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Archive for July, 2013

And still no patrol or research vessels…

On 20 March 2013, the then DDG of Fisheries, Greta Apelgren-Narkadien, stated unequivocally that the Africana and the four patrol vessels (Ruth First, Sarah Baartman, Victoria Mxenge & Lilian Ngoyi) would certainly be ready to go sea by the end of April. She confirmed that the vessels are all "80%" ready.

On 11 June (ie more than a month after the absolute certain deadline set by DAFF in March for the vessels to be at sea), the department sat straight faced and spun more incredible deceit stating to the fisheries portfolio committee in Parliament that the vessels were ... you guessed it ... still not ready to sail ready! In fact it would appear that almost nothing had been done to these vessels between March and June 2013.

They stated on 11 June that -

- The Sarah Baartman was now only "50% ready for sea voyages and was expected to be finalised by end of June." What happened to it being 80% ready and confirmed to be ready to sail by the end of April. If she was 80% ready in March, this means that during the intervening past 3 months, the vessel had been further damaged. And of course, the vessel was not ready to sail at the end of June and it still is not ready to sail.

- The Ruth First was 95% ready for sea and the outstanding requirements were expected to be completed "in the following two weeks" (ie be end of June). Again, another lie. The Ruth First remains harbour bound and unable to sail.

- The Victoria Mxenge was 95% ready for sea. Again, she is still also harbour-bound. Clearly a lie, again.

- The Ellen Khuzwayo was 80% sea-ready and expected to be fully ready at the end of June 2013. Was she not 80% ready in the middle of March as well?

- The FRS Africana was amazingly also 80% ready for sea and was also expected to be ready by the end of June. She too was 80% ready in March 2013! And she too remains harbour-bound at the end of JULY.

And the department wants to know why we dont believe a word they say. They may fool the parliamentarians some of the time ... ah well, no ... they will fool that lot all of the time (because they are not keen at all on reading and holding the comrades accountable).

Final "Fisheries Policies" Gazetted

On 17 July 2013 at 18h00 the department of fisheries issued an email confirming that the final general fisheries policy for 2013 and 8 sector specific fishing policies had been gazetted. 

We have previously stated that the gazetting of these policies within the timetable provided by the fisheries department was not legally practical. We reiterate this view. 

The gazetting of the "final policies" is grossly unlawful for the following reasons. 

The gazette is illegal and a violation of section 85(2)(b) of the Constitution. Only Cabinet can consider and approve such policy. I am not aware that Cabinet considered and approved these policies. The last Cabinet meeting was on 26 June and these policies were not considered or approved by it according to the Cabinet minutes

Further, the policies make provision for the allocation of fishing rights to "co-operatives". Section 18 of the MLRA as at today's date does not allow for this, hence this policy provision is illegal and ultra vires the authority of the Minister of Fisheries. Policy cannot and does not trump "original legislation" such as an Act of Parliament. Each policy that makes provision for the allocation of fishing rights to co-operatives would therefore be unlawful on this aspect alone. 

Further, none of the policies state that they repeal or replace the 2005 policies that were adopted as section 85(2)(b) national policy by Cabinet. The 2005 policies are legally enforceable until amended or replaced by repealing national policy issued by Cabinet. As such, we appear to now have two general fishery policies and two of each of the 8 sector specific policies. So which policy is it?

Send us YOUR Q’s and A’s

Send us the questions you put to the department's helpline and the answers you received and we will post them on our BLOG (confidentially of course!). If nothing else, at least we will be able to track the consistency of the answers given to similar questions.

So the Fisheries Department announced yet another ad hoc after thought on 3 July 2013 -  that it started a helpline with effect from 1 July 2013 to answer queries on the 2013 rights allocation process.

The helpline number is 021 4023576. When we called, it was answered by a friendly voice who tried to assist with a couple of our queries. We asked -

1. When will the final policies be gazetted? Answer: Around the 15th of July but we must phone closer to that date to find out more.

2. When will the draft applications be gazetted? Answer: Draft application forms will not be gazetted for comment. No comment will be allowed on the application forms once published. 

3. When will the proposed application fees and grant of right fees be gazetted for comment? Answer: There will be no application fees. There will only be grant of right fees but it will not be gazetted for comment first. 

4. When will applications for fishing rights be invited? Answer: Around the 15th of July. 

5. Where can applicants collect and lodge application forms? Will there be application form collection and lodgement centres along the coast and where? Answer: Yes, there will be collection centres along the coast but not sure where these will be. 

6. Will applicants be able to receive and lodge applications electronically? Answer: No.

7. What will the status of right holders that have submitted section 21 transfers that have not yet been dealt with be? Answer: Do not know but the answers may probably be in the the final policies when gazetted.

8. Will individual right holders that have joined a co-operative or another legal entity be considered "existing right holders" or "new entrants" when applying? Answer: Do not know. 

9. Which internal databases does DAFF intend utilising and when will right holders be afforded the opportunity to first verify the veracity of the information contained in these databases - such as databases regarding catch records, section 28 notices, criminal records etc? Answer: Do not know.

10. When will the department publish its registered crew lists for the squid, linefish and hake handline fishery sectors? Answer: Do not know but the answers may probably be in the the final policies when gazetted.

11. What types of access to vessels will be considered as proving a right of access? Answer: Do not know. 

The lady did confirm that there is very little information available at this stage so it is best to wait for the final policies! Perhaps DAFF should change the helpline to a "Cant help line".

The most significant problems with this helpline (beside the vague and "do not know" responses) are that -

  • The calls are not recorded. There is a very real possibility that different answers could be given to the same questions that could be prejudicial to prospective applicants. 
  • The questions and answers are not published for all interested parties to consider. For the purposes of fair and transparent procedures, all questions and answers should be published on a public platform.
Despite having made promises galore about the gazetting of final fishing policies and the publication of invitations to apply for commercial fishing rights in 8 fishery sectors by 1 July 2013, the continued silence from DAFF and its Minister remains deafening. Week 1 has come and gone. And there is no explanation from Minister Tina Joemat-Pettersson about why there have been no gazettes publishing the final fishing policies by 28 June 2013 and why no one was invited to apply for fishing rights on 1 July 2013.

Have they realised that their profound incompetence; their refusal to appoint properly qualified non-ANC lapdogs to positions of authority at the Fisheries Branch will result in the non-allocation of more than 1000 fishing quotas worth more than R600 million rand by deadline date? Or will we just get another revised timetable ignorant of legal and due processes? Here is a helpful explanation of how a bill becomes a law - it does not take a few weeks to promulgate an amendment Act. And it certainly does not take 2 weeks for Cabinet to consider and adopt policy.

There also continues to be no answers or responses to questions and comments that we were told to submit during the policy consultation process. Silence, non-responsiveness, secrecy, lack of accountability ... the trademarks of this rights allocation process. 

It we recall, the 2005 rights allocation process, although far from perfect, was grounded on the principles of consultation and responsiveness. Not only was the process underpinned by a formal consultation process that lasted for more than a month, but each week up to the allocation of the final fishing rights, a regular Q&A forum was published, together with an illustrated weekly newsletter that was published in four languages and aimed at keeping artisinal fishers updated on developments with respect to the rights allocation, evaluation and decision-making processes.  

What will the excuse be on 1 January 2014 when squid, line fishers and tuna fishers will no longer have valid long term fishing rights to secure the mortgages that keep them in houses and help fund their fishing vessels and pay crew their wages?

Minister, you and your officials have had 8 years to plan for a proper, fair and timeous rights allocation process. Are you really that incompetent or is this catastrophe intentional and by design for some self-serving objective?

Broken promises; Damned promises

Many followers of our BLOG have been asking why we have not published any articles or updates on the farcical long term fishing rights allocation process since the beginning of June. If you recall, our last BLOG on the subject was published on 11 June 2013.

We decided to give the Minister and her department the proverbial "space" to attend to meeting their unrealistic and impractical self-inposed deadlines. Deadlines have - expectedly - come and gone. The department and its Minister continue to operate in a cloud of secrecy. They do no provide any updates on the status of progress with respect to any of the milestones they have themselves identified and they have failed to respond to any of the questions that have been put to them during the draft policy consultation process. So nobody actually knows what is going on with a process that directly affects the rights and interests of more than 1000 quota holders. 

So, to this date, nobody knows how important policy matters such as the ongoing failure to resolve and decide all section 21 transfer applications will be dealt with; how will individual right holders who have now consolidated their quotas under a legal entity be treated - are they new entrants or existing right holders etc etc. 

Back to the deadlines set by the Minister and her officials and who have insisted that critics such as Feike dont know what we are talking about. The industry was told that the deadlines set are completely attainable. The portfolio committee swallowed the deadlines and timetable hook, line and sinker ... but we dont expect too much thinking and independent thought from this quarter of course. 

So here we are, at the end of 1 July 2013. Which promises have been kept by the Minister and her officials? 

▪DAFF said they will Gazette final general policy and sector-specific policies by  28 June 2013.

 That was last week and not a whimper from the Minister or her DAFF officials. Where are these final policies? Could they account and explain why these final policies were not gazetted as promised and tell us when the next promised gazette date will be?

▪DAFF said they would Appoint "service providers" by 1 July 2013. Again all we have heard is a very loud silence from DAFF on deadline day. What services were they supposed to provide? Who tendered?

▪DAFF said simplified applications in four languages will be gazetted by 14 June 2013.

That was more than 2 weeks ago and not a form in a single language in sight! Having trouble drafting the English forms?

▪And the mother of all deadlines - DAFF stated in parliament that it would Call for applications on 1 July 2013. Of course, since none of the initial deadlines have been met, there could no "call for applications".

We said of course that this is not only practically impossible but legally impossible as well because the draft policies must first be approved by Cabinet and in addition, the draft MLRA amendment bill that seeks to make provision for the allocation of fishing quotas to co-operatives and communities must be signed into law by the President.

We wonder what the fourth installment of cloud cuckoo timetables and milestones will look like.