The 2016 FRAP For Horse Mackerel Implodes & the Consequences for New Entrants

Toward the end of 2019, the Minister of Environment, Forestry and Fisheries conceded a review application brought by Seavuna Fishing Company (Pty) Ltd & Others in the hake inshore trawl fishery. The consequence was that rights granted to new entrants by the Minister at the time were set aside and the minister was instructed to reconsider the appeals filed. More than 12 months later, the Minister has failed to fix this. The appeals remain outstanding more than 4 years after rights were first allocated. New entrant right holders in this fishery remain in limbo as their quota proportions remain unconfirmed. This prevents investment, long-term business planning and of course any possible job creation. 

And now we face the prospect of an even more significant High Court decision which will set aside in its entirety the allocation of 30 new entrant rights in the horse mackerel fishery. This High Court application was brought by Blue Continent Products (Pty) Ltd, Sea Harvest Corporation (Pty) Ltd and Irvin & Johnson Ltd in 2019. 

The Minister failed to file a notice of opposition in the matter. Consequently, there has not been any answering affidavit from her either. Unfortunately, more than a dozen new entrant right holders, desperate to protect their newly allocated 15 year rights, were provided with poor legal advice and entered opposition notices which exposed them to a costs order and to opposing a matter they could never effectively oppose. We have advised a few of these new entrant respondents to withdraw their opposition notices and await the court's decision. 

The applicants in this matter - Blue Continent Products (Pty) Ltd, Sea Harvest Corporation (Pty) Ltd and Irvin & Johnson Ltd - will now make application to a judge in chambers this coming week to compel the respondents (including the Minister to file an affidavit within 5 days), failing which the applicants will obtain an order which will -

• set aside the decision to allocate commercial horse mackerel fishing rights to the 30 new entrant companies; 
• set aside the quantum allocation methodology which allocated some 60% of the TAC to these new entrants; and
• compel the Minister to decide the appeals afresh within 7 months of the order. 

What the decisions in the hake inshore trawl and horse mackerel sectors show is how destructive government conduct is toward to "empowerment", economic stability and growth. There were 30 new entrants granted rights in the horse mackerel fishery which has been singularly dominated by the Oceana Group and its super trawler, the MFV Desert Diamond. The 2016 allocation provided an opportunity for government to sustainably introduce a cohort of new entrants who would establish themselves as operators of smaller trawler vessels that would target horse mackerel for on-land processing and increase domestic consumption (as opposed to block freezing and exporting the entire catch). 

But due to ANC factionalism and utter incompetence, the entire horse mackerel allocation of 2016 is now rendered moot (in so far as new entrants are concerned). So let's not tolerate vacuous statements from this incompetent cadre-infiltrated government about "empowerment" and "transformation". The ANC is the greatest threat to any substantive transformative effort in SA fisheries history. 

These adverse court decisions against the Minister now substantially limit her ability to introduce new entrants to the hake deep-sea trawl, South Coast rock lobster, small pelagic and other commercial fishing sectors when these rights are re-allocated (if indeed they ever are).