Will the recent court judgement save the West Coast rock lobster and the fishery?

File photo: Reuters

As has already been widely reported, West Coast rock lobster (WCRL) is severely depleted and is now at less than 1.9% of its pre-exploited state. It has been red-listed by WWF’s SASSI listing, identifying it as resource that people should avoid buying, and is fast heading towards commercial extinction.  The rapid decline has been accelerated by the failure of the Department of Agriculture, Forestry and Fisheries (DAFF) in recent years to reduce the total allowable catch (TAC) as recommended by its own scientists.

On 24 September last year, the Cape Times published an Op-ed from me in which I urged DAFF to adhere to the scientific advice and to reduce the total allowable catch of WCRL substantially for the 2017/2018 lobster fishing season. The Deputy Director General (DDG) responsible for fisheries, Ms. Siphokazi Ndudane, responded in an article in the Cape Times on 2 October 2017. In that article, she again demonstrated a failure to understand the principles of sustainable use of natural resources and indicated a determination to maintain the TAC at the same level as the previous year, contrary to scientific advice.

Despite continued discussions and calls to adhere to the scientific recommendations, DAFF subsequently announced that the TAC would be maintained at the same level as the previous year: 1924.08 tons, drastically exceeding the scientific advice. As a result, the WCRL resource would be subject to further over-exploitation during the 2017/2018 season, and increased risk to its already precarious status.

In desperation and after many attempts to engage with DAFF, WWF took the matter to the court arguing for the determination of the 2017/2018 TAC at 1924.08 tons to be set aside and for the TAC for the 2018/2019 season and all future seasons to be set at levels that, on the basis of best available scientific evidence, encouraged the recovery of the resource and that did not threaten its future status. It is telling that none of the approximately 600 WCRL right holders opposed the court application. The Collective, an organization that represents about 2000 small-scale fishers, submitted an affidavit supporting WWF’s position, as well as calling for some reallocation of fishing rights.

The DAFF Minister, Senzeni Zokwana and the DDG, Ms. Ndudane, opposed the application. A noteworthy feature of the answering affidavit filed on their behalf, is that the large majority of senior managers in the Fisheries Branch with responsibilities for the WCRL fishery in fact supported a significant reduction in the TAC. No-one else supported the decision taken by the DDG to keep the TAC unchanged.

On 26 September 2018, Judge Rogers handed down a judgment in the case that is likely to set a precedent, not just for fisheries management in South Africa, but for management of the use of natural resources in the country in general.  He found that the DDG’s declaration of the 2017/18 TAC at 1924.08 tons, well above the scientific recommendation, violated the Constitution and the relevant national environmental and fisheries law and was therefore invalid. He emphasized that the Constitution requires that the environment must be protected for present and future generations and also stressed that ‘expert scientific analysis is crucial in understanding the sustainability of a marine resource’. These same principles, he declared, need to be followed in future TAC decisions.

Whether out of pride, failure to understand the solid foundation on which the judgement was made, or for other reasons, DAFF has subsequently fired the State Attorney and its legal counsel, has appointed attorneys from the private sector and has applied for leave to appeal against the whole judgement.  The application for leave to appeal is scheduled to be held on 11 December.  In an online News24 article published on 30 October, a spokesperson for DAFF explained that the Minister is appealing the decision because ‘he wants to help small scale fishers survive’.

The well-being of the small-scale fishers is, without doubt, of major concern but if the Minister is serious about looking after these fishers, he needs to ensure that the TAC is set at a sustainable level in accordance with the scientific advice, as well as tackling the high levels of illegal fishing of WCRL. He also needs to implement urgently the Policy for the Small Scale Fisheries Sector in South Africa. That policy has sustainable utilization as a foundation and looks to a wide-ranging strategy to assist the small-scale fishers. Instead, all the Minister is offering those fishers is license to continue to over-exploit and thereby to exhaust the very resource that is so important to their livelihoods. As Judge Rogers stated in his judgement the alleviation of poverty cannot be interpreted as ‘allowing the short-term provision of a dwindling income to a dwindling number of fishers competing for a dwindling rock lobster population.’

Perhaps lessons will be learned from this experience and the Minister and departmental leaders will in future heed the advice from the Department’s own scientists and managers and the many other stakeholders who recognize the importance of sustainable use of our fisheries resources in accordance with the Constitution and laws. Until then, it can only be hoped that the courts will continue to block this short-sighted perspective of the Minister and the DDG and ensure that WCRL and other fish stocks are sustainably managed and the WCRL stock, a vital national asset, is rebuilt.

Kevern Cochrane is a professor at Rhodes University and previously a Director in the Fisheries and Aquaculture Department of the UN Food and Agriculture Organization, Rome, Italy