DAFF Sector Scoresheets: Unlawfulness Exemplified

Finally the scoresheets for fisheries such as the tuna, squid and line fish sectors are trickling in. An examination of these so-called scoresheets is yet further confirmation of the blatant arbitrariness and unlawfulness of this process! 

The scoresheet scores almost nothing of relevance. Firstly, there is zero evaluation of application for compliance with any of the peremptory criteria - ie. compliance with the peremptory lodgement, material defect and exclusionary criteria listed in the 2013 General Fisheries policy and each of the sector policies. So it is safe to infer that applications were not physically evaluated and checked for compliance with these criteria as they are spelt out in the fisheries policies. These peremptory criteria include compliance with the provisions of the MLRA, the form of the applicant, timeous and proper lodgement of the application, whether the form was signed and commissioned and critically, whether the applicant had nominated access to a suitable fishing vessel for that sector.

The failure to evaluate these peremptory criteria immediately renders the decision-making process unlawful and thus susceptible to review and an urgent interdict. 

However, if one considers the so-called "balancing criteria", matters are only made worse. Suddenly, an applicant is scored for being a South African person as defined under section 1 of the MLRA. By making this exclusionary criterion a scoring or "balancing" criterion, the decision-maker has acted ultra vires (or without legal authority). This again renders the entire decision-making process susceptible to an urgent interdict as such conduct is unlawful. 

Further, the scoring criteria fails to recognise and score key evaluation criteria. So local economic development and proximity to landing sites and coastal villages are simply not even considered. This would explain how applicants in Midrand and Cresta, Gauteng, scored fishing rights while 4th generation line fishers in Arniston, Struisbaai and Kalkbay were excluded. Also not even considered and scored is the key criterion of investment in fishing gear and vessels. How can such a critical aspect of 8 years of past right holding be completely ignored? These two failures easily render the evaluation criteria as being irrational and an unlawful failure to take into consideration proper criteria. 

If one considers the Traditional Linefish Policy, it states that the decision-maker will evaluate and score applications on criteria including local economic development, investment and reliance on line fish for ones income. The failure to adhere to the Policy directives renders Mr Stevens' decisions - whether in the line fish sector, squid, tuna pole, hake handline or any of the other sectors  unlawful and therefore reviewable. 

Finally, it is apparent that existing long term right holder applicants and new entrant applicants were evaluated and scored on exactly the same criteria. This is perhaps the most glaring illegality of the process and flies directly in the face of the 2005 Supreme Court of Appeal decision in Scenematic 14.

In short, the scoresheets only serve to confirm that the 2013 FRAP process was rushed to meet an unattainable deadline and that the scoring and evaluation of applications across the 8 fishery sectors was certainly arbitrary, irrational, ultra vires the authority of the decision-maker and therefore unlawful. 

DA's Policy Statement on Fisheries and Oceans Management

The DA's complete policy statement on fisheries and oceans management is available here. We strongly urge any one interested or involved in SA fisheries to read this policy statement, which is also the DA's 2014 election manifesto on fisheries and oceans. 

Feike has requested the ruling ANC to make available its election manifesto policy statement on fisheries and oceans governance. 

We provide a summary of the key DA fisheries and oceans management policies below.

FISHERIES MANAGEMENT

The management of South Africa’s fisheries must be based on the best available scientific and local community knowledge systems, coupled with the overarching precautionary management principle.

While South Africa’s offshore fisheries are relatively well-managed, our inshore fish stocks, including lobsters, line fishes, abalone and oysters, are in an extremely sensitive biological state. Scientific recovery plans are not adhered to and illegal fishing is decimating stocks. The recovery of overexploited and collapsed fish stocks has to be prioritised. Without fish, there can be no fishing quotas.

Fishing quotas

Allocation of fishing quotas must be undertaken in a manner that does not halt or fundamentally disrupt the economic operation of fishing businesses and such processes must continue to encourage black investment in and ownership of fishing quotas.

Allocation processes must ensure that small-scale fishing rights are allocated to:

 Fishers who actually fish their own quotas and are able to fully benefit from their quotas.

 Fishers who reside in coastal villages and towns adjacent to these fishing areas.

Allocation of fishing quotas to commercial right holders must be prefaced on the objectives of:

 Investing in sustainable and ecologically responsible fishing practices.

 Growing full-time and part-time employment.

 Ensuring fair and safe working conditions in processing factories and on fishing vessels.

 Supporting innovation by increasing operational and bureaucratic efficiencies.

 Empowering staff and investing in skills development.

Compliance

The DA’s fisheries compliance strategy is prefaced on the following compliance and monitoring pillars:

 A comprehensive re-evaluation of the suitability and skills of fishery control officers (FCO’s) and landing monitors. FCO’s and landing monitors, in particular, would be subjected to regular lifestyle audits to ensure an honest and committed enforcement and monitoring frontline. FCOs would be employed on a 24/7 basis and not restricted to working office hours only.

 Each fisheries patrol vessel would annually spend a minimum of 200 days at sea and the management and deployment of these vessels would be undertaken by professionally qualified MCS experts.

 The dedicated ‘green’ courts that proved highly successful during 2003 and 2004 would be re- established in Hermanus and new dedicated green courts opened in high poaching areas like Cape Town, Port Elizabeth and Vredenburg.

 Formal funded partnerships would be established with coastal municipalities, community-based conservancy organisations and NGO’s such SEAWATCH to help combat illegal fishing and to assist with community-based preventive compliance strategies that would focus on working with coastal communities to reduce illegal and irresponsible fishing.

 The recreational fishing sector would be encouraged to help police the near shore fish stock and partnerships would be established with responsible clubs and associations to protect our marine resources and ecosystem.

 The Fisheries Branch would no longer engage in the sale of confiscated fish products.

Research

Fisheries research is at the very heart of the Fisheries Branch. Fisheries research must be premised on the principles of the best available scientific evidence and the precautionary principle. However, a critical, yet often ignored source of information on the state of fish stocks is local indigenous knowledge. Local indigenous knowledge and data of the fishing community, established fishing clubs and associations must be formally incorporated into fisheries operational management procedures and stock evaluation models.

Small-scale or artisanal fishing

South Africa has a thriving small-scale or artisanal fishing industry of more than 2 200 quota holders responsible for harvesting high value nearshore stocks such as lobsters, abalone, line fishes, oysters and hake (by handline). 

The DA would implement measures to increase the value of inshore fish stocks, predominantly by reducing the bureaucracy that presently strangles small-scale fisheries, by substantially reducing poaching and by introducing sustainable and greener harvesting technologies.

The key elements of the DA’s policy for small-scale fishing are as follows:

 Fishing quotas must be allocated to individuals to avoid fronting and abuse. However, should a fishing community wish to have quotas amalgamated into a co-operative, this should also be recognised.

 Fishing quotas must be allocated to persons who fish their own quotas.

 Small-scale fishers must be allocated quotas in the vicinity where they live based on the

internationally accepted Territorial User Rights Fishing (TURF) system so as to encourage

responsible fishing and to reduce poaching.

 Small-scale fishing quotas must be allocated for long term periods in accordance with TURF so as

to encourage ‘ownership’ of fish stocks, thus reducing uncertainty.

 The state must subsidise the costs of obtaining and maintaining small-scale fishery eco-labels so

as to increase the value of these stocks, which in turn would reduce the need for larger quotas

and illegal fishing.

 The state must pay for the scrapping of unnecessary fishing capacity and must consider

implementing a fishing right ‘buy-back’ programme to support the recovery of nearshore fish stocks.

 Levies for the nearshore lobster fishery need to be reviewed and reduced as these cannot be same as for the offshore lobster sector.

Industrial fishing

South Africa’s industrial fisheries land around 90% of all commercially harvested fish, contributing some R4 billion annually to the fisheries and South African economy. The industrial or commercial fisheries sector has been successfully empowered over the past 14 years with black control of fishing quotas upward of 60%. 

The key elements of the DA’s policy for industrial fishing are as follows:

 Fishing quotas to industrial quota holders must be more freely tradable. Right holders must be allowed to sell and manage their fishing quotas once allocated in order to maximise efficiencies and extract maximum value provided that these are done in a socially and ecologically responsible manner. The DA would substantially review the anachronistic and uncompetitive Transfer of Fishing Rights Policy.

 All bureaucratic frameworks, policies and processes would be fundamentally reviewed in order to remove all unnecessary red-tape. For example, levies would be payable annually and all permit processes will allow self-issue via electronic means.

 The landing of fish would not be conditional on the presence of fishery control officers as the Fisheries Branch would employ smart monitoring technologies, including an electronic three- point reporting programme, comprising e-logbooks, sales notes and VMS.

 The state must pay for the scrapping of unnecessary fishing capacity and must consider implementing a fishing right ‘buy-back’ programme to support the recovery of overexploited fish stocks.

Recreational fishing

The DA would support the expansion of the recreational fishing sector by removing all unnecessary red-tape, particularly by reviewing the problematic manner in which permits are made available. For example, the DA would immediately put in place an electronic permit for recreational fisheries, which can be applied and paid for electronically and where the permit is issued immediately to the applicant’s smart-phone, tablet or other electronic device. The same mechanism would be implemented for non-commercial fish exports and imports. 

Foreign fishing vessels in South Africa waters

The DA would not permit any form of foreign fishing in South African waters as we believe that all our fish stocks that can be commercially fished, can be fished by South Africans.

Foreign fishing vessels would however be welcome to call at any South African port for stores, bunkers, fuel, the transhipment of fish and for other provisions provided that:

 Such vessels are not listed as being Illegal, Unreported and Unregulated (IUU) on any regional or international management list.

 Such vessels are able to provide the requisite guarantees and insurances to pay for the costs of any salvage or pollution that may result from their presence in South African waters.

Research and patrol vessel management

South Africa’s fleet of fisheries research and patrol vessels have been recklessly managed. The management and maintenance of these vital South African assets must be in the hands of professional and internationally recognised ship managers who are able to provide value to the South African government.

Expanding the fisheries economy

The DA does not believe in increasing the number of quota holders in any of the current fisheries, whether industrial or small-scale. This is in accordance with the National Development Plan.

The expansion of the fisheries economy can only be undertaken by:

 Identifying new commercially sustainable fisheries, such as a directed red-herring fishery.

 Expanding the size of the horse-mackerel fishery through committed research.

 Reducing bureaucratic costs.

 Supporting product innovation, market diversification and beneficiation.

 Subsidising the costs of obtaining eco-label certification for qualifying fisheries.

 Supporting the expansion of aquaculture farms.

Innovation and green technologies fund

The DA would create a dedicated Innovation and Green Technologies Fund under the Marine Living Resources Fund to support:

 Research into new commercial fisheries, fishing gear or fishing practices.

 Investments into greener and more efficient technologies.

 The establishment and entry into new markets.

 The eco-labelling of qualifying fisheries.

 The establishment of green aquaculture farms. 

Fish farming

Although South Africa has a comprehensive marine fish farming regulatory framework, the regulatory and bureaucratic hurdles are preventing the start-up small-scale fish farming projects. The DA would promote small-scale fish farming where annual production is 10 tons or less by automatically granting farming permits provided that the prospective farmer:

 Intends to farming with species that are not defined as being invasive aliens.

 Has access to water and appropriately zoned land.

Recognising the skills of fishers

Indigenous fishermen must be recognised for the highly specialized task they perform. Among other things:

 They must be recognized for the important role they play in the food security of South Africa.

 Their skills must be recognised and they must be given recognition of prior learning against

existing unit standards.

 Training and assessment must be made accessible and delivered locally.

 Local experts should be trained and employed as assessors to ensure authentic expertise.

 Local indigenous knowledge should be incorporated in scientific assessments.

Halting the professional rot at the fisheries branch

The DA would immediately reverse the practice of employing unsuitable and unqualified persons at the Fisheries Branch. In addition, the current staff complement needs urgent review and right-sizing.

The politicisation of the management of the Fisheries Branch must be ended. The Fisheries Branch must be elevated to become the professional centre of excellence for fisheries management in the Southern Hemisphere.

OCEANS MANAGEMENT

Integrated coastal and oceans management is mandated by South African law, yet management of our oceans and coast is divested from fisheries. This lack of integration not only harms oceans management, it unnecessarily creates a huge and expensive duplicated bureaucracy in the form of the Oceans and Coasts Branch in the Department of Environmental Affairs. Oceans and coasts cannot be managed separately from fisheries and the DA would reintegrate management of our oceans, coasts and fisheries under a single regulatory authority.

Marine protected areas

South Africa had committed to protecting 20% of its sea space by 2012 during the 2003 World Parks Congress. To date, we protect less than 1.5% of our oceans. The DA will seek to rapidly protect our ocean space from fishing by creating networks of offshore marine protected areas aimed at stock recovery. Two urgent marine protected areas are needed to protect fish stocks at Childs Mound between the Groen and Spoeg Rivers and the Orange River cone area.

Marine protected areas must:

 Function as a network of integrated of protected areas aimed at creating refuge for breeding commercial fish stocks.

 Not alienate and threaten coastal access to fish and fisheries and must complement small-scale fishing.

Large marine ecosystem management

South Africa is a member of two large marine ecosystem (LME) programmes, the Benguela Current LME on the west coast and the Agulhas-Somali Current LME on the east coast. Neither of these critical LME programmes influence the management of fisheries in South Africa despite the fact that in terms of both LME programmes, the management methodologies and procedures of shared stock fisheries by member states must increasingly be harmonised.

Marine-based Ecotourism

South Africa’s marine-based ecotourism sectors are dominated by the extremely lucrative boat- based whale and dolphin watching, and white shark cage diving industries. However, both sectors are hamstrung by inappropriate policies and bureaucratic red-tape and unscientific limitation of the number of operators in defined areas.

The DA believes that the state should work with the tourism market to determine how many whale and dolphin watching and shark cage diving operators are able to operate profitably in any specific area.

The regulatory authority, together with the applicable industry management body, must ensure that all operators:

 Adhere to strict safety codes.

 Implement and adhere to responsible operator codes of practice aimed at protecting sharks,

whales, dolphins and turtles.

Is this what "Transformation" means for DAFF?

Over the past few days, the Fisheries Department and others like Tony Ehrenreich of COSATU/ANC have been bleating on about how the 2013 fishing right allocation process is all about "transformation". 

So, we undertook a rather cursory glance of the entities granted tuna pole fishing rights to only  conclude that what is actually punted as "transformation" looks more like cronyism, nepotism, fishing rights for ANC cadres and fishing rights to wealthy business people. 

The timeslive daily newspaper has today already exposed a number of dodgy allocations in the traditional line fishery which only confirm the farcical nature of the allocations process. So it is confirmed that a senior ANC member's entire family landed themselves line fish quotas in Arniston. Nice. Transformation in action we will be told. 

We however looked at the tuna pole fishery for a slight change of perspective. This is what we found in only an hour of basic verification. 

We found at least two new entities that scored tuna rights are based in Cresta and Midrand, Gauteng! How does this help coastal communities? Do they even have access to a boat? And I dont mean a luxury cruiser that may be found on the Hartebeespoort Dam. Is this "transformation"?

Then, the ANC's Western Cape Economic Transformation and Rural Development Sub-committee member, Timothy Jacobs, who recently expounded the successes of the rights allocation process landed himself and a front company he controls not one but two tuna pole fishing rights! One can therefore understand why Mr Jacobs feels that the process was a phenomenal success! 

Another ANC-linked community member from Hout Bay, whose company was found responsible for the death of a tourist and one crew member when the vessel, Miroshga, capsized in 2012, also scored a tuna fishing right. The company also holds a boat-based whale watching right. How does granting a fishing right to a company that was found to have violated numerous laws and safety regulations that resulted in the tragic death of two people help "transformation"? It will be interesting to see which vessel this company nominated as its tuna pole vessel. 

The owner of a local Suzuki boat and engine franchise was also granted a right. Hardly a person that needs additional income or that is reliant on fishing to earn a living. How does this contribute to "transformation"? 

And then there are clusters of companies and close corporations with the same owners and directors that were each awarded tuna pole fishing rights. This surely cannot promote "transformation", unless we understand it to actually mean greed. We also thought that "double-dipping" was expressly prohibited in terms of the General Fisheries Policy? 

What this exercise confirms is that political connectivity appears to have been crucial in obtaining a fishing right or fishing rightS. In addition, very little data verification occurred to weed out the opportunistic applicants, such as the Gauteng-based applicants and other local business people who are now the happy holders of lucrative tuna pole fishing rights. 

All the while, hundreds of fishermen and thousands of crew whose sole incomes have been earned in the tuna pole and traditional line fisheries over the past decades are facing ruin because of "transformation". 

Sickening. 

Interim Relief for Line Fishers: Are they being led down the Garden Path?

Interim relief in the lobster fishery began 8 years ago and has resulted in mass coastal poverty and spectacular resource destruction. Lobster is presently 97% overfished and was removed from the WWF SASSI green list in 2013. Interim relief in the lobster fishery is synonymous with corruption, maladministration, poverty, poaching, coastal community conflict and resource destruction. It is hardly an "interim" measure either given that it has been running for 8 consecutive years. Right holders in this sector dont pay taxes; dont pay fishing levies; dont pay for permit application fees. Interim relief has become a social grant system in the fisheries sector and an opt-out for the fisheries department to actually grant fishing rights and manage the lobster sector coherently and responsibly.

Is this what will happen to the line fishery?

Of greater immediate concern is that while these interim measures are being put into place allowing line fishers to fish until such time as the appeals process has been dealt with by the Fisheries Minister, neither the Department nor the Minister, as the appellate authority, has confirmed that the estimated 18 rights set aside for appeals will be increased to the 235 rights that have actually not been allocated as yet and that are therefore available for allocation on appeal to those unsuccessful applicants who elect to lodge appeals. Should this undertaking not be given by the Minister, then an appeals process would be futile as no more than 18 appeals could succeed.

In addition, the department has still not made public individual right holder score and evaluation sheets, the written reasons for the decisions, the lists of unsuccessful applicants or the vessels and crew allocations granted to the 215 successful applicants. Without these basic documents, an appeal cannot be lodged.

And of course, the Minister has still not gazetted the grant of right fishing fees as is required under section 25(1) of the MLRA.

DAFF Folds: Accommodating the Line Fishers

The decision today by the Fisheries Department to accommodate all traditional line fishers who were wrongly excluded on 30 December 2013 via an interim exemption process is certainly a victory for the line fishers who stood united against a clearly unlawful and unjust decision that summarily excluded 335 of the 450 right holders on the eve that their 8-year long fishing rights expired. 

However, the decision to suddenly accommodate line fishers signals a recognition by the Department and its Acting DDG, Desmond Stevens, that the 30 December 2013 decisions were not only unlawful and susceptible to successful judicial review, but these decisions were morally outrageous. 

Until late last week, Stevens and officials from DAFF continued to maintain that these disastrous decisions of 30 December 2013 were fair and Stevens himself maintained that he could not understand why fishers were so outraged!

The climb-down by Stevens and DAFF however signals that his decisions in other sectors, most notably the shark demersal, tuna pole and hake handline fisheries, are similarly impugned and right holders who have been summarily excluded from these fisheries now stand an equally good chance of getting back to sea. Our advice to right holders in the shark demersal fishery - in particular - is to immediately launch a urgent review application as it is entirely unlikely that DAFF would be able to defend these woefully illegal decisions.  An urgent application in the shark fishery should focus on - 

1. The unlawful decision to allocate a shark right to Unathi-Wena which did not nominate a suitable shark demersal fishing vessel; 

2. The lack of rational scoring and decision-making - there are still no scoresheets and evaluation sheets and it appears as though scoresheets are only being prepared after the decisions of 30 December 2013; 

3. The fact that the shark demersal policy (and each of the other sector policies) is invalid and unlawful as it was never passed by Cabinet as required by the Constitution. 

Returning to the exemptions that will be granted to line fishers, in order to qualify for an exemption, unsuccessful right holder applicants will have show that they fished the total number of days set out below over the period 2007-2012 depending on the area where they are based:

Cape Peninsula:         300 days

Gansbaai:                    120 days

Struisbaai/Arniston:   120 days

Stilbaai:                        120 days

Mossel Bay:                 120 days

St Francis Bay:           120 days

Jeffreys Bay:               120 days

Port Elizabeth:            120 days

Port Alfred:                 120 days

East London:              120 days

Southern KZN:           150 days

Northern KZN:           150 days          


The pressure is however back on the department and Desmond Stevens. Stevens has made the following undertakings:

1. That the exemption forms that need to be completed will be made available to right holders by 8 January 2014;

2. That exemptions will be processed on an expedited basis and that right holders will be able to put their boats to sea by 10 January 2014;

3. That the Minister will deal with appeals within a 30 day period once appeals are submitted. The obvious problem with the appeals procedure is that only 18 fishing rights are available for allocation on appeal, which will not address the fact that more than 300 right holders need to be accommodated and granted long term fishing rights.

Where are those Scoresheets Desmond Stevens?

Where are right holders' scoresheets and evaluation forms? Why have these still not been made available to right holders? Why were these not published on the very day the decisions were made? 

Why were right holders told by the rights allocation unit just last week Friday morning that DAFF would not be making these available? Were scoresheets even produced and used by Desmond Stevens prior to 30 December 2013? How were applications scored and ranked and then compared to each other? Why are none of these questions capable of being answered by studying the General Published Reasons (GPR's) documents for any of the fisheries? If each evaluation criterion was scored why were these scores not published in the respective fishery GPR's as they were done in 2005? Similarly, why was the list of successful and unsuccessful applicants not listed with their respective scores in these GPR's? Were any of the applications in fact scored? 

Were staff at DAFF busy drafting (ie fraudulently contriving scoresheets and evaluation sheets) this past weekend? 

Are they aware that the truth will eventually come out like when Feike proved DAFF and its Minister had repeatedly lied to the west coast coast rock lobster industry and public about the existence of "socio-economic" and scientific reports that supposedly justified the 2012 lobster TAC decision? 

DAFF's Meaningless Consultations with Industry

The Fisheries Department's Acting DDG, Desmond Stevens, is suddenly running along the coast like a headless chicken "consulting" with members of the traditional line fish sector. Quite frankly, these "consultations" are dishonest and too late as Mr Stevens can do absolutely nothing to correct or change his disastrous fishing rights allocations of 30 December 2013. 

What Stevens is desperately doing is trying to buy time and string fishermen along in a bid to falsely placate them. Stevens's decisions of 30 December 2013 prevent him from changing a single decision. In law he said to be functus officio and cannot change a single decision. Persons who have been denied a right cannot be granted a right by Stevens. Similarly, those new entrants who were granted rights - no matter how underserving - cannot have their rights taken away! Not even the Minister can do this! And the small number of rights available on appeal cannot solve this national crisis. 

So what exactly can Stevens say to the line fish industry and the 335 traditional line fishers who lost their rights? If one considers the public statements he and the DG of DAFF have made, it is clear they have little intention of resolving this crisis. In fact, they have shown zero remorse or understanding of the harm caused. Stevens has said on radio that he cant understand why fishers are so unhappy! The DG of DAFF is on record as stating that they took away the rights of fishers who failed to utilise their fishing rights! Really? They took away the fishing rights of fishermen who relied solely on line fishing for their livelihoods; who employ 10 crew; who pay taxes; and who have been fishing for decades and allocated fishing rights instead to gangsters, directors of commercial fishing companies, 70 year-old women who have never been on boats before and to "new entrants" who dont even have boats! 

If they were truly serious about consulting with the industry, why did they not consult line fish right holders on west coast on the line fish policy? Why did Stevens fail to first publish the provisional decision lists as had been done back in 2005, calling on local communities to assist with the vetting of the proposed successful lists? Had these basic measures been implemented, this crisis would have been avoided. 

My advice to the line fish sector has been that the only basis of consultation with Stevens should be to obtain his irrevocable undertaking that he would approach the Western Cape High Court on an urgent Ex parte basis and have his own decisions set aside, restoring all fishing rights as at 30 December 2013 and that this must be done within the next 2 weeks. Any other discussions with him would be a waste of time and will only result in empty, unimplementable promises. 

Feike Backs Call for a Fishers Defiance Campaign

DAFF's 2013 Fishing Rights Allocation Process is a cowardly and unjust attempt to ruin the livelihoods of hundreds of traditional line fishers, tuna pole, hake handline and shark demersal fishers. These fishers have invested millions of rands over the past 8 years; created 1000 of jobs; paid their taxes and fish levies to this government; religiously complied with fishing permit conditions and DAFF's mundane bureaucratic rules only to be denied long term fishing rights to which they had every lawful and legitimate right when applications were submitted in September 2013. 

I witnessed the fear, anger and financial anxiety by dozens of fishermen out in Yzerfontein this morning. I have been fielding dozens more phone calls from fishermen and their spouses. They are grief stricken. What are they going to do this January? How will bonds be paid? What about school fees, groceries and electricity? How can someone who knows nothing about the fishery industry be appointed as a decision-maker and now end decades of fishing careers?

This of course is the gift of the ANC-appointed cadre. You dont have to know anything about your job. Hell you dont have to even qualify for the post in terms of criteria set by this very government. All you have do is be politically connected and the job is yours ... to sow destruction and cause serious economic harm to one fishing sector after another. 

The reality is that ultimately it will have to be the courts that will have to intervene in this mess. But litigation against the Fisheries Department who has no budget thanks to us taxpayers comes at a great cost to local fishers - both emotional and financial. There is little doubt though that the litigation option will ultimately be relied upon but how do we ensure that the grave injustices of this allocation process are not allowed to deny 1000's of crew their jobs and rob local fishing families of much needed income this January? 

Feike strongly supports the call for all fishers who held a long term fishing right as at 30 December 2013 to put their boats to sea as an act of united and mass defiance against this unlawful series of decisions. 

What documents are you entitled to from DAFF?

As applicants for fishing rights, regardless of whether you are successful or not, you are entitled to the following documents in order to prepare an administrative appeal under the MLRA or to prepare an urgent court application:

1. A letter addressed to you, the applicant, informing you of the actual reasons for the decision on your application. 

2. A copy of your scoresheet and all other evaluation records used to score your application.

3. Copies of the scoresheets and evaluation sheets for every other applicant in that fishery - both right holder and new entrant applicants.

4. The General Published Reasons, which are largely meaningless documents as they do not specify any reasoning or policies underpinning the decisions. 

5. Complete lists of successful applicants, together with the names and registration numbers of their nominated fishing vessels and crew allocations. 

In addition, you may request access to any database created and used by the department for the purposes of this rights allocation process via the Promotion of Access to Information Act. The Department can only deny you access to the actual applications of third party applicants where these applications contain information that is ordinarily prohibited from being accessed under the Promotion of Access to Information Act. Typically, this information will include financial statements of private companies and close corporations, wage and salary bills, fishing plans, details about customers and other sensitive trade and commercial data. 

Shark Demersal Decisions: Error-Ridden Nonsense

The decisions in the shark demersal fishery are truly bizarre! If ever there is a set of decisions ripe for review, it is in this fishery. 

Firstly, every long term right holder failed in their bid to have their rights re-allocated despite the fact that at least 3 of the right holders have invested in shark long line gear, harvest and export shark products, sustain many jobs in the sector and importantly created some unique export markets for shark products. 

Secondly, BMC Visserye CC is listed as both on the unsuccessful and successful lists! So which one is it? 

Thirdly, Fisherman Fresh CC, is also listed on both the unsuccessful and reserved lists! 

But without doubt the clearest ground for review is the allocation of a fishing right to the new entrant, Unathi-Wena Fishing CC. Despite the fact that this entity failed to nominate a suitable vessel for this fishery - which should have resulted in its immediate exclusion in terms of the shark policy - it was allocated a fishing right. 

It is our view that the error-ridden decisions in the shark demersal fishery - in particular the decision to allocate a right to the vessel-less Unathi-Wena Fishing CC - should be reviewed and set aside.

Squid: Status Quo Maintained

It appears that the precarious biological status of the squid resource, coupled with the fact that the fishery has a number of large commercial operators such as Premier Fishing, I&J and Pioneer Fishing, saved the fishery from the irrational and nonsensical decisions that have plagued other fisheries such as the shark demersal, tuna and line fish sectors. 

No new entrants were granted a right notwithstanding that the squid fishery has historically lagged other commercial fisheries in the area of black economic empowerment. However, decision-making in this sector appears to have recognised that what the fishery required more than anything else is stability, continuity and re-investment by current right holders to ensure that South Africa's share of the lucrative European market for squid is not lost. 

What remains a mystery - as is the case with the other decisions - is the effort allocations to right holders. The squid fishery is unique when it comes to the allocation of effort. Back in 2000, the department and the squid industry agreed on a formula for the allocation of effort (or number of crew) per vessel depending on which effort category the vessel fell into. This formula was re-adopted in 2005 in terms of the effort allocation mechanism that was adopted for the squid fishery. The department has not yet published its proposed effort allocation formula for the fishery and if it attempts to unilaterally force a formula onto the sector, this would be unlawful. Given the corner the department finds itself in, it is entirely likely that the current effort allocation methodology will simply be implemented again. 

However what is increasingly apparent is that the squid season requires further shortening to reduce catching effort on the squid resource. The reduction in the number of right holders from 121 to the current 93 should be welcomed in the quest to further curtail effort.

Note: It is our view though that the overarching decision-making process for this fishery remains susceptible to a successful judicial review. For example, the decision to allocate fishing rights for a period of 7 years remains unsupported by any rational or considered reasoning; many of the exclusionary criteria set out in the GPR are unrelated to what is stipulated and defined to be exclusionary criteria in the Squid policy; and there appears to be  significant disconnect between the objectives set out in the Squid policy and the stated outcomes in the Squid GPR. 

The Destruction of the Traditional Linefishery

The 2013 FRAP line fish decisions have decimated if not destroyed South Africa's traditional line fishery which dates back to the 1500's. Of the 450 traditional line fishers that held rights for the past 8 years (and most even longer for periods of between 30 and 40 years), only 115 were reallocated their fishing rights! That will result in the decimation of the line fishery resulting in huge job losses and business failures. It appears as if traditional line fish strongholds such as Kalk Bay, Arniston and much of the West Coast have been most affected. 

As with the tuna pole decisions, the decisions in the line fishery are similarly illegal and should be set aside should a review application be brought. 

The decision to exclude more than 330 traditional right holders however who have invested and created jobs over the past 8 years at least while allocating rights to new entrants who have little or no vested interests in the line fishery is particularly egregious. The decision will wipe out an estimated R90 million in investments and thousands of jobs. In addition, hundreds of line fishers who know nothing but fishing will now be left unemployed. To make matters worse, many right holders have funded their line fish businesses and maintenance of their vessels through home loans (as banks simply do not recognise fishing quotas as security). The loss of their fishing rights will now result in the loss of many homes as well. 

Long term right holders who fished regularly, complied with their annual permit conditions, created jobs and invested in their vessels and the creation of markets for their fish but were refused a second long term fishing right will have a legally enforceable "legitimate expectation" that their rights ought to have been re-allocated. The decisions are certainly apposite to the principles and objectives set out in the National Development Plan, which certainly does not promote the wholesale destruction of economic value and mass unemployment in such an important fishing sector. 

The decision to simply deny so many traditional line fishers their rights and their ability to earn a living certainly confirms that DAFF is not remotely interested in supporting traditional fishers, encouraging job creation and investment and stability in the fishing sector. More so, it confirms how dangerous and calamitous decisions by unqualified and unsuitable persons can be. 

It is our view that the decisions in the line fishery could be set aside on various grounds, including the macro-process flaws we have previously identified such as the unlawfulness of the fishing policies. However, the actual decision to exclude so many right holders in favour of new entrants could be reviewed on grounds such as the scoring, the fact that it again appears as though new entrants were scored, ranked and compared with long term right holder applicants and that new entrants were not required to show access to a suitable traditional line fish vessel as stipulated by the line fish policy.

Urgent meetings with line fishers are being held in Yzerfontein (West Coast fishers) at 10am on 2 January and at 10am at the Oceana Power Boat Club on Friday 3 January 2014 for the Cape Town-based line fishers. 

PS. It even appears as if a notorious Cape Gangster is now a new traditional line fish right holder! Talk about a disastrous allocation.