There are growing concerns in the South African fishing sector around the outcomes of the Fishing Rights Allocation Process (Frap) and the conclusion of the small-scale fishing process for the Western Cape, which comprises the majority of fish stocks in the country. The Frap appeals process has already been further extended after many traditional fisherfolk were excluded from the initial process when their applications were rejected. 

Access to precious fishing rights dominates discussions in the sector. These authorisations allow fisherfolk to fish commercially and without these permissions, they may not sell a single sardine. 

South Africa is blessed with rich waters. Prevailing currents and winds work to stir up nutrients from the sea floor and support a wealth of species. Phytoplankton blooms and supports an ecosystem with sardines, squid, horse mackerel, anchovies, hake, tuna, sharks and others.

To protect this treasure from overfishing, scientists work out how much fish can be caught while still leaving enough for the stock to stay healthy (or more often, recover from past overfishing). This amount is referred to as the “maximum sustainable yield” for each fishing sector and the minister in charge of fisheries sets a limit on how much fish can be caught in a particular year. This maximum can be expressed as a mass referred to as the “total allowable catch” (TAC) or as units of how many boats or how much gear can be employed in a sector or “total allowable effort” (TAE). 

The allocation of fishing rights entails policy development and the division of shares in the TAC or TAE of a particular sector and distributing these shares to worthy applicants. Needless to say, these rights are very valuable and from early on concerns have been raised about the potential for the politicisation of the process. 

Through previous access to information requests, the DA obtained minutes setting out how Luthuli House met to appoint cadres to various positions. There is strong evidence to support the conviction that fishing rights are subject to the same attention and manipulation. A brief search of the WikiLeaks “Fishrot Files” gives ample evidence of the background to collusion and manipulation in South Africa. 

Concern among some in the fishing community is that the allocation process may be open to manipulation and instead of being transparent and independently verified, individuals could be identified for preference way before the process is undertaken. 

In previous rounds of fishing rights application in the West Coast rock lobster sector (kreef or crayfish), Fisheries simply refused to consider awarding a lobster fishing right to anyone who had not held kreef rights before and had another fishing right. The reason given was that they were trying to stop the same “old boys club” from getting rights.

There is no policy imperative that speaks to this specific notion and while the intention to make the process more inclusive must be commended, the method is flawed. Substantial kreef rights went to entrants as far from the coast as Boksburg. It’s hard to imagine how a Boksburg-based entity is being preferred over our traditional coastal fisherfolk. 

In this round of fishing rights there appears to have been an emphasis on a few spurious criteria. One particularly confusing criterion used was whether or not the applicant had paid dividends while they held a right.

In many fishing companies, the payment of dividends is almost unheard of. Many companies are small family-owned concerns that own boats. Each year a commercial fishing boat must undergo a rigorous safety survey by the South African Maritime Safety Authority and depending on the type of hull, a boat must be put in a dry dock to inspect and if necessary repair the hull. This is an expensive business and it means that the company must make provision for all these repairs. This means that the directors must make sure that money stays in the bank and therefore can’t be paid out as dividends. 

The really nasty part of making dividend payments a make-or-break for many fishing companies is that they were never expected to have paid them in the previous 15 years or so since sardine, anchovy and hake longline rights were allocated. Previous policies never required dividend payments and companies could not have known that they would have to pay them. The new policy and the scoring are a retroactive imposition of an administrative policy. This is patently unfair. 

Not all bad decisions in fishing rights allocations should be interpreted as manipulation. Some are simply made through Fisheries officials’ failure to implement their own policy. 

In the recent fishing rights allocations, officials were charged with allocating rights in the tuna pole and line sector. These fishers catch mainly longfin tuna with a cane pole and a short piece of line with a hook at the end.

The fishing rights allocation policies ask that fisheries officials involved in allocations should be on the lookout for applicants who haven’t really used their rights and haven’t made any investments. Not using a right would include not having taken out a fishing right in a particular year.

Almost 50 rights holders were excluded and many might not have taken out a permit because they were doing repairs to or replacing their boats in a particular year. So if a fisher was not out fishing because they were busy working on hundreds of thousands of rands’ refurbishment then they were potentially considered a “paper quota” risk. 

The sudden removal of some of South Africa’s top tuna fishing companies is a body blow to the individual fishers concerned but it is a potential windfall to other countries. Tuna are highly migratory and there are international bodies that aim to conserve tuna by regulating how much tuna a country can catch. 

South Africa shares its South Atlantic longfin with countries such as Namibia and Brazil. If our annual catches drop below a certain level, competing countries will start to argue that South Africa is not entitled to its country allocation. This scenario is a long way off but is not beyond the realms of possibility if things continue along the current trajectory. 

Fisheries will reply to all of this that those who were not successful can simply appeal. Unfortunately, the initial process already excluded around 50 previous tuna pole rights holders and only made provision for 46 rights to be available on appeal. These 46 are supposed to make provision for anyone who wants to appeal and not just those who were excluded. Simply suggesting that these excluded fishers should appeal rings hollow.

Fisheries has also refused requests from industry associations to be allowed to continue to fish pending the conclusion of the appeal process. Officials have argued that an exemption would not be possible because there would not be enough fish, but we must keep in mind that there are 46 tuna pole boat rights idle during the appeal process. At least 46 boats could be fishing pending the appeals. This has been allowed in previous allocations as far back as the early 2000s. 

Other examples include a boat owner in Kalk Bay who was refused a right because he was unable to attach a copy of his tax clearance certificate and could only get an SMS from SARS in time. Fisheries argued that this constituted “a non-disclosure” and the boat is now tied up while his crew go hungry. 

So what should have been done? The policies allowed for an interim allocation where the proposed allocations are announced and those affected have an opportunity to comment. This has been done in previous allocations and is permitted by the policies. Once a right is allocated, it is very difficult for Fisheries to pull it back and this can only really be overturned in court. Had this been done, Fisheries would also have an idea of how much must be left aside for appeals. 

Minister Barbara Creecy finds herself in an unenviable position where the result may force her to take her own department to court again as she has done in the Western Cape small-scale sector. Small-scale fishing in the Western Cape remains in a state of stagnant limbo as the new process is yet to get under way. 

The minister has called for nominations for the statutory “Consultative Advisory Forum” that is supposed to assist her on fisheries issues but has not made any appointments as yet. The National Development Plan urges that new fisheries should be developed yet there remains an insistence on a formal moratorium on new fisheries. 

Frap has robbed many traditional fisherfolk of their livelihoods and if previous litigation is anything to go by, Fisheries will waste hundreds of thousands of rands on needless litigation only to settle at the doors of the court. In the meantime, those denied fishing opportunities would have to hope that reason prevails and the minister acts in the best interests of the fishing industry. DM

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