Environmental Affairs Releases Review of ISS Paper

The Environmental Affairs department has finally released its peer review report on a paper drafted by Feike and commissioned by the ISS on illegal fishing in South Africa. The review was undertaken by Dave Japp. It does not appear to have been reviewed by any other expert. The full review is available at www.deat.gov.za.

Feike welcomes the review as the initial paper was intended to commence a debate on our collective understanding of illegal fishing in South Africa and what it costs our economy. The review unfortunately does not attempt to provide an alternative understanding of illegal fishing or what is costs South Africa. The report does however nitpick through stated facts and figures criticising them as more "popular" than "scientific". I readily admit - and had Japp and environmental affairs attended the public debate and review organised in Cape Town to critique the paper they would have heard it then - that any attempt to understand illegal fishing particularly in sectors such as abalone and shark finning, there is no magical scientific formula to determine its ecological and socio-economic impacts. Poachers do not report their takings and earnings on a trade website. You can not contact them and scientifically analyse their data at 0860 POACHERS.

The review furthermore is simply a desk-top review of the paper and subsequent print media generated as a result. It would have been helpful had the review actually attempted to provide an alternative methodology to contextualising illegal fishing. One cannot sit at a desk and criticise the ISS/Feike report's estimates of illegal abalone, pilchard or hake fishing if the reviewer does not interview poachers, gangsters, buyers of abalone in Hong Kong or fishery control officers. The reviewer did not consult international organisations such as TRAFFIC or NGO's who deal with illegal fishing on a daily basis, such as SEAWATCH. The ISS/Feike report actually involved interviews with gangsters and poachers who use poached abalone to buy ephedrine for TIK manufacture. I personally sat with poachers who leisurely sat on the slipway in Hawston offloading more than 1 ton of illegal abalone and lobsters. And you don't footnote and reference the drug-dealers or the poachers name and contact details. Unfortunately Mr Japp forgets that the ISS/Feike report is not intended for some academic scientific journal replete with complex mathematical formulae etc. The report details realities based an actual interviews with hardened criminals and members of some of Cape Town's most violent gangs.

With respect to my research into illegal fishing of hake, the practices and volumes detailed in my paper were in fact confirmed by the South African Deep Sea Trawl Industry Association (SADSTIA) who were part of the initial consultation and review processes. In fact my research into the Spanish practices were recognised by MCM, who under the leadership of Theressa Frantz and SADSTIA, subsequently began a process of taking corrective measures.

Furthermore, while the DEAT review seeks to undermine the numbers and values presented in the ISS/Feike report, the quantum and value of illegal fishing quoted in the report are supported by every other institution, including Rhodes University (who undertook a separate research report into illegal abalone fishing, confirming that the ISS/Feike report may have been too conservative in stating the quantum of illegal abalone fishing), TRAFFIC who monitors the illegal trade in species on an annual basis, the quantum of abalone sold in China and Hong Kong and the numerous and various information sources which exist on the "ground".

Finally, the review paper is fatally undermined by the very admissions and actions by the most senior staff at DEAT and MCM. The Director-General is remembered as having broken down in tears in Parliament and on national television and admitted that neither DEAT nor MCM are able to control poaching, that it is out of control and they do not have any idea how to arrest the deteriorating situation.

In summary, the DEAT review fails to provide an alternative methodology or answers to how one can determine the quantum and value of illegal fishing in South Africa. The DEAT review does not show that the ISS/Feike report is flawed in its methodology or that incorrect information or data was used. The DEAT review does however ask an extraordinary number of questions indicating that it may have useful if the reviewer actually contacted experts such as TRAFFIC, SEAWATCH, Rhodes University, a handful of buyers of illegal abalone, fishery control officers employed by MCM, enforcement officers employed by SANParks (Table Mountain National Park and Bird Island MPA's), abalone right holders and divers, industry bodies such as SADSTIA and so forth. Had the reviewer really been serious, then he could have even contacted the author of the ISS/Feike report and a meeting with certain poachers and TIK dealers could have been arranged.

Feike looks forward to convening a further public debate on the ISS/Feike report and the DEAT review. We firmly believe that only open debate and discussion will allow us to share information and experiences with the hope that we will be able regain the upper hand over illegal fishing in South Africa.

MCM Continues to Deceive

On 4 December MCM issued a statement denying the veracity of a story published in the Cape Times earlier that day (see article below dated 5 December, "MCM Issues Statement on Abalone Divers' Funds"). Documents in the possession of Feike in fact show that the statement by MCM is false.

The document confirms that MCM's statement is false and deceptive in three respects. Firstly, abalone divers were to have received R54 000 (not R52 000 as we initially reported) or R90/kg. There were never discussions about a once-off R20 000 payment.

Secondly, there was no signed agreement between MCM and a trust representing the abalone divers in June 2009. The documents in our possession show that a draft trust deed existed in October only with the intention of getting the divers to sign the trust deed on 6 October. MCM is encouraged to make the June 2009 signed agreement available to the public. Indeed, our discussions with divers and TURF representatives confirmed that limited consultations between MCM and the industry only started in late September and early October - weeks before Jacob Zuma's address to the divers in Hawston on 17 October.

Thirdly, R82 million was made available to MCM for the purposes of "social relief" payments to divers (R15 million) and for developmental abalone projects, such as the establishment of an abalone hatchery in the Overberg.

The fact that MCM has actively sought to provide false information regarding public funds raises further concerns about possible maladministration and the diversion of public funds to unlawfully appointed consultants.

MK Vets to Combat Poaching? Oh No!

Just when we saw some light in the tunnel, we now learn that the South African government will be using unarmed uMkhonto we Sizwe veterans to police our coast in a bid to stamp out abalone poaching! To make matters even worse they are being trained by metrorail - the same organisation that runs our railways and cant keep passengers from being thrown off trains. Oh no, is this just a surreal really bad dream? Please let it be!

Many respected voices in the field have simply and sadly confirmed that this just amounts to another case of ANC cadre deployment using public funds. With the deployment of ANC cadres to fight poaching (remembering that just before the national elections in April, a senior ANC official was caught with poached abalone in his official ANC vehicle emblazoned with ANC logos and a picture of the current president), government has unequivocally confirmed that it has no interest in curbing poaching. It will cost the taxpayer and the abalone industry many millions to fund this ANC cadre deployment and will undoubtedly yield as much of a result as did the initial commercial harvesting ban.

The regularity with which government administration continues to ignore academic and industry advice, expert advice, best practice and the expensive mistakes of days past is further evidence that we have almost completely corrupted the civil service with blind political loyalty.

Instead of unarmed, metrorail trained MK Veterans what we need to spend public and industry funds on the infiltration and collapse of organised triad structures and the disruption in the trade of abalone which funds everything from tik production to the counterfeit goods like DVD's, clothes and cigarettes. We also need dedicated environmental courts with properly trained "green" magistrates and prosecutors. We also need to ensure that our current fishery control officers are actually fully conversant with our marine fisheries laws and can properly support the detection and prosecution services attain successful prosecutions coupled with lengthy jail terms for the gang bosses.

We do not need MK Veterans wondering the coast hoping to bump into a triad boss poaching tons of abalone. The MK Veterans could instead wonder the coast and make sure recreational fishers have their permits and are catching their 4 lobsters per day - that's if metrorail is training them to also identify the difference between a geelbek and an abalone.

Commercial Abalone Fishery to be Reopened

It is finally official. The abalone fishery will be reopened to commercial fishing in February 2010. This was announced on 6 December 2009 by the Minister of Agriculture, Forestry and Fisheries who will also assume the position of minister in charge of fisheries.

The Minister - Tina-Joemat Petterson - did not however announce what the TAC would be as she is still in the process of consulting officials at MCM. We hope that she will consult extensively with divers and academics at UCT who have undertaken substantial research into the status of the fishery, including the predominance of urchins in the Hangklip region. MCM officials will be able to tell her very little unfortunately as they have not undertaken any substantial ecological, social or economic research since at least 2007. In addition, it was MCM's management team that forced through the closure of fishery despite independent scientific advice which showed that the commercial fishery had little impact on the sustainability of the abalone fishery.

The Minister importantly mentioned that poaching remains the single biggest problem to the future of the abalone sector. She made brief mention of MCM co-opting former ANC and PAC military veterans as officers to combat poaching. It is unclear what role they will precisely play but it is understood that they may form part of a marine compliance unit of sorts.

The Minister will be under significant pressure over the next few weeks to detail her strategy to recover the upper hand over poaching and to save MCM from institutional collapse.

MCM Issues Statement on Abalone Divers' Funds

On 4 December 2009, Marine and Coastal Management issued a statement in response to a newspaper article published by the Cape Times of the same date. The MCM statement reads as follows:

The Marine and Coastal Management would like to respond to misrepresentations in a Cape Times article, Friday, 04 December 2009, by Melanie Gosling titled: “Fishermen short-changed on promised compensation.” Firstly, it is absolutely not true that MCM has “handed R15 million of government relief funds to a shadowy “trust” to distribute the money as compensation to abalone quota holders...” as the Cape Times claim. The Department of Environmental Affairs has paid out R6.8 million in interim relief to 292 of the 302 rights holders (262 individual divers and 40 legal entities in the form of close corporations) whose livelihoods were adversely affected by the suspension of the wild abalone fishery. What she refers to as a “shadowy trust,” is in fact a trust established by the affected permit holders to interact with the Department in the disbursement of the interim relief funds in line with Public Finance Management principles. Secondly, contrary to her claim, fishermen were never meant to receive R52 000 instead of R20 000 that the Department paid out. An agreement signed on the 18th of June 2009, between the South African Abalone Rights Holders Trust and the Department, in terms of relief payment, states that:

1. All 262 abalone divers will be paid a once-off amount of R20 000 each

2. All 40 legal entities (CCs) will be paid a once-off amount of R30 000 each

3. All crew (“bakkie boys”) totaling 604 will be paid a once – off payment of R2000 per person

4. Consideration of an exclusive second payment to the maximum of R10 000 to the divers and crew will be part of a detailed means test thought the Implementing Agent. Gosling further claims that the R52 000 she made up, is “apparently part of R80m given by the Treasury as a “social plan” to help fishing communities affected by the closure of the abalone fishery. National Treasury has never given the Department R80m for a “social plan.”

Although the statement seeks to address the status of the "trust" created which does not have the support of all abalone divers, MCM continues to deceive. Importantly, MCM still refuses to make available the trust deed that established the trust and defines the beneficiaries and who the trustees are and what are their powers and obligations. MCM also fails to address the important allegations surrounding the increasingly apparent unlawful appointment of Anix Consulting. Anix has admitted that it was "given" the contract. The fact that MCM failed to use the press statement to dispel the allegations of corruption, must mean that someone at MCM did indeed "give" Anix Consulting the contract in return for something - that is afterall the how and the why government contracts are "given" and not competed for as required by our state-of-the-art but never implemented anti-graft laws. So the question is who gave the contract and why does MCM top-management continue to duck and dive the issue - are they involved in the given contract as well?

As stated in an earlier article, Feike has attempted to report this matter to the Special Investigations Unit. However, the SIU's "fraud hotline" never gets picked up - at least on the 15 occasions we tried last Friday. We also tried the "President's complaints hotline" - they should establish a complaints hotline for the complaints hotline! We will however continue to try and lodge our complaint and concerns with the SIU.

Is the Social Relief for Abalone Fishers being Pilfered?

In the Cape Times of 4 December 2009 (p3 - "Fishermen short-changed on promised compensation"), journalist Melanie Gosling writes that MCM continues to refuse to account to the public how R80 million allocated by the National Treasury allegedly aimed as "social relief" for the commercial abalone industry is being spent. Gosling also approached Anix Consulting - the consulting firm Feike identified as having mysteriously surfaced at about the same time the divers had their promised payouts reduced from approximately R100 000 to R20 000. Anix Consulting confirms that they were "given a contract with Water and Environmental Affairs". If they were given a contract then they were appointed illegally and heads need to roll at MCM. In addition, Feike intends approaching the Special Investigations Unit regarding the increasingly apparent misappropriation of public funds.

The fact that MCM refuses to answer simple yet important questions about the role played by Anix Consulting, their terms of appointment and what they are being paid and also refuses to account for R80 million in public funds must raise clear concerns about the possibility of corruption, maladministration and mismanagement.

DEAT'S 2008/2009 Compliance and Enforcement Report

On 25 November 2009, the Minister of Environmental Affairs and her department launched the 2008/2009 compliance and enforcement report. As Feike had authored a research paper which concluded (but roundly denied by government officials) that illegal fishing cost the SA economy an estimated R6 billion in 2008 and that Marine and Coastal Management - a branch of the environmental affairs department - was incapable and unwilling to curb illegal fishing, I was particularly interested to understand the department's initiatives and statistics pertaining to illegal fishing.

The entire report of 35 pages fails to mention the words "abalone" or "fish" or "hake" or "shark-fin"... or any matter related to fishing once! In fact the entire "compliance and enforcement report" is really only able to say this about marine and coastal management -

"Marine and Coastal Management (a branch of the Department of Environmental Affairs) recorded the highest number of convictions at 206."

In fact Marine and Coastal Management is mentioned thrice in the entire report. There is no attempt at any analysis or recognition of the challenges and threats posed by illegal fishing and the more general lack of enforcement and compliance in the abalone fishery or the commercial fisheries, generally.

The full report is available on www.deat.gov.za.

INTERNATIONAL SCIENTIFIC REVIEW OF ASSESSMENTS OF THE SOUTH AFRICAN HAKE AND ABALONE RESOURCES

Over Monday 30 November to Friday 4 December 2009, an international panel will be reviewing assessments of the local hake and abalone resources at a workshop being held at the University of Cape Town. The panel comprises Drs A Punt (USA), A Smith (Australia) and G Stefansson (Iceland).

While most sessions will be highly technical, with attendance by invitation only, the following sessions, to be chaired by Dr K Prochazka (MCM), will be open to a general audience:

Monday 30: 9-00 to 10-30 am - Hake

An overview of the approach used to set TACs for the hake fishery since 2007, and of an updated assessment proposed as the basis to revise this approach from 2011 (D Butterworth and R Rademeyer - UCT)

Tuesday 1: 9-00 to 10-30 am - Abalone

An overview of the status of the abalone resource, and a description of the model used to assess this status for Zones A-D (G Maharaj – MCM and E Plaganyi – CSIRO, Australia)

Friday 4: 11-00 am to 12-30 pm – International norms for fishery regulation

International norms for target abundance levels for fish stocks, and controls applied to stocks falling below such levels (Discussion session initiated by presentations by panel members)

Friday 4: Afternoon – Panel Report

Presentation of results of review and consequent recommendations by panel members

2-30 to 3-30 pm: Technical issues

3-45 to 5-00 pm: Broad overview

The broad overview will be presented at a level appropriate for fishery stakeholders and decision makers – there will be opportunity for some questions.

VENUE: Room M304, Mathematics Building, University of Cape Town

Enquiries: 021-650-2340

Mayekiso is removed as head of MCM

On 23 November 2009, Monde Mayekiso who was appointed as head of Marine and Coastal Management in 2005 for a second time in as many decades, was finally "moved to focus on the area of marine science, ecosystem management and climate change within the department". Feike also understands that after months of indecision and embarrassment, South Africa actually will have a minister of fisheries that is actually responsible for fisheries regulation and management. Feike understands that the Minister of Agriculture, Fisheries and Forestry will assume control over fisheries, replacing the Minister of Water and Environmental Affairs who had appeared to exert executive control in this sphere since May 2009.

The fishing industry will undoubtedly breathe a huge collective sigh of relief that Mayekiso has finally been removed as he oversaw the collapse of MCM and its funding arm the Marine Living Resources Fund for a second time. Mayekiso was removed as head of MCM in 1999 by the then Minister of Environmental Affairs, Valli Moosa.

However, although there is relief at his removal, the question at this important time is who will assume the reigns of a vaguely functional MCM? MCM's operational budget is equivalent in rand terms to the 2003/2004 budget. It has a massively oversized administration and personnel costs are excessive. It was recently forced to admit that its compliance strategies with respect to abalone have been a failure and it has no idea how to curb abalone poaching which currently costs the economy in the region of R3 billion annually. Fisheries management is in turmoil burdened with bureaucracy and a leadership that is incapable of supporting the fishing industry during these difficult economic times. Fisheries research is under significant pressure as it has had to reduce scientific surveys and keep research vessels in port.

MCM requires smart and efficient leadership at this juncture. The new DDG will require strong political support to effect the types of changes required to recover MCM and its funds to levels where it can actually provide the services the fishing industry pays for. A 5 step recovery plan should be based on the following:

Step 1: A visionary and knowledgeable leadership is required in significant dollops. MCM has been lacking visionary leadership for far too long hence its perennial crises.

Step 2: Reduce staff numbers in the administration and support sectors. You would probably save about R20 million in staff and office costs. Outsource the administration of permitting, licensing and vessel management to the fishing industry and right holders themselves. MCM need only audit compliance once annually at the end of the season. You would probably save another R10 million in wasted administration costs - not to mention all those trees that would be saved.

Step 3: Regain control over illegal fishing and maladministration in MCM. With respect to illegal fishing, there are two reasons why MCM has failed so entirely here. Firstly, with the commercial and artisinal sectors, MCM has no relationship at all with the right holders. MCM is on record, for example, as stating that all abalone right holders are poachers! Rebuild relations. Secondly, to get control over the illegal trade in abalone, the institutions and systems that existed in 2004 need to be re-established. Overall, MCM must move away from compliance enforcement to monitoring and surveillance with an emphasis on intelligence (!) gathering and partnerships.

An effective compliance strategy will actually cost MCM about R80 million annually as it will lose income from the sale of confiscated abalone. This would explain why MCM had intentionally collapsed compliance in the first place.

Step 4: Funding for fisheries management. If one discounts the R80 million plus that MCM currently relies on from the sale of confiscated abalone to a more sustainable R10 million, then MCM's most significant income earner is from the fishing industry in the form of administration fees and levies. We would recommend a review of the basic funding model and allow the fishing industry a greater oversight and advisory role akin to other international jurisdictions, such as Australia.

Step 5: Rebuild working and effective relations relations with the South African fishing industry.

Here's hoping.

Abalone Divers get R20 000

On 17 October 2009, President Zuma addressed the commercial abalone divers in Hawston, Western Cape, about the future of their commercial fishing rights. After hearing their stories and the failures of Marine and Coastal Management to address abalone poaching and the implementation of the long-promised "social plan", Zuma underook to revert to the right holders with an update about their futures as commercial abalone divers " within a month". The time has now come for that promised update.

What has happened in the interim since Zuma's visit is that abalone divers have received payments of R20 000 each in lieu of the suspension of their fishing rights since February 2008. There remains much unclarity regarding these payments and the manner in which they are being made. There are too may right holders who simply don't have answers to important questions. Firstly, the payment of all funds is being facilitated through a trust that purports to represent all commercial abalone divers. Interviews conducted with a number of Zone E and G right holders appear to contradict this as they did not consent to the establishment of the trust. Secondly, Marine and Coastal Management has delegated all "co-ordination" and direct supervision over the payments and the trust to a Charles Swarts, who is a commercial abalone diver from the Overberg region. It is unclear why only one person has been given such authority by MCM (as opposed to by the divers themselves) especially considering that there are 12 active zonal representatives for each of the 6 abalone fishing zones, A, B, C, D, E and G. Thirdly, divers were initially promised a payment of R90 for every kilogram they were allocated in the 2007/2008 season, which amounted to approximately R52 000 per right holder. It is unclear why this payment has been reduced to R20 000 per right holder and who took this decision. A further related concern is the sudden appearance of the consulting firm Anix Consulting who has been appointed to manage the payment of the funds to the right holders. It is unclear how they were appointed as there is no known tender seeking the appointment of such a service provider. Anix Consulting's status on the Companies & Intellectual Property Registration Office website also states that Anix Consulting is in the process of "deregistration" effective 14 November 2009. Subsequent to Feike's queries on 16 November 2009, this status has now been changed on Cipro to "in Business" effective 17 November 2009.

Feike put the following questions to MCM's Desmond Stevens in a bid to obtain clarity on the various issues raised above:

1. The trust that was established to channel the payments:

• Who are the trustees of the trust?
• How were they appointed and by whom?
• In terms which provisions of which laws are funds being channelled to/via this trust?
• Could you please provide me with a copy of the signed trust deed?

2. The R20 000 payments to abalone divers: It was initially understood that divers would be paid R90/kg or R52 000 (on average). Why are they being paid R20 000 only. Is this the sum total of the “social plan” payment? Please provide details regarding any further payments that may be intended.

3. Why does MCM require right holders only work through a certain Charles Swarts? Who appointed him and from whom does he have a mandate to represent. Could you provide a written copy of the mandate Swarts has?

4. Should MCM in fact not be the focal point of all communication, liaising and responsibility for the management and disbursement of public funds? Please also advise in terms which laws is Swarts and the trust authorised to disburse public funds?

5. The role of Anix Consulting. Could you please detail their role in this matter? Please also advise -

• in terms of which tender/procurement procedure they were appointed?
• what is the value of their contract and who is responsible for paying them?
• who are their members/shareholders and/or directors
• is MCM aware that their current CIPRO status indicates that Anix Consulting is in the process of deregistration?

Desmond Stevens elected to avoid answering any of the questions. He instead advised Feike to contact Charles Swarts. The response is significant as it demonstrates a flagrant disregard for accountability and good and responsive governance concerning the management of public funds and a public resource. Feike has advised Stevens that the information will be formally requested via the Promotion of Access to Information Act and we will also seek the assistance of a Member of Parliament who could force the Minister(s) responsible for fisheries to provide honest and complete answers to Parliament.

Zuma is still expected during the course of this week to update the commercial abalone industry as to whether they will be allowed to commence commercial fishing either in December or January 2010. Feike believes that a viable TAC of 212 tons could be granted to the industry. Any allocation must be coupled to a comprehensive compliance strategy that focusses on reducing the R3 billion in abalone estimated lost annually to poaching.

SA Government values abalone at R1000/kg

In a recent statement issued by Marine and Coastal Management and the South African police Service concerning the arrest of abalone poachers and the confiscation of some 3000 kg of abalone, it was stated that the confiscated product was worth R3 million. This admission is of course most interesting. In April this year, Feike's Shaheen Moolla published a paper on illegal fishing in South Africa. That paper valued illegal abalone fishing to be worth an estimated R1,8 billion involving some 2500 tons of abalone worth an approximate value of R700/kg.

The paper was critiqued at a public peer review session as being a bit conservative on the estimated value and quantum of poached abalone. The paper is currently being revised and will show that during 2008 poaching continued to escalate. However, given MCM's valuation of R1000/kg for illegal abalone, it does mean that in 2007 South Africa lost more than R2,5 billion in abalone alone. For 2008, this figure looks like it breached the R3 billion mark.

Fishing Permit Applications

If you are a quota holder in the South African fishing industry, then you are all too familiar with having to regularly use an array of consultants to attend to the completion of mundane yet crucial permit and licence applications. Feike has decided to offer South African quota holders a significant value proposition. Feike will attend to a quota holder's -

• permit applications;
• licence applications;
• vessel / effort change applications; and
• section 21 right transfer applications,

for a monthly retainer fee of R500 plus VAT but inclusive of our renowned legal advice. For more information, please contact Feike’s Shaheen Moolla on smoolla@feike.co.za

AU and SADC Coastal States buy into FINSS Software

Between 28 September and 2 October, Feike and the Indian Ocean Tuna Commission ran an African Union-World Bank funded training programme on the FINSS management software that Feike is distributing to fishing coastal states at no cost. FINSS is the acronym for the Fisheries Information and Statistical Systems software that allows users to effectively manage their entire fisheries licensing, administration, management and statistical components. Countries and organisations represented included Angola, Namibia, Mozambique, Tanzania and Kenya, as well as Seychelles and Madagascar. The South West Indian Ocean Fisheries Programme was also in attendance. The Benguela Current Commission was indirectly represented via the Namibian and Angolan representatives.

The attendees unanimously agreed to begin utilising the software and a user-report back session has been scheduled for April 2010. A second training session for west Africa has been provisionally scheduled for January 2010. FINSS is adaptable for use by commercial fishing companies interested in managing vessel deployments, harvesting, licensing and processing. the software is available at no charge and can be customised to suit individual user needs. The software is available in English, French and Portuguese and comes complete with comprehensive user and technical manuals.

Government Admits inability to fight abalone poaching

In yet another damning admission, the South African government has admitted that it does not have the ability and resources to fight abalone poaching. It appears to be a deer looking at the headlights of a very large truck. The truth of the matter is that we had the resources, skills and institutions in place by 2004 to effectively reduce abalone poaching and they were working! But then came along Marthinus van Schalkwyk and his "new management team" who immediately went about dismantling everything that could be associated with the "previous management team", including getting rid of as many staff as possible to ensure that the "transformation numbers" stacked up. In compliance alone, they removed two directors with more than 50 years of compliance experience. The one director, Marcel Kroese, is now a senior advisor to the US government's fisheries surveillance programme! Kroese was the brainchild of the MARINES programme, the Green Courts and the sourcing of intelligence that brought down the Hout Bay Fishing Industries Patagonian Toothfish and lobster poaching syndicate, Elizabeth Marx and Jason Ross -the latter two being funders of abalone poaching syndicates who were jailed for more than 3 years each and were financially denuded by the Assets Forfeiture Unit.

So between 2005 and 2009, we have had a comprehensive enforcement vacuum coupled with the financial collapse at MCM which again was so effectively led by Monde Mayekiso for a second time in as many decades. So are we surprised by these latest admissions. Not surprised; maybe angry that we have allowed MCM to rob the Overberg of more than 1000 jobs and funded the spread of TIK use to thousands of poor Cape Town residents - not to mention the loss of more than 10 000 tons of abalone since 2005 worth some R5 billion.

But there is also hope now. The "New ANC" government appears to recognise the folly and failure of Van Schalkwyk's Marine and Coastal Management. There now appears to be a sense of energy and urgency to get a handle on abalone poaching - the fact that the Police Commissioner himself is addressing the abalone poaching problem is a massive step in the right direction. I don't believe that we lack the ability and resources to get on top of abalone poaching. What we need is a Minister that is prepared to lead and take some seriously tough decisions - we need Buyelwa Sonjica to pick up where Valli Moosa left off.

MCM cant deal with abalone poaching because of 3 basic reasons.

One, it does not have the money it had in 2004 because of incompetent and ineffective leadership. The MCM story today is similar to what Valli Moosa found in 1999. In 2004, Fisheries Compliance had a budget of more than R85 million - today this budget is understood to be less than R50 million. In addition, compliance had a team of extremely motivated and dedicated professionals who had access to resources (cell phones, overtime pay, vehicles, boats and a network of partners in nationally and internationally). MCM does not need more fishery control officers. It needs smarter leaders who can lead with an effective SMART compliance strategy. MCM's funding crisis needs urgent attention and the only way to do this is to remove the senior management team at MCM and to seriously reduce the bloated administrative structure of more than 700 employees. With the right professional skills, MCM could operate effectively with less than 400 staff.

Two, MCM's leaders have completely lost the trust and confidence of the abalone diving communities along the coast. In court papers in 2008, MCM's senior management described all abalone divers as poachers! It is not only the divers that don't trust MCM; a host of important partners no longer have faith in MCM. These relationships on the ground must be rebuilt.

Three, the compliance vacuum must be filled immediately. This particular wheel was invented back in 2003 and 2004. It needs rebuilding. The core components of the compliance should be to -

• Get abalone divers back in the water fishing legally and for sustainable quotas, thus displacing a lot of illegal and unsustainable abalone and lobster poaching. A TAC of about 210 tons could be set for abalone fishing zones A, B, E, F and G. Zones C and D must remain closed.
• Get the Green Courts up and running in Hermanus and Port Elizabeth. They will require properly trained "green" prosecutors supported by a team of properly trained fishery control officers. Magistrates will also require training in fisheries laws and sanctions.
• Re-establish and staff the MARINES programme. This programme cost approximately R18 million in 2004 to implement.
• Resolve MCM's funding crisis so as to allow effective deployment of the patrol vessels. Part of MCM's funding crisis is that it lacks the professional skills for effective use and deployment of the vessels. To use the Sarah Baartman and the inshore patrol vessels for anti-abalone poaching exercises is literally to throw money into the ocean.
• Urgently attend to MCM's gaffes internationally. The most important is the failure to implement CITES permit endorsement requirement which has made the trade in poached abalone extremely easy.
• Get the right people with the right skills regardless of skin colour back to clean up the mess before it is too late.

If we implement this strategy, I believe we could seriously impact poaching numbers. We currently lose a conservatively estimated 10 million units of abalone each year worth some R1,5 to R2 billion annually. We need to reduce poaching to more ecologically sustainable levels which means getting annual figures down to about 500 000 units and less.

Director-General Forced to Admit Abalone Failure

Facing the Select Committee on Public Accounts, the Director-General of the department of water and environmental affairs, finally admitted that Marine and Coastal Management has failed to protect abalone from rampant poaching and does not have the resources to do so. It is incredible that it takes rampant failure and a huge loss to our ecology and socio-economy before such obvious admissions are made. Feike has been stating that MCM's "compliance" strategies were not impacting on abalone poaching since at least 2006 and that South Africa was losing between 2000 and 3000 tons of abalone worth a conservative R2 billion annually to poaching.

Most recently, MCM's Deputy Director-General, Monde Mayekiso, stated on the environmental conservation programme, 50/50, that he did not believe that poaching was a crisis and that MCM had matters under control. Earlier this year, Feike, together with the ISS, published a report that looked into poaching levels in South Africa. MCM attempted to reject the findings of the report by promising "facts" to be published by a "peer review panel". More than 5 months have passed since MCM promised the publication of the peer review panel's findings. To date, MCM refuses to even answer emails regarding this panel's existence. MCM's continued deception and denials of a crisis have finally been exposed. However, no one appears to be accountable yet again for the loss of billions of rands of abalone; the loss of more than a 1000 jobs due to the closure of fishery; the loss of millions of taxpayer rands caused by mismanagement and incompetence identified by the Auditor General.

What makes matters even worse at MCM is that not only does it rely on the sale of confiscated abalone for up to 30% of its operating budget, it's a failing institution. It is currently unable to continue with research cruises (although it denies this - for now) because of a lack of funds, forcing its senior management to run around cap in hand begging for financial handouts. Its compliance budget is more than R40 million less than the budget in 2004. It is now trying to re-invent the wheel by reintroducing the green courts MCM disbanded in 2005 despite its undisputed successes against abalone poachers. MCM's insistence on listing abalone on CITES backfired amid much international embarrassment after Feike revealed that it failed to endorse a single export permit which were then being traded by poachers to launder poached abalone back in South Africa.

In 1999, the current DDG, Monde Mayekiso, was removed from his post as head of MCM for, inter alia, "a lack of general management competence at the level of the Chief Director" and specifically that Monde Mayekiso "... was not in control of activities in MCM, and that he was out of his depth as a manager. He exhibited a basic lack of insight of the enormity of the problem. The Committee (led by the previous DG of Environmental Affairs and Tourism, Dr Crispian Olver) believes that Dr Mayekiso is not suitable for the position he holds." Will political expediency continue to overrule this country's desperate and urgent need to rid itself of the current excess of incompetence and failure at MCM?

Towards Sustainable Fisheries: An IUCN Publication

As most of the fish resources in the world’s oceans are constantly depleting, the development of effective and efficient instruments of fisheries management becomes crucial. Against this background, the IUCN Environmental Law Programme proudly presents its latest publication in the IUCN Environmental Policy and Law Paper Series, edited by Gerd Winter, a long standing member of the IUCN Commission on Environmental Law, which focuses on a legal approach towards sustainable and equitable management of fish resources. This publication is one of the results of the 2005-2008 Incofish project, an interdisciplinary endeavour with worldwide participation studying multiple demands on coastal zones and viable solutions for resource use with emphasis on fisheries. The book consists of six case studies including Indonesia, Kenya, Namibia, Brazil, Mexico and the EU, which are preceded by an analysis of the international law requirements concerning fisheries management. The final part of the book summarises the case studies and proposes a methodology for diagnosing problems in existing management systems and developing proposals for reform. Towards Sustainable Fisheries Law thus provides a practical tool which helps the reader to learn more about the international legal regime for fisheries management which is currently in place, improves the understanding of the institutional and legal problems related to fisheries management which countries face at the national level, and provides guidance for sustainable use of fish resources through a “legal clinic” for fisheries management.

Download the book for free at http://www.iucn.org/about/work/programmes/environmental_law/?3581/Towards-Sustainable-Fisheries-Law

FINSS Software Training for AU

The African Union, together with the World Bank, has commissioned Feike to run a workshop and training session on the Fisheries Information and Statistical Systems (FINSS) software programme in Cape Town at the end of September. Workshop participants, which include senior fisheries managers and IT support from a number of AU member states, will be introduced to and trained on FINSS. Each participant will be provided with a free FINSS software package. The AU wants coastal member states and regional fisheries programmes to adopt FINSS as their fisheries management software in a bid to ensure proper collation and management of fisheries data, as well as the harmonisation of data collection and dissemination. Utilisation of FINSS will also ensure users are able to comply with the FAO's Port State Measures Treaty Agreement, the FAO Compliance Agreement and will allow users to trace fish from harvesting to exporting. This will aid users to comply with the new EU Traceability Regulations scheduled for implementation on 1 January 2010.

For more information about the free FINSS software package, contact Feike.

And the COSATU Plot Thickens

The Mail and Guardian today (7 Sept 09) revealed the hypocrisy surrounding COSATU's investment via its investment company - Kopano Ke Matla - in the Spanish backed fishing company called Offshore Fishing (Pty) Ltd. Feike has taken a closer look at Offshore Fishing's application for long term fishing rights that was submitted in 2005, having held a valuable hake deep sea trawl fishing quota between 2001 and 2005. One would assume that as Offshore Fishing was significantly owned by COSATU, worker rights and issues affecting workers would be its strong points. Wrong! The following are some highlights (or rather low points) of the Offshore Fishing application:

• Offshore Fishing failed to comply with the Employment Equity Act of 1998 despite being a designated employer! In other words, while they were benefiting from a government largesse, they were guilty of breaching an important law like the EEA. So, Mr Manyi its not just racist white companies that do not comply with the EEA. Now that Mr Manyi is the DG of Labour, we will monitor whether Offshore is served with a compliance notice under the EEA.
• Offshore Fishing created a total of 2 jobs with their entire quota or approximately 0,0002 jobs per ton allocated! The industry average for example was 8.9 jobs per ton allocated.
• Offshore Fishing failed to spend a single rand on employee training. The industry spent an average of 0.75% of payroll.
• Offshore Fishing failed to contribute a single rand to corporate social investment. Forty one of Offshore Fishing's competitors contributed to CSI.
• Offshore Fishing failed to contribute to enterprise development.
• Offshore Fishing failed to comply with the Compensation for Occupational Injuries and Diseases Act (COIDA), which aims to protect workers' financial interests in the case of workplace injuries.
• Offshore Fishing failed to contribute a single rand to employee medical aid or pension plans.
• Offshore Fishing failed to submit a workplace skills plan as required under the Skills Development Act and also failed to submit a workplace training report.
• In 2004 (the year before the 2005 application process), they effectively outsourced their harvesting, processing and marketing to a Steven Kruger. This is ordinarily an indication of a paper quota which is a breach of the Marine Living Resources Act.
• Offshore Fishing scored a total of 2.5 points for investment (out of a maximum of 22.5 points) and scored the 3rd lowest overall score of the successful applicants.

So COSATU, the apparent workers' vanguard, failed to ensure that Offshore Fishing complied with the Employment Equity Act, the Skills Development Act and the Compensation for Occupational Injuries and Diseases Act! They also failed to ensure that their staff were provided with medical aid and pension plans. And they established a formal relationship with a known convicted poacher. Talk about people living in glass houses.

I reckon COSATU has given up its right to speak out against any other entity in the fishing industry as I cannot recall another entity in the deep sea trawl sector that faired so poorly on worker rights criteria and compliance with laws. If one analyses Offshore Fishing's score, they were allocated a hake deep sea trawl fishing right until 31 December 2009 almost exclusively because of their black ownership and management profile and despite the non-compliance with a range of laws and its failure to create a significant number of jobs and invest in the industry. Tragic.

COSATU In Bed with Spanish Fishing Interests

This Story appears in the Mail and Guardian Online, 7 September 2009.

Cosatu, a vocal critic of foreign companies' exploitation of South Africa's fishing quotas, has a sizeable share in a local company with controversial business links with a convicted Spanish poacher. Mail & Guardian Online reported last week on the accusation by Dumisa Ntsebeza, advocate and member of the Judicial Service Commission, that the trade union federation had a 30% share in the Offshore Fishing Company, of which he himself is a director. Cosatu had accused Ntsebeza of a conflict of interest centred on an Environmental Affairs Department contract with another company, Equilore, of which Ntsebeza is chairperson. The contract involves Equilore mediating between the department's marine and coastal management (MCM) unit and small-scale fishermen.

The M&G has now established that Ntsebeza is correct about Cosatu's shares in Offshore, according to MCM's share registry. Offshore also had a joint venture with a notorious Spanish poacher, Manuel Martinez-Martinez.

In 2002 Martinez-Martinez was convicted in a South African court of overfishing. He was personally fined R100 000, his company R150 000, and his vessel was impounded. Martinez-Martinez is a beneficiary of so-called "paper quotas" from Offshore. These are quotas that local companies sell to other fishing outfits "because the holders of quotas do not always have an appetite for the risk involved", a leading player in the fishing industry told the M&G. Such outfits have boats and factories, and they catch, process and market the fish.

New fishing quotas awarded by environmental affairs to boost black empowerment in the sector came into operation in 2006.

Local fishing companies had believed that the Spanish threat to South Africa was on the wane, partly because of their vehement campaign against paper quotas. Even so, they remain sceptical about firms such as Offshore, which are perceived to be selling their rights to make a quick buck. Cosatu owns its share in Offshore through its investment company, Kopano Ke Matla. Cosatu spokesperson Patrick Craven said the federation was studying the M&G's revelations and would comment when all "interested parties had been consulted". Kopana ke Matla CEO Collin Matjila referred all questions back to Cosatu.

The revelation of Cosatu's stake in Offshore has caused ructions within the federation, which released a statement at the weekend calling the chairperson of its fishing desk, Gary Simpson, a "dissident" whose "actions will be investigated". Simpson has been leading Cosatu's campaign against the Spanish and has also denounced Ntsebeza's interests in Offshore. This week he slammed the federation's "stake in the fishing industry", telling the M&G that it "epitomises everything that all members of the [Cosatu] fishing desk stand opposed to -- political elitism, potential paper quotas in the hake, pilchard, anchovy and squid sectors and empowerment of the non-deserving".

An Institute of Security Studies (ISS) report on illegal fishing in South Africa released in March this year revealed that the beneficiary of Offshore's hake fishing quotas was Martinez-Martinez. Tim Reddell, the operations director of South African fishing company Viking Fishing and one of the fiercest critics of the Spanish interests, said Offshore's relationship with Martinez-Martinez was problematic because of his reputation as a poacher. He said pressure asserted by local fishing companies on MCM to stamp out paper quotas had forced the Spaniard to retreat to Namibia two months ago.

Shaheen Moolla, author of the ISS report, said: "The incentive is simply that of better rates of pay: instead of being beholden to a large South African hake-trawl company that will harvest, process and market the fish, the small hake-trawl quota holder receives better payment from the Spanish."

In 2007 80% of local hake was exported to Spain. The ISS report accused the Spaniards -- who are notorious for overfishing -- of not declaring all their catch. The Spaniards receive EU subsidies to keep their vessels operating, even if doing so is ecologically unsustainable.

Martinez-Martinez told the M&G that his involvement with Offshore had ended on July 31. "I do not see why there's a big fuss about Spanish interests in South Africa's fishing. It is like a German company investing in the mines," he said.

Calling paper quotas a "political term", and that "politicians should comment on that". Since his conviction for overfishing he had rectified his ways, he said. "I am not overfishing any more."

Offshore's director, Lester Peteni, did not respond to several attempts to contact him.

The ISS report could be the last nail in the coffin for joint ventures: MCM is currently reviewing its fishing quotas, aiming to stamp out paper quotas entirely.

Permits for Whale Watching and White Shark Cage Diving

Interested parties have been invited by Marine and Coastal Management to apply for annual permits which are renewable for 5 years in the boat-based whale watching and white shark cage diving industries. There are a host of criteria, policy and rules applicable to the completion and submission of applications. Feike has compiled a user-friendly document that identifies and categorises the various criteria and rules for applications. Applications must be submitted by no later than 16h00 on 6 October 2009. Permits will be area based and allocated as follows:

1. Boat-Based Whale Watching Areas

• Port Nolloth (1 permit)
• Lambert's Bay (1 permit)
• St Helena Bay-Sandy Point (1 permit)
• Saldanha Bay (1 permit)
• Cape Town (1 permit)
• Hout Bay (1 permit)
• Cape Point-Kalk Bay (1 permit)
• Gordons Bay (1 permit)
• Hermanus (3 permits)
• Gansbaai (1 permit)
• Kleinbaai (1 permit)
• Arniston and Struisbaai (1 permit)
• Stilbaai (1 permit)
• Mossel Bay (1 permit)
• Knysna (1 permit)
• Plettenberg Bay (2 permits)
• Cape St Francis (1 permit)
• Port Elizabeth (1 permit)
• Kenton-on-Sea (1 permit)
• Port Alfred (1 permit)
• East London (1 permit)
• Kei-Umgazi Rivers (2 permits)
• Shelley Beach (2 permits)
• Durban ( 2 permits)
• Richards Bay (1 permit)
• St Lucia (2 permits)
• Sodwana Bay (1 permit)

2. White Shark Cage Diving Areas

• Seal Island, False Bay (3 permits)
• Dyer Island, Gansbaai (8 permits)
• Quoin Rock, Quoin Point (2 permits)
• Sea Island, Mossel Bay (1 permit)
• Algoa Bay, Port Elizabeth ( 2 permits)

Port State Measures to Become Hard Law

On 1 September 2009, the Food and Agriculture Organisation of the UN announced that 91 member states agreed to adopt a treaty on port state measures (PSM). The adoption of the treaty agreement is historic as it will be the first binding international agreement to combat illegal fishing by effectively terminating access to ports by IUU fishing and support vessels . The Treaty on PSM explicitly recognizes that its success is substantially dependent on –

• increased regional and inter-regional co-ordination of measures to implement port state measures;
• the effective use of communication technologies, databases, networks and global records that support port state measures; and
• financial, technological and other support for developing and island states.

The Treaty places significant emphasis on issues relating to transparency and information sharing amongst port states. A number of articles focus on these elements, including -

• Article 3 – Application: Sub-article 2 requires that the treaty be applied in a fair, transparent and non-discriminatory manner and consistent with international law.
• Article 5 – Integration and co-ordination at national level: Article 5 requires parties “to the greatest extent possible” to integrate, share and co-ordinate information to ensure the effective implementation of port state measures.
• Article 6 – Cooperation and exchange of information: Article 6 obligates parties to cooperate and exchange information – with due regard to confidentiality requirements – with relevant states, FAO, other international and regional organizations.
• Article 7 – Designation of Ports: Article 7 requires parties to designate and publicize the ports to which foreign flagged vessels may request entry.
• Article 8bis – Port Entry: Sub-articles 2 and 3 require that where a vessel has been denied entry or where there is sufficient proof that the vessel has committed an act of IUU fishing, then the decision to refuse the vessel entry must be communicated to specified entities and the vessel should be listed on a public IUU listing in accordance with national, regional or international law.
• Article 9 – Use of Ports: Should the port state party concerned decide to withdraw or change its decision regarding port entry, this decision too must be communicated to each of the organizations initially advised of its decision under article 8.
• Articles 12, 13 & 14 – Inspections: The treaty puts in place a set of minimum inspection standards (Annexures B, C and E). Annexure C stipulates the format for an inspection report which must be completed by an inspector of the port state. Furthermore, the inspection must be transparent. Inspection results must as a minimum be transmitted to other relevant State Parties, RFMO’s, FAO and other relevant international organizations.
• Article 15 – Electronic Exchange of Information: Article15 encourages parties to establish an electronic information sharing mechanism to facilitate the exchange of information for the proper implementation of this treaty.
• Article 18 – Information on recourse: Article 18 stipulates that the public has a right to access information on the recourse taken against any foreign flagged vessel in terms of national laws and regulations.

The following 91 states participated in the discussions and agreed to the final text:

• Algeria, Angola, Argentina, Australia, Bangladesh, Benin, Brazil, Bulgaria, Burkina Faso, Burundi, Canada, Central African Republic, Chile, China, Cook Islands, Costa Rica, Cote d'Ivoire, Cyprus, Congo DR, Dominican Republic, Ecuador, Egypt, Eritrea, Ethiopia, European Community, Fiji, France, Gabon, Gambia, Germany, Ghana, Greece, Guatemala, Guinea, Guinea Bissau, Haiti, Honduras, Iceland, India, Indonesia, Iran, Ireland, Italy, Japan, Kenya, Kiribati, Kuwait, Lesotho, Libya, Madagascar, Malaysia, Malta, Marshall Islands, Mauritania, Mexico, Morocco, Mozambique, Namibia, Netherlands, New Zealand, Norway, Oman, Panama, Papua New Guinea, Peru, Poland, Portugal, Republic of Korea, Russian Federation, Samoa, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Slovenia, Somalia, South Africa, Spain, Sudan, Sweden, Tanzania, Thailand, Togo, Tunisia, Turkey, Uganda, Ukraine, USA, Uruguay, Venezuela, Viet Nam, Zambia and FAO Associate Member, Faeroe Islands.

The PSM agreement will become binding international law once the 25th member state of the FAO deposits its ratified instrument with the Director-General of the FAO. The complete PSM Treaty agreement is available from Feike.

The Value of IUU Fishing in SA Waters

In April 2009, Feike's Shaheen Moolla, together with the Institute for Security Studies, published a research paper which sought to contextualise and place a value on the quantum of fish illegally harvested across South Africa's major commercial fisheries. The research paper estimated the illegal harvests to be worth R6 billion (US$790 million), which is approximately R1 billion more than the total value of the legal commercial landings in 2008. The publication of the research paper generated much interest and debate, which convinced the ISS to host a public discussion forum where the paper's methodology and findings were open to debate and criticism.

Although Marine and Coastal Management, which is criticised extensively in the paper for its role in allowing the mushrooming of illegal fishing, objected strongly to the findings as being devoid of fact and truth, they strangely opted to not attend the public debate where they were free to expose the paper's flaws and factual inaccuracies.

On 30 April 2009, MCM issued a press statement objecting to the research report. Part of the press release stated that MCM intended to present the "facts" and had accordingly appointed a panel of experts to peer review the paper. Despite numerous requests, MCM has elected to not elaborate on this "peer review" panel, including who is on it and what their brief was. There has also never been a tender issued calling for the appointment of this panel. The press statement went on to promise that the "the findings of the peer review, which we anticipate to be completed within the next few weeks, would be made available to the public." More than 5 months have passed since this press statement and no one has yet to hear anything further about or from this panel.

The public debate did conclude that the findings of the research report were indeed startling and worrying. Perhaps more importantly, the publication of the paper started an important debate about the financial, ecological and social costs of illegal fishing in South Africa. The ISS and Feike will publish an updated report on IUU fishing in South Africa toward the end of 2009. It is intended that this report will focus on the illegal trade in abalone, hake and shark fins.

post script: Perhaps the peer review panel should rather adjourn and wait for the findings of the updated 2009 report.

Policy on the Transfer of Commercial Fishing Rights

In July 2009, the Minister of Water and Environmental Affairs published her government's final position on the transfer of commercial fishing rights in South Africa. In terms of the Marine Living Resources Act, 1998 (MLRA) fishing rights - once allocated to a specific legal or natural person - are not transferrable or saleable. To transfer a fishing right from one person to another requires the permission of the Minister under section 21(2) of the MLRA. So what of this policy document?

Its farcical. Its farcical because the total rationale and purpose of the policy is centred around the need to further transform the fishing industry and to consolidate the number of right holders and effort. The policy attempts to create a number of pre-defined scenario hierarchies as to which transfer application is more likely to succeed. The decision as to whether a right should be transferable must be based having regard to the principles under section 2 of the MLRA. Section 2 of the MLRA remains the definitive set of rules as to who is entitled to be allocated a fishing right. The decision-making processes cannot be limited to a selection of the objectives (see for example the Constitutional Court decision in Bato Star v The Minister of Environmental Affairs and Tourism, 2004 (4) SA 490 (CC)).

Further, it is our view that section 21(2) is an outdated anachronism. Once allocated, fishing rights should be tradable and saleable, thus ensuring that only the most efficient and committed stay in the business. Paper quotas and empowerment fronts can be removed entirely because efficiency and competition will simply not allow such expensive fronts to continue, especially in the current economic climate. Feike has long proposed a gradual and trial-based approach to implementing an independently transferable quota system for certain preselected fisheries, such as the Patagonian toothfish and KZN Prawn Trawl sectors.

It ignores some basic laws. The policy interestingly grants the Minister powers she never had under section 21(2), section 2 or section 18 of the MLRA. Firstly, the policy stipulates that where there is a sale shares in a company (unless the company is a listed company) or a sale of members' interest in a close corporation, and the sale results in a change of control (which is not defined), then a transfer of right application must be lodged. As section 21(2) speaks to a transfer of a fishing right, any attempt by this policy to regulate the sale of shares or members' interest is ultra vires the authority of the Minister and accordingly unlawful. Feike's advice to right holders intending to sell equity in their business - regardless of the quantum - is to proceed with the sale (subject to the usual regulatory approvals such as competition commission approval that may required, for example). No permission from MCM or its Minister is required. Why listed companies are conveniently excluded and under what legal authority is not explained. The policy is also unclear about whether this convenient exemption applies to privately owned right holder subsidiaries of public entities.

Secondly, the policy also confers upon the Minister the power to "monitor whether any large right holders (not defined) act in a manner contrary to fair competition practices". This is a most odd provision and confirms two things. First, the entire policy may be invalid in law as it is a policy promulgated contrary to the provisions of section 85(2)(b), which makes national policy development the prerogative of Cabinet. In other words, had this policy made its proper way through Cabinet first, the Minister of Trade and Industry would have surely objected to the attempt by the Minister of Water and Environmental Affairs to usurp the powers granted to the Competition Commission and Tribunal. Second, the Competition Commission is empowered by the legislature under the Competition Act of 1998 for the investigation, control and evaluation of restrictive practices, abuse of dominant positions, and mergers. MCM and the Minister of Water and Environmental Affairs simply have no authority to meddle in such complex commercial determinations.

It is our view that the "policy" on the transfer of commercial fishing rights should never have seen the light of day in its current form. There is no doubt that should it be challenged, a court of law will set the "policy" aside. Simply pick your ground of review.

Performance Measuring Process

The opportunity to submit comments by members of the South African commercial fishing industry on the proposed criteria and processes for the commercial fisheries performance measuring process ended on 31 August 2009. Feike had submitted comments as an interested party. In brief, it is our view that the -

• the notice and comment process is inappropriate and prejudicial to a number of right holders;
• the proposed key performance indicators (KPI's) are too generic in nature and contrary to the sector specific fishery objectives and policy frameworks; and
• the proposed KPI’s are extremely vague, bordering on being irrelevant.

The full version of Feike's comments are available. Simply email (smoolla@feike.co.za) me with the subject-heading "Feike's performance measuring comments" for a copy of the comments.

The next step in the process will be for Marine and Coastal Management to consider the various comments and submissions made and thereafter to publish the final version of the KPI's for each commercial fishery (if they maintain the "one-size fits all" strategy). If they decide to abandon the "one-size fits all" strategy, then they would be obliged to re-advertise the new sector specific key performance indicators in terms of the Promotion of Administrative Justice Act, 3 of 2000.

Feike wishes to remind commercial right holders that participation in this process is not voluntary. Every right holder is obliged in terms of the conditions under which their commercial fishing right was allocated in 2005 and 2006 to participate in the performance measuring process. For more information, contact Feike.

So Who's the Real Minister of Fisheries?

It is September 2009 - the start of spring in the Southern Hemisphere. In April, South Africa elected Jacob Zuma as the third democratically elected president. By May 2009, news broke that the President appointed Minister Tina Joemat-Pettersen as the first ever minister of fisheries. Her full title was the Minister of Agriculture, Fisheries and Forestry. However, it later emerged that in fact the minister of fisheries would not be responsible for fisheries afterall! Fisheries regulation would remain the political purview of the new Minister of Environment and Water Affairs.

So why is the Minister of Fisheries not the minister of fisheries and why do we continue to have a minister of fisheries? Sadly - as is becoming typical of how our government attends to hard issues - this issue is surrounded by conjecture, rumour and (race-based) whispers. To date, we do not have a leadership with the courage to come forward and explain why taxpayers' hard earned rands still pays for this confusion. And there certainly has been confusion! Imagine addressing fisheries related correspondence to the minister of fisheries only to be told that you need to address your correspondence to some one responsible for environment and water affairs. To date, we have not had any official word from the Minister of Environment and Water Affairs stating that she is responsible for fisheries despite her colleague carrying the title and why this is so.

And 5 months on (or 150 days) neither the departments of environment, water affairs, agriculture, tourism and forestry have got around to establishing their own respective homes on the world wide web. Fisheries related news is still cumbersomely located on the website for the non-existent department of environmental affairs and tourism or www.deat.gov.za!

Ok, so who is in charge if what? Based on responses to media stories and decision-making processes about fisheries issues, the Minister of Environment and Water Affairs, Ms Buyelwa Sonjica, is responsible for marine fisheries management - in other words, enforcement of the Marine Living Resources Act except aquaculture. The Minister of Fisheries, Ms Joemat-Petterssen is in fact responsible for fresh and marine aquaculture or fish farming, which also happens to occur under the Marine Living Resources Act and its regulations and policies.

Question. Who takes a decision with regard to, for example, the ranching of abalone. Ranching of course involves the planting of farmed abalone spat into the natural marine environment to produce wild stock - it's a restocking strategy. Will you have to apply to one Minister for permission to grow the spat and then to another for permission to ranch and harvest the spat? Can you imagine the bureaucratic confusion that will be sowed in this process and the disincentives to invest in ranching opportunities which we so desperately require if we are to recover our collapsed abalone stocks and the jobs that went with it? The departments will have to establish joint working groups and advisory bodies whose members will have to fly between Pretoria and Cape Town to consult each other and ensure "collective" decision-making.

We will keep monitoring developments on who the Real Minister of Fisheries is.