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Archive for April, 2013

Feike has been informed that two of DAFF’s leading lights in the fisheries management chief directorate are presently strongly punting a “non-competitive” rights allocation process in a bid to engineer a solution to its present rights allocation time and skill woes! 
What on earth is a “non-competitive” rights allocation process I hear you plead with tears streaming down your cheeks? While we dont know for certain, one can only surmise that if the previous successful and constitutional court approved processes were described as being “competitive processes” where applicants in each sector were grouped as either right holders or new entrants and then were competitively scored against each other (right holders v right holders only and new entrants v entrants only) based on a published set of criteria and scoring system, then a “non-competitive” process can only be the opposite which equates to a free-for-all – aka a judicially reviewable process! 
Of course, one can understand how such a foolish notion could develop – from panic and the sudden realisation that if one has to actually follow due process and adhere to a proper and lawful system of allocating rights, fishing rights could simply not be allocated this year but perhaps in 12 months time and even this is now slipping away based on the convoluted and generally poorly drafted MLRA amendment bill (read our initial views on the draft Bill here) and not to mention the departure of the latest Fisheries DDG to wash up on our shores. (As an aside, Ms Apelgren-Narkedien said that she did not think running the fisheries branch would be this hard (!!), hence her departure to the balmy waters of KZN and its more pedestrian Housing Department). 
A non-competitive process on the other hand could be much easier to deal with. One would not have to waste precious time designing detailed criteria and weighting for each fishery; one would not have to waste time with detailed application forms asking unnecessary questions to determine what, if anything a right holder did with the right over the past 8 years; and one would certainly not have to waste precious gray matter evaluating applications, ranking them and then determining who gets a fishing right and who does not and then what amounts of fish they are entitled to. It will be a lot simpler and quicker to just allocate rights on a “non-competitive” basis. 
Feike has been informed that two of DAFF's leading lights in the fisheries management chief directorate are presently strongly punting a "non-competitive" rights allocation process in a bid to engineer a solution to its present rights allocation time and skill woes! 

What on earth is a "non-competitive" rights allocation process I hear you plead with tears streaming down your cheeks? While we dont know for certain, one can only surmise that if the previous successful and constitutional court approved processes were described as being "competitive processes" where applicants in each sector were grouped as either right holders or new entrants and then were competitively scored against each other (right holders v right holders only and new entrants v entrants only) based on a published set of criteria and scoring system, then a "non-competitive" process can only be the opposite which equates to a free-for-all - aka a judicially reviewable process! 

Of course, one can understand how such a foolish notion could develop - from panic and the sudden realisation that if one has to actually follow due process and adhere to a proper and lawful system of allocating rights, fishing rights could simply not be allocated this year but perhaps in 12 months time and even this is now slipping away based on the convoluted and generally poorly drafted MLRA amendment bill (read our initial views on the draft Bill here) and not to mention the departure of the latest Fisheries DDG to wash up on our shores. (As an aside, Ms Apelgren-Narkedien said that she did not think running the fisheries branch would be this hard (!!), hence her departure to the balmy waters of KZN and its more pedestrian Housing Department). 

A non-competitive process on the other hand could be much easier to deal with. One would not have to waste precious time designing detailed criteria and weighting for each fishery; one would not have to waste time with detailed application forms asking unnecessary questions to determine what, if anything a right holder did with the right over the past 8 years; and one would certainly not have to waste precious gray matter evaluating applications, ranking them and then determining who gets a fishing right and who does not and then what amounts of fish they are entitled to. It will be a lot simpler and quicker to just allocate rights on a "non-competitive" basis. 

Is Vessel Contract Back with Sekunjalo?

The DA has issued this statement today.

Reports today have revealed that the tender for the maintenance of patrol vessels in the Department of Agriculture, Forestry and Fisheries has been awarded to Nautic Africa. The decision is significant because Nautic Africa was formerly known as KND – which formed part of the R800 million Sekunjalo tender bid. 
The responsibility to maintain the vessels was awarded to the SA Navy after the contract with Sekunjalo was cancelled. 
The latest report however means the contract has been rewarded to a company with links to the Iqbal Surve owned Sekunjalo. The decision comes after the fisheries Deputy Director-General Greta Apelgren-Narkedien reassured members of the media at a press conference that Smit Amandla, Sekunjalo and companies associated to it would not be allowed to bid for the contract.
The Minister has once again misled the public and acted unethically in the reissuing of this tender to the same group, while using a different name. 
As part of the on-going investigation by the Public Protector Thuli Madonsela – which I called for – I will be requesting her to expand the scope of the probe to involve the second issuing of the tender. 
If the Minister assumed she would be able to force this through undetected, she was mistaken. 
I will continue to ask further parliamentary questions as to how the contract was issued and which processes were followed. 
Minister Joemat-Pettersson must not be allowed to continue running the department to the ground.

Is Vessel Contract Back with Sekunjalo?


The DA has issued this statement today.

Reports today have revealed that the tender for the maintenance of patrol vessels in the Department of Agriculture, Forestry and Fisheries has been awarded to Nautic Africa. The decision is significant because Nautic Africa was formerly known as KND – which formed part of the R800 million Sekunjalo tender bid. 

The responsibility to maintain the vessels was awarded to the SA Navy after the contract with Sekunjalo was cancelled. 

The latest report however means the contract has been rewarded to a company with links to the Iqbal Surve owned Sekunjalo. The decision comes after the fisheries Deputy Director-General Greta Apelgren-Narkedien reassured members of the media at a press conference that Smit Amandla, Sekunjalo and companies associated to it would not be allowed to bid for the contract.

The Minister has once again misled the public and acted unethically in the reissuing of this tender to the same group, while using a different name. 

As part of the on-going investigation by the Public Protector Thuli Madonsela – which I called for – I will be requesting her to expand the scope of the probe to involve the second issuing of the tender. 

If the Minister assumed she would be able to force this through undetected, she was mistaken. 

I will continue to ask further parliamentary questions as to how the contract was issued and which processes were followed. 

Minister Joemat-Pettersson must not be allowed to continue running the department to the ground.

DAFF is Without a DDG…Again

Feike can confirm that DAFF’s latest and most controversial DDG, the grating Greta Apelgren-Narkedien, has been removed from her post as DDG and “re-deployed” in the parlance of the ANC cadre to the KZN Housing Ministry! Not bad. From heading up fisheries to housing. Who needs to know anything about the subject matter of the job they occupy under this government. Expertise? What is that for? 
BUT, now that DAFF is without a DDG again, will the Minister or the Acting DG or other Acting senior official in the acting department of fisheries, please let us know how it intends allocating fishing rights in time this year considering that Narkedien often boasted that she would use her vast governance and managerial experience to ensure a proper and timeous rights allocation process? 

DAFF is Without a DDG…Again

Feike can confirm that DAFF's latest and most controversial DDG, the grating Greta Apelgren-Narkedien, has been removed from her post as DDG and "re-deployed" in the parlance of the ANC cadre to the KZN Housing Ministry! Not bad. From heading up fisheries to housing. Who needs to know anything about the subject matter of the job they occupy under this government. Expertise? What is that for? 

BUT, now that DAFF is without a DDG again, will the Minister or the Acting DG or other Acting senior official in the acting department of fisheries, please let us know how it intends allocating fishing rights in time this year considering that Narkedien often boasted that she would use her vast governance and managerial experience to ensure a proper and timeous rights allocation process? 

On 25 April 2013, the Minister of Fisheries gazetted a rather detailed (if not overly verbose) set of proposed amendments to the Marine Living Resources Act, 18 of 1998. Amendments to the MLRA (and the 1998 Fisheries Regulations – although amendments to the Regulations are conspicuously absent) are certainly needed in order to bring the only piece of legislation regulating marine fisheries and fishing farming management into the second decade of the 21st Century.  
An amendment bill has therefore been well overdue now and we welcome the gazetting of an amendment bill. 
However, as is the case across government, there seems to be a negligent and rather careless attitude toward such important issues. On a rather superficial take of the draft Bill, it is poorly drafted with too many bad cut-and-pastes (again!) from other texts. For example, a definition clause in the draft Bill refers to “this policy” indicating a pasting of a definition from a policy text. Then there are numerous other cases of poor legislative drafting and confused (And confusing) text. None more so than the lengthy text on the “assignment” / “delegation” provisions (which we support if just cleaned up and de-cluttered quite a bit). 
So bravo to the Minister of Fisheries for gazetting this draft Bill! But wait, is she actually lawfully entitled to introduce amendments to the MLRA? We will look at the various proposed amendments in a second article, but for now our concern is whether the Minister of Fisheries is ACTUALLY legally entitled to unilaterally seek to amend the MLRA. 
From where does this potentially draft Bill annihilating thought come from? Well, if we remember, on 29 January 2010, President Jacob Zuma signed a proclamation (which itself was so poorly drafted, no one; not even the Western Cape High Court could fathom which Minister is actually responsible for administering the MLRA) which effectively split administration of the MLRA between the Minister of Environmental Affairs and the Minister of Fisheries – against the advice of every sane adviser in this country. One effectively has two ministers responsible for simultaneously administering almost every section of the MLRA! What is clear is that only the Minister of Environmental Affairs though is authorised to administer section 43 of the MLRA – the creation and management of marine protected areas – the section the Minister of Environmental Affairs recently used to establish the Prince Edward Islands MPA. 
The draft Bill not only seeks to amend a number of provisions that are jointly administered by both the Ministers of Environmental Affairs and Fisheries, it also seeks to amend section 43 of the MLRA, which is the sole administrative preserve of the Minister of Environmental Affairs. A further problem with the draft Bill is that it is gazetted as a Section 75 Bill (ie. a Bill that does not affect the Provinces). However, due to the extensive “assignment” clause provisions and the provisions pertaining to harbours, it is our view that the draft Bill ought to actually be introduced as a Section 76 Bill. Such a Bill requires it to be introduced to and debated in the National Council of Provinces. 
In short, it is our view that the proposed draft MLRA Amendment Bill is stillborn. The Minister of Fisheries can not unilaterally amend the MLRA, and in particular, she cannot amend section 43. The amendment Bill ought to be jointly introduced by the Minister of Fisheries and the Minister of Environmental Affairs. Accordingly, both the fisheries and environmental affairs portfolio committees will have to debate and host public consultation processes on the draft Bill. A good example of this was the recent attempt by the Minister of Environmental Affairs to unilaterally introduce amendments to the National Biodiversity Act of 2004 that impacted on the MLRA. The Environmental Affairs portfolio committee shelved these amendments based on advice provided by Feike.  
In addition, the draft Bill should be introduced as a Section 76 Bill. 
This amendment bill will simply not be capable of being passed into law in time for the proposed allocation of fishing rights later this year (which we maintain cannot lawfully occur either). It requires substantial re-writing (which we address in our next BLOG), co-ordination with the Department of Environmental Affairs and substantial public consultation by both the fisheries and environmental affairs portfolio committees.  
On 25 April 2013, the Minister of Fisheries gazetted a rather detailed (if not overly verbose) set of proposed amendments to the Marine Living Resources Act, 18 of 1998. Amendments to the MLRA (and the 1998 Fisheries Regulations - although amendments to the Regulations are conspicuously absent) are certainly needed in order to bring the only piece of legislation regulating marine fisheries and fishing farming management into the second decade of the 21st Century.  

An amendment bill has therefore been well overdue now and we welcome the gazetting of an amendment bill. 

However, as is the case across government, there seems to be a negligent and rather careless attitude toward such important issues. On a rather superficial take of the draft Bill, it is poorly drafted with too many bad cut-and-pastes (again!) from other texts. For example, a definition clause in the draft Bill refers to "this policy" indicating a pasting of a definition from a policy text. Then there are numerous other cases of poor legislative drafting and confused (And confusing) text. None more so than the lengthy text on the "assignment" / "delegation" provisions (which we support if just cleaned up and de-cluttered quite a bit). 

So bravo to the Minister of Fisheries for gazetting this draft Bill! But wait, is she actually lawfully entitled to introduce amendments to the MLRA? We will look at the various proposed amendments in a second article, but for now our concern is whether the Minister of Fisheries is ACTUALLY legally entitled to unilaterally seek to amend the MLRA. 

From where does this potentially draft Bill annihilating thought come from? Well, if we remember, on 29 January 2010, President Jacob Zuma signed a proclamation (which itself was so poorly drafted, no one; not even the Western Cape High Court could fathom which Minister is actually responsible for administering the MLRA) which effectively split administration of the MLRA between the Minister of Environmental Affairs and the Minister of Fisheries - against the advice of every sane adviser in this country. One effectively has two ministers responsible for simultaneously administering almost every section of the MLRA! What is clear is that only the Minister of Environmental Affairs though is authorised to administer section 43 of the MLRA - the creation and management of marine protected areas - the section the Minister of Environmental Affairs recently used to establish the Prince Edward Islands MPA. 

The draft Bill not only seeks to amend a number of provisions that are jointly administered by both the Ministers of Environmental Affairs and Fisheries, it also seeks to amend section 43 of the MLRA, which is the sole administrative preserve of the Minister of Environmental Affairs. A further problem with the draft Bill is that it is gazetted as a Section 75 Bill (ie. a Bill that does not affect the Provinces). However, due to the extensive "assignment" clause provisions and the provisions pertaining to harbours, it is our view that the draft Bill ought to actually be introduced as a Section 76 Bill. Such a Bill requires it to be introduced to and debated in the National Council of Provinces. 

In short, it is our view that the proposed draft MLRA Amendment Bill is stillborn. The Minister of Fisheries can not unilaterally amend the MLRA, and in particular, she cannot amend section 43. The amendment Bill ought to be jointly introduced by the Minister of Fisheries and the Minister of Environmental Affairs. Accordingly, both the fisheries and environmental affairs portfolio committees will have to debate and host public consultation processes on the draft Bill. A good example of this was the recent attempt by the Minister of Environmental Affairs to unilaterally introduce amendments to the National Biodiversity Act of 2004 that impacted on the MLRA. The Environmental Affairs portfolio committee shelved these amendments based on advice provided by Feike.  

In addition, the draft Bill should be introduced as a Section 76 Bill. 

This amendment bill will simply not be capable of being passed into law in time for the proposed allocation of fishing rights later this year (which we maintain cannot lawfully occur either). It requires substantial re-writing (which we address in our next BLOG), co-ordination with the Department of Environmental Affairs and substantial public consultation by both the fisheries and environmental affairs portfolio committees.  

The Secrecy Bill and Fisheries Mismanagement

Yesterday, the ANC-led government passed the Protection of State Information Bill – or the Secrecy Bill – despite widespread condemnation that this Bill will only serve to shield government from the current glare of daily corruption and scandal exposure. There is no other possible reason for such apartheid-era-type legislation. Together with the apartheid era laws such as the National Key Points Act, the Secrecy Bill will provide this government with the cover and threat of imprisonment against journalists, bloggers and whistleblowers to ensure it can continue mismanaging and thieving all it wants under the cover of secrecy (or national security and other vague language). 
Within the domain of fisheries management, the Secrecy Bill will provide officials with the precise tools they presently wish they had. Recently, the DDG of Fisheries, Greta Apelgren-Narkedien complained bitterly about the “hostile” media and Feike (although she was too scared to even mention our name) and that our exposes were somehow a threat to fisheries! 
The Secrecy Bill now makes it a criminal offence that is punishable with a 25 year imprisonment sentence for the disclosure of any “confidential information” that is determined by the state to be “hostile activity” for example. So, just on this score, Feike’s Shaheen Moolla, could be jailed for up to 25 years for making public the recent parliamentary research unit report, which was suddenly declared to be a confidential internal document by the ANC after it was made public. And clearly the DDG considered this to be a “hostile” act. 
The Secrecy Bill makes life extremely comfortable for the thieving, incompetent civil servant as they may be authorised to classify any document and then simply allege that knowledge of or possession or publication of the document is a “hostile” activity, and the legal onus then shifts to the accused to prove the impossible. 
The Secrecy Bill could authorise an official at DAFF to classify a controversial TAC decision and all supporting documents as confidential. The department already makes available the most minimal information in order to shield itself from scrutiny. Its website simply does not function. There is no publicly accessible register of fishing rights, permits and licences, which the law presently requires should be accessible to anyone. Why is there no register? The department refuses access to scientific and management reports that are used in setting annual catch limits. Why is this the case?
It will not be long before this BLOG could be forced to report on the colour of sea only. Secrecy is perfect companion for corruption, mismanagement and incompetence in the civil service.    
Yesterday, the ANC-led government passed the Protection of State Information Bill - or the Secrecy Bill - despite widespread condemnation that this Bill will only serve to shield government from the current glare of daily corruption and scandal exposure. There is no other possible reason for such apartheid-era-type legislation. Together with the apartheid era laws such as the National Key Points Act, the Secrecy Bill will provide this government with the cover and threat of imprisonment against journalists, bloggers and whistleblowers to ensure it can continue mismanaging and thieving all it wants under the cover of secrecy (or national security and other vague language). 

Within the domain of fisheries management, the Secrecy Bill will provide officials with the precise tools they presently wish they had. Recently, the DDG of Fisheries, Greta Apelgren-Narkedien complained bitterly about the "hostile" media and Feike (although she was too scared to even mention our name) and that our exposes were somehow a threat to fisheries! 

The Secrecy Bill now makes it a criminal offence that is punishable with a 25 year imprisonment sentence for the disclosure of any "confidential information" that is determined by the state to be "hostile activity" for example. So, just on this score, Feike's Shaheen Moolla, could be jailed for up to 25 years for making public the recent parliamentary research unit report, which was suddenly declared to be a confidential internal document by the ANC after it was made public. And clearly the DDG considered this to be a "hostile" act. 

The Secrecy Bill makes life extremely comfortable for the thieving, incompetent civil servant as they may be authorised to classify any document and then simply allege that knowledge of or possession or publication of the document is a "hostile" activity, and the legal onus then shifts to the accused to prove the impossible. 

The Secrecy Bill could authorise an official at DAFF to classify a controversial TAC decision and all supporting documents as confidential. The department already makes available the most minimal information in order to shield itself from scrutiny. Its website simply does not function. There is no publicly accessible register of fishing rights, permits and licences, which the law presently requires should be accessible to anyone. Why is there no register? The department refuses access to scientific and management reports that are used in setting annual catch limits. Why is this the case?

It will not be long before this BLOG could be forced to report on the colour of sea only. Secrecy is perfect companion for corruption, mismanagement and incompetence in the civil service.    
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