Why DEA cannot be responsible for BBWW and WSCD

I know. This is beginning to start sounding like a stuck record. The Department of Environmental Affairs (DEA) IS NOT and CAN NOT be legally responsible for managing and allocating permits in the boat based whale watching and white shark cage diving sectors. On 28 May 2010 DEA desperately attempted to convince applicants in both sectors that it is lawfully entitled to allocate these permits. Their reasons are flawed and fictitious.

Firstly, they contend that certain parts of the Marine Living Resources Act - those dealing with "environmental issues" - were never transferred back to the department of agriculture, forestry and fisheries (DAFF) in terms of the 29 January 2010 proclamation. They must have a different version to the one I have. In terms of the signed version I have, the President transferred the MLRA in its entirety save for section 43 to DAFF. Section 43 regulates marine protected areas and DEA is correct in its assertion that it continues to regulate each of the 18 marine protected areas in terms of section 43 read with the Protected Areas Act. However its assertion that it continues to regulate the "environmental issues" under the MLRA is fictitious. What are these so-called "environmental issues"? So, if we have regard to the Presidential proclamation, then it is clear that every provision of the MLRA save for section 43 was transferred to DAFF. Period.

Secondly, DEA contends that because the policy and regulations governing BBWW and WSCD were not explicitly transferred to DAFF in terms of the proclamation, DEA continues to be in charge of these two sectors. This thinking is so legally flawed that first year candidate attorneys have torn this thinking apart. Here are the reasons. One, the BBWW and WSCD policy and regulations were promulgated in terms of section 77 of the MLRA and the power to regulate the sectors in terms of permits is provided for under section 13 of the MLRA. To make an assertion that powers under regulations can be exercised in the absence of the original legislation is absurd in the extreme. For example, how will the Minister of Environmental Affairs amend or repeal the BBWW and WSCD regulations when she does not have the authority to act under section 77? More so, the MLRA unequivocally defines "this "Act" (the MLRA) to include all regulations and notices promulgated and issued under it. An Act and its regulations are not severable; regulations cannot exist independently of the Act in terms of which it was prescribed! To assert that because the drafters of the proclamation did not explicitly include the BBWW and WSCD regulations as being transferred to DAFF, these regulations remain with DEA is more an admission of poor legal drafting than a legal fact. If DEA's assertion is correct, then there will be mayhem as the proclamation did not explicitly transfer the any of the 22 fisheries policies, the general policy, the fishing fees and levy notices etc back to DAFF either! Are they contending that these policies (which have the same legal status as regulations) are under DEA's control? If they are not (and they are not, thankfully), then you cannot cherry pick your notices, policies and regulations.

A further reason why DEA's second assertion above is legally flawed is that when Razeena Omar - an employee of DEA and not DAFF - takes a decision to allocate the permits, under what legal authority is she acting? DEA states that she is acting under delegated authority under section 79 of the MLRA. Well, that is a factually statement but legally, the Minister responsible for fisheries at the time delegated her power under section 13 in terms of section 79 of the MLRA to the Chief Director of Integrated Coastal Management, who happened to be Omar at the time. When she left MCM to take up employment at DEA, she vacated her post and accordingly the delegated authority is whoever is the current acting chief director of ICM. Imagine if an employee who resigns from one state department post to take up another one simply then continues to exercise his old powers in his new post! Pandemonium...which is what we are facing.

To further demonstrate how invalid DEA's assertion is, one need only consider the process of allocation to its conclusion. Once a power is exercised in terms of delegated powers, any applicant is entitled to appeal that initial decision (of Omar's for example) in terms of section 80 of the MLRA. The entire appeal process is detailed under regulation 5 of the 1998 Fisheries Regulations which DEA has admitted it has no authority to act in terms of because these regulations were "fully transferred to DAFF". So how do they think they are going to deal with appeals if they don't have the authority under section 80 read with the 1998 Regulations? This again confirms my initial assertion that an Act and its regulations are not severable!

Finally, in terms of section 12 of the MLRA, the Director-General (of DAFF) is required to keep a register of all access rights, permits, licences etc granted under the MLRA and the Minister of DAFF is charged with prescribing its format and registration system. To have both DAFF and DEA issuing permits under the same provision undermines the purpose and intention of this provision and the Act.

Civil Servants are allowed to hold private sector jobs according to DEA

In response to issues raised on this blog regarding the efficacy of boat based whale permits issued by the department of environmental affairs (DEA), the Cape Argus reports (27 May 2010) that DEA continues to hold the view that it has the right to issue permits for whale watching despite the fact that the authority to administer the Marine Living Resources Act falls within the purview of the Department of Fisheries (DAFF). DEA (through SANParks) has also confirmed that it is not concerned by the fact that a senior employee is also an active member of a boat based whale watching applicant as long as the employee declares his interest in the company concerned.

In the latter regard, the employee concerned is a 49% member of Raggy Charters that has applied for a permit to undertake whale watching in the Port Elizabeth area which includes the Bird Island Group Marine Protected Area. The employee - Anban Padayachee - is in charge of managing this particular area. If that is not a conflict of interest then what is! To make matters even worse, according to DEA a civil servant must simply declare his interests in any private business. Well is that not just perfect! We non-civil servant must be absolute and utter morons! We should all apply for these high-paying civil service jobs and then keep our private sector jobs and bolster our incomes with state tenders and permits in which we have a direct interest! So in South Africa, civil servants are allowed to hold at least 2 jobs while we dummy tax payers pay them to further their private interests.

Why did I not think of that when I was employed as Chief Director of Fisheries Management at MCM? I could have acted as the black shareholder front of a number of fishing companies that applied for fishing quotas provided I did not evaluate my own application form but of course there would be the completely permissible and innocent "no-conflict of interest" wink, wink, nudge nudge. Has DEA and SANParks so utterly lost the plot that they confidently confirm in public such preposterous and corrupt practices? Is this how DEA now institutionalises corruption? So how many DEA employees hold directorships and memberships of private companies?

On 18 September 2009, DEA issued the following statement to all applicants in the whale watching sector:

"Applicants are referred to paragraph 19.4 of the RFP which clearly states that anyone who "is related to or associated with anyone who is employed by the Authority, EKZN Wildlife or MCM or DEA or has worked within the last 12 months for any of the aforementioned institutions" may be disqualified. Current board members and employees of these institutions / organs of state may not bid directly or indirectly through companies or close corporations."

Padayachee is an employee of DEA as SANParks is a division of the department in as much as EKZN Wildlife is. DEA has also failed to explain why Raggy Charters was not excluded on the basis that it operates and has operated according to its website as an illegal boat based whale watching operator. In fact, if regard is had to is total score, Raggy Charters appears to have been rewarded points for being an illegal operator while all other law abiding non-whale watching operators have been penalised! The question to be asked is why is DEA going to such extreme lengths to protect Raggy Charters.

Finally, whether DEA or DAFF is in charge of whale watching and white shark cage diving, will ultimately have to be determined by a court of law but it is inconceivable how two ministers and two departments can claim to be simultaneously responsible to issuing permits and exercising authority over the same piece of legislation. It is absurd. There can be no question that in terms of our rules of legal interpretation, such an absurdity will not be allowed by our courts.

Are we Facing an Abalone War?

The recent murder of poachers by poachers in the Overberg may be the first shot in the open of the growing tensions that have been simmering since the ill-advised closure of the abalone fishery in 2008. Holders of commercial abalone fishing rights were unilaterally sidelined by the closure and organised TRIAD-backed groups of poachers took their place immediately as MCM, mired in perennial financial crises, dithered trying to come to grips with the mass-scale poaching that reached approximately 3500 tons by 2009. Between 2005 and 2009, Feike has estimated that South Africa allowed poachers to remove some 12 000 tons of abalone from our coastal waters, worth about R10 billion.

By 2009, a number of the legal right holders had joined the ranks of the growing poaching community as MCM had failed to provide abalone divers with a sniff of the much vaunted "social relief plan", which they later admitted had in fact never existed - MCM and the Minister in charge - Marthinus van Schalkwyk - had knowingly deceived and crooked an entire industry.

The removal of Van Schalkwyk as minister responsible for fisheries and the subsequent removal of the eternally irrelevant Mayekiso as DDG of MCM, coupled with the headline-grabbing promises by President Zuma and "minister-elect" of fisheries, Tina Joemat-Pettersson, in Hawston in November 2009 that the abalone fishery will be reopened on 1 February 2010, signalled for many the dawn of reason... perhaps.

Well, its now the end of May and there is still not a breath of the fishery coming to be. Feike has spelt out the Dummies Guide to Opening the Abalone Fishery on at least 2 occasions on this blog. Its not hard. It requires visionary leadership at MCM, honesty and consultation with the industry and political will.

By June the whole civil service will no doubt don their tax-payer purchased soccer jerseys and head off for the nearest stadium and FIFA sanctioned soccer broadcast. The poachers wish to thank the Minister of Fisheries and MCM for these much needed time extensions as they are desperate to ensure that South Africa exports at least 4000 tons of abalone tax free by December 2010. It is extremely unlikely that right holders will be able to get into the water before August. Why? Well, assuming that Cabinet supports reopening the fishery (and why Cabinet support is needed is unknown as the law is clear - the decision to "reopen" the fishery vests with the Minister of Fisheries in terms of section 16 of the MLRA), the Minister must still publish an amendment to the 2008 Dive Ban Regulations for public comment, receive and consider the comments and then publish the final set of regulations, together with a TAC and fishing schedule (±45 days) and winter is too dangerous for diving. And perhaps most crucially, MCM has yet to conceptualise and budget for a coherent compliance strategy to support the abalone divers.

And this is where the prospect of "abalone wars" rearing its head reminds us of the deep hole we have again dug for ourselves, which is reminiscent of the 1990's. During the 1990's, the lack of government leadership and policy with regard to the abalone fishery led to a series of mini abalone wars in the Overberg and particularly in Hawston. The possibility of more violent and widespread conflict today is very real as the stakes in the trade of illegal abalone are much higher today than they were back in the late 1990's when South Africa was losing a fraction of what is being poached today and the dependence on illegal abalone to fund the Western Cape tik drug trade today is of crucial significance.

We wonder if our intelligence services picked up the possibility of organised gang / TRIAD warfare over abalone in the Cape Town / Overberg areas days before the World Cup is to kick off? If government does not step into this void immediately and effectively, the conflict could quickly spiral out of control right in the middle of the Soccer World Cup.

Confusion Engulfs BBWW Allocation

The unlawful allocation of boat based whale watching (BBWW) permits by the Department of Environmental Affairs (DEA) is now engulfed by confusion as the DEA is now insisting that in fact permits were not allocated and there are no "successful applicants" despite correspondence to the contrary issued on 14 May 2010. The 14 May 2010 correspondence clearly lists applicants as being either successful or not. The DEA has further stated that "unsuccessful" applicants could appeal the decision. This is all rather confusing! Is DEA stating that it made a decision or did it not make a decision to allocate certain applicants permits and others not? How can you appeal a non-decision? Importantly, you cannot appeal an unlawful and invalid decision. Even further, in terms of which law is the appeal to be conducted as DEA has no authority under the Marine Living Resources Act to administer an appeal in terms of section 80 of the MLRA, read with the applicable regulations!

There is also a significant amount of confusion and consternation surrounding the permit allocated to Raggy Charters operated by Lloyd Edwards in Port Elizabeth. Edwards is a self-confessed illegal operator and his website has long openly shown photographs of marine mammals taken in clear violation of every law regulating marine mammal conservation. It is also understood that Edwards is also currently the subject of MCM-led investigations into breaches of the Marine Living Resources Act. To complicate matters even further, Edwards' business partner and co-owner of Raggy Charters is Anban Padayachee, a senior employee in DEA and SANParks in charge of protecting amongst others, the Bird Island Group Marine Protected Area. Padayachee owns 49% of Raggy Charters and is an active member of the business. This is a clear conflict of interest and a breach of public service administration rules. Combined, these two facts should have led to Edwards' application being disqualified in terms of the MCM's/DEA's own criteria.

The obvious question being asked is how did Edwards still manage to secure a permit? Perhaps the Special Investigation Unit of the Hawks and the Public Protector need to be called in to investigate the matter and put to bed the swirling rumours.

However, beyond Port Elizabeth the unlawful allocation by DEA of these permits is akin to "permit holders" being in possession of a fake driver's licence. Should any paying customer on a "permit holder's" vessel suffer harm, their insurers will be able to legally entitled to refuse to pay-out any cover which will mean that the holder's of these invalid permits will be personally liable for any harm caused and suffered by a paying customer.

DEA insists on illegally allocating BBWW Permits

On Friday 14 May 2010, the Department of Environmental Affairs insisted on allocating permits in the boat based whale watching sector despite lacking any legal authority to do so. We must admit that we find the current chaos befalling fisheries management in this country quite astounding. Where are the Ministers of DAFF and DEA? Have they not sat down and agreed to stop this ridiculous and unprofessional behaviour that is damaging the entire fisheries and marine eco-tourism sector?

DEA's insistence on allocating these permits when they have been repeatedly warned that it does not have the legal authority to do so will result in litigation which we are sure will see a High Court set aside DEA's allocation of rights. This will in turn will throw the BBWW sector into chaos only days before the FIFA World Cup when 1000's of tourists are expected to want to board safe, well-regulated BBWW vessels.

Will the Minister of Environmental Affairs lose her job? Will her senior management staff lose their jobs? Obviously not. They are after all only jeopardising the financial well being of yet another important economic sector in order to satisfy their pathetic egos.

MCM Spends Thousands on Bafana Soccer Jerseys!

In the months before handing over control of MCM to the Department of Agriculture, Forestry and Fisheries (DAFF), the Department of Environmental Affairs spent R144 000 on 402 Bafana Bafana soccer jerseys for MCM staff using MLRF funds! That worked out to R358 a jersey!

What makes this spending spree even more criminal is that since DAFF took control of MCM on 1 May, it has emerged that within 15 days of the financial year, MCM has no more money for any further fisheries research surveys for the 2010 season. This means that critical annual surveys for hake, pelagics, lobsters, mackerel, abalone etc are not going to take place. It is also apparent that MCM has no funds for any significant compliance strategy.

At least we know what MCM's previous leadership under Mayekiso and then Razeena Omar (the Acting DDG of MCM) considered a priority. After all why spend any funds on fisheries management when you can spend it on Adidas Bafana Bafana soccer jerseys!

More Financial Handouts in the Abalone Sector

The Department of Agriculture, Forestry and Fisheries (DAFF) announced on 4 May 2010 that it would be allocating a further R6 million in compensatory relief payments to the 302 commercial abalone right holders. This equates to approximately R19 000 per right holder, excluding the divers' respective "bakkie" assistants. In her statement, the Minister wisely noted that her department will not be using any intermediary consulting company to facilitate the payments to the divers - instead her vast financial department at MCM will presumably ensure that every cent of the R6 million is transferred to the right holders.

While the R19 000 will no doubt be appreciated by right holders, these "social grant" payments are not the solution. The solution remains the reopening of the fishery which was supposed to have been a reality by 1 February 2010. It is now Winter and the much vaunted promise of an abalone fishery this year has effectively faded away. This R6 million could have instead been used to subsidise the purchase of vessel monitoring systems for diver vessels and used to purchase 2 powerful rigid inflatables for anti-poaching surveillance and enforcement.

It is unclear why the promises made in November last year and repeatedly since have not been kept. It is known that MCM's scientific data shows that a sustainable TAC of up to 212 tons can be harvested. There have been rumours that a revised proposal suggested a TAC of approximately 150 tons. MCM has also not taken the opportunity since November last year to take the industry and coastal communities into its trust, keep them updated on developments, explain why there have been delays and ensure that the industry is communicated with regularly and honestly through established channels such as the scientific and management working groups which have to date never met to discuss any of the numerous challenges facing an industry in economic and biological crisis. The lack of communication and honesty about the opening of the fishery (if indeed this is to ever happen) has only deepened the significant distrust of MCM by right holders and spurred even more right holders to join the ranks of the poacher - as it is they alone that continue to benefit from the present hiatus.

We already anticipate that 2010 will be a bumper year for poachers, which could witness South Africa losing another 3500-4000 tons of abalone to the illegal market worth approximately R3 billion.

African Maritime Insecurity & Inaction

During April 2010, African experts on maritime security and safety gathered in Addis Ababa, Ethiopia, to share information on maritime security and safety among AU Member states and with partners to consider the African Integrated Maritime Strategy (AIM-Strategy). Experts addressed threats and vulnerabilities such as natural disasters and environmental degradation, environmental crimes, illegal fishing, oil bunkering, money laundering, illegal arms and drug trafficking, human trafficking, maritime terrorism and piracy and armed robbery.

In her opening remarks, Mrs Elham Ibrahim, AU Commissioner for Infrastructure and Energy, recalled that “for years African states have been mostly concerned by the declining capacity of their maritime industry”. However, recently, the growing menace of unlawful activities on African waters and the rapid escalation of piracy activities off the coast of Somalia and the Gulf of Guinea has meant that more attention be also given to matters of maritime security. It also served as a “wake-up call to the leadership in Africa to take concrete action to rid the continent of these scourges which are undermining economic activity and the image of the continent”.

However, the African Union and indeed most of its member states are not known for taking "action" on any particular issue. Whether it is deciding on the threats caused by foreign fisheries access agreements, implementation of port state measures to curb illegal fishing, dealing with piracy off Somalia or implementing the Abidjan Convention which aims at protecting west African coastal and fisheries resources, African states are very short on action.

And now the impacts are being directly felt. For example, much needed foreign investment in capital and skill intensive fisheries like tuna longlining is being lost to more favourable and less risky waters such as the Pacific. Mozambique, South Africa and Angola have been trying for months to attract foreign vessel owners to invest (in partnership with locals) in their respective tuna long line fisheries but with almost no luck. Most of the offers have been spurned and where the handful of boat owners have allocated 2 or 3 vessels to these waters, the vessels fished for a season or less and then promptly left.

The east coast of Africa is increasingly being viewed as too risky to deploy any high seas fishing vessels, which will increasingly threaten the very existence of Mauritius' and Seychelles' respective tuna industries. The rapidly growing and expanding acts of piracy along this coast will soon render much of commercial fishing too risky. Most Japanese, Korean and Taiwanese boat owners have already indicated that a combination of very poor catch rates and a high risk of piracy in Mozambique waters (and adjacent High Seas) have underpinned their decisions to not invest in Mozambique's tuna long line fishery in 2010.

In addition, Mozambique is just one of 16 African states which is subject to an EU "Partnership" agreement. In terms of its EU agreement (valid until December 2011), Mozambique has agreed to allow 89 EU vessels access to its tuna resources for a measly total of E900 000 per year. By comparison, South Africa has determined that its waters can only sustainably support 30 tuna long liners and even this number is too high as many right holders simply do not activate their quotas as the catching costs far outstrip income.

Despite years of growing piracy and its clear adverse impact on African trade in general and sustainable commercial fisheries exploitation, Africa is yet to confirm any policy or decisive strategy to guide any form of AU intervention, whether political, diplomatic, military or a combination. South Africa as the only member state with the theoretical resources to deploy - albeit only a symbolic - presence in Somali waters with its (white elephant) state of the art corvettes and submarines has repeatedly failed to even commit its policy position with respect to providing an "African solution" to this particular "African problem".

Whether the AIM Strategy results in any form of proactive policy development and implementation remains to be seen. It is much safer though to no hold your breath.