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Archive for January, 2012

High Court refuses Interim Interdict

The Western Cape High Court this morning decided to not extend the temporary interdict granted against certain Zone C and D abalone right holders by Judge Davis last week.

The temporary interdict was applied for by right holders in Zones E, F and G who are seeking a court order to require the Fisheries Minister to adhere to and implement the 2003 Abalone Fishing Policy.
The Minister has essentially admitted that her department no longer implements the abalone fishing policy but believes that the policy is not binding on her or her officials and that it is merely a guideline.

Tuna Long Line & Swordfish Permit Available

A South African fishing company is urgently seeking a partner who will be able to harvest, process and market its tuna and swordfish long line fishing quota for the current 2012 season.

Interested parties can contact Feike’s Shaheen Moolla directly.

Interim Interdict Issued in Abalone Case

Justice Dennis Davis this afternoon granted an interim interdict against those Zone C and D abalone right holders that were allowed to fish their quotas in Zones F and G.
The interim interdict will apply until such time as a proper determination of the actual interim interdict application can be made. This application will be heard on Thursday 26 January 2012.
The effect of the order is that the Department of Fisheries must ensure that all Zone C and D right holders who were allowed to fish in fishing Zones F (Robben Island; launch site OPBC) and G (West Coast) must be prevented from fishing in these 2 zones.
The Applicants, who are Zone E and G abalone right holders are advised by Feike and are represented by Shaun Hangone of Von Lieres, Cooper, Barlow & Hangone Attorneys. Applicants’ counsel is Adv Darryl Cooke of the Cape Bar.

The fisheries department is clearly seriously peeved by allegations that they will not be ready for the allocation of fishing quotas in 7 fishery sectors involving more than 1000 quota holders in 2013.

They issued a strongly worded statement as follows:
“The Department of Agriculture, Forestry and Fisheries (DAFF) takes strong exception to any attempt by anyone who knowingly and intentionally spreads misinformation aimed at causing instability in a very important economic sector; the fishing industry. Quoting unnamed “reports” that allegedly “indicate that the Department of Fisheries has made no apparent attempt to commence with the process of renewing fishing licences, despite the renewal date for fishing quota allocations being less than a year away”, is not only far from the truth but also extremely reckless and irresponsible and such fallacies also have the potential to cause panic amongst investors and stakeholders.

We are acutely aware of the timelines and with the rights of six commercial sectors expiring only on 31 December 2013 (KwaZulu-Natal prawn trawl, demersal shark, squid, tuna pole, Hake Hand-line and traditional line fish) – almost two years away – and abalone on 31 July 2014 – almost 30 months away, we have ample time to ensure the kind of allocation process we envision.

DAFF would want to assure the public, and particularly those that have a direct interest in this industry, that there is no “looming crisis” and that the department will again, building on the successes of previous rights allocation processes, be able to deliver a seamless, transparent, fair and open process.

This will not be the first time that the DAFF will embark on this important process, and we are determined to build on the successes of the last rights allocation process.

We are further confident that, following a review of the previous process, the adjustments made to improve our internal arrangements and our resolve to consult regularly and extensively with all who have a direct or indirect stake in the industry, will again ensure a rights allocation process that is credible.”

While we no doubt would like to believe them, we CANT! DAFF simply fail time and time again at communicating even the simplest messages. Their website is more than 16 months out of date. They fail to communicate the most basic (and positive messages) such as the opening of the lobster season or the setting of TAC’s. We never know who is the current Acting DDG, acting head of Fisheries, Acting head of Research etc. They seem too petrified and lacking of confidence to communicate anything with the fishing industry and members of the public.
I repeat that the fisheries minister – either too busy chartering private flights or living large in 5 star hotels – has NEVER met with any of the fishing industry bodies or addressed the 22 commercial fishery sectors to advise them what her plans, visions or policies are?
Here are a couple of reasons why we cant believe this department and their Minister:
1. It has taken this absent minister and her department more than 2 years to draft a flawed small scale fisheries policy which is stuck at NEDLAC and opposed by every small scale fishing sector and interest body.
2. It took the same department no less than 4 years to get the performance measuring process going and to get a series of right holder “data assessments” issued which are not to be considered “decisions” according to the department.
3. Let us not forget how they failed to get the abalone fishery opened in time despite promise after promise that it would be opened in February 2010; then it was April 2010. The fishery finally opened in June 2010 – slap-bang in the middle of Winter!
4. And then of course they also forgot about re-allocating rights in the oyster and mussel sectors! These two sectors continue to operate on annual exemptions as opposed to bankable long term fishing rights.
5. And what about the numerous transfer of fishing right applications that are still waiting for “urgent” decision-making. There are simple transfer of fishing right applications that have been sitting at the department for more than 2 and 3 years.
And their claim that they had successfully undertaken a rights allocation process before (ie the long term rights allocation process) is empty as the team of professionals that led that process is no longer employed by DAFF. And the process of preparing for the allocation of long term fishing rights commenced in 2002 (for allocation of fishing rights in 2005); was preceded by two test-case allocations in the abalone (inshore sector) and large pelagic (offshore sector) fisheries in 2003 and 2004, respectively; the allocation of long term fishing rights cost in excess of R45 million which required careful budgeting at a time when the Marine Living Resources Fund ran annual budget surpluses – the MLRF is presently run a R50 million deficit.
Instead of issuing bluster, DAFF must make public their process plans and timelines showing how rights will be re-allocated timeously and before 31 December 2013 (and before 31 July 2013 for abalone) and what their budget allocation and costing projections for the allocations processes are.

Hey Minister: Where is the 591 tons of Abalone?

Feike reported in 2011 that the Minister stated in Parliament that her department confiscated 591 tons of abalone during the 2010/2011 financial year.
As we reported then, this staggering admission destroyed all the department’s attempts at whitewashing poaching and confiscation figures. Based on the Department’s own repeated admissions that it confiscates between 10 and 15% of all abalone poached, this means that between 4000 tons and 5900 tons are actually poached. This is a simplistic and extremely conservative number as we do not factor in what percentage of the 591 tons of confiscated product is dried or frozen. Based on the Department’s average sale price achieved during the secret November 2011 abalone auction, 4000 tons of abalone would be worth an astronomical R8billion.
In a High Court application involving abalone right holders (26160/2011), the Minister and the Acting DDG re-confirmed that the fisheries department confiscated 591 tons of abalone. 591 tons would be worth anything between R200 million and R1 billion depending on what proportion of the confiscated product is dried. Dried abalone auctioned by the department has earned it an average of between R2000 and R2,800/kg.
So here some elementary questions for the Minister and the Acting DDG of Fisheries:
1. Where is the 591 tons of confiscated abalone?
2. What proportion of this is dried?
3. What quantities of the confiscated product have been sold to date, at what prices and to whom?
4. This is a huge income windfall that ought to go directly to abalone management, research and compliance. How exactly will the income be ring-fenced and spent?

Recreational WCRL Season Not Extended

Feike understands that the Acting DDG of Fisheries has decided to not extend the WCRL recreational fishing season.

Performance Review Notifications

Right holders in the Cluster A and B sector fisheries would have by now received correspondence from the Fisheries Branch on their performance measuring submissions which were lodged with the department back in 2010.
The correspondence confirms that the results of the performance review do not constitute administrative action for the purposes of the Promotion of Administrative Justice Act, 2 of 2000 and that should right holders wish to object to any of the assessment data, that these objections may be lodged with the department and will be kept on file.
Whether or not the assessments constitute “administrative action” that is reviewable is debatable. The assessments would not constitute administrative action only if the assessments are not used to directly affect the rights of quota holders.
In other words, should the department use the assessment results to reduce, cancel or revoke a quota subsequent to a section 28 process or not re-allocate a fishing permit, then the assessment results would be reviewable under PAJA.
Our advice to right holders would be to –
  • carefully scrutinize the assessment results and ensure that these accord with the submissions made in terms of the RFI application process; and
  • where there are any anomalies, that these are communicated to the department in detail and in writing and a record of the objections carefully stored.

AFRI-OCEANS exposes Illegal MPA Fishing

Read the expose on illegal fishing permitted by DAFF and its Fisheries Minister on the Afri-Oceans page – http://www.aoca.org.za/pages/3722/minister-allows-illegal-fishing-in-mpa – and leave your comment which will be sent to the Minister.

Feike and AfriOceans are in possession of a series of emails between staff at the Fisheries Branch confirming that a request by an unknown person or group came via the Fisheries “Ministry” in December 2011 seeking permission to use gillnets for fishing in Zone B of the Langebaan Marine Protected Area (MPA) until 31 January 2012. Zone B of the MPA is closed to fishing except to a limited number treknetters who hold long term fishing rights.
The emails confirm that there was no consultation by the Fisheries Branch on the decision to permit fishing in the MPA. Critically of course, the Fisheries Branch and its Minister does not have any legal jurisdiction over MPA management as this authority vests with the Department of Environmental Affairs.
It would clearly appear that the rule of law, legality and responsible fisheries practices are simply of no interest to the Fisheries Branch and its increasingly woeful, absent and irresponsible Minister.
The Minister and her department’s illegal decision is clearly not supported by the scientific component of the Fisheries Branch based on the emails we have.
This is the view of an official in the Department which was provided anonymously to AfriOceans:
“The Department has just given gillnet users in Langebaan permission to fish within the closed area of the MPA without consultation or research.
DAFF (for the second time) has provided the Langebaan gillnet fishers with permission to fish in the restricted area of the national park (MPA) over the festive season. The rationale is that effort levels are too high over Christmas so the fishers need somewhere else to fish. The irony is that DAFF is partly responsible for that increase in effort by issuing interim-relief gillnet permits in Langebaan. One of the main purposes of the restricted area is to control fishing effort in Langebaan Lagoon which was the result of extensive consultation with fishers to accommodate as many as possible during the (2005) rights allocation process. Whatever the perspective, allowing gillnetters access to the restricted zone of a protected area is an extremely irresponsible management practice and opens the gap for fisher access to Dwesa-Cwebe, Tsitsikamma and other “contested” MPAs.
Here is an excellent example of an MPA with design elements specifically for fisheries management objectives, and yet the fisheries management authority is itself taking actions which negate those fisheries management objectives. This MPA is a nursery ground and only protection for smoothhound sharks that are heavily fished by commercial shark fisheries. Sharks usually pup within the MPA during November.”
Feike has previously stated that the greatest threat to inshore fisheries management in South Africa remains our absent and uninformed Fisheries Minister. This is just another example.

WCRL Season Extension Requested

The Recreational Fishing Services, which is a voluntary association of recreational lobster and angling fishers, has requested that the Fisheries Minister extend the current recreational lobster season.

Their request is motivated by three reasons, being the following:
1. The public has never been properly advised of the new lobster fishing season. To date the Fisheries Department’s website only reflects the 2010/2011 season and the Minister has never made any public statement on the new lobster season.
2. It would appear that DAFF failed to issue recreational lobster permits to all Post Offices. The Recreational Fishing Services undertook a snap survey and found only 3 of 16 Western Cape Post Offices with recreational lobster permits.
3. The bad weather experienced since the opening of the season has cut fishing time by between 50% and 60%, which means a large proportion of the recreational lobster TAC remains in the water.
There is no reason why the season should not be extended. It however remains the Minister’s prerogative to extend the current regulatory timeframes for the season.
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