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In early August 2019, this Blog addressed the most recent set of Ministerial fishing rights appeal decisions set aside by a court of law. This was the fourth time a court of law reviewed and set aside appeal decisions in the hake inshore trawl fishery sector. 

The Western Cape High Court unambiguously ruled in early August 2019 that - 

1. The Minister's appeal decision of 10 July 2017 for the Hake Inshore Trawl Sector stands and is of full force and effect insofar as it establishes that Category A right-holders will share 70% and Category B and C right-holders will share 30% of the total allowable catch for the Hake Inshore Trawl fishery;

2. The First Respondent's appeal decision of 7 December 2018 is reviewed and set aside in its entirety; and the Category B and C appeals are remitted to the First Respondent for her to reconsider allocating 30% of the total allowable catch in the Hake Inshore Trawl fishery to these new entrants.

The Minister has yet to even commence with the reconsideration of the Category B and Category C appeals. In addition, the permits allocated to Category B and Category C "right holders" whose rights have effectively been revoked by the Seavuna court order of August 2019 have not been recalled by the Minister.

At the very minimum, a responsible fisheries department would have issued a STOP FISHING notice  notifying the applicable "right holders" of the revocation of their hake inshore trawl fishing rights by operation of the August 2019 court order. The Minister and department's ongoing silence on such a crucial matter only feeds the rumour mill, fails proper fisheries management and is resulting in entities to fish unlawfully and in contravention of a court order. 



In early August 2019, this Blog addressed the most recent set of Ministerial fishing rights appeal decisions set aside by a court of law. This was the fourth time a court of law reviewed and set aside appeal decisions in the hake inshore trawl fishery sector. 

The Western Cape High Court unambiguously ruled in early August 2019 that - 

1. The Minister's appeal decision of 10 July 2017 for the Hake Inshore Trawl Sector stands and is of full force and effect insofar as it establishes that Category A right-holders will share 70% and Category B and C right-holders will share 30% of the total allowable catch for the Hake Inshore Trawl fishery;

2. The First Respondent's appeal decision of 7 December 2018 is reviewed and set aside in its entirety; and the Category B and C appeals are remitted to the First Respondent for her to reconsider allocating 30% of the total allowable catch in the Hake Inshore Trawl fishery to these new entrants.

The Minister has yet to even commence with the reconsideration of the Category B and Category C appeals. In addition, the permits allocated to Category B and Category C "right holders" whose rights have effectively been revoked by the Seavuna court order of August 2019 have not been recalled by the Minister.

At the very minimum, a responsible fisheries department would have issued a STOP FISHING notice  notifying the applicable "right holders" of the revocation of their hake inshore trawl fishing rights by operation of the August 2019 court order. The Minister and department's ongoing silence on such a crucial matter only feeds the rumour mill, fails proper fisheries management and is resulting in entities to fish unlawfully and in contravention of a court order. 



In the same week that Cabinet had decided to unlawfully "extend" the validity period of commercial fishing by at least 12 months, the Minister of Environment, Forestry and Fisheries, Ms Barbara Creecy, affirmed her continued support for the ongoing allocation of fishing rights to fishing co-operatives that have to date all failed. 

Feike has written extensively about the extent and history of fishing co-operative failures in South Africa; how they have contributed to and fuelled community conflict, resource destruction (what more evidence than the complete collapse of lobster is required); and how they fail to contribute to any form of coastal social or economic growth. Poverty, conflict and unemployment in all coastal villages that have been historically associated with high value nearshore fisheries have increased in the last decade. Poaching has increased massively and we have seen the collapse of abalone and lobster resources over the same period. 

Every fishing co-operative pilot project has failed. EVERYONE. And now the allocation of co-operative fishing rights in the Northern Cape has again confirmed why co-operatives should never be allocated fishing rights. 

But we are so irrationally and ideologically tied to this system, that (like with the NHI, land reform, and every other policy adopted by this government in recent times), evidence-based decision-making is no longer an option or even a consideration. So we will forge ahead and force entire communities into sanctioned conflict, beholden to a co-operative run by hand-picked cadres who sell the "community" lobster to buyers prepared to hand out the highest back-handers to the "decision-makers". The "community" is left to suck on the idiomatic hind-tit.

Essentially, the very creation of "lists" of members to be a part of these "community co-operatives" involves a corrupt and highly contested series of processes, similar to what we see with the infamous municipal "housing lists" or land redistribution processes.  

We should abandon this failed socialist policy of allocating fishing rights to "co-operatives" and undefinable "communities" as if individuals exercising their individual liberties and rights in a market economy cannot decide for themselves how best to sustainably utilise a public resource through a verifiable and accountable regulatory process. (I am sure that in another 5 years' time we will be told how due to "unforeseen circumstances" and "various challenges", every one of these co-operatives has collapsed and unable to account for the millions of rands in fish harvested and sold.)



In the same week that Cabinet had decided to unlawfully "extend" the validity period of commercial fishing by at least 12 months, the Minister of Environment, Forestry and Fisheries, Ms Barbara Creecy, affirmed her continued support for the ongoing allocation of fishing rights to fishing co-operatives that have to date all failed. 

Feike has written extensively about the extent and history of fishing co-operative failures in South Africa; how they have contributed to and fuelled community conflict, resource destruction (what more evidence than the complete collapse of lobster is required); and how they fail to contribute to any form of coastal social or economic growth. Poverty, conflict and unemployment in all coastal villages that have been historically associated with high value nearshore fisheries have increased in the last decade. Poaching has increased massively and we have seen the collapse of abalone and lobster resources over the same period. 

Every fishing co-operative pilot project has failed. EVERYONE. And now the allocation of co-operative fishing rights in the Northern Cape has again confirmed why co-operatives should never be allocated fishing rights. 

But we are so irrationally and ideologically tied to this system, that (like with the NHI, land reform, and every other policy adopted by this government in recent times), evidence-based decision-making is no longer an option or even a consideration. So we will forge ahead and force entire communities into sanctioned conflict, beholden to a co-operative run by hand-picked cadres who sell the "community" lobster to buyers prepared to hand out the highest back-handers to the "decision-makers". The "community" is left to suck on the idiomatic hind-tit.

Essentially, the very creation of "lists" of members to be a part of these "community co-operatives" involves a corrupt and highly contested series of processes, similar to what we see with the infamous municipal "housing lists" or land redistribution processes.  

We should abandon this failed socialist policy of allocating fishing rights to "co-operatives" and undefinable "communities" as if individuals exercising their individual liberties and rights in a market economy cannot decide for themselves how best to sustainably utilise a public resource through a verifiable and accountable regulatory process. (I am sure that in another 5 years' time we will be told how due to "unforeseen circumstances" and "various challenges", every one of these co-operatives has collapsed and unable to account for the millions of rands in fish harvested and sold.)



On 8 December 2019, the Minister of Environment, Forestry and Fisheries announced that "Cabinet took a decision on Wednesday, 4 September 2019, to extend the timeframes for dealing with the fishing rights in twelve commercial fishing sectors which will expire on 31 December 2020."

The statement further recorded that:

"The twelve sectors that are due for allocation in terms of Section 18 of the Marine Living Resources Act, 1998 are: KZN Prawn Trawl; Demersal Shark; Tune-Pole Line; Hake Handline; Line Fish; White Mussels; Oysters; Squid; Small Pelagics (Pilchard and Anchovy); Hake Deepsea Trawl; Hake Longline; and South Coast Rock Lobster.

...

The FRAP process will therefore be extended until 31 December 2021.  During this time, the Department of Environment, Forestry and Fisheries (DEFF) will conduct socio-economic impact analysis studies on the General Policy on the Allocation of Commercial Fishing Rights, as well as the 12 Sector-specific polices."
We have stated on this BLOG and on our Twitter handle previously that a Minister (or Cabinet for that matter) cannot decide to extend the validity period of any fishing right. That authority is firmly vested with Parliament. The Minister should propose an amendment bill to Parliament (Akin to what was presented by Minister MV Moosa in 2000, which resulted in the adoption of the MLRA Amendment Act of 2000). It is Parliament - and Parliament alone - that can "authorise" a fishing rights extension to 31 December 2021.

Cabinet's "decision" to extend the validity period (And thus the validity of individual fishing rights across 12 commercial fishery sectors) is thus unlawful and invalid and capable of legal review.

Further, this decision is yet another indictment of the extent of the institutional failure that has come to define this government. Government has had 15 years to prepare for this rights allocation process. 15 YEARS. 180 MONTHS. 5475 DAYS. And yet again, it is unprepared. Yet again, we are told of the same government having to fix corrupt processes of its own making. And yet again, it promises to implement credible and corrupt-free processes despite continuing to fail to purge the staff implicated in corruption and maladministration since FRAP 2013.
On 8 December 2019, the Minister of Environment, Forestry and Fisheries announced that "Cabinet took a decision on Wednesday, 4 September 2019, to extend the timeframes for dealing with the fishing rights in twelve commercial fishing sectors which will expire on 31 December 2020."

The statement further recorded that:

"The twelve sectors that are due for allocation in terms of Section 18 of the Marine Living Resources Act, 1998 are: KZN Prawn Trawl; Demersal Shark; Tune-Pole Line; Hake Handline; Line Fish; White Mussels; Oysters; Squid; Small Pelagics (Pilchard and Anchovy); Hake Deepsea Trawl; Hake Longline; and South Coast Rock Lobster.

...

The FRAP process will therefore be extended until 31 December 2021.  During this time, the Department of Environment, Forestry and Fisheries (DEFF) will conduct socio-economic impact analysis studies on the General Policy on the Allocation of Commercial Fishing Rights, as well as the 12 Sector-specific polices."
We have stated on this BLOG and on our Twitter handle previously that a Minister (or Cabinet for that matter) cannot decide to extend the validity period of any fishing right. That authority is firmly vested with Parliament. The Minister should propose an amendment bill to Parliament (Akin to what was presented by Minister MV Moosa in 2000, which resulted in the adoption of the MLRA Amendment Act of 2000). It is Parliament - and Parliament alone - that can "authorise" a fishing rights extension to 31 December 2021.

Cabinet's "decision" to extend the validity period (And thus the validity of individual fishing rights across 12 commercial fishery sectors) is thus unlawful and invalid and capable of legal review.

Further, this decision is yet another indictment of the extent of the institutional failure that has come to define this government. Government has had 15 years to prepare for this rights allocation process. 15 YEARS. 180 MONTHS. 5475 DAYS. And yet again, it is unprepared. Yet again, we are told of the same government having to fix corrupt processes of its own making. And yet again, it promises to implement credible and corrupt-free processes despite continuing to fail to purge the staff implicated in corruption and maladministration since FRAP 2013.
Subsequent to Minister Zokwana's legally flawed appeal decisions of December 2018 in the hake inshore trawl fishery, two review applications were brought by right holders in the Category A & Category B sectors (Case number 3330/19) ("the Seavuna matter") and one by Letap Fishing CC (Case number 400/2019). 

The Seavuna matter was finally conceded by Minister Barbara Creecy in early August 2019. Given the concession by the Minister in the Seavuna matter, she will undoubtedly have to concede the review application by Letap Fishing CC as well.

The terms of the order in the Seavuna matter are brief and simple and as follows:

1. The Minister's appeal decision of 10 July 2017 for the Hake Inshore Trawl Sector stands and is of full force and effect insofar as it establishes that Category A right-holders will share 70% and Category B and C right-holders will share 30% of the total allowable catch for the Hake Inshore Trawl fishery;

2. The First Respondent's appeal decision of 7 December 2018 is reviewed and set aside in its entirety; and the Category B and C appeals are remitted to the First Respondent for her to reconsider allocating 30% of the total allowable catch in the Hake Inshore Trawl fishery to these new entrants.

3. There is no order as to costs.

The effect of this concession is rather significant for those new entrants who were granted section 18 hake inshore trawl fishing rights in December 2018. It effectively means that they have now lost their fishing rights. They must halt all fishing and their section 13 hake inshore trawl fishing permits are a nullity. Any fishing on these permits post the date of the court order would be unlawful. 

The appeals filed by Category B and Category C appellants must be reconsidered in their entirety and the Minister can only consider an allocation of no more than 30% of the hake inshore trawl TAC to these two category of right holders. 

All Category B and C right holders are entitled to harvest hake inshore trawl and sole quotas as determined post the 10 July 2017 appeals process, pending finalisation of yet another failed attempt at resolving the hake inshore trawl appeals process. 

(It is hoped that the Minister does appoint a legal team capable of providing legally defendable decisions as opposed to continually retaining expensive "legal" counsel that provides such fundamentally flawed legal advice. It is actually unforgivable for senior lawyers to provide such legally flawed advice to Ministers).


Subsequent to Minister Zokwana's legally flawed appeal decisions of December 2018 in the hake inshore trawl fishery, two review applications were brought by right holders in the Category A & Category B sectors (Case number 3330/19) ("the Seavuna matter") and one by Letap Fishing CC (Case number 400/2019). 

The Seavuna matter was finally conceded by Minister Barbara Creecy in early August 2019. Given the concession by the Minister in the Seavuna matter, she will undoubtedly have to concede the review application by Letap Fishing CC as well.

The terms of the order in the Seavuna matter are brief and simple and as follows:

1. The Minister's appeal decision of 10 July 2017 for the Hake Inshore Trawl Sector stands and is of full force and effect insofar as it establishes that Category A right-holders will share 70% and Category B and C right-holders will share 30% of the total allowable catch for the Hake Inshore Trawl fishery;

2. The First Respondent's appeal decision of 7 December 2018 is reviewed and set aside in its entirety; and the Category B and C appeals are remitted to the First Respondent for her to reconsider allocating 30% of the total allowable catch in the Hake Inshore Trawl fishery to these new entrants.

3. There is no order as to costs.

The effect of this concession is rather significant for those new entrants who were granted section 18 hake inshore trawl fishing rights in December 2018. It effectively means that they have now lost their fishing rights. They must halt all fishing and their section 13 hake inshore trawl fishing permits are a nullity. Any fishing on these permits post the date of the court order would be unlawful. 

The appeals filed by Category B and Category C appellants must be reconsidered in their entirety and the Minister can only consider an allocation of no more than 30% of the hake inshore trawl TAC to these two category of right holders. 

All Category B and C right holders are entitled to harvest hake inshore trawl and sole quotas as determined post the 10 July 2017 appeals process, pending finalisation of yet another failed attempt at resolving the hake inshore trawl appeals process. 

(It is hoped that the Minister does appoint a legal team capable of providing legally defendable decisions as opposed to continually retaining expensive "legal" counsel that provides such fundamentally flawed legal advice. It is actually unforgivable for senior lawyers to provide such legally flawed advice to Ministers).


The Department of Fisheries recently confirmed that despite its various promises over the past 2 years, the large pelagic fishery and particularly our Southern Bluefin tuna (SBT) catches, has confirmed how poor our fisheries management policies are and how they continue to deterring foreign and domestic investment in our fisheries economy. 

The Department has confirmed that 75% of the 2018 SBT has not been caught. A mere 15 of the more than 50 right holders are fishing. What happened to the thousands of jobs we were promised when the Commission for the Conservation of Southern Bluefin Tunas (CCSBT) announced South Africa's additional SBT quota? 

Our ongoing failure to attract the vessels and professional experts to harvest our large pelagic quotas is directly rooted in the fact that foreign vessel owners and investors have identified South Africa as being entirely unattractive and in fact a significant risk to investment. 

We need to urgently review how we manage this fishery; what measures are considered completely untenable to investors and South African right holders; we need to urgently halt the aggressive and confrontational fisheries compliance approach that has come to define the relationship between fishery control officers and vessel officers and crew. 

We need to realise that we need investors in this and other fisheries more than they need us. 


The Department of Fisheries recently confirmed that despite its various promises over the past 2 years, the large pelagic fishery and particularly our Southern Bluefin tuna (SBT) catches, has confirmed how poor our fisheries management policies are and how they continue to deterring foreign and domestic investment in our fisheries economy. 

The Department has confirmed that 75% of the 2018 SBT has not been caught. A mere 15 of the more than 50 right holders are fishing. What happened to the thousands of jobs we were promised when the Commission for the Conservation of Southern Bluefin Tunas (CCSBT) announced South Africa's additional SBT quota? 

Our ongoing failure to attract the vessels and professional experts to harvest our large pelagic quotas is directly rooted in the fact that foreign vessel owners and investors have identified South Africa as being entirely unattractive and in fact a significant risk to investment. 

We need to urgently review how we manage this fishery; what measures are considered completely untenable to investors and South African right holders; we need to urgently halt the aggressive and confrontational fisheries compliance approach that has come to define the relationship between fishery control officers and vessel officers and crew. 

We need to realise that we need investors in this and other fisheries more than they need us. 


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