Dead Fishers and Fishing Rights

During the course of my three month appointment as Chairperson of Minister Zokwana's West Coast rock lobster appeals advisory team charged with advising on the more than 2000 appeals submitted to the Minister for decisions, it became apparent that the Fisheries Management Branch had strangely decided to declare applicants for fishing rights who passed away either just before or after submitting fishing right applications persona non grata and summarily refused their applications. 

Although my advices to the department that follow below were intended for the consumption of my client's staff, it has become evidently clear that a staff member who was a recipient of various such "confidential" advices and documents shared these with her partner who coincidentally is employed by a large South African fishing group. I have seen the evidence of this unlawful conduct on whatsapp chats. Even though these patently unlawful and corrupt communique's have been shared with the department, there has not been any consequences for the corrupt official concerned and I can thus only assume the employer approves of such corrupt and unlawful disseminations of confidential advices to certain corrupt fishing interest groups. Given that these advices are now in the "public" realm and openly for sale to corrupt parties (and thus no longer confidential), it cannot be fair to law-abiding right holders and interested parties to not know that the departmental practice of refusing dead applicants fishing rights is unlawful. This is particularly important given that small-scale commercial applicants will shortly be applying for their fishing rights in sectors such as abalone, line fish, oysters, mussels and hake handline. 

My reasoning follows. 

The decision to refuse applicants fishing rights simply because they had died prior to the submission of their application or after the submission of an application for a fishing right appears to be premised on an incorrect conflation of two separate and distinct decision making processes, which need to be made under separate binding departmental policies. 

Importantly, in terms of our laws of succession (correctly encapsulated under the General Policy of 2013), the rights and interests of the deceased right holder / applicant transfers automatically upon death to his / her executor who represents the “late estate”. Accordingly, any decision on an application for a fishing right by a deceased individual must follow the following 2-stage process - 

1. Step 1 is to enquire whether the applicant (i.e. the deceased person) qualifies for a fishing right under the MLRA and policy and criteria for that specific fishery based on the content of his/her application and history. If yes, the right MUST be granted to the LATE ESTATE represented by the EXECUTOR and the EXECUTOR must then see to transferring the right in terms of the Laws of Succession (i.e. whether to a beneficiary named in a valid will (testamentary succession) or if no will, then the law of intestate succession will apply). 

2. Step 2 will be for the department to then decide a section 21 transfer application filed by the legal beneficiary of that right (whether in terms of testate or intestate succession) and the department must then decide whether the transferee meets the stated criteria of the Transfer Policy and section 21 of the MLRA. 

Accordingly, a deceased applicant cannot automatically be refused a right in terms of section 18 of the MLRA. But neither is the lawful beneficiary of that right automatically entitled to a positive decision to have the fishing right transferred to him/her under section 21 of the MLRA. 

SA West Coast Rock Lobster Appeals Process Completed

On 16 October 2018, the SA Minister of Agriculture, Forestry and Fisheries, Senzeni Zokwana, completed the process of deciding 1741 appeals in South Africa's West Coast rock lobster (WCRL) nearshore commercial fishery. By 30 August 2018 - less than 30 days after having been appointed - the Minister issued his decisions on 272 appeals filed by the WCRL offshore fishery appellants. In total, 2013 appeals were considered, evaluated and decided over a period of 60 days. 

The Minister's official decisions and his record setting out the reasons for his decisions on the appeals filed in the WCRL nearshore fishery (ZONE F)  have now been made public on the Department of Agriculture, Forestry and Fisheries' website. 

A total of 739 appeals in Zone F were filed against the initial decisions taken by the Deputy Director-General: Fisheries Management in her capacity as the Delegated Authority on 31 July 2017. 

As is the case with the WCRL Offshore, the nearshore commercial fishery remains a highly competitive fishery sector with substantially more demand for fishing rights than can be sustainably accommodated, particularly in fishing zones adjacent to large population centres. 

The Minister received, considered and determined a total of 739 appeals for fishing rights in the WCRL Nearshore Fishing Zone F.

The Minister decided to allocate a total of 84 additional fishing rights in Zone F. Of these 84 successful appellants, 6 were excluded for failing to disclose an admission of guilt of fine, 14 were refused rights purportedly for being “medically unfit”, 22 were excluded because they were 65 years or older and 42 were initially refused rights on the basis of comparative score balancing.

Each right holder in Zone F will be entitled to a maximum of 0.23% of the WCRL Nearshore TAC determined in any one season for Zone F. 

Should any appellant require further reasons for the Minister’s decision, they may address these requests to FRAP2015appeals@daff.gov.za requesting reasons under section 5 of the Promotion of Administrative Justice Act, 2000. 

SA Minister of Fisheries Issues Decisions in Lobster Fishery

The SA Minister of Fisheries has issued his decisions on appeals filed by nearshore (hoop net) west coast rock lobster fishers. The decisions are recoded zonally in accordance with the geographic distribution of the WCRL from Port Nolloth (Zone A) to Zone F (Kleinmond/Hermanus/Gansbaai).

The decisions for Zone F are anticipated next week. What is recorded below are the decisions for fishing Zones A to E.

Zone A:

• Decision Sheet 
• Appeals GPR 

Zone B:

• Decision Sheet
• Appeals GPR

Zone C:

• Decision Sheet
• Appeals GPR 

Zone D:

• Decision Sheet 
• Appeals GPR

Zone E:

• Decision Sheet 
• Appeals GPR 

How to Destroy a Successful Eco-Tourism Sector

The recent unlawful and irregular allocation of boat-based whale watching and white shark cage diving permits has demonstrated a narrow-mindedness to destroy South Africa's two most successful eco-tourism sectors second to none. 

Feike has served as the legal advisor to the South African Boat-Based Whale Watching Association (SABBWWA) and the Great White Shark Protection Foundation that represents the majority of shark diving operations in the country of some time and a number of historical operators summarily lost their operating permits to new entrant applicants who have no resources, client access, vessels, websites, or ability to operate a whale watching or shark cage diving operation. 

Of course, the need to allow new entrants and even additional permit holders is a legitimate way of growing the economy particularly in these non-consumptive sectors whose success is determined by the number of foreign and domestic tourists willing to come aboard an operator's vessel and jump into a metal cage that can be knocked about by 5m long, 2 ton white sharks. Whether any tourist is prepared to pay a few thousand rand for this adventure to be overseen by someone with zero historical experience, knowledge or ability is doubtful to say the least but the Minister of Environmental Affairs and her department seem convinced that by dishing out permits to a plethora of new entrants who do not own or have access to suitable vessels, employ properly qualified skippers, expert staff, knowledgable marine guides who could at least impart some level of information to high paying tourists or even have a website or access to a single client would magically "transform" the industry. 

In Kleinbaai, the heart of the global shark diving industry, 6 of the 8 historical operators, employing some 90 skilled local personnel with investments in assets exceeding R50 million and who spend an average of R30 million annually in Gansbaai and the surrounding areas were refused their permits. These 6 operators have been operating for an average of 18,5 years. The Minister instead elected to allocate permits to 7 new entrant applicants. The financial impact on Gansbaai's local economy will be substantial. Job losses are a certainty as most of the new entrants will simply not be able to afford the costs of operations. A number have already attempted to sell their permits thinking that these paper permits are worth millions of rand. 

However, a number of historical permit holders have already successfully launched urgent interdict and review applications against the Minister and her department's unlawful decisions. The first adverse order against the Minister was issued on 12 December 2017, which included an adverse costs order. 

The first of the whale watching decisions in the Gansbaai area which denied a permit to a founding member of SABBWWA, Ivanhoe Sea Safaris, has now been reviewed and set aside by the Western Cape High Court. The Minister failed to even file an affidavit trying to explain her unlawful and irregular decisions. 

Three further review applications are now set down for hearing on 16 August in the Western Cape High Court. The decisions in each of these three matters are so irregular that they beggar belief. 

In two of the matters (concerning whale watching permits), the initial decision on 9 November 2017 was to allocate the historical permit operators their respective 10-year permits. Then on 13 March 2018, these permits were summarily stripped from the operators in blatant violation of due process and the Promotion of Administrative Justice Act. In one case, the permit was allocated to an entity without a SAMSA certified commercial passenger vessel (instead they nominated a fishing vessel without a safety certificate), no public indemnity insurance or a tourist guide. In the other case, the Minister demonstrated her lack of commitment to local jobs and the well-being of local communities by denying the only applicant for a permit and instead elected to not allocate any permit - leaving the area with no operator, employer or investor! 

The only proverbial light at the end of this horrible tunnel for whale watching and shark cage diving operators who were unlawfully denied their permits, is the extent to which simple legal principles have been wilfully ignored and recklessly sidestepped in favour of maladministration and socio-economic destruction. The decisions will simply not stand in law and have already begun falling. 

The Viking Buy-Out: Good or Bad?

Over the past few months we have seen two large transactions concluded involving the procurement of wild fish quotas worth more than R230 million. 

The first one to be approved this year by the Competition Tribunal and the Department of Agriculture, Forestry and Fisheries involved the effective buy-out of Talhado Fishing Enterprises by Premier Fishing in the squid sector. The Talhado transaction was particularly well-timed given the recent recovery of squid stocks and vastly improved fishing conditions (including prices) and the current depressed South African currency. Premier's purchase of Talhado's squid interests gives it effective control over some 20% of the total fishing effort available in the SA squid industry and just under 25% of the South African squid export market share. 

The purchase of Viking Fishing's entire portfolio of fishing quotas by the Sea Harvest Consortium Group is a substantially more complex and important transaction for South African fisheries management. For one, the consortium's purchase extends across 9 of South Africa's 22 commercial fishing sectors and involved 34 individual fishing rights transfers in sectors such as hake deep-sea trawl, hake inshore trawl, KZN prawn trawl, horse mackerel, West Coast rock lobster (offshore), tunas and small pelagics. 

Although there have not been any notable objections raised to either transaction, the Viking/Sea Harvest transaction raised a minor concern about the impact the deal would have on "small-scale" fishing and the relationship between directors of Sea Harvest, Oceana Ltd and Brimstone Investments, which owns equity in both Sea Harvest and Oceana. Giving the transaction the green light in May 2018, the Competition Commission authorised the transaction subject to the condition that Oceana Ltd and Sea Harvest (Pty) Ltd may not share any single director. With regard to the concern raised by a third party about the impact on "small-scale" fishing, this concern was patently misplaced given that the transaction did not concern any small-scale fishing sector fishery or small-scale fishing fishing rights. 

With the contraction in the size of wild fish quotas, coupled with increasing operating costs (particularly fuel and labour costs), consolidation of fishing effort (and thus the number of large fishing companies that principally export substantial volumes of high value South African seafood such as white fish, lobsters, tunas and wild-caught prawns) is a necessary commercial reality. Consolidation of fishing effort has long been a fisheries management policy (since at least 2005) and of course is in congruence with the policy prescripts of the National Development Plan, which recognised the importance of consolidating South African fishing quotas within the context of global seafood trade where South Africa is a very small contributor. 

South Africa's principal area of fishing instability and mismanagement remains the small-scale fishing sector which continues to operate schizophrenically under the notion that allocating small-scale fishing rights to hundreds of "fishing co-operatives" with hundreds of members will magically solve the dire socio-economic hardships faced by fishing communities. But this matter has been extensively covered by previous blog-posts. 

One of the more interesting aspects of the Viking/Sea Harvest transaction is the condition which the Fisheries Department attached to the approval of the buy-out of Viking's horse mackerel fishing rights. The horse mackerel sector quota purchase will create a significant competitor to Oceana Ltd for the first time. But more importantly, the Fisheries Department has required that an initial 5% of the quota has to be landed and processed in South Africa before being marketed (whether locally or regionally). A consequence of this condition will be that smaller fishing vessels will have to be deployed to the fishery as opposed to a single, expensive and inefficient large mid-water trawler, allowing smaller right holders in the fishery to be less dependent on Oceana Ltd to catch, process and market their quotas. The prospect of on-land fishing processing jobs is also created. 

Fisheries & Oceans Governance Under a Ramaphosa Presidency

Subsequent to President Ramaphosa's 2018 State of the Nation Address on Friday last week, his mention of the need to reduce the size of his Cabinet has led to some interesting speculation about the possible reconfiguration of the environment-related government departments.

In 2009, President Zuma split fisheries and oceans management between two separate departments (DAFF and DEA, respectively) despite all expert and academic advice that to do so would cause more harm to fisheries and oceans governance. Not to mention that splitting oceans and fisheries governance would be in direct contradiction to the domestic and international recognition that oceans and fisheries governance required integration, not disintegration.

Ideally, I believe that an efficient and effective administration responsible for regulating the environment (within the context of the Bill of Rights) would entail the creation of a single super environment ministry with deputy ministers responsible for overseeing -

• fisheries, ocean governance and aquaculture;
• water, human settlements and sanitation; 
• forestry and terrestrial park management; 
• agriculture and land affairs. 

Each of the above departments will be led by a director-general as opposed to the current departmental branches that report to directors-general who by large lack the sector expertise to actually provide technocratic leadership.

We already have a suite of overarching environmental laws under the NEMA statute umbrella that provides overarching environmental, protected area and biodiversity regulation. This bureaucratic structure would also be able to give effect to the important prerogative of implementing an ecosystem approach to environmental management.

Financial savings from the consolidated bureaucracy can instead be used for actual enforcement, monitoring, research and management.

New Entrants to the SA Horse Mackerel Fishery: 1 Year On

In December 2016, the South African government took the brave step of expanding the South African horse mackerel fishery by granting fishing rights to new entrants for the first time this century. The last time mackerel rights were allocated back in 2005, it was decided to maintain the status quo in a bid to support the investments made up to then (including the introduction of a large Russian flagged mid-water trawl owned and operated by the Oceana Group) and on the understanding that the crop of right holders would begin to change the manner in which horse mackerel was fished, processed and marketed.

Over the duration of the long term fishing period, nothing in fact changed. The fishery continues to be dominated by a limited number of vessels (1 midwater trawler and a handful of hake trawlers that also target horse mackerel for their owners). On-land processing remains almost non-existent with minimal jobs created in factories in Cape Town and Port Elizabeth.

So, when 27 new entrant rights were allocated in December 2016, there was expectant hope that the fishery would open up to new and alternative fishing technologies, including the deployment of smaller vessels and greater on-land processing.

More than 12 months later, and most new entrants have either been forced to enter into exploitative agreements with traditional vessel owners or have elected to not activate their quotas at all. Because the traditional or "pioneer" operators in this fishery remain in control of the vessels, processing capacity and market access, new entrants have been denied the right to bring in alternative, smaller vessels that would permit them to exploit their quotas more efficiently and profitably.

New entrants who have elected to have their quotas caught by one of the pioneer companies, have been forced to accept a paltry R1/kg for their supposedly high-value quotas! They are denied the right to negotiate when their quotas are caught, how the fish is processed or where it is sold. They are also required to forsake any claim to valuable by-catch species.

They are nothing more than beholden paper quotas who apply for their annual permits and wait for the proverbial cheque in the mail.

This feudal system cannot be permitted to continue for the next 14 years.

The Department needs to proactively start supporting new entrants by -

• facilitating access to alternative, smaller vessels;
• providing new entrants who invest in vessels, processing technologies and/or market access for their own fish with subsidies via levy discounts;
• negotiating access to markets in Southern Africa by, inter alia, introducing right holders to buyers and traders; and
• supporting and funding an annual South African fish trade expo. 

The Law of the High Seas

After more than five years of negotiations, UN state members agreed at the end of 2017 to draw up a new rulebook by 2020, which will establish conservation areas, catch quotas and scientific monitoring in terms of an internationally binding treaty to protect and regulate the High Seas. 

The waters outside national maritime boundaries – which cover half of the planet’s surface – are currently a free-for-all that has led to devastating overfishing and pollution.

The 2017 UN vote was supported by 140 nations, which is more than the two-thirds needed for passage to authorise the commencement of substantive negotiations on the text for a Law of the High Seas Treaty. The conclusion of a High Seas Treaty would mark the most significant development of oceans management since the adoption of the UN Convention on the Law of the Seas in December 1982. The UN will now host four meetings over the next two years to draft a legally binding treaty. 

Only 3.5% of the world’s oceans are currently protected. The remainder is increasingly over-exploited and contaminated by pollution, fishing and seabed mining. However, rapidly increasing global public concerns about the ongoing mismanagement of marine ecosystems, the pollution of seas and the threat of damaging seabed mining have focussed a majority of governments and politicians into accepting that the High Seas can no longer be left unmanaged and its resources unregulated. 

The next 2 years will be crucial to negotiating the extent and parameters of the treaty, particularly issues pertaining to regulation, access, management and utilisation of High Seas resources and pertinently the monitoring and surveillance of treaty obligations. As there will certainly not be a "United Nations Navy" deployed to protect the vast High Seas, the success of any international High Seas treaty will substantially depend on wealthy nations, particularly those with substantial naval resources (such as Russia, the United States and China) to assist with High Seas MCS. However, the mandatory electronic tracking of all fishing vessels, reefers and supply ships will assist in the global monitoring of fishing activity and reduce the impossible obligation of physical naval deployments across the High Seas.

And of course, the effective and global implementation of the Port State Measures Agreement will be key to the substantial curtailment of IUU fishing by denying rogue vessels (including supply vessels) and their IUU catches access to markets.