Minister Desperately tries to Fix the Unfixable

On Sunday morning 23 February 2014, the Fisheries Minister desperately sought to fix the unfixable 2013 fishing rights allocation process (FRAP) by announcing three measures to appease fishermen. 

Firstly, the Minister announced that she appointed a law firm, together with Professor Halton Cheadle, to review the 2013 rights allocation process and advise her whether the process met legal muster. 

On this point, the appointment of Prof Cheadle must be welcomed. Halton served as the principle legal adviser to the 2001 and 2005 fishing rights allocation processes. Having worked extremely closely with Halton (whom I do idolise - I admit), I know Halton to be fiercely objective and perhaps one of the most impressive lawyers in this country today. There is no doubt that he will speak absolute to truth to  Tina Joemat-Pettersson. 

However, and quite frankly, even if Prof Cheadle advises the Minister that her 2013 process was flawed from the start as she failed to obtain Cabinet approval for any of the fishing rights allocation policies; that the consultation process was a vulgar violation of the obligations set out in the Promotion of Administrative Justice Act or that the rights allocation process itself is an abhorrent litany of untold examples of illegality from the failure to score criteria properly; or the allocation of rights to applicants who failed to demonstrate access to any fishing vessel; the allocation of fishing rights to people who live in Johannesburg or hundreds of kilometres from the nearest fishing slipway; or that new entrant applicants and right holder applicants were not scored and evaluated separately, there is nothing the Minister can do to reverse this national disaster! As the executive authority responsible for fishing quota allocations, she has wilfully presided over this catastrophic failure of basic due process and refused advice from competent experts in the field.

The Minister cant "un-allocate" fishing rights already allocated to dozens of people in Johannesburg and hundreds more that do not have a fishing vessel or have never fished in their lives. The Minister certainly cant fix the fact that she unlawfully gazetted the 2013 fishing rights allocation policies (despite Feike and others telling her repeatedly that she has no legal authority at all to do so - but she of course insisted on taking advice from the most incompetent and unqualified of staff like Desmond Stevens and Dennis Fredericks). The Minister certainly cant undo the inadequate and unlawful consultation process that was permitted to be undertaken during 2013. Consulting with fishing communities after the allocation of fishing rights is like trying a super-glue a mink vase after dropping it. 

The fact that the Minister has sought the assistance of Halton Cheadle is a clear indicator that the recent legal advice she has received from the likes of Advocate Johan de Waal (another legal adviser to the 2001 and 2005 rights allocation processes), only confirms what we have been saying for at least the past 12 months now. The 2013 fishing rights allocation process is unlawful and will not withstand judicial scrutiny. 

The second announcement by the Minister is that she has extended the fishing exemption process by a further 2 months with effect from 28 February 2014. This will mean that the exemption period will come to an end a mere week before the 2014 General Elections, confirming that there is very little chance that Tina Joemat-Pettersson will even bother to deal with the appeals that have been submitted to date. This second exemption in as many months is another admission of failure. These ad-hoc exemptions and extensions only further confirm a department and Minister lurching from one crisis to the next. 

It is important to note that the granting of this exemption will not affect the line fishers' court case currently before the Western Cape High Court. The matter will be heard on an unopposed basis tomorrow (Monday 24 February) morning at 10am. The review application itself remains scheduled to be heard in April. 

Third, the Minister admitted that the 2013 rights allocation process appears to be tainted by mal-administration and illegality. This sudden admission is of course contradicted by her two previous press statements issued in January which painted a rosy and perfect picture of the 2013 FRAP. We wonder what made her change her mind and accept what we have been saying since about 31 December 2013! But of course will she hold Desmond Stevens and his cronies accountable? Will Mr Stevens be subjected to a proper and independent forensic lifestyle audit? And will ANC officials and their families hand back their ill-gotten fishing rights?

We obviously do not believe the Minister for a moment. We certainly do not believe that the Minister is remotely interested in ensuring that the tainted 2013 FRAP is fixed and its unlawful decisions reversed. The Minister has a history of being deceitful and dishonest when forced into a corner. When the public protector found against her on two separate occasions she tried to detract from the findings by coming up with the same cock-a-many story about being bribed and threatened by some non-existent fishing company. Then, when the unlawful R800 million tender to Sekunjalo Investments was exposed, she threatened to expose massive corruption in her department and to commence a judicial inquiry. Nothing happened and of course not a single corrupt staff member was arrested, disciplined or fired! 

We have little doubt that the Minister will now try and use this red-herring investigation and the 2-month exemption allowance as a desperate attempt to delay any review application until at least after the 2014 General Election so she can avoid the public humiliation of being the first fisheries minister of the 21st Century to once again preside over an unlawful and illegal fishing allocation process. 

DAFF Backs Creation of Hake Handline Paper Quotas and Fronting

It is now official. The Department of Fisheries is actually supporting the creation of an entire class of paper quotas in sectors such as the hake handline fishery. The Department has allocated hake handline fishing rights to applicants without any regard to whether they have a suitable vessel and where they reside. 

The consequence is that we now have Departmental officials unlawfully phoning previous right holders and begging them to make their fishing vessels available to certain specific "new entrant" right holders. This confirms that the Department has allocated nearshore fishing rights to people who are not fishers and who are unable to fish the resource for which they have been allocated rights. We again ask: How does this support "transformation" and "food security" as the Department repeatedly spews forth? 

If these new entrant right holders cannot fish their fishing quotas, who is going to do so? And how will this benefit the SA fishing industry and our ability land prime quality hakes for export and domestic markets? 

The information available to Feike and the SA Commercial Line Fishers Association is that to this day, not a single new entrant right holder in the hake handline or traditional line fishery has put their boats to sea. And those new entrants who have tried to negotiate access to a suitable line fish vessel have delusions of massive profits being handed to them each month while they lazily sit at home getting fat off the work of "white boat owners" and their legitimate crew. These new entrants refuse to even contemplate going to sea or raising any money to fund the operational costs of putting a boat to sea (such as fuel and bait costs, insurances and wages etc). All they want is to trade their paper quotas for monthly cheques and the Department of Fisheries is now aiding and abetting this illegality. 

According to the shocking statistics issued by the SA Commercial Line Fishers Association today, the majority of 87 hake handline fishing rights have been allocated to quota holders who do not live anywhere near the hake fishing grounds and will therefore never be able to fish these inshore quotas. 

What these allocations confirm is that the decision-maker, Mr Desmond Stevens, simply does not have the most basic understanding of the fishery and its economic drivers. The hake handline fishery is an economically marginal fishery operated by small boats launching from local slipways and harbours on the southern (east of Cape Infanta) and eastern Cape Coasts until about Port Alfred. The fishery also operates for about 3 months of the year. Hake handliners were therefore all allocated traditional line fish quotas as well to ensure that fishing can take place through the year. 

The 2013 FRAP process has destroyed this fishery as well by allocating the majority of fishing rights to people who have absolutely no connection to the hake handline fishery and who can only hope to be fronts for real fishers. 

The SA Commercial Line Fishers Association confirmed that hake handline rights have been allocated to - 

• 20 people in the the Cape Peninsula region;
• 11 on the west Coast;
•  1 in Port Nolloth;
•  1 in Riebeek Kasteel;
•  1 in Midrand (!!!);
•  14  between Hawston and Arniston.

If one understands the geography and economy of the fishery, these 48 right holders will never be able to afford to physically put a vessel to sea and fish their own hake handline fishing quotas. And the Department of Fisheries knows this full well. For this reason, DAFF officials have been frantically phoning known boat owners to convince them to fish these quotas on behalf of these "new entrant" fronts. 

Again, is this what we are told is the "transformation" of the fishery? The Minister and her department must explain whether "fronting" and the creation of "paper quotas" is their new official policy. And once again, this conduct by the Department is directly apposite to Chapter 6 of the National Development Policy. So what if the Department now tells us that 90% of right holders in the hake handline fishery are black? How does this help us when they cannot fish the fish we need to put food on tables, export quality SA branded hake, create jobs and pay taxes? If this is "transformation", then we certainly dont want any part of it. 

Traditional Line Fish Rights Crisis: An Update

The deadline for the submission of appeals in the traditional line fish and the other 7 fishing sectors passed at 16h00 on 21 February 2014. It is important to note that this deadline is not cast in stone especially since many right holders have not yet received scoresheets and other documentation required to lodge a proper, complete and adequate appeal. 

All applicants who receive their scoresheets and further documents such as the scoresheets of other applicants in their sector, in the coming days and weeks and reckon they can either appeal or supplement their appeals against the decision to refuse them a fishing right, will have 30 days from the date on which they received their scoresheets and/or additional documents to file an appeal. 

On Monday 24 February, line fishers will have their urgent application to extend the 28 February fishing exemption deadline extended heard at 10am before the Western Cape High Court. This application also paves the way for a review application to be heard on 14 April 2014 which will seek to set aside the entire 2013 FRAP line fish rights allocation process. The urgent application on Monday morning will be heard on an unopposed basis as neither the Minister nor the Acting DDG has opposed the application. 

We are however told that the Minister intends making some or other announcement regarding the fishing rights allocation process and the court application on Sunday morning at the Holy Trinity Church in Kalk Bay. During the past week, the Minister has suddenly decided meet with members of fishing communities such as in Kalk Bay. But why now? Why were these communities not consulted with BEFORE the disastrous fishing quota allocation announcement on 30 December 2013? Our information is that the Minister has been advised that the 2013 rights allocation process is simply unable to withstand any legal challenge and the Minister has been instructed to urgently and desperately buy time by trying to appease the line fishing industry by essentially agreeing to the terms of the urgent court application that is intended to be heard on Monday morning. By announcing an extension to the 28 February exemption cut-off period, the Minister will try and remove the urgency required for the application to be heard on Monday morning.  

We will provide any update on the Minister's pronouncements in Kalk Bay tomorrow on our blog.