AUGUST 2021 – FISHING INDUSTRY NEWS ARTICLE


MINISTER’S BOMBSHELL COURT APPLICATION TO SET ASIDE SMALL-SCALE FISHING RIGHTS ALLOCATIONS

On the 5th March 2021 under case number 4020/21 in the Western Cape High Court, the Minister of Forestry, Fisheries and the Environment applied to the High Court to have the allocations (effectively her own decisions) of small-scale fishing rights in the Western Cape set aside on review. A shocking development on a number of levels.

Firstly, since her Department was ordered in 2007 by the Equality Court to develop a small-scale policy to include small-scale fishers in the access to marine living resources which they traditionally fished, it took another 5 years to finalize a small-scale fishing policy in 2012, a further 2 years to amend the MLRA, a further 2 years to pass small-scale fishing regulations and then a further approximately 3 years to allocate small-scale fishing rights. On top of these delays is now this court application and the start of the process afresh.

Secondly, despite the large scale systemic flaws in the small-scale allocation process (as stated by the Minister in her founding affidavit in the Court application), the Minister only chose to set aside the Western Cape small-scale allocations – her answer may be that most of the complaints were received in the Western Cape area and hence she only contracted an independent audit to investigate the Western Cape process/allocation.

However, when one views in detail the submissions of the Minister, the findings of the internal audit report, and the fact that the same process, forms and criteria would have been applied by the same Department in all the provinces, there is a high probability that small-scale allocations in all the provinces have the same underlying flaws which would justify the setting aside of the small-scale allocations in all the provinces.

The conclusion of the report as found in the executive summary thereof states that:

“Based on our verification of the processes, listings and documents, we have concluded that the process followed in the assessment of the applications for recognition of small-scale fishers was wholly inadequate, and the results of these assessments cannot and should not be relied on for any decision making purposes in terms of the regulations.”

Therefore, once the internal audit report for the Western Cape had been received with such a conclusion, one is left wondering why the Minister did not immediately extend the mandate of the independent auditors to investigate all of the provinces.

There were 6 underlying systemic flaws referred to in the independent audit and in the submissions of the Minister in the court papers.

  • There were inconsistencies between the policy and regulations which led to confusion around the criteria applicable to small-scale fishing applications and the interpretation of these criteria.
  • The criteria used to assess applicants was not objective and clearly defined.
  • The small-scale fisher verification form was a key factor in the independent audits overall conclusion that the process was flawed and open to legal challenge in that the form was not aligned to clear objective criteria and as such applicants were therefore not fully aware of the criteria or the impact of their responses.
  • The assessment process was inconsistent and not fairly and transparently applied.
  • The appeals process was inconsistent and may be considered unfair.
  • The data records of the applications and appeals processes were grossly inaccurate and unreliable.

In conclusion, we have not as yet seen any explanation from the Minister as to why the investigation was limited to the Western Cape and in particular why it was not extended to all the other provinces taking into account the underlying systemic nature of these major flaws.



FISHING INDUSTRY NEWS ARTICLE – ITAC MAY 2021


ITAC PROHIBITION ON THE PURCHASE AND IMPORT OF SECONDHAND/USED FISHING VESSELS INTO SOUTH AFRICA

Section 6 (1) (b) of the Act reads as follows:

 “(6) 1 the Minister, may by  notice in the gazette, prescribe that no goods of a specified class or kind, or no goods other than goods of a specified class or kind, may be:

Over the last few years, it has become apparent that the International Trade Administration Commission (ITAC) is refusing to allow the import of used fishing vessels into South Africa.

ITAC is the state agency appointed under the International Trade Administration Act of 2002 (the Act) to process and decide on applications for import permits which are required for the import of used/secondhand goods into South African.

… (b) imported into the Republic expect under the authority of and in accordance with the conditions stated in a permit issued by the commission;…”

Furthermore, sections 26 1 (1) (a) of the Act reads as follows:

            “26 (1) – A person may in the prescribed manner and form apply to the commission for…

(a)an import or export control permit, ….in terms of part B of this chapter and the regulations;.”

Then, Section 27 (1) (a) and (b) of the Act reads as follows:

“27 (1) (a) – The commission must, after evaluating an application made in terms of section 26 (1) (a) or (b):

            (I) Refuse the application;

            (II) Approve the application in whole or in part and with or without conditions.”

Furthermore, regulations published on 10 February 2012 in terms of section 6 of the Act provides for the requirement that second hand/ used goods require such an import permit and reads as follows:

“……..  (b) All secondhand or used goods, including waste and scrap of whatever nature, excluding goods referred to in scheduled 4, shall not    be imported into the Republic of South Africa except by virtue of an import permit issued in terms of section 6 of the said International Trade Administration Act, 2002, and in which such goods are specifically described;”

With such wide ranging and draconian powers regarding the import of used/secondhand goods, one would expect a detailed policy which had gone through a proper public consultation process. However, there is no such policy. When enquiring with ITAC with regard to applications, only after numerous requests is one presented with an internal guideline document which has been developed internally within ITAC and without public participation.

The internal document is headed “International Trade Administration Commission of South Africa Import Control. It is a 17-page document with part 1 having introductory comments and part 2 containing the import control policy. At part 2 section C the document sets out the types of goods which require an import permit. Section C 2 in turn deals with the specific sub-categories of used goods such as tyres, motor vehicles, engines, spares for trucks etc. There is nothing whatsoever dealing directly with used/secondhand fishing vessels.

The only part of this document that could be relevant to dealing with applications for import permits for used fishing vessels is the introductory comments at paragraph 2.1 and it is these general statements that are almost always quoted in decision letters received from ITAC when applications are submitted for import permits for used fishing vessels. The relevant paragraphs from the introduction reads as follows:

“The importation of used and secondhand goods, waste and scrap is controlled for environmental reasons, health reasons and safety and quality compliance reasons. Control is also maintained to support sustainable industrialization and international competitiveness”.

“And it is a general rule that the importation of used and secondhand goods is not allowed in the event or similar or substitute new goods being available from local manufacturers. These measures are necessary and are applied as most used goods are available from affluent societies at very low prices and the uncontrol importation of such goods could have a devasting effect on local manufacturing activities and job creation.”

Recent experience has shown that using these general principles and a very basic confirmation from a local shipyard that they are able to build steel fishing vessels (but still at international rates), ITAC are refusing applications from all sectors of the fishing industry for the importation of secondhand steel fishing vessels.

These decisions are being made by ITAC despite:

Substantive representations from the applicants, fishing sector associations and FISHSA, and in certain cases even support from the Department of Environment, Forestry and Fisheries;

  • The relevant fishing sectors not having the financial strength/economies of scale to afford such a high value brand new steel vessels;
  • Current vessels becoming older and from a safety and efficiency point of view requiring replacement;
  • Imported used vessels are often required to be refitted and refurbished by local ship repairers and suppliers with resulting job creation and turnover for local industries in South Africa.
  • The legislative imperative to empower the fishing industry by promoting investment in vessels by new entrants so as to compete with established industry players;
  • New build vessels from abroad do not require an import permit from ITAC, so if an applicant could afford a new vessel, they would most likely place an order with a more experienced ship builder abroad, who would most likely also complete the build in a shorter period of time.
  • Many glass fibre vessels are built locally for the fishing industry in any event.
  • It is not a common occurrence for the import of a secondhand steel vessel from abroad, and the granting of an import permit for a secondhand fishing vessel will unlikely cause a flood of new secondhand fishing vessels being brought into South Africa. Previously, import permits have readily been granted by ITAC for the import of secondhand fishing vessels.

In summary, it is submitted that the refusal to grant such an import permit will only lead to local fishing companies being prejudiced in terms of safety, efficiency, investment, empowerment and international competitiveness. On the other hand, there will be no benefit to local shipyards and ship repairers as fishing companies (if they could afford to) would likely only order a new steel vessel from foreign ship yards at a similar cost.) In fact, local shipyards will lose out because there will be no refurbishment or repairing of secondhand vessels which are imported into the country.

Going forward, it is submitted that the answer lies in urgent high level consultations between the Minister of Environment, Forestry and Fisheries, and the Minister of Trade and Industry together with industry stakeholders. This should be sooner rather than later to prevent an aging steel fleet from being irreplaceable due to this current change in policy by ITAC (without any proper consultation with the industry at large).



A South African Fishing Industry Tribute to Rachel Zeelie (20 February 1965 – 7 March 2021)


The 7th of March 2021 marked the sad passing of Rachel Zeelie, long serving consultant to the fishing industry.

A South African Fishing Industry Tribute to Rachel was held at the Italian Club in Cape Town on 27 March 2021. A number of industry representatives Mike Stowe, Dr Johan Augustyn, Clyde Bodenham, Mymoena Poggenpoel and myself, as well as Sue Middleton, the DDG at Fisheries Management, put forward their praises of Rachel, an intelligent woman of integrity and honesty, who served the industry faithfully.

Rachel was born on 20 February 1965 and grew up in Crawford on the Cape Flats. She excelled at school and matriculated at Groote Schuur High School in1982 with 4 distinctions. After obtaining a government bursary she completed her BA Political Science Degree at RAU University (now UJ).

Rachel first worked for the Department of Transport in Cape Town where she was involved in the administration of the taxi permit system. In the early 1990’s, she obtained a more senior post at the Department of Sea Fisheries (now DEFF). Since this time, she has remained committed to the fishing industry.

After excelling in her career at Fisheries, in 2002 she decided there was a need for consultants in the fishing industry to assist fishermen and women with the administrative issues of their operations. She left government employment and started her own consultancy with offices in Paarden Eiland. In 2005 her best friend Karien Van Kesteren joined the consultancy (named Marine Management Services) where they serviced large and small, boat owners and processing facilities. This consultancy they ran together for the past 16 years.

The fishing industry also gave Rachel the opportunity to travel to Vietnam, Sweden and Norway where she gained experience in different fisheries and aquaculture.

Rachel leaves behind her husband Johan to whom she was married for 31 years, her daughter Natalie, and son Michael. Her other son Johnathan had previously passed away when he was 15 years old.

On top of running her own business and a busy family life, Rachel still had found the energy to study a BA Law degree in Marine Law at the UCT.

However, Rachel’s greatest attributes were her consistent virtues.   Having known Rachel since the late 90’s much of our involvement related to stressful situations where we were trying to resolve issues for clients. Regardless of the circumstances, Rachel always remained committed to serving her clients – it mattered not whether the client had a small lobster quota or a fleet of vessels, she fought equally hard for all of her clients. In fact, she always showed great empathy for those clients who had been ill-treated and needed help in the protection of their rights.

Being passionate about her work, she enjoyed getting to know the personalities of everyone she delt with and had great respect for those who had worked hard in trying circumstances.

Personally, I will always remember Rachel for her sense of humour and that hearty laugh on the other side of the phone. This laugh showed her happiness and love for life.

Thank you, Rachel, for your legacy and contribution to the industry, your love for life and your laughter…Rest in peace.