasting their money by applying? The Draft policy is silent as to the circumstances under which new entrants will be accommodated in any fishery. Clarity in this regard is crucial to reducing unnecessary applicant numbers and importantly to prevent new entrant applicants from wasting valuable resources applying for rights in sectors that could be closed to new entrants.  What are the policy criteria for including new entrants in any particular fishery? 

The most glaring policy omission? How will large and small right holders be equitably compared when it comes to key criteria such as employment numbers and investments? The General Policy does not address this key policy issue which, if not properly addressed, would result in substantial inequity between competing Category A and Category B applicants in any fishery sector. For example, if the question is "how many employees does the applicant employ"? a large quota holder would always outscore a smaller quota holder. The same would apply with respect to investment rands. The Policy must be amended to ensure that applicants are measured on a per ton basis. This will ensure an equitable basis of comparison.  

The Second most glaring policy omission? The draft General Policy fails to address the fact that allocating fishing rights is a TWO-STEP process. The first step involves allocating fishing rights. Thereafter (and subsequent to a consultative process) step two involves the allocation of quota / effort in terms of the adopted quantum/effort allocation methodology. 

The Bad Policy: The draft General Policy is littered with bad policy which is a direct consequence of drafting without any understanding of the social and economic constructs of the fishery sectors. There is also vague and contradictory policy. Key examples of these bad, vague and contradictory policies are: 

  • There is zero mention of applicants having to have proper COVID management protocols in place for factories, offices and vessels (Given that this draft is simply a copy and paste of a February 2019 policy, COVID-management in workplaces is of course expectedly missing. BUT WHAT IS DFFE's policy on COVID-management and workplace protocols? This POLICY must spell this out and what is required of vessel owners and right holders! IT must be a scoring criterion given that COVID management will be with us for some time to come);
  • There is also silence about by-catch management, ecosystem sustainability (such as garbage management plans for vessels; the investment in green fishing and operations technologies such as solar and water saving systems) and critically no policy statement with respect to achieving our obligatory targets under the UN SDG's or the implementation of Port State Measures Treaty provisions;
  • There are a plethora of confused and contradictory policy statements such as those on what are "paper quotas"; the entire compliance framework; whether the fisheries sector is considered transformed or not (cf paras 2.4, 2.6, 7.3.6(a);
  • The determination of the fees in clause 5.3.2 is directly contradicted by GG 866 of 13 September 2021 (The Fees Gazette). That gazette states that the fees were determined by increasing the 2016 fees gazette by 5,2%. The determination of fees as per the Gazette is unlawful and reviewable. The fees gazette itself contains some entirely incorrect fees for certain fisheries. This Gazette has to be withdrawn and the fees properly computed in terms of clause 5.3.2 of the Draft Policy. 
  • Clause 5.4.2 refers to the sorting of applications into individuals and entities! Please dont tell me that the Minister is actually contemplating allowing individuals to apply for industrial fishing rights and entities to apply for small-scale commercial rights which must be exclusively reserved for traditional line fishers (ie individuals)! 
  • The entirety of clause 5.4 confirms that the department and minister have no idea how this process will be managed, administered or evaluated. 
  • The exclusively criteria make no mention of applicants requiring a fishing vessel suitable for the respective fisheries to be applied for. This is surely another oversight. No vessel must mean exclusion of the application! 
  • The structure of clause 6.3 (including the convoluted attempts at understanding what a "paper quota risk is") is an unmitigated thought-processing mess! Where to even start with these clauses? Clause 6.3.2 states that if you are convicted of "more than two contraventions", then your application will be excluded ... this is contradicted by clause 7.1.5(a)(iv). Footnote 3 on page 22 contradicts clause 7.1.5(a)(v). And the entire attempt to delineate these compliance criteria into "minor" and "substantive" violations renders the construction of the criterion as arbitrary and ambiguous. This is was exactly the same mess that had to be fixed on appeal in the 2016 process. There is clearly no attempt at learning from past failures. In short, the current construction of the entire compliance exclusionary and balancing criteria will not withstand judicial review. Its a mess!
  • None of the remaining balancing criteria make much or any sense (other than the obvious transformation scoring criteria). The fact that the Minister fails to understand just how critical it is that right holders MUST HOLD multiple fishing rights because diversification in fishing is critical to surviving, creating permanent jobs and surviving economic downturns in certain markets, is further proof of the failure of the SEAIS process and her department's lack of understanding as to how different fisheries sectors operate and generate incomes. 
  • The criteria such as fishing experience, investment, reliance & jobs are simply nonsensical. They once again confirm a fundamental lack of understanding and knowledge as to how to equitably and rationally evaluate and score applicants. 
  • Perhaps the most ridiculous policy provision is the prohibition that related entities can apply for their fishing quotas in the same fishery. Clause 8.6.1 states that a "company and its subsidiaries may not be granted more than one right in the sector applied for ..." This will never stand given the structure of individual fisheries sectors such as South Coast rock lobster, hake deep-sea trawl hake long line, squid and small pelagics. For one, over the past 15 years, the department and its minister had not once intimated that consolidation to this extent was ever required or would become mandatory. Secondly, had the Minister undertaken even a cursory study of the economic structures of these fisheries sectors, she would have realised that such a policy is untenable. That her advisers and the DDG of Fisheries allowed the publication of such daft policy only confirms the parlous intellectual state of the leadership of the fisheries management branch.

Did the corrupt and failed FTC just make a come-back? Clause 8.2 makes this bizarre policy statement about allocating rights to the FTC which will then be able to lease rights to certain categories of persons. Lets be frank here. This is nothing but an attempt to create a vehicle for the allocation of rights to ANC cadres. This model is identical to the corrupt, failed quota allocation model that is collapsing in Namibia and which resulted in the FISHROT scandal. 

(And dont forget that back in 2018, Minister Zokwana decided that some 30 large pelagic fishing rights would remain available in some common pool for allocation ... which to this day has never transpired). 

There is no scope or space in our current deeply incompetent and corrupt state for a "fisheries transformation council" and the leasing of rights to cadres. 

To conclude. The draft General Policy is crap

It's a 3-year old out-dated regurgitated policy that undertakes to implement every failure of the 2013 and 2016 fishing allocation process. It is premised on ZERO socio-economic data and analysis. There are critical policy gaps and even worse bad policy. And let us not remind ourselves that the two most important and valuable allocation processes of 2016 are STILL unresolved with two separate ministers having lost more judicial reviews in 2 fisheries than in the entire history of commercial fisheries management in South Africa. 

Thursday, August 26, 2021

Its September: Can Fishing Rights Be Allocated by 31 December 2021?

On 20 September 2021, the Deputy Director-General of the Fisheries Management Branch met with the EXCO of FISHSA and confirmed a vague revised timetable and commitment that fishing rights would be allocated by 31 December 2021. 

From the FISHSA Minutes of that meeting it would appear that the DDG was intentionally vague and ambiguous and certainly unconvincing that a lawful and legitimate rights allocation is attainable. 

So for the umpteenth time, the question that kept being put to me via WhatsApp, email and telephone calls was "CAN FISHING RIGHTS BE ALLOCATED BY 31 DECEMBER 2021?".

My clear and unambiguous answer has been and remains, NO. NO. NO. NOT POSSIBLE. 

We have already set out on TWITTER (@feikemanagement) why this "new" timetable is not only impractical but also unlawful but lets be unambiguously clear about why fishing rights CAN NOT BE ALLOCATED before 31 December.

1. SEIAS are irrational, unlawful and do not contain any social and economic analytical data. The second phase of SEAIS has not commenced. Any policy development in the absence of properly constructed SEIAS will render the policies irrational, unlawful and reviewable. The DDG is on record as stating to FISHSA that they should not place too much emphasis on the SEAIS! This statement is bewildering. These are Cabinet mandated impact studies THAT MUST BE UNDERTAKEN to inform policy development because if you don't understand the social and economic impacts of the proposed rights allocation process, the ensuing policies will have false objectives, targets and premises. 

These false premises and objectives were abundantly apparent throughout the draft SEAIS as we pointed out in this article here

The entire Cabinet mandated SEAIS process has to be completed and finalised which includes the second phase of the process and its own consultative processes. 

2. Apportionment of TAC/TAE between commercial and small-scale co-operatives has not been concluded yet. The entire small-scale allocation process for the Western Cape remains before the courts. The decision to allocate 15% of the squid fishery effort to the co-operatives is currently being appealed and will certainly be reviewed. The allocation of fishing rights cannot proceed in the absence of these small-scale effort allocation issues and decisions having been finalised. 

3. The appeals in the horse mackerel and hake inshore trawl fisheries have not been finalised yet! Its been 4 years since fishing rights in these two fisheries were allocated in 2016 and to this day the appeals remain outstanding. The allocation of the next round of fishing rights cannot proceed until these allocations are completed because of the categorisation of right holders.

4. It is September and we still do not have any draft policies, application forms and we certainly do not have any confirmed application procedures for small-scale and commercial fishing sectors. Draft policies were supposed to be published this week. They have not. Assuming publication next week, the department will have to allow not less than 60 days to consult and for interested and affected parties to provide input. The department has also not even made known its public consultation meetings along the coast yet (dates, venues, times etc). The draft policies must also be published in at least the 4 languages most spoken along our coast. So the English texts all require translation at least twice!

5. The conclusion of the public comment period will take us to the end of October 2021. The Minister must then finalise these draft policies, align the draft application forms, obtain final approval from the Minister of Finance with respect to the Grant of Right Fees and the Application Fees and critically, obtain Cabinet approval for these final policies, which can then be gazetted together with the invitations to apply for commercial fishing rights. Assuming the Minister receives a paltry 1000 comments, it will take no less than 30 days to receive, collate and then consider each and everyone of these comments and to update and amend each of the draft policies and the draft general policy.      

These final drafts must then be collated and a Cabinet memorandum prepared and addressed to the Cabinet committee responsible for evaluating and advising Cabinet on the policies. This can only reasonably take place only after the February 2022 "re-opening" of Parliament.

6. Have we forgotten that there is a scheduled local government election on 27 October 2021? It is inconceivable how a coastal-wide  public consultation process on fishing rights processes can take place at the same time as political parties aggressively campaigning. It is certainly conceivable that the ANC will use the fishing rights allocation process as a threat/incentive to garner support along the coast.  

7. The FRAP is also supposed to be an "on-line" process! What that means remains a mystery! We do know that an Indian domiciled IT company has been appointed to implement this IT Solution. We do know that the Department and national government more broadly does not have an IT platform to support an "on-line" fishing rights allocation process. We also know that with a budget of R11 million, a Greenfield's platform design is out of the question and would take no less than 12 months to design, build, test and implement. 

Is the department's idea of an "on-line" application process just an email submission process? Yes, we  may laugh but I will not be surprised if this is what is implemented come application time!

(Unless the appointed IT company intends to use a reconfigured PORTNET user platform or something similar BUT that reconfiguration, design and testing will take some 6 months at least). 

To summarise:

1. Consultation requires 60 days - End October.

2. Revision of draft policies and obtaining Cabinet approval - End February 2022.

3. Development, design and testing of an existing IT platform (Such as PORTNET's current harbour management system) - End February 2022. 

If a single fishing right is allocated by 31 December 2021, it will be unlawful and only achievable by failing to consult as required by law and failing to comply with the Constitution. 


Monday, May 17, 2021

Publication of Draft Hake SEIAS: Are They Worth the Paper?

On Friday 14 May 2021, the Department of Environment, Forestry and Fisheries (or whatever it calls itself these days) published three sets of draft Socio-Economic Impact Assessment Surveys (SEIAS) in the demersal shark, hake long line and hake deep sea trawl fishery sectors. On Monday 17 May 2021, a fourth & fifth draft SEIAS for the small pelagic and tuna pole fisheries were published. It is uncertain as to whether any other SEIAS were published as the department has not published any of these documents on its website, in the government gazette or in any newspapers as required by law. 

Comments on each of these five drafts are due at 16h00 on 27 May 2021. It must be noted that as at 15:00 on 17 May 2021, there is no mention of these documents and the comment period on www.environment.gov.za, the Minister's twitter account or the department's official twitter page.  

There is no possible justification or rational reason for such an abbreviated notice and comment period which is a violation of the Promotion of Administrative Justice Act, which requires a minimum 30-day notice and comment time period. PAJA also requires publication of the notices inviting comment in at least one newspaper in each of the four coastal provinces. Emailing the draft documents to industry bodies and to certain individuals simply does not meet legal muster. 

Accordingly, the procedural publication of these drafts is legally flawed and reviewable. Not a good start.

What about the actual content? This initial article will focus on the hake long line and hake trawl SEIAS. We will consider subsequent articles which will focus on the small pelagic and tuna pole SEIAS. 

Our twitter followers will no doubt have seen my scathing remarks about the Friday drafts. The two draft hake SEIAS are truly awful; irrelevant; inapplicable to the sectors concerned; they don't contain ANY social or economic data on the hake fisheries (long line or trawl); they are filled with typos, myth, falsehoods and garbled English. 

The drafts are certainly not SOCIO-ECONOMIC impact ASSESSMENTS of any sort. To make matters worse, the hake long line and hake trawl drafts are identical duplicate copies. Apparently both fisheries are capital intensive and untransformed despite the hake long line fishery being 90% black owned and considered a non-capital intensive Cluster B fishery. The hake trawl fishery is capital intensive and 66% black owned. 

Let's look at the texts for hake trawl and hake long line SEIAS.

Firstly, despite being fundamentally different fisheries on every measurable social and economic indicator, the draft SEIAS for both these fisheries are identical, including the numerous typos and garbled language. 

Secondly, the template used for these SEIAS are socio-economic impact assessments in title only. There is not a single social or economic dataset, analysis or measurable in 17 pages of identical text. That is because the department has embarked upon this FRAP as it had done in 2013 and 2016 - without any actual and proven data. And this is despite the fact that -

  • the 2005 policies mandated regular performance assessments of the fisheries at intervals of between 3 and 5 years to ensure policy and management relevance. Only one of these assessments were ever undertaken - in 2009. But this assessment and its findings are not even referenced by these SEIAS. 
  • the annual permit conditions all make mention of the fact that the department will request socio-economic data from right holders. In 15 years, the department has failed to collate even a single year's data for ANY fishery!
The last detailed socio-economic impact assessment that was undertaken was in 2000 in preparation for the 2001 medium term rights allocation process and the subsequent 2005 long term rights process. Again, this incredibly detailed and comprehensive Economic and Social Sectoral Study (ESS report) should have been consulted but was not.    

An economic and social study of the impact of fishing rights ought at the very minimum to analyse the following types of data:

  • The policy objectives set in 2005: To what extent have these objectives been met, surpassed or not met at all and what are the reasons for this?
  • Understanding regional and local impacts where hake is fished, landed and processed. What are the economic contributions and impacts on regional and local economies as a result of primary, secondary and tertiary impacts, including the value of services procured from local suppliers (catering, vessel maintenance and repair, laundry, retail, etc);
  • Value of investments per ton in vessels, factories, taxes, jobs;
  • Value of products, beneficiation, exports & domestic sales;
  • Value of foreign income generation per ton allocated;
  • Transformation and empowerment, particularly with respect to black ownership; value of profits returned to black shareholders (per ton allocated), skills development and staff empowerment and CSI.
These drafts do not even contemplate such basic analyses. 

Thirdly, the templates used are premised on measuring every single one of the fisheries on 7 largely irrelevant and generic predetermined "priority" objectives such as "education, skills and health", "consolidating the social wage", "spatial integration, human settlements and local government", "social cohesion", building a capable and ethical state and "a better Africa and world"! What complete nonsense within the context of understanding the social and economic impacts of 15 years of hake trawl and long line fishing rights! 

How will do these "priorities" help with policy development, fishing rights allocations and criteria development in any fishery?

Accordingly, the very premise of these draft SEIAS - the identification of "priorities" - is so irrelevant; so inappropriate to fisheries that these "assessments" will fail legal scrutiny.  They certainly will never produce any conceivably appropriate policy and evaluation document. 

Fourthly, the drafts are littered with falsehoods, myths, and bizarrely awful language, such as the repeated use of the apartheid-era term "black groups". Who on earth thought of conjuring up 1980's National Party speak? Then the myths and falsehoods - 

  • that there are "many transgressions" committed by right holders. On what conceivable evidence is this statement of "fact" based? 
  • that the hake long line fishery is capital intensive. That will be news to right holders! Why is it classified as a Cluster B fishery then?
  • that both the hake trawl and long line fisheries require empowerment because "black groups" have been excluded! The hake long line fishery is 90% black owned, having been established in the 1990's (post apartheid fyi). The hake trawl fishery is certified (through the Genesis Audit) as being 66% black controlled; double the levels of 2005;
  • the hake biomass is "fluctuating". It is not;
  • that a declining TAC would cause bankruptcies. It is unclear how this has been measured. Furthermore, the only reason the hake TAC has been reduced is because the department has failed to undertake the annual research surveys. In other words, if a TAC reduction does cause a single bankruptcy, the department's incompetence and ineptitude would be the cause.  (Actually an easy fix);
  • that hake fishing rights are "sub-optimally utilised" because of a "lack of interest";
  • that the monitoring and measuring of "transformation" due to "fronting" and the "corporate veil" is difficult. This is false on a multiplicity of levels. For one, transformation is easily measurable and has been done so since rights were first allocated. The deep sea trawl fishery had its black ownership recently measured and audited. This data has been available to the department. Further, transformation is strictly regulated under the Marine Living Resources Act. And the reference to the "corporate veil" ... is precious! Shame, the poor authors are not aware that the "corporate veil" has nothing to do with shielding the identities of the owners of an entity. It is just tragic.
  • that "most" right holders are not involved in any aspect of the business of fishing and are paper quotas! MOST right holders in the hake fisheries are paper quotas according to the department!! On what conceivable factual basis is this egregious statement based? 
  • that the "wellbeing is taken by non-South African companies who lure the right holders to sign long term catching... agreements"! WOW! Who came up with this xenophobic, mythical crap? And then decided to publish it? 
  • the entire tabular "analysis" under points 1.3 and 1.5 is devoid of fact and relevance. For example, right holder trade in by-catches cause financial flows "outside the country" prejudicing "bona fide South Africans"! Who wrote this garbage? What is a bona fide SA? What is a non-bona fide SA? WOW... again.
Finally, both draft hake SEIAS consider 3 identical options and magically prefer the same option 1 (to review the current rights and to reduce the current rights "equivalent to a number of those rights that were optimally utilised..."). What on earth does this even mean?  

More pertinently, on what actual basis was this option selection premised?  The draft SEIAS do not consider the value of rights, capital intensity of the fishery, investments required, re-capitalisation of vessels and processing factories, levels of transformation, and so forth. 

Accordingly, the conclusion is based on zero analysis, no data, false statements and an entirely irrelevant ream of 34 wasted pages. 

This fishing rights allocation process is still-borne at best. If the minister insists on proceeding based on this garbage, every decision will be reviewed and set aside ... just like we have in the hake inshore trawl and horse mackerel sectors [and neither of these 2016 rights allocations have still been finalised more than 5 years later]. 

Tuesday, March 16, 2021

FRAP NEVER UPDATE: Second Attempt at FRAP Tenders

 On 15 March 2021, the Department of Environment, Forestry and Fisheries published two sets of FRAP-related tenders. One was for the appointment of an IT firm that has to provide an IT solution for the FRAP and the second concerned the appointment of a FRAP "Implementer" that would be responsible for essentially everything from consultations, the conducting of the 12 SEIAS, development of policies and administering the entire FRAP. 

Regardless of the suitability of the TOR's, the question that we have been asked to answer is, can this "start" of the process result in an allocation by year-end. The short answer is a definitive NO!

Here is why.

Firstly, we have had this stillborn issuing of tenders already - back in November 2020. Five months later, we are back to square 1. But let us pretend to be awfully gullible and pretend that come the end of April 2021, the Department appoints two service providers as envisaged and these teams get cracking immediately. (It must be noted that the legal team has not been appointed yet and the November 2020 tender seeking to appoint this team has been cancelled). 

And let us focus exclusively on the FRAP implementer to keep things relatively simple. 

The first substantive task is to START on the 12 fishery specific socio-economic impact assessments. You cant start drafting policies without first understanding the social and economic contexts of each of the fisheries and the communities that depend on them. Let's assume this team deploys a massive contingent of sociologists and economists across the 52 major coastal villages, towns and cities to scientifically analyse the impacts of the 12 fisheries. Let's assume they do this in a rapid 90 days with a further 30 days to produce their analytical reports. That takes us to the end of August 2021. These studies then need to be gazetted for public comment and input. A minimum of 30 days would be required by law for such a consultation process. We are now at the end of September 2021

This analysis will directly inform the development of the fishery sector policies. Let us assume that while the SEIAS were being conducted and prepared, the individual sector and fisheries managers were crafting framework policies and then interpreted and inserted the applicable data into the draft policies within a miraculous 30 days. Let us also assume that staffers were also compiling complementary draft application forms together with the IT firm appointed to oversee the technical aspects of the FRAP.  We are now at the end of October 2021.  

The draft policies and forms must be gazetted for a minimum of 30 days for public consultation. A more realistic timeframe for consultation would be 60 days given that these drafts would have to be "workshopped" amongst members of the fishing industry and potential new entrant applicants. And December cant be counted for consultation given the holidays and the importance of fishing during that period. That consultative process takes us to the end of January 2022. 

Let us assume that the FRAP staff work tirelessly through January and finalise all 12 sector policies, applications forms, application fees and the general policy. A final set of gazettes can then be expected on 1 February 2022, together with the invitation to apply for fishing rights. 

The application period could not conceivably be less than 90 days, which takes us to the end of April 2022

At the very earliest, the first application could be evaluated and scored in April 2022 ... and that is clearly on an extremely wishful timetable. The first fishing rights may only be allocated in June 2022, but I would not bet a rand on that happening. 

If I was a betting man, I would predict that -

1.    The Minister and her department will produce a farcical and irregular single SEIAS in a panic by June 2021, which will be immediately challenged, halting the entire preparatory process. 

2.    Should they ever overcome their inability to produce 12 complex SEAIS analysing the social and economic impacts of 12 very different commercial and small-scale fishing sectors operating in some 52 tiny, medium-sized and metropolitan communities, they will certainly falter at the next hurdle - the production of poorly composed, near-generic fishing sector policies. We have seen the penchant to produce generic, valueless sector policies in 2013 and 2016. 

3. Sometime in 2023/2024, after repeated court losses, the Minister will give up and as we have seen with abalone and "interim relief", simply just issue annual exemptions - a reversion to the failures of the late 1990's. 

(Disclaimer: I have deliberately overlooked the Minister's ongoing failure to resolve the outstanding appeals in the hake inshore trawl and horse mackerel fishing sectors ... more than 4 years since fishing rights were first allocated and subsequent to more than seven successive court losses in only two fishing sectors!)




Saturday, January 23, 2021


In November 2020, the Minister of Fisheries published her second revised FRAP timetable having completely missed her own deadlines for the preparation of socio-economic studies and reports and the publication of draft policies by October 2020. 

We stated on the record that the revised timetable is impractical and unattainable.  Neither of the first two milestones set by the Minister have been achieved. This includes the appointment of service providers. 

To date, no right holder or industry association have been communicated with or consulted in any manner whatsoever regarding socio-economic data, policy criteria, frameworks, possible processes and systems that would apply to any FRAP etc. 

When will this government just admit that it does not have the resources and capacity to implement a fishing rights allocation process? We see the same incompetence and destruction (albeit with much more serious consequences) in the mishandling of the COVID-19 pandemic and now with the failed vaccine procurement. What we do see is a lot of unscientific bluster, denial and deceit. 

If the Fisheries Minister would simply commit some time to the mismanagement of fisheries, meet with industry bodies and request their assistance, I am certain it will be forthcoming as right holders simply cannot continue operating on "unbankable" exemptions, unrealistic and eternally revised timetables and rumour. 

This is how we foresee rescuing this rights allocation process:

1. Separate the 13 fisheries into 3 separate allocation streams with different timetables and processes so as to alleviate the financial and administrative burden on the department. Stream 1: Hake trawl, SC lobster, small pelagics, KZN prawn trawl, hake long line, tuna pole, shark demersal & squid. Stream 2: Mussels, oysters & hake handline. Stream 3: Traditional line fish & abalone. [end Jan]

(Regardless of streaming, the 13 SEIS studies and draft policies need to be prepared and finalised by not later than June 2021. This will have to include the resource splits between co-operative and individual small scale fisheries. In fact, I would abandon this fictitious and destructive policy of forcing people to hold rights via co-operatives. It must be a choice dependent on the financial model applicable for each area and what resources are available).

2.  Co-develop policies. While the Minister and her staff focus extensive resources on the production of the 13 SEIS for each sector, they should request the individual fishery sectors represented by their respective industry bodies to POPULATE framework policy and process documents, including scoring criteria. The Minister must set the rules for these processes via Gazette. For example, industry bodies must show evidence of consultation with right holders; the documents must follow a template guideline and answer specific mandates. Each sector can produce these draft policies between February and end April. This will then allow the Minister just under 60 days to formally consult in terms of PAJA. [end June]

3. Possible stream processes

Stream 1 should essentially follow the 2005 on-line and independent audit and verification process. The Department can confirm the audit and verification rules with SAICA who can then issue the applicable instruction to their members. These costs are for each applicant for a Stream 1 right. The department will need to appoint an independent data management company who can provide a secure online platform for the application and data development and management needs. Again, these costs are recoverable from applicants and right holders in terms of Section 25(1) and 25(2) of the MLRA. Stream 1 could be completed by end November with appeals completed by end March at the latest.

Stream 2 fisheries are regionally located low value fisheries with harvesting areas in distinct geographies. Accordingly, applicants from only the adjacent areas should be allowed to apply otherwise you have hundreds of paper quota holders that sit with worthless and unused rights as we have currently in the each of these fisheries. These are low value fisheries and accordingly the process and requirements must be designed to cater for the specific small-scale fisher. A basic smart-phone application app can be quickly and cheaply designed. A decision maker will need to know the following:

1. Are you a new entrant or existing right holder? Depending on the answer, separate questions will require populating for new entrant applicants and existing right holders.

2. For existing right holders, you only want the following information:

        2.1    Name, surname, ID, email, mobile number & physical address

        2.2    The person's self-identified race & gender

        2.3    Current operating / harvesting area

        2.4    How much mussels / oysters / hake did the right holder harvest in 2018 / 2019 & 2020

        2.5    How much income did the right holder generate from fishing in 2018 / 2019 & 2020

        2.6    What fishing related assets does the right holder own (boat, trailer, car, harvesting gear                 etc)

        2.7    What is the replacement value of these assets

        2.8    How many people does the right holder employ part-time and full-time 

        2.9    What is the right holder's daily / weekly / monthly wage bill for staff

        2.10   If granted a right again, what assistance will the right holder require from the department to ensure better catching and earning possibilities. 

 3.     For new entrant applicants, you want to avoid asking questions that are purely aspirational as these are worthless and our courts have already looked upon these negatively. Consider the following:

        3.1    Name, surname, ID, email, mobile number & physical address

        3.2    The person's self-identified race & gender

        3.3    Nominated operating / harvesting area

        3.4    Has the applicant ever paid a fine for violating the MLRA / been convicted of an offence under the MLRA without the option of a fine

        3.5    If granted a right, the applicant must explain how the right will be utilised, the fish processed and sold. 

        3.6    The applicant must list whether it currently owns any fishing / harvesting gear and what the current replacement value for these are. 

For Stream 2 fisheries, there is no need for supporting documents at the application phase. This will ensure a rapid electronic and automated data capturing and scoring process. In addition, and importantly, applicants can apply submitting their applications in the language of their choice which can then be automatically translated back into English for the purposes of data verification. Stream 2 fisheries could be evaluated, scored, verified and decisions issued within 3 weeks.  

Stream 3 fisheries are higher value zonally managed fisheries. As with Stream 2 fisheries, applicants for a Stream 3 fishing right should be required to complete an on-line smart phone-based application form, albeit with a greater emphasis on investments made in fishing gear & vessels. Substantial emphasis must also be placed on harvesting of own quotas and employment & remuneration of crew. 

Each stream should comprise a dedicated team of decision-makers who are experts in the fisheries concerned, legal counsel, business process analysts, IT support, administrative support personnel and audit staff. 

The FRAP process can simply not be managed by way of hard copy applications, which are prohibitively expensive to manage, secure and evaluate. And time simply does not permit for such an archaic system. 

Monday, January 4, 2021

Do Quota Holders Need a Fishing Permit to Fish?

We have a received a number of queries from quota holders (both companies and individual fishers) enquiring as to whether they require a permit to fish. 

Quota holders whose rights expired at midnight on 31 December 2020 have been exempted from the provisions of section 18 of the Marine Living Resources Act until midnight on 31 December 2021. This means that these quota holders can continue fishing DESPITE not having a valid commercial fishing right issued in terms of section 18 of the MLRA. 

Abalone quota holders have been operating without section 18 "rights" since 2013. "Interim relief" quota holders have been doing so since 2007/2008! 

Accordingly, this exemption covers not having a right. And every quota holder whose right expired on 31 December 2020 can continue fishing as if their rights were issued in 2005 and 2013 as being valid until 31 December 2021. 

What about the actual annual fishing permit issued every year in terms of section 13 of the MLRA? On 25 November 2020, the Minister and her department issued an exemption to ALL fishers (foreign, commercial and recreational) that exempts them from requiring a section 13 fishing permit until the end of February 2021. 

Accordingly, you don't need a section 13 fishing permit to fish your quota until at least 1 March 2021.  However, the 25 November Exemption obligates fishers to comply with the 2020 permit conditions, including that they must pay their levies and report fish landings. 

POSTSCRIPT: We have been informed by members of the tuna long line industry that the department's compliance personnel require "proof of application for a fishing permit", a copy of the 25 November Exemption Notice (why this is, is baffling! Does the compliance department not know the content of their own department's exemption notice?) and the 2020 fishing permit. These requirements are unlawful and ultra vires the authority of any compliance officer or departmental manager to try and make up rules. They lack this authority. They can be ignored. The 25 November Exemption Notice did not specify any such conditions and requirements.

Civil servants cannot make up rules and requirements as they choose.