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The FRAP 2013 Fixer-Upper

The catastrophe that was the 2013 Fishing Rights Allocation Process involving 8 commercial and small-scale commercial fisheries and 979 right holders is finally on the cusp of being remedied ... at least as best as one can repair a fishing rights allocation process as flawed, irrational and damaging to our fishing communities as the 2013 process has been. 

I, together with Mamakhe Mdhuli (an attorney from Johannesburg) and Professor Julian Smith (former Vice Rector at Stellenbosch), commenced the FRAP 2013 remedial process some 10 months ago on the instruction of Minister Senzeni Zokwana and with the support the current DDG of Fisheries, Ms Siphokazi Ndudane. I was initially approached by the Minister and Ms Ndudane more than 12 months ago to determine whether I would consider assisting the Minister repair the damage caused by the ill-advised FRAP 2013 process. 

The extent of the remedial process has been limited to what we - as an appeals advisory team - could lawfully undertake given the extremely flawed foundations upon which the FRAP 2013 were initially determined. 

A key concern identified by the Minister across all 8 fishery sectors that he has considered to date (including the more than 560 traditional line fish appeals awaiting final determination), is that fishing rights were allocated to so many new entrants who did not have access to suitable or any fishing vessels and who lacked any ability and knowledge to fish. That would explain why less than 25% of all allocated hake handline fishing rights were activated in 2015. Or why less than 10% of new entrants in the traditional line fishery applied for a fishing permit since having been allocated a right since January 2014. 

The allocation of fishing rights to applicants who do not have access to vessels; who do not know how to fish; or do not have the resources and capital to put a vessel to sea because they cannot pay for fuel, bait, insurance or crew costs means that fish prices go up due to reduced supply and less local crew have jobs. Just consider the price of fish over Easter since 2014. Snoek prices before Easter 2014 hovered at R150 a fish. Easter 2016 saw snoek at R200 and more. Low income households who depend on local line caught fish (snoek, Hottentot, geelbek, Roman) as a food source simply cannot afford these prices. 

The Minister is presently wrapping up the traditional line fish appeals process. There are a number of investigations being undertaken by the forensic audit firm, Sizwe Ntsaluba Gobodo, which arose from the provisional list comment period. These investigations principally concern appellants who may have misrepresented their involvement in the fishery, their catch performance or their compliance history. 

The FRAP 2013 remedial measures will continue for some time after the Minister announces the final decisions in the traditional line fishery. Principal amongst these will be the cancellation of fishing rights allocated to persons who have failed to utilise their rights since 2014. Other measures will include monitoring the ongoing catching performance of right holders, especially those in the shark demersal fishery to ensure that CITES listed species are not targeted and harvested. In the white mussel fishery, the new management system of allocating multiple rights in most of the seven harvesting zones needs monitoring to determine if it meets the objectives set by the Minister. 

The FRAP 2013 Fixer-Upper

The catastrophe that was the 2013 Fishing Rights Allocation Process involving 8 commercial and small-scale commercial fisheries and 979 right holders is finally on the cusp of being remedied ... at least as best as one can repair a fishing rights allocation process as flawed, irrational and damaging to our fishing communities as the 2013 process has been. 

I, together with Mamakhe Mdhuli (an attorney from Johannesburg) and Professor Julian Smith (former Vice Rector at Stellenbosch), commenced the FRAP 2013 remedial process some 10 months ago on the instruction of Minister Senzeni Zokwana and with the support the current DDG of Fisheries, Ms Siphokazi Ndudane. I was initially approached by the Minister and Ms Ndudane more than 12 months ago to determine whether I would consider assisting the Minister repair the damage caused by the ill-advised FRAP 2013 process. 

The extent of the remedial process has been limited to what we - as an appeals advisory team - could lawfully undertake given the extremely flawed foundations upon which the FRAP 2013 were initially determined. 

A key concern identified by the Minister across all 8 fishery sectors that he has considered to date (including the more than 560 traditional line fish appeals awaiting final determination), is that fishing rights were allocated to so many new entrants who did not have access to suitable or any fishing vessels and who lacked any ability and knowledge to fish. That would explain why less than 25% of all allocated hake handline fishing rights were activated in 2015. Or why less than 10% of new entrants in the traditional line fishery applied for a fishing permit since having been allocated a right since January 2014. 

The allocation of fishing rights to applicants who do not have access to vessels; who do not know how to fish; or do not have the resources and capital to put a vessel to sea because they cannot pay for fuel, bait, insurance or crew costs means that fish prices go up due to reduced supply and less local crew have jobs. Just consider the price of fish over Easter since 2014. Snoek prices before Easter 2014 hovered at R150 a fish. Easter 2016 saw snoek at R200 and more. Low income households who depend on local line caught fish (snoek, Hottentot, geelbek, Roman) as a food source simply cannot afford these prices. 

The Minister is presently wrapping up the traditional line fish appeals process. There are a number of investigations being undertaken by the forensic audit firm, Sizwe Ntsaluba Gobodo, which arose from the provisional list comment period. These investigations principally concern appellants who may have misrepresented their involvement in the fishery, their catch performance or their compliance history. 

The FRAP 2013 remedial measures will continue for some time after the Minister announces the final decisions in the traditional line fishery. Principal amongst these will be the cancellation of fishing rights allocated to persons who have failed to utilise their rights since 2014. Other measures will include monitoring the ongoing catching performance of right holders, especially those in the shark demersal fishery to ensure that CITES listed species are not targeted and harvested. In the white mussel fishery, the new management system of allocating multiple rights in most of the seven harvesting zones needs monitoring to determine if it meets the objectives set by the Minister. 

2015/2016 Lobster TAC Announced

The Fisheries Department has announced the TAC for the 2015/2016 lobster fishing season. The global TAC has been set at 1924.45 tons which translates to a 6.83% increase when compared to the  2014/2015 lobster TAC.

The global TAC for the 2015/16 west coast rock lobster fishing season has been apportioned as follow:

·        Commercial Fishing (Offshore): 1243.48 tons (previously 1120.25 tons);
·        Commercial Fishing (Nearshore): 376.10 tons (previously 376.10 tons);
·        Subsistence (Interim Relief Measure) Fishing: 235.30 tons (previously 230.10 tons);  and
·        Recreational Fishing: 69.20 tons (previously 69.20.5 tons)

The 2015/16 west coast rock lobster recreational fishing season will open on Sunday, 15 November 2015 and will close on Sunday, 28 March 2016. The 2015/16 WCRL recreational fishing effort will be restricted to 21 days and will be split as follow:

·        Fishing allowed from 15 November 2015 to 15 November 2015 (1 day)

·        Fishing allowed from 21 November 2015 to 22 November 2015 (2 day)

·        Fishing allowed from 5 December 2015 to 6 December 2015 (2 days)

·        Fishing allowed from 5 December 2015 to 6 December 2015 (2 days)

·        Fishing allowed from 12 December 2015 to 13 December 2015 (2 days)

·        Fishing allowed from 19 December 2015 to 20 December 2015 (2 days)

·        Fishing allowed from 26 December 2015 to 27 December 2015 (2 days)

·        Fishing allowed from 2 January 2016 to 3 January 2016 (2 days)

·        Fishing allowed from 9 January 2016 to 10 January 2016 (2 days)

·        Fishing allowed from 25 March 2016 to 28 March 2016 (4 days)


Recreational fishing times for WCRL will be from 08h00 until 16h00 and the bag limit is four per person per day and the size restriction is 80 millimetres carapace length.

No person catching WCRL with a recreational fishing permit may sell his/her catch and any WCRL caught, collected or transported must be kept in a whole state.

A maximum of 20 lobsters may be transported per day on condition that all the persons who caught such WCRL’s are present in the vehicle, vessel or aircraft during transportation and that such persons are in possession of valid lobster recreational fishing permits.

2015/2016 Lobster TAC Announced

The Fisheries Department has announced the TAC for the 2015/2016 lobster fishing season. The global TAC has been set at 1924.45 tons which translates to a 6.83% increase when compared to the  2014/2015 lobster TAC.

The global TAC for the 2015/16 west coast rock lobster fishing season has been apportioned as follow:

·        Commercial Fishing (Offshore): 1243.48 tons (previously 1120.25 tons);
·        Commercial Fishing (Nearshore): 376.10 tons (previously 376.10 tons);
·        Subsistence (Interim Relief Measure) Fishing: 235.30 tons (previously 230.10 tons);  and
·        Recreational Fishing: 69.20 tons (previously 69.20.5 tons)

The 2015/16 west coast rock lobster recreational fishing season will open on Sunday, 15 November 2015 and will close on Sunday, 28 March 2016. The 2015/16 WCRL recreational fishing effort will be restricted to 21 days and will be split as follow:

·        Fishing allowed from 15 November 2015 to 15 November 2015 (1 day)

·        Fishing allowed from 21 November 2015 to 22 November 2015 (2 day)

·        Fishing allowed from 5 December 2015 to 6 December 2015 (2 days)

·        Fishing allowed from 5 December 2015 to 6 December 2015 (2 days)

·        Fishing allowed from 12 December 2015 to 13 December 2015 (2 days)

·        Fishing allowed from 19 December 2015 to 20 December 2015 (2 days)

·        Fishing allowed from 26 December 2015 to 27 December 2015 (2 days)

·        Fishing allowed from 2 January 2016 to 3 January 2016 (2 days)

·        Fishing allowed from 9 January 2016 to 10 January 2016 (2 days)

·        Fishing allowed from 25 March 2016 to 28 March 2016 (4 days)


Recreational fishing times for WCRL will be from 08h00 until 16h00 and the bag limit is four per person per day and the size restriction is 80 millimetres carapace length.

No person catching WCRL with a recreational fishing permit may sell his/her catch and any WCRL caught, collected or transported must be kept in a whole state.

A maximum of 20 lobsters may be transported per day on condition that all the persons who caught such WCRL’s are present in the vehicle, vessel or aircraft during transportation and that such persons are in possession of valid lobster recreational fishing permits.
As we approach the possible commencement of the 2015/2016 fishing rights allocation process, Feike has been approached by a number of current right holders and potential new entrant applicants / investors wanting advice on preparatory steps that they should take in anticipation of the next fishing rights allocation process.

We have also been made aware of a number of "consultants" emerging to provide advice on completion of future application forms. The rate at which these "consultants" will emerge will surely gather momentum once greater clarity and certainty is available regarding the 2015/2016 rights allocation process.

As has been the case with past fishing rights allocation processes, Feike does not assist with the completion of forms and neither do we advise individual applicants on preparatory steps and measures. In deserving cases, we may provide legal and fisheries advice on a pro bono basis.

Accordingly, we can dispense the following advice without being concerned about slating potential "competitors".

Firstly, if a consultant is required to assist with the completion of the form or part of the form, check the history and track record of the consultant concerned. Do not use "new" consultants or those who have no track record and experience in the fisheries sector.

Secondly, before you agree to use the consultant's services, first check if they had assisted applicants during previous right allocation processes and how successful they were. Don't take their word for it. Contact the right holders concerned and confirm this and check if they will be using the same consultant again.

Thirdly, agree a fee in advance and reduce the appointment to writing specifying the services to be provided and deadlines to be achieved. Make sure that a failure to meet a deadline will result in a financial penalty to be deducted from the consultant's final payment. This is important as there has been a history of consultants using these processes to earn substantial fees but who take on too many clients. They are then unable to satisfactorily complete the application form ... or worse, they fail to submit the forms on time, resulting in the application being excluded.

Fourthly, if a consultant is appointed to prepare your application form, make sure that they are contracted to provide you with the final draft version at least 72 hours before the gazetted application deadline date and time to allow yourself to carefully scrutinise the information in the form and to obtain any additional information and data.

Finally, do not pay the full agreed fee upfront. Agree to make payments only upon the attainment of agreed milestones.


As we approach the possible commencement of the 2015/2016 fishing rights allocation process, Feike has been approached by a number of current right holders and potential new entrant applicants / investors wanting advice on preparatory steps that they should take in anticipation of the next fishing rights allocation process.

We have also been made aware of a number of "consultants" emerging to provide advice on completion of future application forms. The rate at which these "consultants" will emerge will surely gather momentum once greater clarity and certainty is available regarding the 2015/2016 rights allocation process.

As has been the case with past fishing rights allocation processes, Feike does not assist with the completion of forms and neither do we advise individual applicants on preparatory steps and measures. In deserving cases, we may provide legal and fisheries advice on a pro bono basis.

Accordingly, we can dispense the following advice without being concerned about slating potential "competitors".

Firstly, if a consultant is required to assist with the completion of the form or part of the form, check the history and track record of the consultant concerned. Do not use "new" consultants or those who have no track record and experience in the fisheries sector.

Secondly, before you agree to use the consultant's services, first check if they had assisted applicants during previous right allocation processes and how successful they were. Don't take their word for it. Contact the right holders concerned and confirm this and check if they will be using the same consultant again.

Thirdly, agree a fee in advance and reduce the appointment to writing specifying the services to be provided and deadlines to be achieved. Make sure that a failure to meet a deadline will result in a financial penalty to be deducted from the consultant's final payment. This is important as there has been a history of consultants using these processes to earn substantial fees but who take on too many clients. They are then unable to satisfactorily complete the application form ... or worse, they fail to submit the forms on time, resulting in the application being excluded.

Fourthly, if a consultant is appointed to prepare your application form, make sure that they are contracted to provide you with the final draft version at least 72 hours before the gazetted application deadline date and time to allow yourself to carefully scrutinise the information in the form and to obtain any additional information and data.

Finally, do not pay the full agreed fee upfront. Agree to make payments only upon the attainment of agreed milestones.


Abalone Fishery Extended

The Acting DDG of the Fisheries Branch, Ms Siphokazi Ndudane, has extended the 2014/2015 abalone season to the end of September 2015. The decision to extend the season, which normally ends at the end of July each year, was in response to a request by two current abalone divers, Messrs Michael Wurbach and Scott Russell.

The decision to extend the abalone season was justified because of the delayed commencement of the 2014/2015 abalone season and fewer than normal fishing days during the season because of bad weather.

The extension however only applies to those abalone divers who had not harvested their own individual fishing quotas by 30 July 2015. The current abalone transport and fishing permit conditions will continue to apply.

Abalone Fishery Extended

The Acting DDG of the Fisheries Branch, Ms Siphokazi Ndudane, has extended the 2014/2015 abalone season to the end of September 2015. The decision to extend the season, which normally ends at the end of July each year, was in response to a request by two current abalone divers, Messrs Michael Wurbach and Scott Russell.

The decision to extend the abalone season was justified because of the delayed commencement of the 2014/2015 abalone season and fewer than normal fishing days during the season because of bad weather.

The extension however only applies to those abalone divers who had not harvested their own individual fishing quotas by 30 July 2015. The current abalone transport and fishing permit conditions will continue to apply.
This is the official press statement issued by the Minister of Agriculture, Forestry and Fisheries on 18 August 2015.

The purpose of this media statement issued by the Minister of Agriculture, Forestry and Fisheries, Mr Senzeni Zokwana, is to inform the South African public and the fishing industry in particular of the Minister’s decisions on appeals filed against decisions taken on 30 December 2013 in the KwaZulu-Natal Prawn Trawl fishery. The Minister will over the coming 8 weeks be issuing his decisions on appeals in the remaining 7 fishing sectors that were decided under the 2013 Fishing Rights Allocation Process (FRAP 2013).

True to the Minister’s commitment to redress the various concerns and problems that had plagued the FRAP 2013, the Minister has appointed three non-departmental officials to an Appeals Advisory Team to advise him on the FRAP 2013 appeals. These individuals include Advocate Shaheen Moolla; Professor Julian Smith and Attorney Mamakhe Mdhluli.

On Tuesday 11 August 2015 and Thursday 13 August 2015, Minister Senzeni Zokwana was briefed by members of his appeals advisory team on 17 appeals that were filed by appellants in the KwaZulu-Natal Prawn Trawl fishing sector. During the first meeting, the Minister was briefed by his advisory team on the processes and methodology adopted and that the appeals advisory team would be guided by certain core values and principles, including a commitment to legality, honesty and integrity.

At the end of December 2013, the Acting Deputy Director-General: Fisheries Management, decided to allocate a total of 5 fishing rights in this fishery. Of these 5 rights, two rights were granted authorizing trawling in both inshore and offshore waters. The remaining 3 fishing rights were allocated in offshore waters only. A total of two fishing rights (or vessels) remain available for allocation by the Minister.

Read the Minister's decisions here.
This is the official press statement issued by the Minister of Agriculture, Forestry and Fisheries on 18 August 2015.

The purpose of this media statement issued by the Minister of Agriculture, Forestry and Fisheries, Mr Senzeni Zokwana, is to inform the South African public and the fishing industry in particular of the Minister’s decisions on appeals filed against decisions taken on 30 December 2013 in the KwaZulu-Natal Prawn Trawl fishery. The Minister will over the coming 8 weeks be issuing his decisions on appeals in the remaining 7 fishing sectors that were decided under the 2013 Fishing Rights Allocation Process (FRAP 2013).

True to the Minister’s commitment to redress the various concerns and problems that had plagued the FRAP 2013, the Minister has appointed three non-departmental officials to an Appeals Advisory Team to advise him on the FRAP 2013 appeals. These individuals include Advocate Shaheen Moolla; Professor Julian Smith and Attorney Mamakhe Mdhluli.

On Tuesday 11 August 2015 and Thursday 13 August 2015, Minister Senzeni Zokwana was briefed by members of his appeals advisory team on 17 appeals that were filed by appellants in the KwaZulu-Natal Prawn Trawl fishing sector. During the first meeting, the Minister was briefed by his advisory team on the processes and methodology adopted and that the appeals advisory team would be guided by certain core values and principles, including a commitment to legality, honesty and integrity.

At the end of December 2013, the Acting Deputy Director-General: Fisheries Management, decided to allocate a total of 5 fishing rights in this fishery. Of these 5 rights, two rights were granted authorizing trawling in both inshore and offshore waters. The remaining 3 fishing rights were allocated in offshore waters only. A total of two fishing rights (or vessels) remain available for allocation by the Minister.

Read the Minister's decisions here.
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