Is the Interim Relief poaching crisis South Africa's new Hout Bay Fishing Industries?

Many right holders in the commercial fishing sector have commented that the rampant and uncontrolled increase in lobster poaching by the interim relief sector may be South Africa's new "Hout Bay Fishing Industries".

Perhaps the impact will be worse because unlike the Hout Bay Fishing Industries matter, the interim relief poaching crisis is being perpetrated by an entire sector in an unsystematic and undocumented manner; the Department of Fisheries has no capacity or ability to deal with the poaching (they are unable to even apprehend the correct abalone poaching vehicles after being provided with the make, model and registration details!); and the Department of Fisheries appears to have prioritised politics over economic, social and ecological sustainability.

In light of the Department's increasing failures to be able to manage, administer and oversee compliance in all our inshore fisheries (whether abalone, lobster or linefish), how could the United States government allow the repatriation of the restitution moneys owed by Bengis et al to the South African government as it is impossible that the Department of Fisheries could utilise these funds to manage the lobster fisheries and to oversee its recovery?

MAIL AND GUARDIAN REPORT ON LOBSTER CRISIS

Following Feike's expose on the scale of lobster poaching by the interim relief sector, the Mail and Guardian today published a substantial article on lobster poaching and the links to organised crime and other forms of illegal trade in wildlife including reptiles.

The article was originally published on www.mg.co.za and written by Fiona Macleod.

Industry experts warn that lobsters will soon disappear from the nation's menus if over-fishing is allowed to continue to push South African stocks towards extinction.

The recent extension of rights to subsistence fishers has created an "open season" on West Coast rock lobsters, also known as crayfish, which is being exploited by Chinese triads and has reduced the shellfish stocks to a level lower than those of abalone, they said.

The collapse of the lobster fishing industry would mean the end of an industry that supports more than 4 300 jobs and is worth an estimated R347-million.

"Lobster stock is about 3% of pristine, which is the level needed to sustain fishing. They are biologically worse off than abalone, which is at 8%," said Shaheen Moolla, the former head of Marine and Coastal Management (MCM).

The devastation started in 2007, he said, after former environmental affairs minister Marthinus van Schalkwyk announced "interim measures" to grant subsistence fishing rights for lobsters, which are easily accessible inside the 200m-depth shallows along the West Coast to East London.

Quotas for lobsters and linefish were given to 1 500 subsistence fishers, who became known as "interim relief" fishers. A challenge to the allocation by the West Coast Rock Lobster Association was rejected by the Supreme Court of Appeal in September last year.

Moolla said this week that the interim relief fishers were allocated 200 tonnes of lobsters for the 2010-11 season. "In the Elandsbaai area alone they have already harvested at least 500 tonnes, with more than half the season left. In Paternoster they are removing 30 000 lobster tails a day. If poaching levels are even half that in other zones, we are probably looking at the interim relief sector taking about 1 500 to 2 000 tonnes," he said.

Open season

A recreational fisher who did not want to be named said he had witnessed interim relief fishers taking out "crayfish tails by the sackful and throwing the rest of the carcasses away. It's tragic to see what's happening. It's open season on crayfish."

With virtually no intervention by fishery control officers, organised gangs such as the Chinese triads were buying up interim relief quotas and paying a pittance for their catches, he said.

Private investigators have linked some interim relief lobster fishers to organised syndicates poaching abalone. The commercial abalone fishery was conditionally reopened in June last year after a closure of almost two-and-a-half years.

Environmentalist Sean Thomas, who is documenting the huge illegal reptile trade on the West Coast, said it was "in some instances connected to the illegal sourcing of abalone and lobster. Wild tortoise populations are being targeted as well."

The lobster free-for-all was having a serious impact on domestic and international markets because they were being dumped at rock-bottom prices, said Moolla, now a director of Feike Natural Resource Management Advisers and consultant for the Worldwide Fund for Nature and the World Conservation Union, IUCN. "The last two months of 2010 witnessed the collapse in the price of South African lobsters on the international market from about $50/kg to less than $30/kg," he said.

Carol Moses, the spokesperson for the fisheries department, which replaced MCM last November, said it was managing lobster stocks under a recovery plan that aims to return them to 20% above the 2006 levels by 2016.

"The 2010 status of the South African marine fisheries report indicates the recovery plans are bearing fruit," she said. It was not true interim relief fishers were not monitored, she said, but the department was reviewing the poaching estimate of 500 tonnes built into its annual total allowable catch for lobsters.

Since the opening of the lobster season in November, it had conducted 11 special operations that resulted in more than 335 fines worth R420 200 and the arrests of 13 suspects. "A total of 7 866 West Coast rock lobsters were confiscated, 5 000 units from roadblocks, 1 600 from commercial boats and 1 100 from an airport," Moses said.

Interim Relief Lobster Poaching Crisis

Feike has learnt that the interim relief (IR) lobster poaching has increased so dramatically that the IR poachers have harvested more than 500 tons in the Elandsbaai area alone. The entire TAC for the IR fishery was controversially set by the Minister at 200 tons.

And in Paternoster, IR poachers are removing 30,000 lobster tails a day and selling them for R5 each which is harming the commercial market. IR poachers are also harvesting more than 2 tons of live lobsters daily. Operators in the area complain that there has not been any fishery control officers or monitors to record IR catches or activity for "weeks".

And this same department wants to allocate "community quotas" to 5000 people! If that happens we might as well place our inshore resources on the IUCN Red List.

Community Quota debate is the same as the Nationalisation "Debate" in mining

The ANC portfolio committee members on fisheries noted in Parliament on Monday 8 February 2011, when discussing the Draft Small Scale Fisheries Policy and its "community quota" provisions, that such a policy has not been implemented since 1920!

The intellectual dearth present in the debate was stomach churning. These Members of Parliament and the senior managers at the Department of Fisheries show a remarkable lack of basic understanding and knowledge of the domestic and international fisheries management arena they oversee yet they are determined to pass laws and policies that will certainly destroy entire fishery sectors.

As a commentator notes in the Business Day (10 February 2011, www.bday.co.za), you cannot expect logic from populists.

Perhaps the ANC portfolio committee members should ponder the following:

1. If community quotas were abandoned back in the 1920's (which they were not of course as the ANC brought this populist disaster back in 1998 with SACFC), why do you think that even the Nationalists abandoned such policies?

2. What is a "fishing community" in the 21st century? DAFF officials confirmed that they have identified about 5000 people who will benefit from this "community quota" policy. But what criteria will be used to EXCLUDE the "masses" from the "community". Who is the "community" in Port Nolloth, Gansbaai, Mossel Bay, Port Elizabeth, Cape Town? Will an ANC membership card suffice or will membership of a particular "faction" be required as is the case with the farcical and dire interim relief process where allegations of fraud, corruption and partisanship dominate?

3. Where in the world has commercial community quotas for wild fisheries management worked? Anywhere and how precisely does DAFF foresee it working in SA with a coastline of 3000 km and an established system of individual long term inshore fishery quotas which are valid between 2013 and 2015? DAFF's draft policy and presentation to Parliament confirms that they do not have the remotest clue.

4. If DAFF has so utterly failed in managing the interim relief poaching process with "just" 1500 fishers, poachers and paper quotas, how on earth can it expect to manage 5000 undefined community members along a 3000km coastline? DAFF is unable to even manage small inshore fisheries such as abalone, oysters or mussels.

5. Why has DAFF to date been unable to define the economic and biological model that will be required for these community quotas? Is it because, there is no viable economic and biolgical model to satisfy such a farcical theory? How much fish will be required to satisfy the inflated and false promises? Where will this fish come from? If the current allocation of quotas to 2200 individual inshore fishery quota holders are "too small", then how will DAFF accommodate 5000 plus? Who will pay for the substantial management and administrative costs of community quota companies, such as directors' fees, audit fees, etc?

6. In the 1990's, the ANC also vehemently supported the creation of SACFC and other "community quota" companies. It only took 2 years for SACFC to fail miserably as the directors stole the income and profits from the fishing quotas and left the 3000 "community members" destitute and without quotas. And what did the ANC do? Nothing except make further empty promises about access to mystical fishing quotas. DEJA VU?

7. When the the proposed community quota process fails and the looters make off with the millions of rands in profits and the lobster, linefish and abalone resources are totally destroyed, will these MP's and officials be held accountable and how? Will they simply abandon the thousands of fishers left poverty stricken again?

8. Why have the more than 2200 artisinal and small-scale commercial fishers united in opposition to this policy? Have these MP's studied their submissions and understood the reasons for their opposition?

The burning question must be (as with the foolish mines nationalisation debate), why are the DAFF and its Minister so committed to adopting a policy that history shows will fail; will result in resource depletion; will result in increased job losses and poverty? Perhaps we should stop asking the naive questions and instead ask who stands to benefit financially from the implementation of such a flawed policy?

The DAFF gets Curiouser and Curiouser

A number of right holders in the abalone fishery report of being harassed and threatened with arrest and the confiscation of their catches by fishery control officers because their vessels do not have names!

Feike has communicated to the Department of Fisheries (or DAFFt) that there is no law in this great country of ours that requires vessels to have a name. What the applicable regulations promulgated by the Department of Transport require is that every fishing vessel have a registration number.

What is becoming abundantly clear is that either due to the incredibly incompetent and weak leadership at the DAFFt or an explicit mandate to unlawfully harass right holders (probably both), DAFFt's compliance officers and senior managers in particular are increasingly exposing themselves to a decision similar to that of the important precedent set by the the High Court in Coetzee v National Commissioner of Police and Others.

The Coetzee judgement will undoubtedly be used increasingly as more and more civil servants (such as a our reckless and malicious fishery control officers) believe they can act as they wish and cause untold harm, reputational damage and financial harm without consequence. In the Coetzee judgement, Justice du Plessis (having found the arrest of the applicant unlawful) then proceeded to rule on the payment of costs as follows:

"1. The following persons shall pay the costs of the applicant as well as the costs of the first and second respondent de bonis propriis on the scale of attorney and own client:

1.1 the station commander of Pretoria West Police Station: Senior Superintendent Moodley;

1.2 Superintendent Klopper of the Pretoria West Police Station;

1.3 Captain Nhlazo of the Pretoria West Police Station;

1.4 Inspector Dulebu of the Pretoria West Police Station;

1.5 Tshwane Metro Police Constable Frans Moosa Sivayi.

2. In the event, and only in the event of all execution steps having been taken, finalised and exhausted against the abovementioned officials, the first and second respondents shall be ordered to pay any further outstanding costs of the applicant on a scale of attorney and own client."

Essentially this order meant that all the legal costs incurred by both the applicant and respondents had to be paid from the pockets of the errant civil servants named in the order. They would have to pay the hundreds of thousands of rands in legal fees from their own salaries and if necessary by sequestrating their personal estates. And if any legal costs remained after every possible asset of these civil servants was auctioned off, then only would the National Commissioner and the Minister of Police be liable for the balance of costs.

Feike has warned the DAFF, and particularly the directors of compliance and the chief director of compliance, as well as those fishery control officers who appear to be less than able to understand the law, that should they arrest or detain any right holder on spurious grounds (such as not having a vessel name), we will not hesitate to approach a court of law for similar relief and we will not hesitate to sequestrate the estates of any fishery control officer or their bosses in order to ensure that civil servants understand what their duties and functions are.

Paying your fish levies...Is it the right thing to do?

Why do you pay your annual fishing levies? In terms of section 10, read with section 11 of the Marine Living Resources Act, 1998 (MLRA), the levies paid into the marine living resources fund shall be applied to the realisation of the objectives of the MLRA which are set out in section 2.

Put simply, levies must be applied to fisheries administration, compliance, management and research. There is near unanimity across the commercial fisheries sector (poachers and the interim relief sector excluded) that fisheries management, administration and compliance is almost non-existent. The processing of annual fishing and export permits are a costly and bureaucratic headache and has increasingly become an obstacle to fisheries trade.

DAFF is incapable of supporting and promoting the growth and profitability of the fisheries sector. Indeed, as previous articles on this blog have shown, DAFF is a direct hindrance and threat to the commercial viability of the fisheries sector. And in the case of abalone and lobster, DAFF competes directly with these fishery sectors it is supposed to support and regulate by competing directly with right holders to gain access to abalone and lobster buyers in Hong Kong and China.

We are therefore of the view that -

1. DAFF has failed and continues to fail to carry out its mandate as stipulated under section 2 of the MLRA but continues to collect levies from right holders;

2. In a sector like abalone, DAFF is a direct competitor to the legal abalone fishing industry. DAFF is able to control the issue of permits, use the funds it collects from abalone right holders to determine access to markets, use its authority and power to gain preferential access to buyers and dictate its own "compliance" and "management" measures which allows it access to larger amounts of illegal abalone which it then sells to fund its operational requirements. This is a fundamental breach of the MLRA and the universally accepted role of a fisheries regulator.

DAFF has therefore relinquished its right to legitimately collect levies which it essentially uses to prejudice right holders and not provide the services and carry out its obligations as required under the MLRA.

It is our view that right holders should stop paying levies to the MLRF. However, as levies are prescribed by law, these amounts should nonetheless be paid but they should be paid into trust accounts which are overseen and administered by appointed representatives of a particular fishery sector (such as the recognised industrial bodies of particular fisheries). In this way, right holders will be able control the expenditure of funds in order to realise the objectives of section 2 of the MLRA and the specific objectives set out in each fishery sector policy.

Ever wonder why poaching is so out of control?

Have you ever wondered why on earth abalone poaching is so completely out of control? Perhaps we can offer some insights.

On 3 February 2011, the SA Abalone Industry Association alerted the Department of Fisheries' top management, including the Chief Director of Compliance, Suzan Leseke, that "four large RIB's packed with abalone poachers have launched today at Buffelsjags (Zone A). Furthermore it is reported that this type of activity has been taking place on a daily basis, often involving

5 or more RIB's. The vessels are typically kept at Buffelsjags with the divers commuting in."

The Association's alert continued by stating that "...we must emphasize that this area has remained a serious problem for many years. We have on record requests for assistance made to MCM dating back to 2007 which were never acted on. We therefore insist that your department immediately take meaningful action to terminate this illegal activity."

Having received such a clear and credible tip-off, one would have thought that the DAFF would have immediately dispatched a team of enforcement officers to the area to halt the poaching and arrest the divers.

But that is expecting too much from the DAFF (daft?). Instead, reality prevailed and the Chief Director of DAFT's compliance division issued a gem of an email some two and a half hours later stating the following:

"I acknowledge receipt of your concern and have copied my PA so that she can arrange an urgent meeting next week to discuss way forward.

Regards

Suzan"

Four large RIBS could easily harvest about 4 tons of abalone. Perhaps even more given that DAFT has given them until "next week" to poach. Suzan Leseke's email is the clearest indication of the extent of the institutional failure that prevails at DAFF.

So why and for what legitimate reason do abalone right holders (or that matter any right holder in any fishery sector) pay fish levies? Our advice to the fisheries sector would be to stop paying levies to the DAFF until such time that it gets it management house in order, is able to account fully for every rand received and spent and begins employing professional fisheries managers who are actually able to manage South Africa's fisheries.

Minister of DEA makes startling admissions

In November 2010, the DA addressed correspondence to the Minister of Environmental Affairs on the concerns raised by Feike and others regarding the blatant illegal conduct of Raggy Charters - an illegal Boat Based Whale Watching operator in the PE area - that was provisionally allocated a BBWW permit despite an evidence bank of illegal conduct and the fact that the entity's black empowerment partner was a senior employee of SANPARKS which is not only part of the department of environmental affairs (DEA) but also in charge of compliance and enforcement in the area in which Raggy Charters operates (illegally) as a BBWW operator.

On 31 January 2011, the Minister of DEA, Ms Molewa, responded to the DA letter and made some profoundly amazing admissions that perhaps confirms the extent to which DEA is willing to go to "protect" Raggy Charters and also indicates the amateurish legal advice that is provided to the Minister.

Although DEA initially flatly denied that a conflict could exist, the Minister confirms in her reply to the DA (31 January 2011) that they now agree that there is a conflict but Raggy Charters was allowed to amend its ownership profile and the Minister states that she considers the matter "closed". Unfortunately for the Minister, her admission that Raggy Charters was allowed to change its ownership profile after the application closure deadline is fatal to the legality of the application and appeals processes at least in the PE region. If Raggy Charters is allowed to amend or fix what is now accepted by the Minister as a material defect or "application killer", then all other applicants must be allowed the same opportunity to attend to any other material defects. There is substantial case law about how such processes must be dealt with and what can and cant be done after application deadlines.

Minister, your legal advisers have shot you in the proverbial foot at least twice with this admission alone! But the Minister is then encouraged to re-load and prepare to pull the trigger again!

The Minister then confirms that despite the avalanche of clear and unequivocal illegal activity by Raggy Charters, her department could simply not find any reason to commence with any investigation or impose any sanction. She confirms further that Raggy Charters does not even advertise illegal BBWW on its website! Does the Minister and her minions not realise that before we make the allegation we first gather the evidence? So why do we have website printouts with date stamps proving that Raggy Charters advertises illegally that it BBWW? And why did her "investigators" not contact Feike or any person in the industry to test our allegations or require us to provide affidavits?

For example, Raggy Charters advertised on 7 October 2010 on a readily accessible advertisement page that "Raggy Charters offers a boat-based whale watching in Algoa Bay. Join them for a chance of seeing Humpback, Southern Right, Bryde's and Killer whales." That is a blatant admission of illegal BBWW and ought to render their application defective under DEA's own policy and regulations. PS Minister: Your officials could have warned Raggy Charters to remove the admissions of illegal BBWW from their website, but unfortunately we have print-outs of the website showing these illegal admissions and there are numerous other sites on which Raggy Charters advertised and continues to advertise their illegal operations that cant be "erased".

The most reasonable inference is that Raggy Charters is on the DEA's "protected species" list.

So, Madam Minister why are you and your department so desperate to shield Raggy Charters from sanction that you even admit to unlawful acts in writing? Clearly there are reasons for the protection being laid on. Let us give the Minister and her officials the benefit of doubt and put this all down to utter incompetence; even laziness to do their jobs.

And so, if that is the case we will simply have to get a court of law to once again force these public servants to respect the rule of law and act legally and accountably. The Minister's letter of 31 January 2011 is of great assistance and we thank her for the candid admissions.