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Archive for May, 2014

And the Minister of Fisheries IS….

The new Minister of Fisheries (including Agriculture and Forestry) is Mr Senzeni Zokwana. Mr Zokwana is the President of the National Union of Mineworkers and the Chairperson of the SA Communist Party.

                                Mr Senzeni Zokwana: Minister of DAFF

Mr Zokwana's deputy minister is Bheki Cele.

Mr Zokwana's will quickly learn of the major disaster that is fisheries, which he has inherited from Tina Joemat-Pettersson in the next week. Not only does he have to start with a review application setting aside the 2013 Fishing Rights Allocation Process, he has to tell South Africa's fishing industry what he plans to do about the 2015 rights allocation process, which his department is about 2 years behind schedule in its preparations - not to mention the abalone rights allocation process which is less than 65 days away! And on top of that, he has a Fisheries Branch in turmoil, wracked by infighting, allegations of corruption and maladministration, the review application against the Public Protector's "Docked Vessels" Report, which was commenced by Joemat-Pettersson, the dismal state of inshore fisheries, coastal communities in conflict and divided because of the corruption stench plaguing the interim relief processes and let us not forget about the dismal state of compliance and vessel-based research. 

According to the Minister of Fisheries, our 303 abalone fishers must not worry if their fishery is unilaterally closed in the next 60 days ... because they will instead be allowed to catch .... RED STEENBRAS!

The Minister of Fisheries must have completely lost her marbles. Did this foolish Minister forget that the traditional line fishery is in a state of environmental crisis? Is she unaware that the 300 abalone divers harvest approximately 90 tons (at least) of abalone worth nothing less than R250/kg to R350/kg while steenbras catches have not exceeded 8 tons since 2002 according to her own department's records? Not to mention that steenbras does not sell for anything more than R10-15/kg?

So how are 300 abalone right holders to survive on 8 tons of steenbras worth R15/kg!!

With this level of stupidity running DAFF, is it any wonder why our fisheries are in such a state of chaos and collapse.

Abalone Sector to be Closed?

Die Burger newspaper reports this morning that in an exclusive interview with the paper, the Fisheries Minister makes the shocking revelation that the abalone fishery may in fact be closed! Again. And AGAIN without any prior consultation or communication with communities and right holders. 

Marthinus van Schalkwyk closed the fishery back in 2007 on poor advice and without consulting communities and right holders, only for Joemat-Pettersson to re-open it 2 years later - clearly admitting that there was never any scientific justification for the closure in the first place. And during the 2 year closure period, we saw poaching skyrocket to an estimated 4000 tons annually. The reality of course was that the poachers benefitted hugely from the sudden and unregulated closure, which is what we face again. History and its lessons are certainly irrelevant to our Fisheries Minister and her advisers. 

Just like Van Schalkwyk, who promised that abalone right holders will be accommodated in other sectors (such as the whale watching and shark diving sectors!!), this Minister is making the same empty promises. The reality was that abalone right holders were simply abandoned after the closure of the fishery which forced many to turn to poaching, which is what they continue to do having learnt how easy it is given the near complete lack of fisheries compliance and enforcement. 

The warning of imminent closure by Joemat-Pettersson is, in our opinion, an option to enable the department to escape the consequences of not having prepared for the re-allocation of fishing rights in the abalone fishery in 66 days (ie 30 July). So, instead of admitting to this failure, the option appears to be a unilateral and sudden decision to close the fishery!

A decision to close the fishery at this stage will however be illegal and contrary to the requirements of fair and justifiable administrative action as there has never been any prior consultation or communication with right holders, communities and stakeholders on the possible closure of an entire fishery. One could simply scan the minutes of departmental and industry working group committee meetings over the past 2 years. If indeed closure was being considered, why did the department (its scientists and managers) never raise this squarely with industry representatives and commence a formal consultation process about the consequences of closure? And let us not forget, that the department had admitted in 2013 that its scientific premises about historical abalone biomass may in fact be incorrect, which would affect the determination of current TAC data and models. 

It is incredible that immediately after receiving the damning report on the illegalities of the 2013 fishing rights allocation process, the Department and Minister will proceed to cause even further socio-economic harm to our small-scale fishery sectors. Now it appears to be the turn of abalone right holders and the communities that depend on this resource. 

The most recent news coming out of the fisheries department (besides the admission that they completely cocked up an entire rights allocation process which has to be re-done at huge cost to the taxpayer and the SA fishing industry), is that there is serious talk that the Fisheries Branch will either revert back to the Department of Environmental Affairs or be established as a stand-alone new ministry! 

Exclamation mark, indeed. Only 5 years ago, I drafted an opinion which was submitted to the President   (I was told) explaining why fisheries and environmental affairs should not be split. Of course, being grossly stupid and naive I explained that the split will run counter to an important principle such as "integrated oceans and marine ecosystem management" and that of course the costs of creating an entire bureaucracy called the Oceans and Coasts Branch in the Environmental Affairs department to essentially oversee sea water (but not the fish), whale watching and shark cage diving did not make much sense. 

I can however accept that compared to the fisheries branch under Joemat-Pettersson, the Oceans and Coasts Branch under the serial under-performer, Monde Mayekiso, appears to be the hallmark of stability and performance. We must not forget though that under the good Dr Mayekiso, the Marine and Coastal Management Branch simply forgot to allocate mussel and oyster rights back in 2007 and 2008, respectively. At least Mayekiso did not even try to stuff up a rights allocation process. 

Eish, how low, our expectations go! 

Given that my advice is never heeded by these "powers" that be (albeit that I have yet to be proven incorrect - smiley face symbol) and this article is just too short to just end here, here are my thoughts on what this government could do.

Wish. Appoint Adv Johnny de Lange as Minister of Fisheries (or any other honest and committed LEADER) and hand him the fisheries branch as a stand-alone ministry and department with the instruction to grow the fisheries sector by adding 4 more commercial fisheries in the next 5 years;  he must double aquaculture output; significantly improve the health of the lobster sector (and start by halting the interim relief allocations within 6 months by introducing an industry-funded buy-back and recovery programme); commence a holistic review of the Marine Living Resources Act and its outdated 1998 Regulations; amend the MLRA immediately to roll-over the 2015 fishing rights to 2020 so as to fix the Fisheries Department; and implement Chapter 6 of the NDP. Just some initial big-picture thoughts. 

Alternative Wish. Just dont surprise us and cock-up this sector even more, which, trust me could be achieved given the high-value fishing rights up for allocation next year. 

The report by Attorneys firm Harris, Nupen & Molebatsi on the legality of the 2013 Fishing Rights Allocation Process (FRAP 2013 / #FRAP2013), makes for some sober reading. The extent of the governance failures and maladministration is immensely profound. What makes the findings even worse is the fact that this 2013 process could have been a massively successful one - more so than the 2001 and 205 processes given the foundations of these past processes and that the department was handed a detailed template on which to build a successful 2013 process. 

This is not to say that the 2001 and 2005 processes were perfect. Far from. But what is patently clear and beyond any contradiction is that the 2005 process was built on the lessons learnt from the errors and criticisms of the 2001 process, which made the 2005 process the success it remains. Of course, not every applicant, let alone fisherman was going to get a right. No responsible and sustainable quota allocation process will ever grant a quota to every fisherman simply because of resource and accessibility constraints. But neither process redounded into the farce and tragedy that defines the current 2013 FRAP. 

The Harris, Nupen & Molebatsi report makes the following findings and recommendations:

1. On the validity of the policies: The report is of the view that Cabinet need not pass these policies but rather that section 85(2)(b) limits the authority of Cabinet to national policy making. Accordingly, the report finds that the 2013 General and Fishery Specific policies may be valid despite not having been passed by Cabinet. 

The Report's reasoning is not very convincing in my view especially if one has regard to the following facts (and practices). Firstly, (and most importantly) the Report does not address the fact that the 2005 policies were passed and adopted by Cabinet in terms of section 85(2)(b) of the Constitution. It is therefore incomprehensible that a "mere" Minister can then subsequently amend or repeal Cabinet adopted national policy without any subsequent Cabinet authority. By analogy, if the Report is correct, then the Minister of Fisheries could unilaterally amend Chapter 6 of the National Development Plan dealing with fisheries. 

Secondly, all fishing policies have been considered to be national policy warranting Cabinet approval in terms of section 85(2)(b). The most recent policies that went to Cabinet for approval included the Tuna Long Line policy and the 2012 Small Scale Fisheries policy. If these relatively minor policies required Cabinet approval, how could a major suite of policies regulating a national fishing rights allocation process and policy not require Cabinet approval? 

Given the extremely poor drafting of these 2013 policies, our recommendation would be that the new process should be underpinned with a proper set of policies, which are passed by Cabinet to avoid any possible future legal challenge. 

2. On the line fish consultation process: The report recommends that the consultation process be more inclusive and take into consideration the locality of affected parties and distances that must be travelled to attend consultative meetings. 

3. On the disjuncture between the policies, criteria and the application form: The Report alludes to the fact that the delegated authority - Desmond Stevens - refused to explain why the evaluation criteria were not rationally connected to the information requested in the application forms and the criteria published in the policies. The Report recommends that the process of developing criteria and policies should be done at the same time as the development of the application forms. The Report finds that the departure would be irrational and arbitrary. 

4. On the failure to issue an "application fee": The Report notes that while the failure to issue and publish an "application fee" is unlawful, it does not constitute administrative action in terms of the Promotion of Administrative Justice Act because for an act to constitute reviewable administrative action, it must "adversely affect the rights of any person". The Report clearly took an awfully narrow approach here considering only the rights of applicants who were clearly not prejudiced by paying nothing for a costly administrative process. 

However, the decision to not publish or require an application fee clearly would have adversely affected the rights of the broader tax-paying South African public who must now pay for the rights allocation process, which ought to be paid for by those persons applying for fishing rights and then being granted fishing rights. 

5. Delegation of powers: The Report raises concerns with the extent of powers delegated by the Minister to the DDG: Fisheries Branch. The Report notes that the delegation of authority to allocate fishing rights under section 18 of the MLRA reads "I (namely the Minister) delegate the following authority in terms of the Act..." and that this delegation may be valid but is issued without conditions (as required by section 79 of the MLRA). The Report does appear to overlook the fact that section 79 of the MLRA requires the Minister to only delegate those powers under the Act to an official other than the director-general who has been nominated by the DG herself. Accordingly, the DG had to nominate the DDG: Fisheries Branch as the person to whom the Minister should delegate her powers under section 18. The purpose of this requirement is presumably to ensure that the DG, as the accounting officer in terms of the MLRA, is satisfied that any other official granted the authority to take decisions is suitably skilled and qualified to do so. 

It is Feike's view that this failure could render the actual delegation invalid as it fails to materially comply with the provisions of section 79 of the MLRA.   

6. Appointment of service providers to assist with FRAP 2013: The Report concludes that the appointment of service providers was flawed in its implementation and operation. The appointment of the consultants (ORCA) to the value of R3,7 million was also undertaken in the absence of a full tender process. It is noted that the investigation did not find any evidence of collusion or similar irregular activity. The failure to comply with the full tender processes appears to have been more the result of poor planning and the lack of time to implement the rights allocation process.

7. Allegations of corruption, collusion and maladministration: The Report notes that the service providers charged with these verification and oversight functions did not fulfil their respective mandates. As a consequence, the investigation team has now forwarded a number of complaints of possible corruption etc to the applicable authorities. 

8. Verification processes: The Report confirms that the lack of data verification (even of the most basic level of data contained in the application forms and in annexures to the forms) has led to a number of the problems faced by the FRAP 2013. 

9. FRAP Steering Committee: The Report's findings with respect to the Committee are perhaps the most concerning. Firstly, the Report recognises that this Committee's governance falures are a consequence of a lack of planning and time. The Report states that a rights allocation process essentially requires 3 years of pre-planning! Further, the Committee did not record any of its meetings and it is therefore impossible to understand the reasoning for its decisions. 

Pertinently, the Report confirms that it would simply not be possible to once again timeously and legally allocate fishing rights in 2015.

These are two extremely profound findings that go to the heart of explaining the utter failure of FRAP 2013. By way of comparison, the team that managed the preparation and implementation of the 2005 process was constituted in June 2002 under the chairmanship of Svein Munkejord, a former Norwegian  Minister of Fisheries (presently Senior Advisor to the Norwegian Fisheries Department and past chair of the UN FAO Committee on Aquaculture). Each fishery sector was led by the chief scientist responsible for that fishery and was supported by a senior compliance officials and a team of senior lawyers - the 2005 process had Marius Diemont, Adv Johan de Waal, Peter Harris and Prof Halton Cheadle available 24/7 for 2 years prior to Cabinet adopting the final fishery policies in June and July 2005.

On a number of occasions, the legal team was unable to agree unanimously on the legal sustainability of a set of proposals presented by the management and policy development teams. On these occasions, the counsel of independent senior members of the Cape Bar was sought to ensure that every decision; every policy proposal and every step of the process was legally defensible. And every step of the process was recorded and minuted. I wonder where these records are today and why they were never consulted?

10. Apportionment of TAE between new entrant applicants and right holder applicants: The delegated authority - Desmond Stevens - once again appears to have been unable to explain how the effort was divvied between successful new entrant and right holder applicants. The failure to provide a detailed and rational explanation justifying this would render these decisions unlawful. In addition, the failure to consult right holders on the apportionment of effort is a further violation of the requirements of fair and rational administrative action. 

11. The failure to apply exclusionary criteria: The Report confirms that the decision to depart from the policy requirements pertaining to the implementation of peremptory exclusionary criteria cannot be justified and would therefore be unlawful. This included, for example, the failure to exclude applicants who failed to prove that they had access to a suitable fishing vessel for the fishery concerned. In addition, exclusionary criteria were incorrectly incorporated into the scoring criteria of the scoresheets and certain applicants who were refused a right because they had failed to comply with an exclusionary criterion were told that their applications were refused because of balancing. 

12. Comparative balancing criteria: Once again, the Report confirms that the delegated authority did not provide reasons explaining how the criteria for each fishery were developed. The Report concludes that it appears that the criteria were developed not for any rational or lawful management purpose but instead to contrive a decision sought by the delegated authority. 

This is an extremely concerning and damning finding and warrants a separate investigation - perhaps by the Public Protector - into possible fraud and corruption. How else does one explain the allocation of fishing rights to every member of an Arniston-based ANC politician's family; or the allocation of multiple fishing rights to another ANC leader in Hout Bay? 

13. General Scoring failures: The Report sampled a number of applications and found serious scoring and data evaluation errors which are listed in the Report. Reading these inconsistencies and errors is mind-boggling and a further indication of the appallingly amateurish process that was followed. 

14. Grant of Right Fee: The Report found that the failure to publish the grant of right fee is a breach of a mandatory provision prescribed under section 25(1) of the MLRA. However, the Report states that the non-compliance is not material as the fee will be published in the future and failure to pay the fee could result in section 28 proceedings under the MLRA. 

It is unclear how non-compliance with a crucial provision (which is mandatory for a reason) such as this is immaterial to right holders especially since it could - as confirmed by the Report - result in the revocation, cancellation or suspension of a fishing right. Knowing what the grant of right fee is prior to the rights allocation process is profoundly material for prospective applicants - especially in effort controlled fisheries - as it will inform them of the size of vessel to nominate and use, the number of crew needed to make a fishing venture economically sustainable and ultimately whether the application process will be affordable. 

15. Documentation to be made available: The Report confirms that the absolute majority of information recorded in the application forms, together with the departmental database used, must be disclosed to requesters under the Promotion of Access to Information Act. To refuse access to these records and database would be unlawful. 

I must have received about 70 phone calls yesterday afternoon, many "congratulating" Feike on the fact that we were right all along that a fair and lawful fishing rights allocation process was simply never going to be possible in 2013. It's hardly a moment to be happy or glad. The announcement yesterday by the minister of fisheries that the entire 2013 FRAP would be set aside is yet another tragic event in the history of the (mis)management of our fishery resources under this shockingly incompetent minister and her administration. The decision to scrap an entire rights allocation process is just another dubious record for this incorrigible and destructive minister. She was the first ever minister in our history to preside over the destruction of our entire fleet of patrol and research and vessels and now she becomes the first-ever minister to preside over the setting aside of an entire fishing rights allocation process - despite being handed a handbook on fishing rights allocation processes (2001 and 2005) that were sanctioned by High Courts, the Supreme Court of Appeal and the Constitutional Court! In total, 47 judicial decisions sanctioned these rights allocation processes. Talk about sinking the unsinkable. 

But instead of accepting the advice of experts in the fields of fisheries management and administrative law, she opted for the advisory counsel of scoundrels. This is now the consequence. 

Predictably, tina joemat-pettersson has now decided to blame desmond stevens and desmond stevens is blaming her and no doubt the other useful idiots will soon be blamed. Oh, how the rats are turning on each other. 

But what of her vague and confusing press statement about scrapping the 2013 FRAP? In essence her statement says that the 2013 Process is so unlawful that it would not withstand any judicial scrutiny and to avoid an avalanche of legal reviews, she states that "I intend to set aside the entire FRAP2013-process, including all decisions and outcomes. I have accordingly directed that the requisite legal steps be initiated in order for this to happen. This may also include representations from affected parties."

What does it all mean? What it does NOT mean is that the minister can simply cancel any fishing rights allocated by stevens back on 30 December 2013. All fishing rights allocated on 30 December 2013 (and effective from 1 January 2014) remain valid fishing rights and fishing will continue. The obligation falls to the minister now to urgently prepare a court application on an ex parte basis, which essentially means that she will have to take herself to court BEFORE the next the President is sworn in (because immediately once the President is sworn in - at that minute - his Cabinet is dissolved and joemat-pettersson will no longer be the minister of fisheries). The ex parte application will essentially reveal the extent of the review application. 

Will she confirm to the court that the failure to obtain Cabinet approval for the policies was in fact a violation of the Constitution as we have been saying since June 2013? Will she confirm the unlawfulness of the consultation process? We await to see the minister's application in the next few days. 

As we have previously stated, the extent of the unlawfulness of this process is such that it cannot be cured by the Minister via the appeals process or any administrative process within her purview. 

Who can fish NOW?

Quite simply everyone and every entity that was granted a fishing right on 30 December 2013 will be allowed to continue fishing until such time as a court of law sets side that particular allocation and decision. This concerns the seven fishing sectors OTHER than the traditional line fishery.

In the traditional line fishery, those persons who were granted an exemption valid until 30 April 2014 are in any case permitted to fish in terms of the recent court order and are not affected by this announcement. However, new entrant right holders in the fishery will now certainly stand to lose their fishing rights once the minister obtains her ex parte court order and ALL line fish right holders as at 31 December 2013 will be eligible to apply for an exemption to fish until such time as a new fishing rights process is put in place and decisions subsequently taken. 

What about new entrants who invested in vessels, people and infrastructure? 

There are a couple of new entrant right holders in the shark demersal, line fish and even hake handline sectors who have proceeded to invest in vessels, people and infrastructure to start fishing and who now face the prospect that, due to no fault on their part, their fishing rights will be set aside. What recourse do they have?

Given the fact that the minister had not only appointed desmond stevens as her "delegated authority" but also appointed him as the Acting DDG of the Fisheries Branch, notwithstanding his clear lack of qualifications, skills and ability, it is our view that she could be held responsible for the consequential damage or harm that will result to such new entrant right holders. I do not believe that section 59 of the Marine Living Resources Act (Limitation of liability) will shield the Minister from such egregious and unlawful conduct. 

However, our advice will be for new entrant right holders who have invested in vessels etc to urgently petition the minister and indicate to her that they will oppose such an ex parte application if proper regard is not given to their respective rights and interests. The minister will be duty-bound to consider these representations or face further litigation from new entrant right holders. 

What about the costs of FRAP 2013?

And what about the costs of this flawed and wasted process? What has it all cost so far? The "consultation processes", the printing and distribution of 1000's of applications in places such as Bloemfontein, Pretoria and other renowned South African fishing towns and cities? And who were the "legal advisers" appointed and used that ought to have their law degrees revoked with immediate effect? (Noted. That character fredericks does not even have a law degree). 

So where does this leave us all?

In a bloody deep hole, that is where. In effect, the clock is turned back to 2012 - I have always stated that it takes about two years to get a rights allocation set up and properly implemented. So the date today is effectively 16 May 2012. 

But you will quickly recognise just how much deeper the hole is getting when you consider that - 

  • abalone fishing rights need to be re-allocated in less than 90 days but the department needs approximately 15 months to complete this process timeously and legally; and
  • fishing rights in seven high value fisheries (hake inshore trawl, lobster, seaweed, tuna long line, Patagonian toothfish) must be re-allocated in 2015. The department is at least 18 months behind schedule in preparing for these and given the fact that the 2013 process is now going to be set aside and re-done, it is completely inconceivable that the 10 year rights in these fisheries can be adequately and lawfully dealt with. 
What needs to be done then?

My advice is (and I fully expect it to be ignored again), that the only possible and feasible solution is to urgently prepare a short amendment to the MLRA to make provision for the "roll-over" of all fishing rights set to expire at the end of July 2014 (abalone) and during 2015 (hake inshore trawl, lobster, seaweed, tuna long line, Patagonian toothfish and the various trek net and beach seine sectors). The roll-over should make provision for the extension of these fishing rights until 31 December 2020, which will then allow the department to not only urgently redress the catastrophe of the 2013 rights allocation process, but it will give the new Minister adequate time to attend to the maladministration, rot and corruption which is so apparent in the fisheries branch and to employ properly skilled and qualified staff to positions such as the head of fisheries management and the various other senior fisheries management posts that remain vacant. I must emphasise that there are a number of staff currently employed in positions at director and deputy-director levels, that are profoundly competent. 

But to even contemplate rushing into preparing for the 2015 rights allocation process (which concerns fishing rights with a cumulative annual landed value in excess of R1,5 billion) with the current crises afflicting the fisheries branch would be grossly reckless, not to mention, foolish.  

Screw the Fishing Poor!

There is this most memorable scene from Mel Brookes' "History of the World" set during the "Roman Empire" which has remained with me since the very first time I saw the movie in my uncle's bioscope in Kliptown, Johannesburg, during the 1980's. I was way too young for the age restricted Mel Brookes but the Apartheid government banned this movie so we had to watch it in my uncle's "protest" movie house (which also showed all the other banned movies like Black Beauty!).

Anyway, back to the genius of Mr Brookes. The scene is set. The Roman Senate is called to session and the Head of the Senate passionately stands and asks his fellow senators, "Shall we continue to build palace after palace for rich! Or shall we aspire to a more noble cause and build decent housing for the poor! How does the Senate VOTE?" One second passes and the senators rejoice in unison with arms raised and fists clenched "FUCK THE POOR!"


The latest revelations in the Sunday Times, Business Day and Cape Times these past 3 days about the increasingly infamous "Foodcorp deal" only confirm what we - the easily labelled "racists", "anti-poor", "anti-transformation", "counter-revolutionaries!" - have been saying about the policies and management ethics at the department of fisheries. Desperate small scale fishermen and poverty-stricken coastal villages are merely the fodder to be used to shield the massive levels of maladministration, corruption and rot at the Fisheries Department. 

We saw how connected cadres were handed line fish, hake handline and other fishing rights by Mr Desmond Stevens at the end of December 2013 during the discredited and vilified 2013 FRAP. Now, we are told that Stevens again handpicked his ANC-linked cadres to be handed multi-million rand lobster and hake long line quotas that were "taken" from Foodcorp in terms of a secret and possibly unlawful process which may very well be better described as extortion. 

So much for showing commitment to the implementation of the small scale fisheries policy which remains moribund and a paper-weight since being passed by Cabinet back in 2012. So much for "transformation" of the fishing industry and alleviating coastal poverty by granting these communities  greater access to fish stocks! Instead some 300 tons of hake long line worth more than R7,5 million annually and 60 tons of lobster worth more than R23 million annually are allocated to two politically connected individuals ... unlawfully and with absolutely no regard for due process and the provisions of the Marine Living Resources Act. Transformation!...Cadre-Style! 

But at least, many of these poor fishing communities were handed hundreds of bright yellow T-shirts by the department before these past elections. Some even got to have a "free lunch" with Desmond Stevens at the Spur in Strand back in February. 

Viva! aLOOTa Continua.