Marine Living Resources Amendment Bill [B30B-2013]: Departmental responses to issues at public hearings

Agriculture, Land Reform and Rural Development

22 October 2013
Chairperson: Mr M Johnson (ANC)
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Meeting Summary

The Department of Agriculture, Forestry and Fisheries (DAFF) started to present its responses to issues raised at the public hearings on the Marine Living Resources Amendment Bill in the previous week but when it appeared that this document was essentially a repeat of the brief outline given after the public hearings, Members suggested that they should rather put their main concerns to obtain further information. Some Members remained concerned that the Small Scale Fishing Policy (SSFP) was imposing co-operatives on the Small Scale Fishers (SSF), not allowing them to act as individuals. They asked what the “basket of species” meant. One Member noted that recreational fishers were very upset that their total allowable catch (TAC) was being reduced in order to boost that of SSFs and felt that they were being discriminated against. They wondered if the SSFP and Bill were not creating  expectations that the DAFF would not be able to meet. They specifically questioned what support mechanisms the DAFF would be offering, including training, and asked what the DAFF would be doing to try to halt poaching, although they were supportive of the suggestion that the SSFs themselves would be actively involved, hopefully on a volunteer basis, in recognition of the fact that poaching was affecting their livelihood. The Chairperson was particularly concerned that SSFs should not simply be able to transfer their fishing rights within a specific time frame. The problem that many SSFs did not have access to boats, and tended to use the rights as bargaining power, remained, but this would affect their families and communities. Further questions addressed whether it was only the Department of Trade and Industry who was helping fishers access boats, or whether other departments might be involved as well, and to what extent the DAFF had dealt with this. Other questions went to the costing, how relevant and accurate it was, and what might happen if the DAFF did not get the allocations it expected.

DAFF responded to these questions and expounded at some length on the history, including the negotiation processes, of the SSFP, who had been consulted, on what, and noted that the wording included in the Bill was essentially a reflection of the compromises that had been reached. The distinction between the Marine Living Resources Act, the subsequent policies, and the SSFP and how it related to the Bill, were outlined. DFF had been planning to propose amendments to the transfer of fishing rights policy, to capture the issue of loss or sale of fishing rights between parties without the knowledge of the DAFF to protect communities and curb extortionist practices. Eventually, it was hoped to have a review board that would deal with those issues, in addition to the regulations.

In the second round of questions, Members asked about the timelines between the interim rights allocations in November and the coming into operation of this Bill, hopefully in January, and asked for clarity whether there would be double-allocations. The whole process around how the allocations were done, for a season, and the dual system that would be adopted, using a so-called “trollie” system for commercial fishers and a “basket” system for SSFs, was explained and it was emphasised that fishers would be applying for rights in other or the other category, not both. DAFF explained also that it would be embarking on a process to verify the 7 776 fishers on the DAFF records at the moment, and identify any more, and emphasised how the streams would operate. In answer to the transfer of fishing rights, it was emphasised that there were already regulations in existence. Although it was possible to follow one of the regulation routes under section 21, this might have an impact on those with current rights, but there was another process set out in the Bill that could be followed for the SSFs sector only. A Member proposed that provided this was amended to say that the Minister may pass regulations “in consultation with” Parliament, then this was an adequate safeguard, as it was accepted that not everything could be in the Bill, and substantial amendments to the Bill at this stage would delay the process, which was generally accepted to be urgent. After some debate whether the Committee was ready to pass the Bill, it was noted that whilst the DAFF was urging it to do so immediately, the message needed to be taken back to the Minister and DAFF that this was not the normal way that Parliament considered matters, that it really would have preferred a proper and detailed review of all the legislation, rather than the piecemeal approach, and that the Committee wanted to see the final draft before passing the Bill. It was decided that the Committee would formally adopt the Bill, to which it agreed in principle, once it had that final draft.

Meeting report

Chairperson’s opening remarks
The Chairperson noted that the Minister had apologised that she was unable to attend the meeting, because she was attending an African Farmers Association of South Africa (AFASA) general meeting in Pretoria.

He noted that the brief responses from the Department of Agriculture, Forestry and Fisheries (DAFF or the Department) had been presented at the end of the public hearings, but this was a day set aside for deliberations on the submissions. He reminded the stakeholders that they were welcome to attend, but the deliberations were between Committee and Department only.

Department of Agriculture, Forestry and Fisheries (DAFF) on issues that had rose during the public hearings on the Marine Living Resources Amendment Bill 30B of 2013
Mr Desmond Stevens, Acting Deputy Director General: Fisheries, DAFF, started to read through the introduction of the presentation.

The Chairperson said that he wanted to make a suggestion. Although some Committee members were not present the last time the DAFF had presented its responses, DAFF was essentially repeating what it had said in the last meeting. All Members had received the presentation copies in advance, and asked members whether they wanted DAFF to go through the presentation, or preferred to put questions to it directly. Some submissions had not actually focused directly on the Marine Living Resources Act (MLRA) Amendment Bill.

Members agreed that they would prefer a more general discussion.

Ms A Steyn (DA) said that she was concerned that the Committee was discussing the Marine Living Resources Amendment Bill (the Bill) without having first discussed the Small Scale Fishing Policy (SSFP) with DAFF. She would have liked to see the policy.

She noted that the DA had no problem with co-operatives, but was concerned with the fact that the Bill seemingly obliged people to form a co-operative.

The Chairperson interrupted to ask the stakeholders not to comment on the Committee’s remarks. The Committee had paid focused attention to them at the public hearings, because the Committee respected the stakeholders and also respected Parliament. The same respect should be shown by those present today. Parliament followed a democratic process where every Member of Parliament (MP) could voice their views, and should be permitted to do so free of interruption from stakeholders, who were not supposed to even participate today.

Ms Steyn added that if the DA asked questions of DAFF, that was not to be seen as an attack on cooperatives (co-ops). The Committee had to be satisfied, when passing legislation, that this legislation catered best to the needs of the communities whom the MPs represented. The Committee also had to be able to justify the Bill to the House. MPs were trying to reach consensus at the Committee, and could not do so if some Members still had reservations and were not sure on certain issues. Ms Steyn said that the Committee, when passing this Bill, must ensure that it met the needs of the SS fishing communities, and could not be attacked on a Constitutional Court review.

Ms Steyn also believed that the South African United Fishing Forum (SAUFF) was not in existence when the National Task Team (NTT) was democratically elected in 2007, and only elected members were allowed to attend meetings of the NTT. She wanted to know why any other stakeholder could not be included in the NTT, and what role the DAFF played in getting other stakeholders input on the MLRA amendment bill.

Ms Steyn asked why DAFF had not brought the SSFP to the Committee before the meeting today, especially given that it had been approved in 2012 already. She reiterated that she was struggling to approve the Bill without the SSFP. She also wanted the DAFF to explain the two allocation processes in the SSFP. She repeated that no fisherman should be forced to be part of a co-op if that fisherman did not want to.  

Ms Steyn also repeated that Parliament would have to respect everyone’s right to be heard, whether or not he was representing anyone else.

Ms Steyn also wanted a list of how many meetings were held, where the meetings were held and how many people had attended those meetings, to assess the stakeholder consultation process the DAFF had said it had undertaken.

Ms Steyn also asked DAFF to tell the Committee what the allocation from National Treasury (NT) would be for the rollout of the SSFP and how far in that process had the DAFF gone. Additionally she asked if the DAFF had an alternative plan, if it had not received any funding by the deadline date for implementation of the SSFP, and how that would impact on the Bill.

Ms Steyn asked how the traditional fishing rights would be protected.

Mr P van Dalen (DA) said that the DAFF had a scientific working group to set the Total Allowable Catch (TAC) as part of the management of the country’s fishing resources and that those TACs were legally set targets, to which fishers must abide, whether they wished to or not. It was apparent during the hearings that some small scale fishers (SSFs) were not in agreement with the structure of the working groups, as they apparently did not consider indigenous knowledge and inputs by fisher folk. He thought the Committee must look to how to accommodate the inclusion of indigenous knowledge and SSF inputs into the decision making.

Mr van Dalen said that at that moment there were different categories within fisheries. Recreational fishing was one. He had been receiving letters from the recreational fishing sector, informing him that the TAC for recreational fishing would be cut, in the 2013/14 fishing season, by 100 tonnes, so that recreational fishers would only get 85 tonnes. This was done to try to accommodate everyone, to pursue the recovery plan for the West Coast rock lobster, and in pursuance of the working group’s concerns about depletion of stocks. However, he questioned if this was fair, given that no other sector had to sacrifice its quota.

Mr van Dalen was concerned that the Bill would include the SSFP, which was only a policy, and which could be changed overnight, without any Parliamentary input; the change need only go through the Minister and Cabinet and National Economic Development and Labour Council (Nedlac). If the Committee could re-write the Bill, that SSFP would be carried over into new legislation. He said that specifying it in the Bill would give it legal recognition. He claimed that it was not through lack of will in the industry, but rather in DAFF, that the SSFs were not recognised before.

Mr van Dalen further said that the Interim Relief Rights Permit (IRRP) would be in effect from 15 of November 2013, and SSF had agreed to a reduced TAC, which meant that they would only be able to catch 139 kilograms (kg) of rock lobster, but would get a better price for it. In addition, an additional 300 more fishers would be accommodated by the IRRP.  However, if the Bill came into effect on 1 January 2014, there would be another round of allocations to the co-ops. He enquired how this would work; some SSFs appeared to think they might get double allocations for the 2013/14 season.

Ms M Pilusa-Mosoane (ANC) said that it was the Committee’s who directed DAFF to hold public hearings with the SSF community, and it was clear that it had done so, because representatives were present from all provinces’ Coastal Links. Some Members here seemed, however, to be taking the Committee back to the basics, instead of interrogating the DAFF’s responses to the hearings. Nothing should obstruct the progress of the Bill and the Committee had to move forward. SSFs had been waiting for the amendments for a long time. She believed that only small adjustments were needed.

Ms Pilusa-Mosoane said that DAFF would be assisted in responding to Legal Resources Centre (LRC), and the Committee thought that if forming co-ops was positive, then it was up to the SSF communities to decide.

Mr B Bhanga (COPE) asked about the resources needed to implement the Bill, stated as R424 million for over five years. He wondered if the DAFF had the actual numbers of the SSFs and populations assisted in those allocations, and what would happen if National Treasury did not give that allocation – was there another plan? The passion of the SSFs was evident and they wanted to see real change in their lives. The Committee and DAFF had created an expectation and had to deal with that. He asked if the allocation of R85 million per year would serve the interests of communities and meet their expectations.

Mr Bhanga commented that he had heard the DAFF to be saying that it would not necessarily force co-ops on the SSFs but that if people wanted to proceed individually they could. If this was not correct, then he too wanted to know what the constitutional implication were in relation to choice. He also wanted the DAFF to explicitly talk about the support it was going to give. The reason for the failure of so many co-ops in the past, despite legislative frameworks, was the challenge  in getting communities to work together. They also failed because of lack of financial resources, training and understanding their responsibility and need to working together. He wanted to see tangible deliverables should DAFF be putting co-ops in place.

Mr Bhanga also wondered if the entrenchment of one form of ownership in a fisheries policy was legal, and whether DAFF could realistically offer economically viable fishing rights in the SSF sector. He asked for further elaboration on this point.

Mr Bhanga asked how DAFF determined who was representing SSF communities. It was unfortunate that the DAFF presentation gave the impression that those SSFs not included in the NTT election meeting in 2007 could not make a valuable contribution. There had been new small scale operators since then, who could not be barred from participating. DAFF should not to elevate some interests over others.

Mr M Cele (ANC) said that if the Committee was asking if DAFF had consulted stakeholders specifically about co-ops, then it had to explain this honestly. He agreed that in the past there had been challenges with co-ops were concerned, but they were identified, and he support would obviate the same failures.

Mr Cele said he would not like to see a “free for all” where people could do things differently, if they did not like the policy adopted. Everyone must abide by policy until it was amended. There would be nothing wrong with the co-ops if they were supported in the right way, and in fact, the Committee was trying to move away from individuals who wanted to enrich themselves.

Mr S Abram (ANC) said that the problem was that the Committee was talking about \ concepts. Whilst the Committee wanted to empower the SSF community, he wondered if there was any empirical evidence supporting all those expectations. When a person had nothing, he may easily seize upon anything offered, not knowing what the future held, and the Committee must be careful not to create expectations that were not going to be met, because that was more dangerous than not having any expectations at all. He accepted that co-ops had failed in the past, especially when they were imposed upon people, but reminded Members that in days past, co-ops in the agricultural were born out of the need to do collective bargaining and collective marketing to try to get the best prices. These had worked, and there was no reason why this model should not continue to work. However, it would not help if the Bill contained provisions that were difficult to implement. DAFF had inconsistencies in the stability and continuity of its leadership, and the Committee needed to get stability in leadership that was focused and dedicated.

Mr Abram added that there was a perception that the DAFF would just institute co-ops and everything would be fine. However, it must be remembered that co-ops were made up of people, who all had different ideas, different expectations, and these must be melded to work equally. DAFF must tell the Committee exactly how it wanted to put the models together before Members could pass the Bill.

Mr Abram also wanted to know whether the DAFF had worked out whether the R425 million allocation was desirable, sufficient and equitable. Merely giving money did not guarantee success. Responsibility and the wherewithal to make something workable were also needed. The Committee needed to know how DAFF arrived at that amount.

Mr Abram then referred to the Status of the South African Marine Fisheries Resources Report of 2012. The commercial fishing of abalone was reopened in 2010 after being closed in 2008, but resources continued to decline, due to increasing levels of poaching, and still remained in a depleted to heavily depleted state. He added that the same was true of rock lobster on the Southern coast up from Hermanus. Fisheries wanted to, but were unable to protect the species because for many months DAFF was unable to police the coastline, as it had no vessels. He quipped that whilst DAFF was speaking of a “basket of species” he had a “basket of issues” that would have to be answered if the plan was to satisfy the SSF. The Report went further to comment on line fish resources, which ranged from “heavily depleted” to “optimal”, but the Committee needed an update. Furthermore the Report said that, given the low population of many line fish species, management measures were still needed to allow stock sizes to increase. Mr Abram asked if that was happening. In addition, given the depletions in hake, pelagic fish, west coast rock lobster, and other species, he asked if DAFF had managed to control poaching.  The continued existence of whole baskets of species was dependent largely on the extent to which Fisheries would be able to control poaching. If there were like-minded people forming the co-ops, they would probably police themselves to conserve resources, and minimise poaching. This was a long shot, but it was not unattainable, if people did work properly together. DAFF then would also have to ask other departments who legislated on co-ops to share their experiences and tell the Committee exactly how the SSF communities would be empowered.

Mr Abram wanted a breakdown plan of how the budget for the SSFP empowerment would be spent, including whether there might be a rollover request for any portion of the present budget.  

Mr Cele commented hat his intention was not to suppress argument or deliberations, but asked his colleagues to stick to the brief and purpose of this meeting, and not deviate on to other matters that did not have to be raised here. He said that there were certainly issues that needed discussion with DAFF, but some were not relevant today. He noted that he had grown up in Dambuza, Edendale, and Pietermaritzburg, side by side with all ethnicities, and wanted to illustrate, from personal experience that co-ops could and did work. His mother prepared food not only for her own family, but all the children in the community to share. All children would sit round a big bowl and share without fighting.  The Committee needed to support co-ops but must ensure that whoever was appointed by DAFF To monitor them was honest and accountable.

Mr Bhanga wanted to check what the “basket of species” was and whether they had been identified already. In regard to the co-ops, whilst the legislation was advocating them, the Committee could not ignore past experiences and DAFF must be honest and address the challenges, and how it would ensure that they were properly addressed to avoid the problems that had occurred in housing and agriculture. He supported co-ops in principle, but there was empirical evidence of the past limitations with regard to training, working together and financing of co-ops, and misuse of joint resources.

The Chairperson said that the Bill proposed replacing the word “subsistence” with “small-scale” (fishers).  In his understanding, then, the Bill was promoting a hybrid of both a small scale and a co-op route. In relation to consultation, he said that it had gone through the Nedlac process, and after being approved here, it would go to the NCOP. He wanted the DAFF’s comment on this process. He was also very keen to hear more about the support mechanisms to be provided both for small scale fishers and co-ops and asked the DAFF to elaborate, without going into too much detail. He had asked this  because when the Committee was discussing the process of rights allocation, it had wanted to know whether those applying would have to possess a boat to make them eligible to apply.

The Chairperson added that he wanted to speak to a point that was slightly outside the scope of the Bill itself, but which related to loss of a fishing right. He believed that something specific was needed to state that fishing rights holders would be precluded from selling their rights within a certain period of time, and this would have to be included in the legislation, not left to Ministerial regulation. In the fishing communities, boat owners tended to place fishing rights holders under such stringent conditions that they would lose their rights. Often, fishing rights holders were left without their rights, but were allowed access to boats. In the squid fishing sector, 99% of boat owners were white, and they would operate “business as usual” with terms that favoured only themselves. He asked that section 21(2) of the Act should be amended, by this Bill, to stipulate the number of years a right must be held before being transferable. He likened the fish in the sea to minerals in the earth, and said that SSFs should not be ale to sell the future of their children.

Mr Stevens replied that he might not address each and every question separately, as some of the questions seemed to be on the same theme, and he would try to give composite responses. DAFF had already said that it was not attempting to respond to every point raised at the public hearings, because some of the comments did not relate to the Bill, but operational matters, and DAFF was trying to take up the issues raised with the people directly.

The SSFP had been distributed to all Members of Parliament (MPs) in September of 2013 but his office would reproduce the policy and implementation plan in a new and user-friendly document.

Mr Stevens said he wanted to clarify the issue around co-ops. DAFF had two streams through which it would allocate fishing right. One was the “trollie” route, the other was the “basket” route.
The trollie route was the  commercial side of the allocation process. DAFF had advertised the allocations and people had applied. Allocations would be given to people as they were under the existing MRL Act. However, the Bill provided for other legal rights holdings also. On the trollie route, there would be a competitive process and therefore any individual, company or close cooperation could get fishing rights.

The basket route would be based on the SSFP, where communal rights would be allocated. The SSFP set out how rights holding was to be allocated for those choosing that route. The routes would not be in conflict with each other, because a fisher qualifying for the one route would not qualify for the other. There was no way that a fisher could have two rights holdings, and this was explained during the consultations. He hoped more time would be given to DAFF to explain this more fully; Members might be struggling to grasp the concept of how the streams would work. However, the trollie route was competitive, whilst the basket route gave effect to a negotiated and agreed-upon SSFP.

On 3 September 2010, the SSFP had been published for public comment in Government Gazette 33530. His colleague Mr Fredericks would speak in more detail around the consultation process that had taken place since then. He made the point that DAFF was then unable to add anyone else on to the NTT, because that NTT was elected democratically. However, this did not mean that any subsequent groups were not consulted. SAUFF, Mr Garcia, FishSA and other organisations and other individuals were consulted in the making of the SSFP, but DAFF respected the coordination process of the NTT. The making of the SSFP was an iterative process, whereby people had made comments and consultations had taken place with a wide range of South Africans.

Mr Stevens noted that the matter of perspectives had been raised repeatedly. DAFF was not trying to say that it would not consider each and every stakeholder’s opinion on what was correct. However, sometimes the voice of one individual overwhelmed the voices of thousands. DAFF agreed, however, that it should and would not elevate any one person above another.

Mr Stevens noted that in the consolidated document where the SSFP was published, with its implementation plan, there was also a costing. DAFF appointed an expert service provider to develop the costing model. This was not a once-off, but the budget would be spent over five years. Not everything would need to be implemented simultaneously. DAFF was still deciding what the basic essential elements were that must be put in place by January, should the Bill be passed.  Some of the funding would go towards building capacity in the DAFF, to address the support that was to be provided to those SSF communities. DAFF was currently busy reorganising the Directorate of SSF fishing, which currently comprised of 11 personnel, but should increase to 20 or 30 over the next few months. DAFF must ensure sufficient personnel to support the co-management structures or co-ops and ensure interaction between itself and stakeholders. In addition practical and tangible things were needed. DAFF had a Memorandum Of understanding (MOU) with the Department of Trade and Industry (dti) over access to boats for SSFs, and one advertisement was already running on television, about the recipient of a boat in Hout Bay. Traps, nets and other equipment had to be quantified. Training was also important, for even with the best will in the world, if the members of co-ops were not empowered to understand their roles and the division of labour in co-ops, there would be difficulties. DAFF was currently lobbying the FET colleges to develop a specialised qualification on co-ops, but this was not yet finalised. The thinking in DAFF, following a suggestion from the recreational fishing sector was that DAFF should maybe engage with the Cape Peninsula University of Technology (CPUT) to develop a particular course for co-ops and also for fisheries.
Mr Stevens stressed to the Committee that the SSFP and the Bill were not cast in stone. They were agreements effected to allow for development. As things moved forward, there would be revisions, according to what worked, and DAFF did not believe it had created expectations. It was going to interact with the beneficiaries of the SSFP, so that the process was a give and take of information.

Mr Stevens clarified again that the scientific working group was not an entity created by statute, only an advisory body that DAFF had established, so it was DAFF’s own structure. It had needed it to comply with an international agreement that required it to manage the fisheries responsibly, based on good science and sustainable development. DAFF would never compromise on those principles.

Mr Abram had been reading from a Report developed internally in DAFF, by those scientists and managers. Mr Stevens said that this Report was intended for everyone to know the status of the marine living resources. In all of the resources that fisheries were managing, there were Operational Management Procedures (OMP), which were linked to a recovery process for all those species that were under threat. However, the recovery plan was not the work solely of DAFF scientists or the service provider statisticians, but included consultations with the fishing industry. DAFF was trying to address the concerns and criticisms of the SSFs that they had not hitherto contributed, and was trying to work out how to document indigenous knowledge as part of the databank that could influence the DAFF thinking and decision making processes. He reiterated that this group was not an independent structure outside of the DAFF, but was internal.

In relation to West coast rock lobster, Mr Stevens said that the DAFF was consulting with all four categories of fishing rights holders, and had agreed, with the scientific working group, to cut down the TAC to 16%, in order to reach a 35% recovery target by 2021. Part of the OMP recovery process included how to deal with unforeseen environmental occurrences. The first step was that the stakeholders had agreed to a cut in 251 tonnes of rock lobster to meet the 16% requirement. DAFF met with all stakeholders of that TAC. It had met with FishSA, and the near shore and recreational fishers, and would be meeting again to inform them on the decisions. Therefore, it was not targeting recreational fishers specifically. It must be remembered that big industry was creating jobs, and if the reduction came from industry, it would reduce its employees. Industry would face some cuts, but recreational fishers had to be honest about the trade-offs, as recreational fishers had argued that they could equally dismiss their domestic workers. DAFF was faced with a difficult choice, but had tried to allow those whose livelihoods depended on fishing a reduced TAC, and try to recover depleted resources.

Responding to Mr Bhanga’s question on quantifiable populations, Mr Stevens responded that the implementation plan had been built on a database of existing exemption holders which DAFF thought was the most reliable indicator. The  7 776 people which would be increased by 300 additional SSF applicants, who had been waiting for about three to four years, who were eligible but had previously been rejected because of the depleted resources. SSF representatives had indicated that they would be prepared to take a drop in their own TAC to allow others to come into the SSFP process.  This was, again, not a decision that was made unilaterally by DAFF but was part of a consultative process.

Mr Stevens responded to questions around the costing by saying that the issues he had raised earlier were included but it must be remembered that this was also an evolving document. DAFF might be able to cover some matters already, by creatively aligning its existing budget. Others needed additional funding from other Departments, like Departments of Economic Development and dti, whilst DAFF would also be applying to National Treasury.  

Mr Stevens conceded that indeed the DAFF had a challenge in stable management but said that he was not behaving as if he was only in an acting capacity, but was working as hard as a full-time Deputy Director General, and whoever replaced him would  inherit a system that was accepted, entrenched and functional. He could not control continuity and stability in the DAFF, but he thought that DAFF had moved quite far to achieve that. One thing very dear to him was that DAFF needed to be honest and show integrity, and he would take legal advice to ensure that he was not treading on anyone’s constitutional rights. He stressed that he would like to see recreational permits as well being obtained through proper and transparent processes of applications.

Mr Stevens agreed that poaching was a real challenge but Mr Abram had indirectly suggested a solution, because he had said that ideally DAFF should involve the SSF beneficiaries who saw the value in their own resource, in addition to the police, for policing the marine living resources. This was actually what DAFF was doing already - DAFF had two operational vessels and was working very closely with all of the law enforcement agencies. Although the number of arrests had been highlighted, he did not see an arrest after the fact as a success story, but rather preventing the resources from illegally being removed from the sea. DAFF had tried to secure all slipways so that people did not go to sea illegally, but that remained a challenge, despite the technological advancements.

Mr Stevens said that the DAFF was in full support of the Chairperson’s last request abut the permits. For section 21(2) DAFF proposed a Review Board so that the Minister would not be the only authority on transferability of fishing rights, and to ensure that an independent body could deal with loss and sale of fishing rights. DAFF would support a specific period being names, and DAFF may even want to amend its policy on transfer of rights to capture some of the issues, although this would not be captured in detail in the legislation at this point.

Mr Stevens said that the Bill was a section 75 Bill, but it still had to go through the NCOP.

Mr Dennis Fredericks, Acting Chief Director, Marine Resources Management, DAFF, said he would outline the consultative processes. In 2010 when the DAFF had published the draft SSFP, it had embarked on a process of consultations, concluding about 117 consultative meetings between mid-September and early October. In  Northern and Western Cape there had been 34 meetings, in the Eastern Cape there had been 69 meetings, in KwaZulu Natal there had been 14 meetings. DAFF had covered a lot of ground and the meetings had been well attended, some even being held outside to accommodate everyone. DAFF had gone out of its way to include everyone in its consultations. After DAFF published the final draft of the SSFP, on 20 June 2010, it had then started the Nedlac process, where a task team was established. He had formed part of that task team, along with fishing communities, labour and business representatives. Some individuals mentioned in the public hearings who were not part of the NTT were told to approach the NEDLAC convenors for their possible inclusion. The DAFF had then had a number of meetings on the SSFP, where there was even sentence-by-sentence deliberation. Some amendments were suggested, and adopted by consensus,  and put forward at the Nedlac meeting. There was a general acceptance of the need for a paradigm shift in how fishing rights were to be allocated, and that was the shift now contained in the SSFP, that allocations would be done through community based entities. DAFF believed that the co-ops model was the best, because of the support it could offer to communities, and because of their similarities.

The DAFF had then also established another task team with the dti, to work through most of the issues related to gear, equipment and boats. That task team had put together a package to inform the SSF communities how co-ops worked, what the implications were of setting them up, and how people must function within the co-ops. A meeting was held in Langebaan on 2 June 2013, and another in Cape Town, where the co-ops package was rolled out to a variety of stakeholders.

Communities also approached dti to get more information and some communities applied to DTI for support with vessels, with many getting that support. DAFF had suggested then to dti that it wanted a structured support package and the SSFP discussions included the fact that a dedicated and structured support packet was needed to make the policy work. DAFF was now getting the interdepartmental support it had needed, mainly because of the dti’s interdepartmental Committee.

Mr Fredericks reiterated that DAFF believed that co-ops were the best way to go because all the support mechanisms were available and in place. Moreover it believed that there was overwhelming support from the SSF communities for co-ops. He said that this process had been slow because every sentence in the SSFP was revised over and over again until there was consensus. DAFF had not wanted to impose its policy, and recognised that the SSF communities wanted to write the SSFP themselves. All engagements with stakeholders were geared to best support for the SSFs.

Mr Fredericks reiterated that there had been some conceptual difficulties in understanding the new policy, which moved from having individual rights to support packages to co-ops. However, this was how the aspirations of the SSFP bear fruit. Dti was trying to come up with a fisheries co-op model. DAFF had done extensive research on why co-ops had failed, and the same problems were apparent throughout, so DAFF had managed to learn lessons, and now had a good point of departure. DAFF believed that co-ops could work, and, if the policies were willing to support those SSF communities, then definitely would work. If they failed, this would pose a huge risk to the marine living resources as government needed to get SSF communities out of the grip of poaching and by partnering with them would address the poaching trends.

Ms Steyn questioned the differences between the version of the Bill tabled in 2010, and this current version; she had thought that most of the consultations had been focused on the SSFP, rather than on the Bill itself.

Ms Pilusa-Mosoane noted that provincial DAFFs were encouraged to develop their own co-ops strategies. Previous co-ops had failed because people had not been trained, nor financially supported. She pleaded with the DAFF to ensure that those provincial departments were capacitated so that they could support those co-ops.

Mr Bhanga said that there was a recurrent question from the previous meeting, which the DAFF had not comprehensively dealt with, around the co-op question. He hoped that the Bill would address the plight of the SSF communities, and not need more amendments. Whilst he appreciated the urgency, he hoped that all the issues were comprehensively addressed. The government wanted the SSF sector to take responsibility so that all could benefit and curtail illegal practices. He asked what the implication was for other SMMEs in the other commercial sectors, and whether they would also have TAC reductions.

Mr Bhanga questioned what DAFF thought about the amendments proposed by Professor Butterworth.

Mr Van Dalen still wanted the DAFF to answer on how the implementation would happen and reiterated that on 15 November the IRRP allocations would take effect, with a TAC of 139 kg of crayfish, but in January 2013 the Bill should be effected, with another allocation. He noted that there was some anomaly whereby the DAFF was saying on the one hand that it was working by consensus but on the other that it had had to make some hard choices – which came down to making decrees.   Government should not be trampling on one sector’s rights to give to another sector.  The public perception was that the DAFF was indeed targeting recreational fishers as a soft target, and he did not agree that people undertook recreational fishing to pay their domestic staff, but because they were lawfully allowed to do so. He wondered to what extent DAFF relied on their licence revenue, and reiterated that it was wrong to take from them to give to SSFs.

Mr Abram said that the clause-by-clause deliberations had to weigh up all representations and submissions. The biggest question was whether the legislation posed any risk of unintended consequences. The Bill had been certified by the State Law Advisers, but he pointed out that his experience over many years was that despite such certification, bills were still challenged successfully. He believed that DAFF must brief the Committee on the implementation plan, and stressed the need to be precise, to avoid undue expectations, and to be brutally honest. He had hard that for every 1 000 kg less that commercial fishers were allowed to take out, four jobs would be lost. That was also something that needed to be addressed as a possible unintended consequence. Naturally, government wanted to empower its citizens but check that the sea would be able to provide what was hoped. He wanted to check whether the scientists in and outside DAFF were satisfied with the SSFP provisions. Mr Abram pointed out that many SSFs were currently using recreational permits in order to harvest, but the SSFP currently was in-shore based. That would need to be settled.

Mr Abram understood that to date, dti had been supplying the boats, but wondered if other state departments would now assist and, if so, how that was being coordinated. He was worried about fronting and cited instances of RDP housing, where original beneficiaries had sold on the houses, and wondered how many were taken back. He eagerly awaited a law that would cut out all the fronting that was a harsh reality. He also pointed out that there would be continuous infringement of laws that state officials should not do business with government.

Ms Steyn also referred to Professor Butterworth’s presentation, particularly the changes that he had proposed to clause 2(k) which read: “the need to promote equitable opportunities for access to…” She thought this referred to the TAC and availability of fish stocks. She thought “equitable opportunities” made sense, given the variable numbers..

Ms Steyn thought that clause 2(1) covered similar issues, with the wording “multi-species approach” and questioned what might happen if a species died off, three years down the line, when a specific community had rights to that species. She noted that she had been trying to access the SSFP from the DAFF website, but could not find it there. She shared Mr Abram’s concerns about how ready the DAFF was to implement, when it would finalise the process, whether there was capacity to roll out, and what the medium term budget adjustments might do. She hoped more money would be allocated to DAFF for the Bill; without the necessary funding, the SSFP would not work.

The Chairperson said that the Committee seemed to be struggling to move forward. Members had been asked to make specific recommendations. The Legal Resources Centre had asked that traditional fishers be added as well as customary, and he was happy that consultation processes had been followed. He summarised that DAFF had said there would be a “hybrid” of trollie and “mandjie” (basket) routes. He confirmed that Members had seen the SSFP, even before its final adoption by Cabinet. He remembered DAFF’s briefing on it very well. However, even then, Members questioned the implementation, and then matters moved to the Bill. He summarised that once there was a policy, it created expectations on what must happen next. The Bill was the next stage. The Committee could always put forward further recommendations, and reach consensus.

Mr Bhanga suggested that after the DAFF responded to the second round of questions, then possibly the Committee would have to move on to the recommendations. He added that the Chairperson had raised an issue about putting a defined period in terms of the transferability of the fishing rights.

Ms Steyn said that the Committee had dealt with other issues of fisheries, such as transformation, but never directly with the SSFP, according to last year’s Committee programme, and that was the reason that Members were asking questions today, to understand the full implications of the SSFP.

Mr Stevens said that there was some confusion between the SSFP and the Bill. In 2012, the DAFF had said that consultation and the gazette were essentially around the SSFP and not an amendment Bill. The Bill was only published in April 2013.

He respectfully disagreed, as Masifundise had disagreed, with Professor Butterworth around the wording. Prof Butterworth’s proposals implied that DAFF would give open access to SSFs, but this was not what was being done. Fisheries understood that everything must be managed by way of a  regulatory framework, so that there would not be open access, and that also spoke to the question of customary rights, as raised by the Legal Resources Centre (LRC). LRC was busy with a court case that would determine the interpretation of the customary rights in the Bill. Changes as proposed by Professor Butterworth would have unintended consequences, but the Committee could further debate that point.

There was a common understanding around multi-species in the Food and Agriculture Organisation (FAO), so he did not think there would be confusion; this applied both to SSF and commercial fishers. Using the abalone example, in the past, people had been allocated only species of abalone. DAFF changed that to a “multi-species” approach, and wanted to keep that.

Mr Stevens reiterated that any of the structures that were commercial, whether SMME or large firms, must follow the “trollie” route, with SSFs having to go the “mandjie or basket” route.

Mr Stevens outlined the implementation plan. The first step was that DAFF needed to verify all SSFs, who were currently listed on the DAFF records, and assess if those 7 were legitimate, and whether there were others that DAFF might have missed. The list would be published. For all rights, even in the commercial sector, TACs were annually determined. A TAC for West coast rock lobster applied in the 2013/14 season. There would not be any extra allocations in January; the TAC set at the start of the season was cast in stone. That applied to all sectors. Most sectors already had an allocation under the current IRRP, so that had already taken care of the SSF sector. However, there would be other allocations becoming available - abalone for the following year, and rock lobster for 2015, and here the “basket” route would be filled up as the sector resources became available. The benefit for SSFs was that they did not have to live from hand to mouth, as they would have a  legal right of access to that basket of species for a number of years, not just one season. This would enable them to plan and organise their lives – in the past, people had complained that they were unable to do this because the rights allocation were too short. Longer term rights would apply from now.

Mr Stevens said that the difference to the DAFF was that it would move from being a mere regulator. DAFF would get involved in the developmental side, “get its hands dirty” and actively do things like preventing fronting. DAFF had been organising a rapid response unit, because there were complaints of people being swindled out of their rights. The new unit would have legal, auditing and community facilitation skills. DAFF was already talking around the terms of reference and the skill capacity needed for that response unit.

Mr Stevens addressed the question of unintended consequences. DAFF was happy that the changes would empower it and give it more legal rights. Through a continuous process of consultation with those SSF communities and NGOs working within them, DAFF was trying to mitigate any unintended consequences. It was possible to have unintended consequences around how co-ops would function, what would happen if members fell out or refused to work with each other. DAFF would be investing time and energy in working with the co-ops.  Training was also important.

Mr Stevens reminded the Committee that it had heard the expectations of the public in the hearings; the major one was an opportunity, after they had been denied access and recognition for so many years. DAFF was working with SSFS to meet those expectations. DAFF must be realistic, recognise that there may be disagreements between themselves and the fishing communities. DAFF was not prepared to compromise on the scientific working group although it was trying to accommodate indigenous knowledge.

Mr Stevens said that on the issue of rock lobster, he had been quoting verbatim from the resolutions of the meetings, which were being seriously considered, and would be discussed with the recreational fishers the following day. DAFF was still trying to find common ground with the recreational fishers, but there was a distinction between purely recreational fishers, who earned a living elsewhere, and the SSFs whose livelihoods were totally dependent on their fish.  Recreational fishers did have a right to fish at the moment, but it came down to hard choices again. Government had to strengthen and empower SSFs and whilst it was unfortunate that not everyone might have equal access to marine living resources, that was the reality, and he was not apologetic about the choice. However, he had encourage officials in fisheries not to apply for recreational fishing permits, on principle, as an example, since the reduction of the TAC was done so that recovery targets could be met. DAFF was not cutting the catch, but reducing the number of days that recreational fishers could go fishing – for instance, Christmas, Easter and public holidays were days that recreational fishers could go out to sea, but they were not allowed to go during the week.

Mr Stevens noted that the definition already encompassed small-scale and subsistence fishers, and there was no duplication.

Finally, he said that the implementation process of the SSFP was being looked at in a scientific way. DAFF scientists were leading the process to define the fishing areas, the consequence of amendments, what must be part of the regulations: and what should be in the basket/ mandjie. The DAFF had also consulted with the SSF communities around those matters, and although there was not finality, there was progress. DAFF did not have to guess where resources were.

The Chairperson asked if there were specific recommendations.

Ms Steyn said that it seemed that the Committee had asked all that it could and had received responses, She proposed that the Committee start reading through each clause. She was still worried about the constitutionality issues, and though they needed further discussion

The Chairperson summarised that usually, once the Committee had made recommendations, the DAFF would draft a new Bill incorporating recommendations, and present this. He did not think it would help to only go through the original Bill.

Ms Steyn thought the Committee was ready for a clause by clause deliberation, but thought that the DAFF must still come back with an updated implementation plan, and how the plans and SSFP would align. The Committee needed to monitor the readiness of DAFF.

Mr Bhanga pointed out that the Chairperson had put a specific recommendation, and Professor Butterworth had recommended some rephrasing. He believed that these in fact did make sense, and that was why he was questioning whether DAFF was intending to include them. He also wanted to hear the response of DAFF on protecting or limiting the transferability of fishing rights, as the government should not only be protecting the resources but also the communities. DAFF was not yet clear on that.

Ms Pilusa-Mosoane supported the Chairperson’s recommendation that the Bill’s clause by clause reading should stand over until after new recommended wording was included.

Mr van Dalen just wanted to emphasise the urgency of the Bill. There was very little room for error. DAFF had indicated that it was comfortable with the recommendations put by the Committee. He thought that the Committee would be safe enough in proceeding clause-by-clause on the original wording, to save time. If there was enough time he could come up with a list of recommendations that would be dealing with the prohibitive nature of some of its provisions.

DAFF response on proposals
Mr Stevens said that the DAFF respected Professor Butterworth immensely as a scientist, but the DAFF was requesting that his proposals for amendment not be included, as they would tamper with the meaning of the wording agreed upon by all stakeholders of the fishing industry. These were objectives and principles, and did not deal with what was in section 19, which covered administration of the implementation.

The Chairperson interjected, asking Mr Stevens merely to summarise the proposals and the DAFF stance.

Mr Stevens reiterated that DAFF was not in favour of Prof Butterworth’s proposed amendments. The wording placed in the Bill reflected precisely the consensus between all affected stakeholders. DAFF held the view that “access” implied a right, but “opportunity to access” was discretionary. The latter  was not DAFF’s intention.

Mr Stevens read out the clause which said: “the need to recognise approaches to fisheries management which contribute to food security, socio-economic development and the alleviation of poverty”. Prof Butterworth had suggested that these were already well-known objectives of Fisheries. However, Mr Stevens said that they were not in fact reflected in the current MLR Act, which was why they were emphasised now in the Bill. DAFF had explained a number of times the changed context between 1998, when the Act was passed, and now, including the fact that the Department was no longer focusing on conservation. The DAFF had to speak to its changed mandate. That was the reason for phrasing the objectives as they were.  

Prof Butterworth’s submission on multi-species was then read out; he ha said that the problem was that “multi-species” was used with a very specific meaning international, and applied to taking technological (gear effects) and/or biological (predator-prey) interactions into account, in setting management measures across a range of species. He submitted that this wording would be read as promoting an ecosystem approach to fishing by taking such factors into account, through scientific analyses around sustainable catch calculations and the allocation of such catches amongst species.

Mr Stevens said that currently, the word “multi-species” was not used in the Bill itself. However, its use in the SSFP must be read in context, and would not lead to confusion. The DAFF wanted to ensure that the SSF would have access to a basket of species. DAFF wanted to use an ecosystem approach, which was not included in the current MLR Act. Section 19 also referred to regulations and this could define the matter further. He did not agree with Prof Butterworth’s interpretation.

Mr Stevens noted that the DAFF did not agree that “access” meant “open access”. Again he said that the terms had to be read in context, with the preceding objectives, which talked about conservation and ecological principles. DAFF was not saying that there would be a free-for-all. However, he reiterated that it was saying that there had to be a distinction drawn between “access” and “opportunity” in the sense that the first was a right and the second was not. DAFF wanted to avoid problems of interpretation and be explicit that a right had to accrue to SSF, and not a discretion that depended on officials. The State Law Advisers concurred with DAFF on this point and believed that changing the wording would change the meaning of the SSFP.

The Chairperson said that Mr Stevens was being “very legal” in these responses. He noted that the Committee needed to follow a cautious route and not rush through adopting legislation. Some of the MPs who raised issues this morning were no longer in the meeting, and that posed its own limitations. He asked if there were further comments from the Committee.

Mr van Dalen suggested again that the committee proceed to deliberating the Bill. The matter was urgent and the Committee process should not unduly delay DAFF in implementing its intended objectives. However, he stressed the need for a quorum.

Ms Steyn said that the Committee should acknowledge that the Bill would be adopted, even though it the full text of all amendments was not before the Committee. She thought that the Committee must be clear to the Minister and DAFF that this was not the way the Committee wanted to pass Bills, and that it did not like the “cut and paste” approach adopted, which could lead to the Bill not making sense at the end of the day. She was pleading that DAFF bring a new version with all the amendments. It was not right to adopt a Bill whilst saying that certain things still needed to be added. The Committee could well have asked for a fully amended Bill, but she hesitated to do this, because it understood the urgency of processing.

Ms Pilusa-Mosoane said that as much as the Committee wanted the Bill to be passed, there were amendments that needed to be added, and there was an issue of the quorum. She proposed that the DAFF must effect the amendments quickly, and bring the Bill back before Parliament closed on 15 November.

The Chairperson said that the Committee had received the Bill and then the expectation was that it was to adopt it. It was also, of course, expected that any necessary amendments would be included. At the end of the day, the Bill was one passed by the Committee, not DAFF. MPs were legislators and made the laws. He still also wanted to hear DAFF’s response to his concerns around the transferability of rights within a set timeframe.

Mr Stevens said that the DAFF had debated whether to put into legislation or regulations the issue that the Chairperson had recently raised. He said that although section 21(2) talked about the powers of the Minister to rule on the transfer of fishing rights, a transfer policy had been developed subsequent to that, which would govern the procedure for transfers. DAFF thought it best to have protection, and agreed that people should not sell their rights, but that would be dealt with in the regulations, referred to in section 19 of the Act, and in fact those would also cover a number of implementation administrative issues. If DAFF changed section 21(2), that could have unintended consequences for current rights holders.

Mr Fredericks added that there was further provision to issue regulations under section 21(3) and under clause 19 of the Bill. Regulations should apply to all, not only SSFs. The transfer policy applied to all sectors but it was possible to have something also for the SSF sector, although it was desirable to be consistent. He outlined that the options were to do this under section 21, which would mean that further processes must follow of engaging with all current rights holders as well as the new ones once the Bill was passed, or under clause 19 of the Bill, to deal specifically with the SSFs.

Ms Steyn said that this was precisely the sort of discussions she had referred to earlier. She had previously said that it was undesirable to bring piece-meal legislation to Parliament. It was virtually impossible to change one thing without it having a direct or indirect impact on others. That was just the kind of confusion the Committee was trying to avoid. This was also why the Committee had asked the DAFF all those pertinent questions. Nobody actually knew what the full implications of clause 19 would be. She suggested that perhaps a phrase should be inserted to ensure that the Minister could issue regulations on that issue “in consultation with Parliament” as a safeguard. The Committee would actually be outside the process once the Bill was passed. That would, however, allow it to pass the Bill in its current form, whilst removing some of the uncertainty about what the regulations would finally say.

Mr Van Dalen said that there was a portion of the SSFP that seemed to be addressing most of the Chairperson’s concerns, as it spoke to transfer of fishing rights and how the Minister could call for the SSF community’s input, which must be done by way of the co-op.

Ms Pilusa-Mosoane said that it was important to deal with the transferability of fishing rights.

The Chairperson said that the Committee seemed to have agreed, by further discussion, that it needed to process the Bill urgently, but it would not be adopting it today, because Members still needed to go through clause by clause. For the moment, there was agreement in principle on the adoption. The clause-by-clause deliberations would happen on the following afternoon.

Other business
The Chairperson announced that the Committee had received correspondence from the Office of the Speaker, notifying it of two vacancies that had to be filled on the National Agriculture Marketing Council (NAMC), following the resignation of Mrs Steward Symington and Mr Lawrence Maduma. The two vacancies occurred in the  agricultural product-related trade and industry portfolio, and the consumer portfolio. The deadline for nominations for appointments, to be made by the Committee to the Ministry (via the Speaker) was 25 October.

An invitation was received for the Global Conference on Agriculture, Food Security and Climate Change, from 3 to 5 December, in Johannesburg. All Members should have been invited. This was an international conference, following the Conference of Parties 17 in 2011.

The meeting was adjourned.



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