ATC190213: Report of the Select Committee on Petitions and Executive Undertakings on the Hearing of the Cakwebe Petition held on 3 August 2018, at Premier Hotel Regent, East London, as Adopted On 13 February 2019
REPORT OF THE SELECT COMMITTEE ON PETITIONS AND EXECUTIVE UNDERTAKINGS ON THE HEARING OF THE CAKWEBE PETITION HELD ON 3 AUGUST 2018, AT PREMIER HOTEL REGENT, EAST LONDON, AS ADOPTED ON 13 FEBRUARY 2019
The Select Committee on Petitions and Executive Undertakings (Committee) having considered the Cakwebe Petition, received by the Office of the Chairperson of the National Council of Provinces (NCOP) on 6 November 2017 and subsequently referred to the Committee on 7 November 2017, reports as follows:
The Cakwebe Petition (petition) was submitted to the Chairperson of the National Council of Provinces (NCOP), on behalf of the Eastern Cape Black Fishers Association (Association), by the Chairperson of the Association and the Secretary of the Association, Mr Mzamo Cakwebe.
The undated petition, states that the Association was founded in 2014 in an effort to advance the interests of black fishers in the country by ensuring they not only participate in the oceans economy but also play a meaningful role in it. The petition further states the Association is a registered organisation under the Department of Social Development Non-Profit Organisation Directorate and is a recognised industrial body or interest group in terms of section 8 of the Marine Living Resources Act (Act 18 of 1998).
Further according to the petition, the objectives of the Association include the following:
- Ensuring fishers have access to fishing quotas free of charge;
- Ensuring that government takes responsibility for fishers, particularly at sea;
- Eliminating fronting and paper quotas within the fishing industry; and
- Eliminating unfair or unlawful labour practices at sea and in the fishing industry.
Also in the petition, the Association indicates that it has done work in achieving these objectives and has approached a number of government bodies for assistance in relation some of the challenges it is experiencing such as:
- The collapse of Eyethu Building;
- The irregular deductions on the pays lips of fishers;
- Disregard of basic conditions of employment for fishers;
- Delays in implementing the Small Scale Fisheries Policy;
- The capsizing of a fishing vessel on 16 July 2017; and
- Lack of access to provident fund documents.
As regards the relief sought, the petition clearly states that the Association seeks the intervention of the NCOP in securing the following relief:
- The immediate implementation of the Eastern Cape Fishing Summit resolution;
- The amendment of the existing policy on fisheries; and
- The bolstering of the Port Elizabeth Fisheries Office.
On 3 August 2018, the Committee held a hearing on the petition at Premier Hotel Regent, East London. The purpose of the hearing was to afford the petitioner as well as other relevant stakeholders the opportunity to make oral submissions to the Committee on the subject matter of the petition submitted to the NCOP.
- Committee Members and Officials
The hearing on the petition was attended by the following Committee Members:
2.1.1 Hon D L Ximbi, ANC, Western Cape (Chairperson of the Committee);
2.1.2 Hon M J Mthimunye, ANC, Mpumalanga;
2.1.3 Hon T Wana, ANC, Eastern Cape;
2.1.3 Hon H E Mateme, ANC, Limpopo; and
2.1.4 Hon M Chetty, DA, Kwa-Zulu Natal;
The Committee Members present at the hearing on the petition were supported by the following Committee officials:
2.1.6 Mr N Mkhize, the Committee Secretary;
2.1.7 Dr M Gondwe, the Committee Content Advisor; and
2.1.8 Mr N Mangweni, the Committee Assistant.
The hearing on the petition was attended by the following relevant stakeholders:
2.2.1 Mr X Ngcangca, Chairperson of the Eastern Cape Black Fishers Association;
2.2.2 Ms Irna-Senekal, Researcher, Centre for Integrated Post-School Education and Training Nelson Mandela University, East London Campus;
2.2.3 Ms G S S Mkaza, Research Assistant, Nelson Mandela University, East London Campus; and
2.2.4 Mr C Rasoesoe, Assistant Director, Department of Trade of Industry;
- SUBMISSIONS BY THE EASTERN CAPE BLACK FISHERS ASSOCIATION
3.1 Submissions by the Chairperson of the Eastern Cape Black Fishers Association
Submissions by the Eastern Cape Black Fishers Association (Association) were led by Mr X Ngcangca (Mr Ngcanga), the Chairperson of the Association. In his submissions Mr Ngcanga informed the Committee that, since its inception, the Association has been working closely with Nelson Mandela University (NMU) Centre for Intergrated Post-School Education and Training (Centre). And the Centre has conducted extensive research into the plight of the country’s small scale fishers (fishers) and as such is in better position to expand on and outline the issues articulated in the petition and the relief sought. He further added that during the course of submissions by the Centre constant reference will be also made to a booklet it published in 2018, entitled “Let Us Not Be Slaves Until We Die: The Lives of Chokka Fishers and narrating the story of fishers lives and their struggle for survival (Attached hereto as Annexure A). He further informed the Committee that another booklet will be coming out in 2019 in cooperation with the University of Johannesburg (UJ).
Mr Ngcangca further requested the Committee to allow the Centre to unpack the details around the corrupt side of the industry and mechanisms that can be developed and implemented to better the lives of the fishers as these mechanisms are informed by the ongoing research which is aimed at bettering the lives of fisher, particularly the exploited black fishers. He also asked the Committee to take note of the fact that other institutions of higher learning, namely, Rhodes University and the University of the Western Cape have also conducted extensive research in this regard.
In concluding his brief submissions, Mr Ngcangca also submitted that the Association is funded by its own members and has no external funding despite it having taken steps to source and secure this external funding and failing to do so. He further indicated that the Association does not have the necessary office space to enable it to conduct its day to day work.
3.2 Submissions by the Centre for Integrated Post-School Education and Training
Ms I Senekal (Ms Senekal), a researcher at the Centre for Integrated Post-School Education and Training (Centre), which is based at the Nelson Mandela University, East London Campus, made detailed and comprehensive submissions highlighting the struggles of black fishers in the chokka or squid industry.
Ms Senekal commenced her submissions by unpacking the nature of property rights in the industry and how they are conferred. She submitted that the state is the starting point for understanding property rights in the fisheries sector as South African law sees the state as the primary owner of the sea along with its coastline and the resources it provides. This gives the state the authority to decide how to structure property rights to the sea through its policies and laws in relation to both commercial and recreational fishing rights. She further submitted that the quota system is the most common mechanism for establishing fishing rights and state control over fishing rights. She added that a fishing right determines who has the right to fish and how much can be fished and it is a temporary right. The right further says when and where fishing can take place and what fishing method, fishing gear and fishing boats can be used.
In her submissions Ms Senekal further elaborated on the quota system which was introduced by the Marine Living Resources Act (Act 18 of 1998) (MLRA). In this regard, she submitted that the MLRA effectively changed the lives of some of the communities living along the marine coast of the Eastern Cape by imposing “no-take” regulations without consultation and totally dispossessed these communities of their historical access to marine resources. Today these communities are now required to apply for a permit in order to access marine living resources. In explaining how the quota system works in the chokka or squid industry, Ms Senekal submitted that government makes decisions to regulate fishing and maintain sustainability of the fish stock based on research. Researchers monitor the squid and its breeding grounds. The researchers also analyse industry data, collected by government, on the number of crew employed; the catch volumes; and the number of trips made during the fishing season and determine the biggest average catch that could be allowed without harming future fishing possibilities by causing catch volumes to drop to levels where fishing squid is no longer profitable. Ms Senekal also submitted that in South Africa the squid biomass (i.e. all the living squid in a specific area during a specific time) is protected by limiting the number of fishers; the method of fishing; the total number of approved fishing vessels; and the fishing season. She further clarified that in the squid industry, the volume of fish that can be extracted is expressed as the total number of days over a year that fishers can work and this is known as the total allowable effort. Furthermore, fishing rights in the squid industry are based on the number of crew a right-holder can employ and crew allocations are divided amongst rights holders based on the number and size of approved fishing vessels linked to that right holder. This means that the past catch history of a fishing company is an important factor in determining the extent of a right that a squid fishing company is allocated. As such, fishing companies with a proven fishing capacity benefit, and large companies that bring in higher volumes of squid have an even bigger advantage. Additionally, squid fishing rights cannot be allocated where there is no fishing vessel. Also in terms of this criteria, a person will have to prove existence of a fishing right to the vessels and this is an important factor to examine when considering transformation of the industry, especially the squid industry.
Also in her submissions, Ms Senekal took the Committee through the history of the chokka or squid fishing industry. In this respect, she stated that the industry started in the apartheid era in 1960’s and initially had rights holders that were mainly white and male. Moreover, at the time squid was fished in small boats that went out during the day and came back the same day, rendering it a small type of industry. When the democratic government came to power in 1994, sanctions were lifted and South Africa could now send exports outside the country. As soon as the export fishing market opened, the fishing industry changed and there was also rapid growth of the industry. As the industry rapidly grew, new investments were made in larger boats, with sophisticated fish fishing technologies and lager blast freezers. And because bigger boats had to launch from a harbor, so squid fishing, processing and export developed. The capitalisation of the industry brought several other important developments. Firstly, the new boats could carry more crew members and stay out at sea up to four weeks at a time, increasing catch volume. Secondly, to raise the capital for new investments, the industry came together across all the activities needed to deliver squid to the market. Larger processing and export companies owned fleets of new boats, and squid right holders, in turn held shares in boats and in the processing and export side of the industry. Thirdly, the use of blast freezing fridges resulted in less damage to squid from the freezing process and owners received higher prices for premium quality squid in overseas markets. Another development in this regard, was export companies were now able to control the price at which they buy squid from the fishing companies and increased the power of exporters in the industry. The Competition Commission later granted a request for exemption by the South African Squid Exporters Association (SASEA), for it and its members, to be permitted to share “sensitive” price information on the demand and supply conditions in squid market for a period of ten years. The Competition Commission agreed with SASEA that it should not be regarded as a cartel, due to the industry being vulnerable to unfair oversees competition that forces the market prices down.
Ms Senekal further informed the Committee that post 1994 the state changed the industry and how fishing rights were allocated with the introduction of Broad Based Black Economic Empowerment. New black entrants, who mainly held smaller fishing rights, struggled to raise capital to establish viable independent fishing operations. Additionally, fishing rights were allocated for short periods only and fishing boats were hugely expensive to deploy and maintain. And because they had no previous experience as owners of commercial fishing operations, banks would not give the new rights applicants the loans needed. The easiest option was to negotiate access via existing white rights holders and boat owners. This created rights to fishing on paper for new black entrants, but not in reality. Although blacks formally owned the majority of shares, their white partners who owned less shares in the company retained sole ownership of the vessels and managed the finances of the company without their active involvement. As a result of all these difficulties with fishing rights for new black entrants, the government started a policy reform and introduced new regulations. Fishing rights were introduced for the long term of seven years. The regulations excluded rights applicants who, among others, were not part of a company or a closed corporation and it did not have access to fishing boats.
In her extensive submissions Ms Senekal also submitted that in 2015, the government reported that the majority of black ownership of squid fishing rights in 2001 stood at 33%. A 2012 report by the Department of Agriculture, Forestry, and Fisheries (DAFF) based on data collected in 2009 showed that black ownership, in squid fishing rights, had increased to 49%. By 2017 62% of the 198 individuals who owned all the squid fishing rights until 2020 were black with one formerly disadvantaged individual holding a directorship in 11 companies awarded squid fishing rights. However, according to Ms Senekal, although there is an increase in the number of black owners have squid fishing rights, in her view, the industry is still very much in controlled by the white people, the politically connected and the elite.
In concluding her submissions, Ms Senekal touched on the working conditions of fishers. In this regard she submitted that fishers have no or little protection against the hardships they experience in the industry. The situation is made worse in the work place in that when fishers are at sea that the Labour Relations Act does not apply to them but rather the law of the sea and the Merchants Shipping Act (Act 57 of 1951) which falls under the Department of Transport. Fishers are also only employed for a particular fishing trip and are issued with a new employment contract for each fishing trip they undertake. Fishers are, in this sense, viewed and treated as independent contractors or seasonal workers without benefits such as provident funds or medical aid. And when it is off season or closed season they stay at home and earn nothing. A Statutory Council for the Squid Industry (Squid Council) has been established and the Squid Council can make agreements on wages and working conditions that apply to their members. But unlike the Bargaining Council for Fisheries, agreements reached by the Squid Council cannot be extended to cover fishers working in companies that are not members of the Council. Moreover, a significant number of employers do not belong to the Small Employers Association for the Squid Industry, the only employers’ organization represented on the Squid Council.
Further in concluding her submissions, Ms Senekal, submitted that the Association has in the past lobbied government and industry players to address the issue of exploitation of fishers in the work place. The passing on of the production costs has been of particular concern in the industry. This means that fishers are paid for the volume of fish they catch and then expected to be responsible for the cost of the work. They must pay for their tackle, their fishing overalls, gumboots and any other protective gear any and all of these are deducted from the income of fishers in a lump sum. Ms Senekal indicated that she believes that the Labour Relations Act (which protects land based workers) should also be extended to protect the rights of fishers at sea.
She further submitted that where fishers established cooperatives in order to access fishing rights, the fact that most fishers lacked the necessary qualifications to professionally manage these cooperatives posed as a challenge. She acknowledged that fishers may have the understanding on how the sea works but are prone to being exploited because of a lack financial management skills when running cooperatives. She also expressed the concern that DAFF had admitted in a report to Parliament that it has an insufficient budget to implement the much needed Small Scale Fishers Policy and the delays in implementing the Policy will further perpetuate exploitation of fishers in the industry. Ms Senekal further raised the concern that there are not enough young people in the fishing industry and as such the industry is faced with an aging population. And if cooperatives in the fishing industry are to work there has to be sustainable a way to get young people into the industry. But of particular concern, according to Ms Senekal, is the criteria that states that one must show the they have been part of the industry for years before they can access fishing rights. This criterion not only excludes young people from accessing the industry but it also makes it difficult for young people to be integrated into the industry.
3.3 Submissions by the Ocean Sciences Campus
Ms G S S Mkaza (Ms Mkaza), a research assistant at the Ocean Sciences Campus of Nelson Mandela University, East London made brief submissions to the Committee. In her submissions to the Committee, Ms Mkaza requested the Committee to take into account the following in its consideration of the petition:
3.3.1 The amount that chokka or squid fishers get paid per tank of squid caught;
3.3.2 The amount that fishing companies get per tank of squid exported;
3.3.3 How fishing companies remain afloat during the closed season; and
3.3.4 Whether government has been keeping track of the issues affecting fishers, especially the issues around their working conditions and allocations of rights to black owners.
- OBSERVATIONS AND KEY FINDINGS
The Committee made the following observations and findings in relation to the various submissions on the petition:
- The petitioners are fishers working in the chokka or squid industry.
- The quota system in the chokka or squid industry, introduced by the Marine Living Resources Act (Act 18 of 1998), permits government to make decisions aimed at regulating fishing and maintaining the sustainability of fish stock based on research.
- The squid biomass, in South Africa, is protected by limiting the number of fishers; the method of fishing; the total number of approved fishing vessels; and the fishing season.
- Fishing rights in the squid industry are based on the number of crew members a rights holder can employ and crew allocations are divided amongst rights holders based on the number and size of approved fishing vessels linked to that rights holder. And this invariably means that the past catch history of a fishing company is an important factor in determining the extent of a right that a squid fishing company is allocated.
- The Competition Commission has granted a request for exemption by the South African Squid Exporters, for it and its members, to be permitted to share “sensitive” price information on the demand and supply conditions in the squid market for a period of ten years.
- The Labour Relations Act does not apply to fishers at sea but rather the law of the sea and Merchants Shipping Act which falls under the Department of Transport.
- Fishers have no or little protection against the hardships they experience in the industry. Take for instance, fishers are only employed for a particular fishing trip and are issued with a new employment contract for each fishing trip they undertake. And in this sense viewed and treated as independent contractors or seasonal workers without benefits such as provident funds or medical aid.
- The passing on of production costs to fishers is a great concern in the industry as fishers are paid for the volume of fish they catch and then expected to be responsible for the cost of the work. Fishers must pay for their tackle, their fishing overalls, gumboots and any other protective gear and the costs of all of these are deducted from fishers’ income in a lump sum.
- Fishers may have an understanding on how the sea works but are prone to being exploited because of a lack financial management skills when running cooperatives.
- There are currently very few young people in the fishing industry and as such the industry is faced with an aging population. This is further exacerbated by the criteria which states that one must show the they have been part of the industry for years before they can be permitted to work in the industry. This excludes young people and makes it difficult for them to be integrated into the industry.
4.11 Although there is a reported increase in the number of black owners that have fishing rights, the fishing industry is still largely controlled by white people, the politically connected and the elite.
4.12 The Association has in the past lobbied government and industry players to address the issue of exploitation of fishers in the industry but has had little or no success in this regard.
4.13 The Department of Agriculture, Forestry, and Fisheries and the Department of Trade and Industry (DTI) were invited to appear before the Committee and make submissions on the subject matter of the Committee but failed to honour this invitation.
Following extensive deliberations on the submissions made during the hearings on the petition, the Committee recommends as follows:
- DAFF, DTI and Department of Labour (DOL) are to establish an interdepartmental task team aimed at investigating and ultimately addressing the issues raised in the petition, including but not limited to the issues of the working conditions of chokka or squid fishers; the allocation of fishing rights to black fishers in the squid industry; the amount that fishers get paid per tank of chokka or squid caught; and the amount that fishing companies get per tank of chokka or squid exported.
- The task team referred to in 5.1 above is to be established within 2 (two) months of the tabling of this report in this House and is to further ensure, that in the course of its investigation, it consults extensively with key players in the squid industry including the Association, the Statutory Council for the Squid Industry and the Small Employers Association for the Squid Industry.
- DAFF is to expedite the implementation of the Small Scale Fishers Policy.
- DAFF, DOL and the Department of Transport are to review and evaluate the effectiveness of the existing legislation applicable to fishers on land and at sea and look into the possibility of extending the application of the relevant labour legislation, such as the Labour Relations Act, to fishers on land and at sea.
- DAFF and DTI are to work with the Department of Higher Education and Training in developing a curriculum aimed at capacitating and empowering fishers, particularly fishers who are members of cooperatives.
- DAFF, DOL, DTI and DOT are to appear before the Committee within 6 (six) months of the tabling of this report in the House and report to the Committee on the progress made in implementing recommendations 5.1 to 5.5 above.
Report to be considered.
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