South Africa: Agriculture, Forestry and Fisheries On Court Interdict Granted in Respect of Fishing Rights Allocation Process
Media briefing on urgent court interdict granted to Viking Fishing in respect of fishing rights allocation process (FRAP) 2016
On 3 January 2017, the Western Cape High Court granted part of an urgent interdict application, which was applied for by Viking Inshore Fishing (Pty) Ltd. In essence, the interim order granted by Bozalek J suspends all fishing in the R300 million per year hake inshore trawl and sole fishery. In total, 27 right holders have been stopped from undertaking commercial fishing of hake and sole until such time as the full review application is heard and decided. This could be months away.
I, together with the Deputy-Director General of the Fisheries Management Branch, Ms Siphokazi Ndudane who is the decision-maker on the allocation of fishing rights and quantum in these fishery sectors, are greatly perturbed by the apparent unlawfulness of the order granted. Of greatest concern to us is that the order (And subsequent set-down date for the review application on 6 February 2017) denies my legal right and obligation as the Minister to decide any appeals that may be filed in terms of the provisions of the Marine Living Resources Act, 18 of 1998.
For this reason alone – that Viking Inshore Fishing should have first exhausted the internal appeal remedy. We have not received and are still waiting for the written judgement which was requested by our lawyers the same date the Court order was issued. The urgent interim interdict application ought to have been refused by the Court. The Court Order creates a legal lacuna in that appeals in this fishery are due by 17 March 2017 but a review application concerning the very decisions to be subjected to an appeal will be heard on 6 February 2017.
We are presently urgently consulting our legal team to determine the most appropriate way forward, including a review of the court order given the legal and practical concerns raised above. I am furthermore concerned by the short sightedness of the relief sought by Viking Inshore Fishing (Pty) Ltd.
It is particularly damaging to the empowerment of medium-sized black-owned businesses who have been granted rights in this fishery and who were expecting to commence fishing now. The Viking Fishing Group of Companies is not substantially or exclusively reliant on hake inshore trawling for its turnover and economic viability as the Group holds rights in the KZN Prawn Trawl, Hake Deep-Sea Trawl, Large Pelagic, Small Pelagic, Horse Mackerel and aquaculture sectors and have indirect control over quotas in the form of catching; processing and marketing agreements with other right holders, notably in sectors such as lobster, abalone, seaweed, hake handline and squid fisheries..
Over and above, the Viking Group lands or has access to a huge bycatch, mainly linefish in their hake operations. On average a bycatch of 85% compared to 15% of hake has been recorded in their catches, therefore the reliance of the said company on hake is questionable. However, a number of medium-sized black empowered companies in this sector are substantially or exclusively reliant on hake inshore trawling for their incomes and now face an entirely uncertain and possibly financially crippling future.
Compliance with the 3 January 2017 court order
Notwithstanding my significant misgivings about the lawfulness of the order, the DDG and her staff at the Fisheries Management Branch have acted in immediate compliance with the court order by halting the processing and issuing of all hake inshore trawl fishing permits. No permits authorising fishing will be issued and accordingly, no hake inshore trawl and sole fishing has commenced.
However, should the decision be made to review the interim order, the DDG will communicate this decision with all right holders who will then be instructed on how to commence with the exercising of their respective hake trawl fishing rights.
I am deeply concerned that right holders – especially new entrants and those existing right holders who are substantially or entirely reliant on hake inshore trawling for their incomes – will be prevented from fishing while this matter is concluded, which could take many months and could result in the loss of an entire season. The possible loss of the season undermines an important aspect of Viking’s very own application that the current cut in its quota would result in job losses.
What about these workers’ and other right holders’ livelihoods now that the entire fishery has been suspended? The current group of right holders collectively employs more than 5800 people, whose livelihoods will now be placed in jeopardy by this Court Order.
In conclusion, we will be urgently seeking direction from the Court as to how I am to exercise my legislative obligations under Section 80 of the MLRA given that the review application is to be heard well before administrative appeals are set to be filed in this fishery.
Right holders will be kept fully abreast of all developments regarding this matter and the filing of appeals via the Department’s website (www.daff.gov.za) and its Twitter handle (@DAFF_Fisheries).
Source: Department of Agriculture, Forestry and Fisheries