The Green Party Application: Why has the Minister not Opposed the Application Yet?

On 15 January 2013, we reported that the Green Party's Judith Sole served a second set of papers on the Minister of Fisheries, her DDG and a number of "interested parties" (none being right holders in the lobster sector) seeking to either - 

• halt all lobster fishing in South African waters until lobster stocks recover to "sustainable levels"; 
• alternatively, to stop the commercial trap fishery from fishing but to allow the nearshore and interim relief sectors to continue operating.

As we had reported on 15 January, our opinion is that the application is not only entirely ill-conceived on a substantive basis but it is fatally flawed on a procedural basis as Ms Sole failed once again (as she had done in her initial application in December 2012) to serve the application on each of the more than 2000 commercial right holders and interim relief operators as she is required to do. 

That said, the respondents (ie the Minister and her DDG) were required to serve their notices of opposition by 22 January 2013. By the 22nd, only the West Coast Rock Lobster Industry Association had filed a notice of opposition. Now a week later, the question is why has the Minister and her DDG not filed opposition notices? 

It could just be plain incompetence, which is not uncommon as we all know. We have been involved in  litigation where the Ministers of Environmental Affairs and Fisheries only filed opposition notices 7 months late on the morning the application was to heard on an unopposed basis!

The conspiracy theorists reckon that the Minister and her DDG have not opposed yet as they may in fact be seriously looking at the alternative relief being sought by Ms Sole - ie shutting the commercial trap fishery but keeping the interim relief and nearshore sectors open. Now surely that could not be true especially since we know how committed Tina Joemat-Pettersson is to growing our commercial fisheries and ensuring that they remain profitable? She will surely not support some populist and destructive agenda aimed at harming the commercial trap fishery!

Will the Green Party Succeed?

The Green Party led by Judith Sole served a second set of papers on the Minister of Fisheries and various "interested parties" this afternoon. Ms Sole seeks to review and set aside the decision by the Minister of Fisheries and/or Acting DDG of the Fisheries Branch to continue to permit fishing for lobsters during the current 2012/2013 fishing season. 

Ms Sole is seeking an interdict to halt all fishing for lobsters until the resource recovers from its present levels of being 97% overfished to a level of sustainability estimated to be when the lobster biomass is at 20% of pristine or "pre-fishing" levels. 

Ms Sole is alternatively seeking an interdict against the offshore commercial fishing industry in a bid to halt the commercial trap fishery while allowing the near shore commercial and the interim relief sectors to continue fishing. 

Ms Sole's application is not only fraught with factual inaccuracies and inconsistent conclusions, her application is fatally flawed as she has failed to properly serve her application on any one of the more than 1,000 commercial (nearshore and offshore) right holders and the interim relief exemption holders. In particular, Ms Sole is obliged to served these papers on each of the 250 commercial right holders as she seeks to halt their multi-million rand fishing rights to harvest lobster. 

This fatal technicality aside, Ms Sole is also requesting a court to second guess the advice of expert scientists who recommended that commercial fishing can continue within the confines of a lobster recovery plan and a reduced TAC for the current 2012/2013 fishing season. This is where Ms Sole's review ought to have focussed - the irrational and unlawful conduct of the Minister and her DDG to ignore the sound scientific advice of the west coast rock lobster scientific working group, which recommended a TAC reduction in line with the WCRL fishery operational management plan and recovery strategy. 

Has DAFF Destroyed the Africana?

Feike has been provided with an update on the status of the Africana research vessel and research cruises she was and is supposed to undertake. 

As we had last reported, the Africana failed to complete the critical end of season sardine and anchovy research cruise after the Navy successfully pumped sea water into the ship's fuel tanks. Despite promises (actually a series of lies) to the portfolio committee about the ship being ready to sail within days of the "challenge" (ie. government word for mega stuff-up of unimaginable proportions for which they do not have the slightest solution) of pumping sea water into the fuel tanks, the vessel failed to sail. 

By late November 2012, the SA pelagic industry had had enough of the joint DAFF and Naval incompetence and got a private vessel ready to conduct the research cruise which was eventually successfully completed. 

Subsequently, a one-day calibration exercise between the industry vessel and the Africana was planned to take place in False Bay in December 2012. This too failed to materialise as the Africana broke down twice; the first time only 50 metres from the quay and the second time with steering failure, narrowly avoiding a reef and a collision with the industry vessel. 

Following this further "challenge" the Navy informed DAFF that the Africana will not be able to undertake the January hake survey cruise either. If this cruise is missed, the hake trawl industry will certainly lose its MSC Certification. Fortunately however, the hake industry has secured its own private vessel to undertake the research cruise. 

So one must ask why are the pelagic and hake industries paying any levies to DAFF if the most basic functions entrusted by law to DAFF - ie research, management and compliance - are no longer undertaken by DAFF and instead industry is substantially required at its cost to fund research, management and compliance? Does industry have a case to halt levy payments to the Marine Living Resources Fund and instead place these funds in special trust account to be used to fund fisheries research, management and compliance? We certainly think that there is a solid case to be made in this regard. 

Since taking over the Africana in April 2012, the Navy has managed only one successful survey and one start in six attempts. The Navy will undoubtedly try and blame its failures on Smit Amandla and the apparent "poor condition" of the vessel. That excuse is however plainly dishonest, particularly if one considers that in all the time that Smit Amandla operated the Africana, mechanical problems never once delayed or caused a research cruise to be abandoned or cancelled. Further, Smit Amandla handed the vessels to the Navy in pristine condition. If they were not, why did both DAFF and the Navy not immediately object and refuse the handover of the Africana in April 2012?