2011 YEAR END REVIEW


Another year is almost past and before moving on we at Dawsons thought it appropriate to give a brief review of what 2011 brought to us and what 2012 may have in store.

In this entry:

1. Marine Resources

2. Admiralty Jurisdiction and Shipping

3. Commercial

4. Conclusion

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1.         Marine Resources

  • Small Scale Fisheries Policy:

As a result of an Equality Court Judgment which prescribed that interim relief should be granted to certain small scale fishers, and that a small scale policy should make provision for such fishers in the future, the Department of Agriculture Forestry and Fisheries (DAFF) commenced with the drafting and work shopping of a smalls scale fisheries policy. Much of the work shopping has occurred at Nedlac level.

The main issues appear to be the extent of application of the policy, what will constitute communities in terms of the policy, which fisheries will be affected and how will the policy affect the existing commercial fisheries including the limited commercial rights holders.

It is expected that once finalized the small scale policy will affect the new general policy and sector specific policies which will have to be published prior to future commercial fishing rights allocations.

  • Performance Reviews

The Performance Review process has not been finalized in that the results of the performance reviews in the main commercial clusters have not been released to rights holders. The reasons for the delay in the release of such results vary with some speculating that it is merely an administrative delay and others yet speculating that the results will not support any future policy changes from the Minister or the Department and hence are being relooked at.

In our view the results should have an effect on future policies and future rights allocation processes. In fact in the Performance Review process it was stipulated that the results would be utilised by the Department for future reference in rights allocation processes.

  • Future Rights Allocations

At the end of 2013 existing rights in a number of sectors are up for reallocation and accordingly a new general commercial fisheries policy and sector specific policies will have to be finalized prior to these allocations. As mentioned previously it is our view that the small scale policy will have an effect on the future general policy and sector policies.

  • Marine Living Resources Act / Amendments

It is also envisaged that with the finalization of the new small scale policy will also come amendments to the Marine Living Resources Act (MLRA) particularly relating to Section 14 and the Minister’s power to determine the allocation of the TAC / TAE to different sectors. However it is also envisaged that other amendments may occur e.g. relating to the Consultative Advisory Forum and other administrative processes under the Act.

In our view the CAF is an important legislative provision under the MLRA which is not being complied with by the Minister who has been in breach thereof for many years. This leads to the issue of co-management of the fisheries by the Department and industry. A new level of co-management should be achieved with organizations such as Fish SA (representing all the main sector associations) having an important role to play in advising the Minister. Preferably such consultation should happen through the utilization of the CAF provisions in the Act.

A recent example of excellent co-operation between the Department and industry was the amendment of the permit conditions in the hake sector, hopefully this will lead the way for the review of permit conditions in all of the other sectors.

  • Compliance

On the compliance side it would appear that this year there was a firm focus on fish processing establishments and ensuring that each establishment had a valid permit throughout the year. The Department extends this need for a permit to “fish and chips shops” and so it is important that fish retailers who process fish in any way have their permits in order.

  • Section 21 transfers of rights

After some pressure put on the Department through court proceedings, there seems to have been some progress on the determination of fishing rights transfers. There is still a backlog however. Of concern is that there appears to be no set order in which the applications are being dealt with. The result is that some applications lodged 3 years ago are undecided and applications lodged 3 months ago are decided. This is unfair administrative action in our view and certainly challengeable.

In 2012 it will be interesting to see what the Supreme Court of Appeal decides in respect of the Foodcor and Oceana sect 21 challenges. The State successfully defended these challenges in the Cape High Court.

 

2.         Admiralty Jurisdiction and Shipping:

 

  • Maritime Law Association of South Africa

Peter Edwards serves on the executive committee of the Maritime Law Association of South Africa and informs us that the MLASA annual conference was recently held in August 2011 in the Drakensburg. One of the main items on the agenda at the conference was the amendment of the Admiralty Jurisdiction Regulation Act (AJRA). After considerable work had been done at sub-committee level a final list of proposed amendments to the AJRA was agreed upon for submission to the Department of Justice. If passed these amendments should clear up certain ambiguities and uncertainties which are present in the AJRA and have given rise to issues in practice.

The MLASA Conference was again very well attended with both local and foreign delegates. The 2012 Conference is planned for St Helena Bay on the West Coast. More details will follow once booking arrangements have been finalized.

  • Marine Insurance

On the Marine Insurance side the Appeal Court judgment of the “Mieke” has again sparked interest in the drafting of a South African Marine Insurance Act which will stand apart from the current Short Term Insurance Act. Inter alia, a new Marine Insurance Act for South Africa will mean that we will not rely solely on the English Marine Insurance Act which is often incorporated into Marine Policies covering insured interests within South Africa.

  • Main Admiralty Judgments throughout 2011

MV “Cleopatra Dream”

The Supreme Court of Appeal dealt with the elements required for a salvage claim and in particular “voluntariness”.

MV “MSC Gina”

Dealt with the various elements required to be present in a security arrest application.

MT “Fairmount Fuji”

Dealt with the requirements in respect of security and counter security applications.

MV “Alina II”

Dealt with the issue as to whether there can be actions in personam and in rem in respect of the same cause of action.

MV “Explorer”

The Namibian Appeal Court dealt with the Old English Vice Admiralty Rules which are still applicable in Namibia and in particular relating to the admiralty claims of equipping a vessel or supplying necessaries to a vessel.

It is hoped that 2012 will be the year when Namibia promulgates its own Admiralty Jurisdiction legislation which is up to date with modern trends and conventions as the Old Vice Admiralty rules from the 1800’s are very outdated. Certainly with Walvis Bay becoming a very busy port for Namibia it would bode well for the country to have up to date admiralty / shipping legislation.

  • Port Regulator

The creation of the office of the Port Regulator in our view has thus far been successful in that objective decisions have been taken and importantly not all in favour of the port.

  • Sheriffs’ of Cape Town

We have been informed that in future there will be a number of Sheriffs for the district of Cape Town and from an admiralty point of view the Sheriff who has jurisdiction of the Port of Cape Town will be a different Sheriff from the Sheriff who will have jurisdiction over vessels which are at anchorage. As such arrest papers which have to be served on vessels at anchorage will have to be served by two different Sheriffs, one to serve on the vessel and one to serve on the Port Captain. It will be interesting to see which Sheriff will have to take responsibility for the preservation of the vessel particularly in circumstances where the vessel is originally arrested at anchorage and thereafter berths in the port.

 

3.         Commercial  

  • New Companies Act

The new Companies Act is currently in play and many seminars and conferences have been held regarding the implications of this Act. It is important for practitioners and those in business alike to familiarize themselves with the provisions of the new Act, and in particular to establish where the main changes are from the previous Act. Of importance for instance is the fact that within a two year period Memoranda of Incorporation must be filed for all companies. Our firm has developed a comprehensive presentation on the new Companies Act which will be offered to clients in the New Year.

  • Drafting of Agreements

Agreements which are drafted should take into account the provisions of the new Companies Act as well as the provisions of the Consumer Protection Act. In addition there is a substantive move towards the use of plain and clear language in agreements which is referred to in both the Consumer Protection Act and New Companies Act.

Having said this, it is also our view that going forward simple “one page” agreements are not the order of the day but rather more comprehensive agreements which are clear and deal with each aspect of the commercial relationship with specific provisions for issues such as breach of contract and dispute resolution to name but a few.

 

4.         Conclusion

In conclusion the professional and support staff at Dawson Edwards & Associates wishes its clients, colleagues and service providers a relaxing and enjoyable Christmas period and a successful 2012!

We trust you will find the content of this entry of interest and welcome any queries or comments.

Best regards

PETER EDWARDS

MANAGING DIRECTOR

DAWSON EDWARDS AND ASSOCIATES

www.dawsons.co.za

(Please note that our office closes from 22 December 2011 to 3 January 2012. For urgent matters please contact Alistair Downing on 082 648 7261)