FISHING INDUSTRY NEWS – OCTOBER 2016


DAWSON EDWARDS ATTORNEYS – 20 YEARS NAVIGATING AT SEA 

In October of this year Dawson Edwards Attorneys has been in practice for 20 years.

Initially focussing on shipping law and admiralty jurisdiction litigation related matters, the firm’s field of expertise has expanded considerably whilst still having the common denominator of being in some way related to the sea.

In particular the marine resources and fishing sector work has snowballed over the years. We would attribute this primarily due to the Marine Living Resources Act of 1998 which replaced the old Sea Fishery Act of 1988.

The old quota board no longer allocated quotas and the Minister assumed the power of allocating fishing rights under a legislative dispensation which has as one of its primary objectives “the need to restructure the fishing industry to address historical imbalances and to achieve equity with in all branches of the fishing industry”.

There have been a number of major allocations of fishing rights under the new regime in 2001, 2006 and recently in 2013. The next round of allocations is imminent – probably by the end of 2016.

The Department’s statistics will show that as a whole the fishing industry has transformed massively since the inception of the new legislative regime. It is certainly one of the most transformed sectors in South Africa with regard to equity ownership.

One of the challenges in the fishing industry in achieving such transformation commercially has been to structure sustainable equity transfers to previously disadvantaged persons in high value rights and asset holding (vessels and factories) entities. This also had to be implemented in such a way so as not to substantially damage or reduce the viability of the core business. There have been many successful transformations in this regard.

Unfortunately there have also been a number of instances where companies have been mismanaged by directors particularly where shareholders in good faith have been misinformed and, not knowing there rights and with little resources to take legal action, have not been able to protect the company and their interests. However, this will certainly change going forward as many more shareholders are becoming aware of their rights and the duties of directors in running the affairs of the company.

From a compliance perspective the Hout Bay Fishing/Arnie Bengis conviction was a turning point which gave considerable momentum to DAFF in its efforts to enforce fisheries legislation. As a result there have been a vast increase in the number of compliance related matters and also the variety thereof – not just overfishing issues but also many technical and permit related offences which added together all go towards good ocean governance. The challenge from DAFF is consistency in the application of legislation and also maintaining sufficient resources to continue and expand its efforts. In addition, regular consultation and communication with the industry would also go a long way to improving compliance.

A relatively recent and positive development is Operation Phakisa which is a government policy aimed at generating jobs, income and opportunities from our blue economy (the ocean), our 200 nautical mile EEZ. This policy is currently bringing to the fore new legislation and regulation in the maritime sector which is going to create both challenges and   opportunities for stakeholders. Keeping abreast of the implementation of this policy will be essential for interested parties.

Notwithstanding the positives of Operation Phakisa, looking ahead we see the maintenance of decision making integrity and the application of the rule of law in administrative action being a challenge, particularly in the politically charged environment of South Africa.

In closing, we at Dawson Edwards Attorneys would like to extend our gratitude to clients, colleagues, service providers and the fishing industry at large for their support and the opportunity to add value whilst at the same time seeking to uphold the rule of law in a sector which can be challenging at the best of times.

 

The Dawson Edwards Team - October 2016

The Dawson Edwards Team – October 2016