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On 14 May 2013, a week after an arbitrary and exclusionary consultation process had commenced on only some of the 8 sector specific fishing policies, the Minister of Fisheries gazetted the draft 8 sector policies for public comment… and in English only. And comment is due on 31 May 2013, providing less than a two week comment period on 8 sector policies which need to be considered with the draft general fisheries policy. The gazette is comprises more than 100 pages.  The unlawfulness of this process is compounded by the fact that the comment period on the draft general policy closed prior to the gazetting of these sector policies which – we were told by the Minister – HAD TO BE READ TOGETHER WITH THE SECTOR POLICIES! 
The unlawfulness of the consultation process has been even further compounded by the Minister’s unashamedly hypocritical and exclusionary consultation process. We have pointed out in a previous BLOG that the Minister has consciously decided to not consult any tuna or shark fishers in the Northern and Eastern Cape Provinces or along the West Coast and Overberg regions of the Western Cape. Bizarrely, every traditional line fisher along the entire west coast and Northern Cape will be excluded from consultation as well – this region is the heartland of traditional line fishers in the country and the Minister has shown them the middle-finger!  At the so-called Cape Town consultation meeting on the draft line fish policy held at the department’s offices in Cape Town yesterday, no more than 50 people attended with even fewer right holders present. Not even the chairman of the linefish association was present at what ought to be the most important sector meeting in more than 8 years! This region is home to more than 290 of the 450 right holders and they are excluded from a consultation process on a policy which will directly impact on their fishing rights and income. 
Proceeding to the substance of the draft sector policies, it is perhaps clear why the department is steering clear of an accessible, transparent and considered consultation process. The draft sector policies are plain rubbish. They are … and yes we know we sound like stuck records … are horrible cut-and-paste of the 2005 policies. The cut-and-paste policies are an indictment of a department that has imploded; lacks any intellectual and leadership skills in the field of fisheries management; a department with no clue about the fishing sectors it is supposed to regulate. Take these stated and actual policy “objectives” from the mussel and oyster fishery sector policies – 

“(c) co-manage white mussel fishery with other spheres of government … and most importantly in a manner that would please, praise and glorify the one who provided and gave man the power to rule over the fish (including white mussels)” !!!!!!!!!!!!!!!!!!!

I absolutely kid you not that such absolute rubbish is now part of actual government policy and is the most important policy objective in the mussel and oyster sector. Regardless of the unjustifiable religious connotations of such an objective, how does one end up up measuring compliance with such an objective? Will it be a permit condition that right holders will have to go to Church and glorify and praise “the one” and failure to attend Church will result in a section 28 Notice?! Eish, the agnosts and atheists are screwed.

(Lift jaw; read on.)

For DAFF, time has remained stuck in 2004. As far as DAFF is concerned, nothing has changed in the world of fisheries since 2004 when the current fishing policies were conceptualised and the objectives and criteria put to paper. Could Marty and Doc from the “Back to the Future” movie franchise please come and save us from this nightmare! 
The draft sector policies do admittedly have their own little tweaks which are apparent from the sudden bad formatting and non-sequential numbering and the uncomfortably worded additions to the 2005 policy objectives which just make no sense in the scheme of the draft sector policies. 
Then there are the numerous cringeworthy contradictions that litter the draft policies such as policy statements that exclude certain applicants from applying on one page and permitting them to apply on the very next page! These contradictory policy statements are an indication of a department and top-management at sixes and sevens. It is blatantly apparent that these documents have not undergone the slightest proof-reading or thought (unless our esteemed colleagues at DAFF do not know that an “individual” is also a “natural  person”). Also, someone may want to tell the clever people at DAFF to stop referring to laws that have been repealed since the adoption of the current fishing policies. For example, dont refer to the 1973 Companies Act. There’s been a “new” Companies Act in place since 2008! 
The draft policies also seek to reduce the duration of the fishing rights in the eight sectors to 7 years (from the current 8 year period). There is no logical reason for this especially given the fact that black ownership and black empowerment across these fisheries has increased; the economics in each fishery has worsened over the past 8 years given global economic conditions; effort allocations have remained steady or have increased (such as the TAC in the hake handline fishery) over the past 8 years; and there is a legitimate legal expectation that rights would be allocated for the same or longer periods. Given these factors, the only logical and reasonable expectation would be an INCREASE in the duration of the fishing rights and not a decrease. Again, DAFF’s proposal for 7 year long rights appears completely arbitrary and contradicted by the very criteria it says has informed the proposed determination of 7-year-long fishing rights. This is another reviewable aspect of the draft policies if finalised. 
The department’s continued insistence of opening up the application process to all and sundry, including co-operatives (which is presently illegal), natural persons and trusts in sectors such as the highly capital intensive prawn trawl fishery and, on the other hand, legal entities in marginal artisinal only fishery sectors such as mussels and oysters WITHOUT also amending the entire schema of the draft general fisheries policy and each of the 8 draft sector policies (because of the cut-and-paste job of course) has created a confused and contradictory rights allocation process scheme. For, example the entire 2005 and current Fishing Policy schema is based on a very tidy and clear management system, which provides that – 
  • each of the 22 fisheries are divided up into four management clusters based on socio-economic and biological reasons. The Cluster A and B fisheries (offshore) are reserved for commercial operators where fishing rights are held by companies and close corporations only. Trusts are not permitted to hold fishing rights because of the ability of these structures to front and abuse “beneficiaries”. Trusts are the perfect vehicle for example to hide politically-linked beneficiaries and persons who do not wish to be identified. Trusts cannot be permitted to hold fishing rights.  
  • Cluster C comprises high value nearshore fisheries where rights are allocated to individuals only (except the hake handline fishery due its own historical peculiarities). Cluster C right holders may not be involved in any way in any commercial fishery in Cluster A or B and vice-versa in order to protect the artisinal fisheries from commercial abuse and access. 
  • Cluster D comprises low value and economically marginal fisheries such as the oyster, mussel and treknet fisheries. As with Cluster C, rights are only allocated to individuals and the same rules apply as far as cross sector involvement is concerned. 
  • The traditional line fishery is managed outside of the above cluster system because of its inherent unique features of being a fishery that straddles both Cluster B and C. The original line fishery prior to December 2000 comprised tuna line (Cluster B) and hake handline (Cluster C) and thus has attributes that qualify it for special management. In addition, it is the only fishery managed in terms of section 16 of the Marine Living Resources Act as a fishery in need of emergency recovery measures. 

The ill-considered draft fishery policy proposals that now seek to allow any type of person (companies, close corporations, co-operatives, trusts and individuals) to apply for any fishery sector will completely disrupt this management structure which is perpetuated by the draft general fisheries policy. It will cause management anarchy and will subvert the stated intentions of protecting and growing the small-scale fisheries as it will allow commercial companies and close corporations and their shareholders, directors and members to apply for and hold fishing rights in artisinal fisheries or hide these interests in blind trusts, for example. Again, so much for all the empty rhetoric of the small-scale fisheries policy and many of the small-scale fishery developmental objectives that litter the draft general policy and the sector policies. 
On the whole, the draft policy statements, criteria and objectives (other than those that require we praise and glorify the one who gave us power over the fishes!) – 
  • are largely outdated (they were applicable in 2004/2005 but not 8 years later) and irrelevant in 2013 considering the substantial changes in the fisheries economies of a number of sectors (such as the handline hake, tuna and shark fisheries);
  • fail to take into consideration important changes in the economic and social structure of fisheries and as such  continue to perpetuate policy proposal pertaining to vessels, for example, that are no longer applicable; 
  • make provision for fishing right duration periods that are arbitrarily determined and not supported by the draft policies’ own duration determination criteria. These proposed 7 year periods should be reconsidered and extended; 
  • are contradictory, ambiguous and lack important detail about the rights application and administration processes; and
  • are incoherent and do not create a understandable and logical fisheries management framework. In particular, we refer to the lack of clarity regarding the types of applicants that may and not apply for rights in sectors understood to form part of the various management clusters. 

We reiterate that the consultative notice and comment process embarked upon by the Minister and her department to date is unquestionably unlawful as it is arbitrary, exclusionary and inadequate. In addition, the substantive texts of the draft sector policies are equally unlawful. These draft texts require substantial revision and updating. In order for this to be done, one requires a comprehensive and extensive series of consultation processes with current and potential operators in each sector to determine and understand, inter alia, the precise extent to which current policy objectives have been met or have not been met and the reasons for this; the appropriateness of vessel size limitations; vessel use in multiple sectors; black ownership and black economic empowerment levels; the economics of each fishery and particularly issues affecting trade and market access and so on. 
To even attempt to allocate fishing rights in terms of policies, rules and principles that were applicable in 2004/2005 in 2013 is not only impractical, it is legally irrational, prejudicial and unlawful. We urge DAFF to urgently seek some half decent legal advice on the appropriateness of proceeding. 

DAFF’s Line Fish Policy: 2013

DAFF’s Line Fish Policy: 2013

The department’s draft traditional line fish policy (2013) – which remains an ungazetted discussion document – is yet another cut-and-paste of the current 2005 Traditional Line Fish Policy.
The draft policy is simply a regurgitation of the current Policy with a number of arbitrary additional objectives that are unrelated to the current Policy objectives and whether any of these have been met or to what extent the current policy objectives have been surpassed or not achieved. For example, one policy objective states that it is the intention of the department to “lay the foundations for the management of this fishery on a regional basis”. Wake Up, DAFF! The foundations for regional fisheries management were laid back in 2005 when this policy objective was first mooted! They are laid; has it worked and what now in 2013? In clause 9.1, the draft policy confirms that South Africa remains committed to implementing an ecosystems approach to fisheries management by … 2010! So, can we assume that by this failure to correct the cut-and-paste from the current Policy, we have FAILED to implement EAF in the fishery as undertaken back in 2005?
Another policy objective case-in-point concerns transformation or the “promotion of black traditional line fishers”. The most recent (outdated) performance review findings showed that 42% of traditional line fishers as at 2009 were black. How does this compare with transformation levels in 2001, 2003 and 2004 – the previous occasions data was collated on transformation levels in the line fishery? In 2004, black right holders accounted for 35% of traditional line fish operators. What accounted for the 7% increase in black right holders between 2004 and 2009? And how does DAFF intend “promoting” black line fishers and to what levels?
The draft policy is frankly a poor and ill-considered regurgitation of the current 2005 Policy. For example, the draft policy states that the crew lists will be compiled from the last quarter of 2005! On the subject matter of “crew lists”, the department has not still not published the 2005 and subsequent crew lists for any of the fisheries such as tuna pole and squid. Where are the crew lists DAFF?
A further example of the ill-considered regurgitation is the continued definition of what are suitable and maximum length vessels for the fishery. Once again, DAFF has confirmed that it is so completely out of touch with the realities of the fishery that it continues to define a suitable vessel in terms of criteria that were relevant back in 2005.
The draft policy again confirms that rights will be allocated to, inter alia, co-operatives despite the fact that the law does not permit this. However, it importantly recognises that individuals will continue to be able to hold fishing rights as recognised by the Marine Living Resources Act.

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DAFF’s Line Fish Policy: 2013

The department’s draft traditional line fish policy (2013) – which remains an ungazetted discussion document – is yet another cut-and-paste of the current 2005 Traditional Line Fish Policy. 
The draft policy is simply a regurgitation of the current Policy with a number of arbitrary additional objectives that are unrelated to the current Policy objectives and whether any of these have been met or to what extent the current policy objectives have been surpassed or not achieved. For example, one policy objective states that it is the intention of the department to “lay the foundations for the management of this fishery on a regional basis”. Wake Up, DAFF! The foundations for regional fisheries management were laid back in 2005 when this policy objective was first mooted! They are laid; has it worked and what now in 2013? In clause 9.1, the draft policy confirms that South Africa remains committed to implementing an ecosystems approach to fisheries management by … 2010! So, can we assume that by this failure to correct the cut-and-paste from the current Policy, we have FAILED to implement EAF in the fishery as undertaken back in 2005? 
Another policy objective case-in-point concerns transformation or the “promotion of black traditional line fishers”. The most recent (outdated) performance review findings showed that 42% of traditional line fishers as at 2009 were black. How does this compare with transformation levels in 2001, 2003 and 2004 – the previous occasions data was collated on transformation levels in the line fishery? In 2004, black right holders accounted for 35% of traditional line fish operators. What accounted for the 7% increase in black right holders between 2004 and 2009? And how does DAFF intend “promoting” black line fishers and to what levels? 
The draft policy is frankly a poor and ill-considered regurgitation of the current 2005 Policy. For example, the draft policy states that the crew lists will be compiled from the last quarter of 2005! On the subject matter of “crew lists”, the department has not still not published the 2005 and subsequent crew lists for any of the fisheries such as tuna pole and squid. Where are the crew lists DAFF? 
A further example of the ill-considered regurgitation is the continued definition of what are suitable and maximum length vessels for the fishery. Once again, DAFF has confirmed that it is so completely out of touch with the realities of the fishery that it continues to define a suitable vessel in terms of criteria that were relevant back in 2005. 
The draft policy again confirms that rights will be allocated to, inter alia, co-operatives despite the fact that the law does not permit this. However, it importantly recognises that individuals will continue to be able to hold fishing rights as recognised by the Marine Living Resources Act. 

DAFF’s Line Fish Policy: 2013

Feike submitted the following commentary on the draft General Fisheries Policy, 2013.


Despite the expiry of the comment period on the draft General Policy (10 May 2013), the Fisheries Minister has not gazetted a single sector specific fishing policy. Any comment on the draft General Fishing Policy is simply impossible without sight of these sector specific policies. Indeed the entire schema of the draft General Fisheries Policy is premised on the peremptory instruction by the Minister that the General Fisheries Policy must be read together with the applicable fishery specific sector policy.  

The Cover Page of the draft General Policy states that –   

“THIS POLICY MUST BE READ WITH THE APPLICABLE FISHERY SPECIFIC POLICY (available at www.daff.gov.za)” 

Similarly, PART A, Clause 1.1 instructs all readers of the draft General Fishing Policy 2013 that the policy must be read in conjunction with the fishery specific sector policies.  

Not only are the fishery specific policies not presently gazetted; they are not publicly available either at the promised website or at any of DAFF’s offices in Cape Town or along the coast. Accordingly, any meaningful comment on the draft General Fishing Policy is impossible. This notwithstanding, –  

1. The draft policy is by and large irrelevant as it is a cut-and-paste of the 2005 General Fisheries Policy. Policy statements and objectives that were valid in 2005 cannot be and are not valid and applicable 8 years later in 2013. A substantially revised general fisheries policy is required for the present rights allocation process.  

2. The draft policy fails to address important management issues such as how outstanding section 28 and section 21 transfer of fishing right applications will be dealt with. 

3. The draft policy does not address important developments in global fisheries management such as port state control measures and how these developments will influence fisheries management and right holder conduct. 

4. The draft policy stipulates that fishing rights will be allocated to co-operatives in small scale fishery sectors but South African law does not permit the allocation of fishing rights to co-operatives and communities.  

5. The draft policy fails to recognise that fishing rights may be allocated to individuals, despite the fact that the MLRA makes explicit provision for this.  

6. The draft policy, read with the Small Scale Fisheries Policy, continues to fail to define which fisheries comprise “small-scale fisheries”. The confusion regarding what are “small-scale fisheries” is exacerbated by clause 2.1(a) which stipulates that the draft fisheries policy applies to, inter alia, a list of fisheries presently defined by law as being small-scale commercial or artisinal fisheries (ie those fisheries defined to be part of the Cluster B and C sectors) “…and the small-scale fishery sector”. What is the “small-scale fishery sector” and which fisheries comprise this elusive and undefined sector if not the Cluster C and D fishery sectors? 

7. The draft policy has failed to take into consideration important dicta in a number of judicial decisions over the past 8 years and aspects of the draft policy are therefore patently unlawful. 

8. The purpose of the reference in clause 4 to “Key Government Policies” is unclear as none of the identified government policies appear to have influenced any aspect of the draft General Policy. This observation is especially apparent given the fact that none of these “Key Government Policies” existed back in 2005, yet the current draft is identical to the 2005 General Fisheries Policy. In addition, the inexplicable bias toward to small-scale fisheries is contradictory to the National Development Plan. 

The DAFF Consultation Circus: Part 2

It has to be a particular combination of utter arrogance and stupidity to commence the second phase of the fishing rights consultation process once again without having notified interested and affected persons of the process or even having gazetted the sector specific policies or application forms. 

The draft application forms and sector policies are nowhere to be found – not on the DAFF website, not at fishery control offices or at DAFF’s Customer Services Centre in Cape Town. 
And to compound the illegality of the process, DAFF issued informal emails to certain right holders only the day after the consultation process started in Stillbaai on 8 May – the Stillbaai consultation was on the hake handline fishery only and we understand from those who were able to attend that the draft sector hake handline policy is … you guessed it … a another copy-and-paste job of the 2005 hake handline fishery policy! 
And what is the point of the consultation process when the draft policies which are supposed to be the subject of the consultation are not made available BEFORE the meeting? DAFF obviously is of the opinion that people must simply attend, listen to what they say and then collect the food parcels they have on offer (or least had on offer during the general policy consultation process – as if food must placate the bloody fisherman as opposed to answers about this process). That is simply not a legally valid consultation process.
This second phase of the consultation process will not withstand legal scrutiny for the following further reasons:
1. The comment period which ends on 31 May 2013 is too short. Some parties will have 22 days and others will have 13 days to comment on the sector policies. Given the complexity and importance of these processes, such short consultation and comment periods are contrary to the provisions of proper and fair administrative justice under the Promotion of Administrative Justice Act; and
2. None of the sector policies have been gazetted or made available for public consumption BEFORE the commencement of the consultation process. For proper and adequate consultation to be realised, these documents ought to have been gazetted in at least two of the country’s official languages prior to the commencement of the consultation process. This would allow interested and affected parties to study each draft policy, seek legal or professional counsel on them, attend the consultation meetings and then be able to adequately and properly interrogate the draft texts. That is administratively fair consultation as determined by our courts. 
3. The extremely selective nature of the consultation process is highly prejudicial and unfair. For example, DAFF indicates that it will only consult with right holders and interested parties in Cape Town on the tuna pole sector policy. This would exclude all right holders and potential applicants in areas such as Eastern Cape, the Overberg and West Coast? Do these persons simply not matter? And what about the hundreds of line fish right holders and potential applicants that will be excluded because the DAFF will not be consulting any traditonal line fisherman on the west coast? So much for all the rhetoric about empowering the poor and those outside of Cape Town. By way of comparison, in 2005, 48 coastal venues were visited and communities consulted AFTER the draft general fisheries policy, each of the sector policies and application forms were gazetted in 4 languages and physically made available to communities via the fishery control officers and partner offices such as conservancy groups, NGO’s and provincial authorities such as Ezemvelo KZN Wildlife. 
4. Finally, the second phase of the consultation process appears to have forgotten about a rights allocation and consultation process for the shark demersal fishery! Has DAFF forgotten about this fishery and its right holders?
Like the first phase of the consultation process on the general fisheries policy, this process can only be described as farcical and chaotic. The consultation process is wholly unlawful and prejudicial to the rights and interests of quota holders and members of coastal fishing villages and towns. The time is approaching to halt this illegality and madness by way of an interdict.

Stevens Appointed as Acting DDG

Desmond Stevens, who was acting Chief Director of Fisheries Resource Management, has now been appointed as the acting DDG of Fisheries despite the fact that he lacks any post matric (Grade 12) qualification and fisheries experience. 
The advertised minimum requirements for the post of DDG requires extensive fisheries knowledge and experience and a post graduate university degree. He has neither but is a member of the ANC’s Military Veterans Wing and we reckon that one does need much more than this to qualify for senior appointment in government these days. 

Stevens Appointed as Acting DDG

Its the beginning of May and DAFF has no DDG, no Chief Director of Fisheries Management and a staff component petrified to doing anything lest they be suspended and accused of crimes against humanity by a woeful and unsupportive Minister.

The only sign that it is preparing for a rights allocation process this year which could attract more than 10 000 applications based on the “fish for all” populist rhetoric that the Minister and her officials have been spewing for some time now is an embarrassing replica cut-and-paste job of the 2005 General Fisheries Policy and a very draft 48-clause Marine Living Resources Act amendment bill. 
We still dont have a single fishery sector policy; no draft application forms; no idea as to what the application fees will be and based on the slap-dash and ad-hoc consultative process, absolutely no idea as to how this process will unfold. 
The draft Bill is apparently only 1 of 34 draft Bills that DAFF wants to put before the fisheries portfolio  committee this year! And there are less than 5 months of committee time left this year before Parliament will rise and remember next year is an election year so the chances of passing the MLRA amendment bill is entirely unlikely. More so, given the fact that the proposed extensive amendments to the MLRA cannot, in our view, be effected by the Minister of Fisheries alone as we have previously pointed
If DAFF considers past experience, it will find that in March 2005
Do you own a marine aquarium? Well then, beware! DAFF’s fishery control officers are expected to burst through your front door with SAPS and border police and arrest you, seize your fish tank and confiscate your fish!
Think we are joking. This is exactly what happened to a local Cape Town homeowner with a marine aquarium tank – and no he was not secretly farming abalone and running a Chinese brothel. He is your average neighbourhood marine aquarium tank owner.
Not only did DAFF burst into his home with more officers than they have available to check your average Taiwanese trawler with a thousand shark fins, they want to charge this poor fish tank owner with not having a fish farming right under section 18 of the MLRA and not having a marine aquarium permit under the 1998 Fisheries Regulations! Yes, they want him to have a fish farming right under section 18 of the MLRA! Stop you fish in your fish tank from having fish sex or face jail! 
WTF … exactly. Firstly, section 18 applies to mariculture only which is defined as the farming of fish using sea water and is inherently meant to apply to commercial enterprises. Secondly, is DAFF going to arrest every home owner and restauranteur with a marine fish tank? Will the owners of the various Ocean Baskets, Cape Town Fish Markets, the Arniston Hotel and others be arrested for not having a permit to keep marine aquarium fish? And what about pet-shop owners? How many pet-shop owners will be arrested this month for not having a marine aquarium permit? 
To say DAFF’s conduct on this score is stupid is an understatement. My advice to your local neighbourhood marine tank owner is to instead start poaching shark fin, lobster and abalone. Your chances of arrest will be greatly diminished.
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