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On 23 and 24 April 2019, the Fisheries Branch of the Department of Agriculture, Forestry and Fisheries (DAFF) will be holding a 2-day seminar to "stimulate discussions and thoughts on issues [aimed at] broadening participation in the fishing industry in an equitable and fair manner guided by the need to restructure and transform the sector, investments and development finance for small businesses and new entrants, aquaculture and agro-processing (diversification of the fishing sector), seafood trade and regulation."

The stagnation and collapse of significant parts of the South African fishing industry have occurred at a staggering pace over the past 2 years. Not only do we see the the factionalised corruption-fuelled battles at a national macro-level playing out in the Fisheries Branch, but a substantial consequence of this has been the mismanagement and collapse of fisheries like the lobster, abalone and pilchard fisheries. The single most important fishing rights allocation process (FRAP) since 2005 - the 2020 FRAP - looks set to collapse into failure like the 2013/2014 FRAP. 

The current infighting, corruption and maladministration afflicting the DAFF does not present an environment for a successful seminar or an ethically defendable FRAP 2020. The allocation of additional fishing rights to new entrants in the large pelagic, hake inshore trawl and horse mackerel fisheries in 2016 confirmed that allocating additional fishing rights without ensuring a proper and functioning department only supports paper quotas and fronting. The failure to restructure the horse mackerel fishery, for example, as was advised in order to support the allocation of new fishing rights, has created a fishery dominated by single vessel and fishing company that has easily been able to hold an entire fishery hostage. Those new, predominantly black right holders who have elected to try and utilise their paper rights have been offered as little as 96 cents a kilogram for their fish on a "take-it or leave-it" basis, while counterparts in Namibia are currently negotiating with Icelandic, Russian, Chinese, Namibian and Spanish vessel owners at prices between R1,80/kg and R3,20/kg - a consequence of competition. 

The collapse of the pilchard fishery - due principally to climactic reasons - has been on the cards for some time but nothing has been done to mitigate the annual contraction of the TAC to the current point where it is effectively zero. An effective and pro-active department would have opened up a red-eye herring fishery and chub-mackerel fishery and long understood what were the bottlenecks to additional investments in fish-meal processing factories given that the anchovy TAC has increased substantially but we lack the processing capacity for such a TAC.

The SA West coast rock lobster fishery may never recover from a decade of mismanagement and the addition of unsustainable numbers of fishers to the fishery who will continue to legally and illegally fish our stocks to complete collapse. The same applies to abalone. We may as well confirm these two  iconic small-scale West Coast fisheries to doppies and empty shells on our beaches. Why have we done nothing to urgently reduce the illegal trade in these two fishery sectors? We keep talking about the re-establishment of the specialised "green courts" but nothing has materialised after more than 2 years talking (it took us 6 months from conceptualisation to opening the first green court in 2003 and another 3 months for the second court in PE). 

And tuna. We all recall how elated we all were when CCSBT confirmed South Africa's substantial 450 ton CCSBT TAC (up from 40 tons). In 2016, we allocated dozens of additional fishing rights and yet today we continue to not harvest our full Southern Bluefin tuna allocation and most fishing rights remain in envelopes in the draws of right holders. Again, because fishing rights were allocated without the department ensuring that the right policy and regulatory frameworks were in place to support vessels, investments and market access. 

The problem is not "transformation" or a lack of investors or too few right holders. We need DAFF to fix itself, eliminate the in-house and institutionalised corruption and ensure that the few honest and committed staff left are supported to their jobs. 



On 23 and 24 April 2019, the Fisheries Branch of the Department of Agriculture, Forestry and Fisheries (DAFF) will be holding a 2-day seminar to "stimulate discussions and thoughts on issues [aimed at] broadening participation in the fishing industry in an equitable and fair manner guided by the need to restructure and transform the sector, investments and development finance for small businesses and new entrants, aquaculture and agro-processing (diversification of the fishing sector), seafood trade and regulation."

The stagnation and collapse of significant parts of the South African fishing industry have occurred at a staggering pace over the past 2 years. Not only do we see the the factionalised corruption-fuelled battles at a national macro-level playing out in the Fisheries Branch, but a substantial consequence of this has been the mismanagement and collapse of fisheries like the lobster, abalone and pilchard fisheries. The single most important fishing rights allocation process (FRAP) since 2005 - the 2020 FRAP - looks set to collapse into failure like the 2013/2014 FRAP. 

The current infighting, corruption and maladministration afflicting the DAFF does not present an environment for a successful seminar or an ethically defendable FRAP 2020. The allocation of additional fishing rights to new entrants in the large pelagic, hake inshore trawl and horse mackerel fisheries in 2016 confirmed that allocating additional fishing rights without ensuring a proper and functioning department only supports paper quotas and fronting. The failure to restructure the horse mackerel fishery, for example, as was advised in order to support the allocation of new fishing rights, has created a fishery dominated by single vessel and fishing company that has easily been able to hold an entire fishery hostage. Those new, predominantly black right holders who have elected to try and utilise their paper rights have been offered as little as 96 cents a kilogram for their fish on a "take-it or leave-it" basis, while counterparts in Namibia are currently negotiating with Icelandic, Russian, Chinese, Namibian and Spanish vessel owners at prices between R1,80/kg and R3,20/kg - a consequence of competition. 

The collapse of the pilchard fishery - due principally to climactic reasons - has been on the cards for some time but nothing has been done to mitigate the annual contraction of the TAC to the current point where it is effectively zero. An effective and pro-active department would have opened up a red-eye herring fishery and chub-mackerel fishery and long understood what were the bottlenecks to additional investments in fish-meal processing factories given that the anchovy TAC has increased substantially but we lack the processing capacity for such a TAC.

The SA West coast rock lobster fishery may never recover from a decade of mismanagement and the addition of unsustainable numbers of fishers to the fishery who will continue to legally and illegally fish our stocks to complete collapse. The same applies to abalone. We may as well confirm these two  iconic small-scale West Coast fisheries to doppies and empty shells on our beaches. Why have we done nothing to urgently reduce the illegal trade in these two fishery sectors? We keep talking about the re-establishment of the specialised "green courts" but nothing has materialised after more than 2 years talking (it took us 6 months from conceptualisation to opening the first green court in 2003 and another 3 months for the second court in PE). 

And tuna. We all recall how elated we all were when CCSBT confirmed South Africa's substantial 450 ton CCSBT TAC (up from 40 tons). In 2016, we allocated dozens of additional fishing rights and yet today we continue to not harvest our full Southern Bluefin tuna allocation and most fishing rights remain in envelopes in the draws of right holders. Again, because fishing rights were allocated without the department ensuring that the right policy and regulatory frameworks were in place to support vessels, investments and market access. 

The problem is not "transformation" or a lack of investors or too few right holders. We need DAFF to fix itself, eliminate the in-house and institutionalised corruption and ensure that the few honest and committed staff left are supported to their jobs. 



Dead Fishers and Fishing Rights

During the course of my three month appointment as Chairperson of Minister Zokwana's West Coast rock lobster appeals advisory team charged with advising on the more than 2000 appeals submitted to the Minister for decisions, it became apparent that the Fisheries Management Branch had strangely decided to declare applicants for fishing rights who passed away either just before or after submitting fishing right applications persona non grata and summarily refused their applications. 

Although my advices to the department that follow below were intended for the consumption of my client's staff, it has become evidently clear that a staff member who was a recipient of various such "confidential" advices and documents shared these with her partner who coincidentally is employed by a large South African fishing group. I have seen the evidence of this unlawful conduct on whatsapp chats. Even though these patently unlawful and corrupt communique's have been shared with the department, there has not been any consequences for the corrupt official concerned and I can thus only assume the employer approves of such corrupt and unlawful disseminations of confidential advices to certain corrupt fishing interest groups. Given that these advices are now in the "public" realm and openly for sale to corrupt parties (and thus no longer confidential), it cannot be fair to law-abiding right holders and interested parties to not know that the departmental practice of refusing dead applicants fishing rights is unlawful. This is particularly important given that small-scale commercial applicants will shortly be applying for their fishing rights in sectors such as abalone, line fish, oysters, mussels and hake handline. 

My reasoning follows. 

The decision to refuse applicants fishing rights simply because they had died prior to the submission of their application or after the submission of an application for a fishing right appears to be premised on an incorrect conflation of two separate and distinct decision making processes, which need to be made under separate binding departmental policies. 

Importantly, in terms of our laws of succession (correctly encapsulated under the General Policy of 2013), the rights and interests of the deceased right holder / applicant transfers automatically upon death to his / her executor who represents the “late estate”. Accordingly, any decision on an application for a fishing right by a deceased individual must follow the following 2-stage process - 

1. Step 1 is to enquire whether the applicant (i.e. the deceased person) qualifies for a fishing right under the MLRA and policy and criteria for that specific fishery based on the content of his/her application and history. If yes, the right MUST be granted to the LATE ESTATE represented by the EXECUTOR and the EXECUTOR must then see to transferring the right in terms of the Laws of Succession (i.e. whether to a beneficiary named in a valid will (testamentary succession) or if no will, then the law of intestate succession will apply). 

2. Step 2 will be for the department to then decide a section 21 transfer application filed by the legal beneficiary of that right (whether in terms of testate or intestate succession) and the department must then decide whether the transferee meets the stated criteria of the Transfer Policy and section 21 of the MLRA. 

Accordingly, a deceased applicant cannot automatically be refused a right in terms of section 18 of the MLRA. But neither is the lawful beneficiary of that right automatically entitled to a positive decision to have the fishing right transferred to him/her under section 21 of the MLRA. 

Dead Fishers and Fishing Rights

During the course of my three month appointment as Chairperson of Minister Zokwana's West Coast rock lobster appeals advisory team charged with advising on the more than 2000 appeals submitted to the Minister for decisions, it became apparent that the Fisheries Management Branch had strangely decided to declare applicants for fishing rights who passed away either just before or after submitting fishing right applications persona non grata and summarily refused their applications. 

Although my advices to the department that follow below were intended for the consumption of my client's staff, it has become evidently clear that a staff member who was a recipient of various such "confidential" advices and documents shared these with her partner who coincidentally is employed by a large South African fishing group. I have seen the evidence of this unlawful conduct on whatsapp chats. Even though these patently unlawful and corrupt communique's have been shared with the department, there has not been any consequences for the corrupt official concerned and I can thus only assume the employer approves of such corrupt and unlawful disseminations of confidential advices to certain corrupt fishing interest groups. Given that these advices are now in the "public" realm and openly for sale to corrupt parties (and thus no longer confidential), it cannot be fair to law-abiding right holders and interested parties to not know that the departmental practice of refusing dead applicants fishing rights is unlawful. This is particularly important given that small-scale commercial applicants will shortly be applying for their fishing rights in sectors such as abalone, line fish, oysters, mussels and hake handline. 

My reasoning follows. 

The decision to refuse applicants fishing rights simply because they had died prior to the submission of their application or after the submission of an application for a fishing right appears to be premised on an incorrect conflation of two separate and distinct decision making processes, which need to be made under separate binding departmental policies. 

Importantly, in terms of our laws of succession (correctly encapsulated under the General Policy of 2013), the rights and interests of the deceased right holder / applicant transfers automatically upon death to his / her executor who represents the “late estate”. Accordingly, any decision on an application for a fishing right by a deceased individual must follow the following 2-stage process - 

1. Step 1 is to enquire whether the applicant (i.e. the deceased person) qualifies for a fishing right under the MLRA and policy and criteria for that specific fishery based on the content of his/her application and history. If yes, the right MUST be granted to the LATE ESTATE represented by the EXECUTOR and the EXECUTOR must then see to transferring the right in terms of the Laws of Succession (i.e. whether to a beneficiary named in a valid will (testamentary succession) or if no will, then the law of intestate succession will apply). 

2. Step 2 will be for the department to then decide a section 21 transfer application filed by the legal beneficiary of that right (whether in terms of testate or intestate succession) and the department must then decide whether the transferee meets the stated criteria of the Transfer Policy and section 21 of the MLRA. 

Accordingly, a deceased applicant cannot automatically be refused a right in terms of section 18 of the MLRA. But neither is the lawful beneficiary of that right automatically entitled to a positive decision to have the fishing right transferred to him/her under section 21 of the MLRA. 

SA West Coast Rock Lobster Appeals Process Completed

On 16 October 2018, the SA Minister of Agriculture, Forestry and Fisheries, Senzeni Zokwana, completed the process of deciding 1741 appeals in South Africa's West Coast rock lobster (WCRL) nearshore commercial fishery. By 30 August 2018 - less than 30 days after having been appointed - the Minister issued his decisions on 272 appeals filed by the WCRL offshore fishery appellants. In total, 2013 appeals were considered, evaluated and decided over a period of 60 days. 

The Minister's official decisions and his record setting out the reasons for his decisions on the appeals filed in the WCRL nearshore fishery (ZONE F)  have now been made public on the Department of Agriculture, Forestry and Fisheries' website. 

A total of 739 appeals in Zone F were filed against the initial decisions taken by the Deputy Director-General: Fisheries Management in her capacity as the Delegated Authority on 31 July 2017. 

As is the case with the WCRL Offshore, the nearshore commercial fishery remains a highly competitive fishery sector with substantially more demand for fishing rights than can be sustainably accommodated, particularly in fishing zones adjacent to large population centres. 

The Minister received, considered and determined a total of 739 appeals for fishing rights in the WCRL Nearshore Fishing Zone F.

The Minister decided to allocate a total of 84 additional fishing rights in Zone F. Of these 84 successful appellants, 6 were excluded for failing to disclose an admission of guilt of fine, 14 were refused rights purportedly for being “medically unfit”, 22 were excluded because they were 65 years or older and 42 were initially refused rights on the basis of comparative score balancing.

Each right holder in Zone F will be entitled to a maximum of 0.23% of the WCRL Nearshore TAC determined in any one season for Zone F. 

Should any appellant require further reasons for the Minister’s decision, they may address these requests to FRAP2015appeals@daff.gov.za requesting reasons under section 5 of the Promotion of Administrative Justice Act, 2000. 

SA West Coast Rock Lobster Appeals Process Completed

On 16 October 2018, the SA Minister of Agriculture, Forestry and Fisheries, Senzeni Zokwana, completed the process of deciding 1741 appeals in South Africa's West Coast rock lobster (WCRL) nearshore commercial fishery. By 30 August 2018 - less than 30 days after having been appointed - the Minister issued his decisions on 272 appeals filed by the WCRL offshore fishery appellants. In total, 2013 appeals were considered, evaluated and decided over a period of 60 days. 

The Minister's official decisions and his record setting out the reasons for his decisions on the appeals filed in the WCRL nearshore fishery (ZONE F)  have now been made public on the Department of Agriculture, Forestry and Fisheries' website. 

A total of 739 appeals in Zone F were filed against the initial decisions taken by the Deputy Director-General: Fisheries Management in her capacity as the Delegated Authority on 31 July 2017. 

As is the case with the WCRL Offshore, the nearshore commercial fishery remains a highly competitive fishery sector with substantially more demand for fishing rights than can be sustainably accommodated, particularly in fishing zones adjacent to large population centres. 

The Minister received, considered and determined a total of 739 appeals for fishing rights in the WCRL Nearshore Fishing Zone F.

The Minister decided to allocate a total of 84 additional fishing rights in Zone F. Of these 84 successful appellants, 6 were excluded for failing to disclose an admission of guilt of fine, 14 were refused rights purportedly for being “medically unfit”, 22 were excluded because they were 65 years or older and 42 were initially refused rights on the basis of comparative score balancing.

Each right holder in Zone F will be entitled to a maximum of 0.23% of the WCRL Nearshore TAC determined in any one season for Zone F. 

Should any appellant require further reasons for the Minister’s decision, they may address these requests to FRAP2015appeals@daff.gov.za requesting reasons under section 5 of the Promotion of Administrative Justice Act, 2000. 

The SA Minister of Fisheries has issued his decisions on appeals filed by nearshore (hoop net) west coast rock lobster fishers. The decisions are recoded zonally in accordance with the geographic distribution of the WCRL from Port Nolloth (Zone A) to Zone F (Kleinmond/Hermanus/Gansbaai).

The decisions for Zone F are anticipated next week. What is recorded below are the decisions for fishing Zones A to E.

Zone A:

Zone B:



The SA Minister of Fisheries has issued his decisions on appeals filed by nearshore (hoop net) west coast rock lobster fishers. The decisions are recoded zonally in accordance with the geographic distribution of the WCRL from Port Nolloth (Zone A) to Zone F (Kleinmond/Hermanus/Gansbaai).

The decisions for Zone F are anticipated next week. What is recorded below are the decisions for fishing Zones A to E.

Zone A:

Zone B:



The recent unlawful and irregular allocation of boat-based whale watching and white shark cage diving permits has demonstrated a narrow-mindedness to destroy South Africa's two most successful eco-tourism sectors second to none. 

Feike has served as the legal advisor to the South African Boat-Based Whale Watching Association (SABBWWA) and the Great White Shark Protection Foundation that represents the majority of shark diving operations in the country of some time and a number of historical operators summarily lost their operating permits to new entrant applicants who have no resources, client access, vessels, websites, or ability to operate a whale watching or shark cage diving operation. 

Of course, the need to allow new entrants and even additional permit holders is a legitimate way of growing the economy particularly in these non-consumptive sectors whose success is determined by the number of foreign and domestic tourists willing to come aboard an operator's vessel and jump into a metal cage that can be knocked about by 5m long, 2 ton white sharks. Whether any tourist is prepared to pay a few thousand rand for this adventure to be overseen by someone with zero historical experience, knowledge or ability is doubtful to say the least but the Minister of Environmental Affairs and her department seem convinced that by dishing out permits to a plethora of new entrants who do not own or have access to suitable vessels, employ properly qualified skippers, expert staff, knowledgable marine guides who could at least impart some level of information to high paying tourists or even have a website or access to a single client would magically "transform" the industry. 

In Kleinbaai, the heart of the global shark diving industry, 6 of the 8 historical operators, employing some 90 skilled local personnel with investments in assets exceeding R50 million and who spend an average of R30 million annually in Gansbaai and the surrounding areas were refused their permits. These 6 operators have been operating for an average of 18,5 years. The Minister instead elected to allocate permits to 7 new entrant applicants. The financial impact on Gansbaai's local economy will be substantial. Job losses are a certainty as most of the new entrants will simply not be able to afford the costs of operations. A number have already attempted to sell their permits thinking that these paper permits are worth millions of rand. 

However, a number of historical permit holders have already successfully launched urgent interdict and review applications against the Minister and her department's unlawful decisions. The first adverse order against the Minister was issued on 12 December 2017, which included an adverse costs order. 

The first of the whale watching decisions in the Gansbaai area which denied a permit to a founding member of SABBWWA, Ivanhoe Sea Safaris, has now been reviewed and set aside by the Western Cape High Court. The Minister failed to even file an affidavit trying to explain her unlawful and irregular decisions. 

Three further review applications are now set down for hearing on 16 August in the Western Cape High Court. The decisions in each of these three matters are so irregular that they beggar belief. 

In two of the matters (concerning whale watching permits), the initial decision on 9 November 2017 was to allocate the historical permit operators their respective 10-year permits. Then on 13 March 2018, these permits were summarily stripped from the operators in blatant violation of due process and the Promotion of Administrative Justice Act. In one case, the permit was allocated to an entity without a SAMSA certified commercial passenger vessel (instead they nominated a fishing vessel without a safety certificate), no public indemnity insurance or a tourist guide. In the other case, the Minister demonstrated her lack of commitment to local jobs and the well-being of local communities by denying the only applicant for a permit and instead elected to not allocate any permit - leaving the area with no operator, employer or investor! 

The only proverbial light at the end of this horrible tunnel for whale watching and shark cage diving operators who were unlawfully denied their permits, is the extent to which simple legal principles have been wilfully ignored and recklessly sidestepped in favour of maladministration and socio-economic destruction. The decisions will simply not stand in law and have already begun falling. 

The recent unlawful and irregular allocation of boat-based whale watching and white shark cage diving permits has demonstrated a narrow-mindedness to destroy South Africa's two most successful eco-tourism sectors second to none. 

Feike has served as the legal advisor to the South African Boat-Based Whale Watching Association (SABBWWA) and the Great White Shark Protection Foundation that represents the majority of shark diving operations in the country of some time and a number of historical operators summarily lost their operating permits to new entrant applicants who have no resources, client access, vessels, websites, or ability to operate a whale watching or shark cage diving operation. 

Of course, the need to allow new entrants and even additional permit holders is a legitimate way of growing the economy particularly in these non-consumptive sectors whose success is determined by the number of foreign and domestic tourists willing to come aboard an operator's vessel and jump into a metal cage that can be knocked about by 5m long, 2 ton white sharks. Whether any tourist is prepared to pay a few thousand rand for this adventure to be overseen by someone with zero historical experience, knowledge or ability is doubtful to say the least but the Minister of Environmental Affairs and her department seem convinced that by dishing out permits to a plethora of new entrants who do not own or have access to suitable vessels, employ properly qualified skippers, expert staff, knowledgable marine guides who could at least impart some level of information to high paying tourists or even have a website or access to a single client would magically "transform" the industry. 

In Kleinbaai, the heart of the global shark diving industry, 6 of the 8 historical operators, employing some 90 skilled local personnel with investments in assets exceeding R50 million and who spend an average of R30 million annually in Gansbaai and the surrounding areas were refused their permits. These 6 operators have been operating for an average of 18,5 years. The Minister instead elected to allocate permits to 7 new entrant applicants. The financial impact on Gansbaai's local economy will be substantial. Job losses are a certainty as most of the new entrants will simply not be able to afford the costs of operations. A number have already attempted to sell their permits thinking that these paper permits are worth millions of rand. 

However, a number of historical permit holders have already successfully launched urgent interdict and review applications against the Minister and her department's unlawful decisions. The first adverse order against the Minister was issued on 12 December 2017, which included an adverse costs order. 

The first of the whale watching decisions in the Gansbaai area which denied a permit to a founding member of SABBWWA, Ivanhoe Sea Safaris, has now been reviewed and set aside by the Western Cape High Court. The Minister failed to even file an affidavit trying to explain her unlawful and irregular decisions. 

Three further review applications are now set down for hearing on 16 August in the Western Cape High Court. The decisions in each of these three matters are so irregular that they beggar belief. 

In two of the matters (concerning whale watching permits), the initial decision on 9 November 2017 was to allocate the historical permit operators their respective 10-year permits. Then on 13 March 2018, these permits were summarily stripped from the operators in blatant violation of due process and the Promotion of Administrative Justice Act. In one case, the permit was allocated to an entity without a SAMSA certified commercial passenger vessel (instead they nominated a fishing vessel without a safety certificate), no public indemnity insurance or a tourist guide. In the other case, the Minister demonstrated her lack of commitment to local jobs and the well-being of local communities by denying the only applicant for a permit and instead elected to not allocate any permit - leaving the area with no operator, employer or investor! 

The only proverbial light at the end of this horrible tunnel for whale watching and shark cage diving operators who were unlawfully denied their permits, is the extent to which simple legal principles have been wilfully ignored and recklessly sidestepped in favour of maladministration and socio-economic destruction. The decisions will simply not stand in law and have already begun falling. 

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