The Illegal Abalone Trade: A tangled web of Corruption, "Criminal Philanpthropy" and Governance Failure

During August 2014, the Institute for Security Studies published two reports on organised crime - both integrally related to the trade in illegal abalone in the Western Cape (and specifically Hout Bay). And last week Kimon de Greef published his research paper on the illicit abalone trade focussing again on Hout Bay in Cape Town.

The ISS papers can be accessed here (under "publications"). Kimon de Greef's paper can accessed here. All three papers are a must read.

The ISS paper by Khalil Goga perhaps best summarises the state of abalone poaching as follows:

"Criminal governance in the abalone trade thus takes various intersecting forms. These include the marginalised turning to the informal economy in the wake of lack of opportunity; both abalone wholesalers and gangsters developing a level of power over a region that renders them parallel sources of authority; the corruption and co-opting of state officials; and, arguably, the state’s reliance on the seizure of poached abalone."

DAFF's FRAP 2013 Update: What Does it Mean?

On 13 August 2014, the DDG of DAFF, Mortimer Mannya, issued a brief update on the 2013 FRAP and the appeals process. 

Essentially, Mannya attempted to explain the absence of decisions pertaining to the appeals lodged against decisions taken by his predecessor on 30 December 2013 pertaining to fishing rights in 8 fishery sectors, including demersal shark, oysters, mussels, tuna pole, KZN prawns, line fish, squid and hake handline. 

Mannya made two points:

1. That the SA Commercial Line Fish Association (SACLA) court case currently before the Western Cape High Court prevented the conclusion of the appeals process in the other 7 sectors. This is patently incorrect. The SACLA court case has no bearing whatsoever on the appeals process for any of the 7 remaining sectors. In terms of the Marine Living Resources Act, read with the Fisheries Regulations,  the appeals in these 7 fisheries ought to have been concluded by this stage as the SACLA case and the interim court orders granted to date do not prevent the Minister from attending to and disposing of these appeals. 

2. That the findings of the independent legal review of the FRAP 2013 were still being considered. This is indeed a concerning acknowledgement as the previous Minister of Fisheries had already considered these findings and concluded by way of a public statement in May that the FRAP 2013 was so illegal that it would not withstand a judicial review application and that the allocation of fishing rights would be set aside. It is August now! How long does it take to read a report and implement its findings? 

The department and the Minister have in any case confirmed that they have no answer to the SACLA court application as neither have filed a single set of papers in answer to SACLA's allegations and pleadings have closed now. This means that neither the Minister nor the DDG may be permitted to serve and file any papers at this stage, which leaves SACLA free to obtain its court order on the basis it had applied to court back in February. 

In reality, the appeals process has little prospect of being finalised as the FRAP 2013 has been publicly confirmed to be unlawful and indefensible by the Fisheries Minister. In addition, this is confirmed by the (publicly available) findings of the Harris, Nupen & Molebatsi Report, which we have previously summarised here. 

It will be legally inconceivable for the department to even attempt to proceed with finalising an appeals process that emanates from an unlawful fishing rights allocation process. 

The real tragedy of the illegality of the FRAP 2013 (and the department's ongoing inability to urgently remedy its consequences) is that rural and poor fishers such as oyster and mussel harvesters are the worst affected as they do not have fishing rights and neither do they have recourse to lawyers and advisers to pressure the department into correcting the illegalities of this process. 

And as we have seen more recently, the department had to concede that it failed to prepare an abalone fishing rights allocation process as well and instead allocated "exemptions" for another year. 

The glaring truth is that the department is no different to a recalcitrant and habitual borrower of debt, creating more and more (bad) debt with more and more creditors, while knowing full-well it is unable to hour these debts -  and all the while refusing to accept that with each passing day, matters are only getting worse. DAFF already owes the fishing industry a new, legal and clean 2013 fishing rights allocation process but 8 months after the fact it has not even come up with a repayment plan! The same applies to abalone. Next up will be the large pelagic fishery in less than 6 months time. And thereafter, the avalanche of fishing rights in the mega-value fisheries such as lobster, horse mackerel, hake inshore trawl, seaweed and others.