Impact of historical and present legislation and policy governing marine resource access and management
South Africa has a vast coast line extending 3000 kilometres, incorporating a very rich, diverse marine environment which has been utilised by indigenous communities to sustain their livelihoods for centuries. During the last two hundred years of colonialism and then throughout the Apartheid regime, the fishing component of this environment has been exploited commercially by large, white owned companies and black, traditional and artisanal fishers have been largely excluded from accessing marine resources in their own right.
In 1994 the Reconstruction and Development Programme (RDP) was endorsed by the new democratic government in South African. The RDP was rooted in the participatory traditions of the Freedom Charter, and stressed the importance of meeting basic needs, developing human resources and democratising the state and society. The RDP created expectations among many of the historically disadvantaged individuals (HDI's) in the fishing communities, and they believed they would get back their rights to access marine resources and participate in the management of the resources.
In 1996 the RDP was abandoned and the government instead adapted a home-grown structural adjustment programme called Growth, Employment and Redistribution (GEAR). Under GEAR the government embraced privatisation, subsidy removal, downsizing the public sector and encouragement of small black entrepreneurs. In that process the government downsized the focus on social policies, particular within the fishing sector.
The social and economic exclusion of traditional fishers has continued in the past decade and the current fisheries management regime is having a very negative impact on the social, economic and cultural life of these traditional fishing communities. Their lack of access to resources results in their further marginalisation within the political economy of the coastal regions. Most of these fishers do not have the capacities and resources to develop alternative livelihoods and are alienated from participating actively in local governance, tourism and economic development initiatives in these regions as a result. A recent study on the socio-economic position of these fishers supports this and indicates that a significant proportion of them are extremely poor and unable to meet their basic food needs (Cardoso, 2005).
The Marine Living Resources Act 1998, gives the Minister of Environmental Affairs and Tourism the power to allocate fishing rights in three fishing categories: subsistence, commercial and recreational. It does not provide for rights for traditional artisanal fishers.
"no person shall undertake commercial fishing or subsistence fishing, engage in mariculture or operate a fish processing establishment unless a right to undertake or engage in such an activity or to operate such an establishment has been granted to such a person by the Minister" (MRLA, 1998,18 (1)).
Yet the Constitution of South Africa and Bill of Rights contained therein makes everyone equal before the law and gives the right to equal protection and benefit of the law (Equality Clause, Article 9).
This Equality includes the full and equal enjoyment of all rights and freedoms, including:
Section 22 (Freedom of trade, occupation and profession)-every citizen has the right to choose their trade, occupation or profession freely; and
Section 25 (4) (Property)
"For the purposes of this section the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and property is not limited to land"
Following the introduction of the new legislative framework (Marine Living Resources Act of 1998), the government department responsible for allocating and managing fishing rights, the Department of Environmental Affairs and Tourism and its implementation arm, Marine and Coastal Management (MCM), developed a medium term fishing rights allocation policy with a view to allocating rights for the period 2002 -2005.
In 2001 the South African government introduced a 'medium term' Fishing Rights Allocation Policy aimed at allocating rights in most commercially exploited species for four years. This rights application process was extremely onerous and expensive. Where small scale traditional fishers were able to obtain 'limited commercial' rights these rights gave them access to unsustainable quotas. The medium term rights period did not recognise artisanal fishers as a category of fishers on their own and instead forced them to apply for 'commercial' or 'limited commercial' rights. Only a small number of artisanal fishers were successful in obtaining these limited commercial rights and those who did get rights were allocated totally unsustainable quotas.
Many bone fide fishers were left out of the system completely and hence no longer had access to the sea. Others were able to eke out an existence by working for rights holders in one or other sector at certain times of the season but often had no income during other times of the year.
In March 2005 the Department of Environmental Affairs and Tourism released a new General Policy on the Allocation and Management of Long Term Commercial Fishing Rights in South Africa. This policy effectively allocated long term rights for up to 15 years in 19 of the commercial species.
This policy was released in draft form for comment by April 2005 and the final policy signed by the Minister at the end of May. An analysis and public comment to this policy by Masifundise (link to policy comments document) had indicated that this policy has far reaching implications for the small-scale fishing communities in South Africa, most notably the artisanal and traditional fisheries. The policy and fishing rights allocation system presented in this policy is heavily weighted in favour of commercial fishing enterprises and has resulted in the exclusion and marginalisation of these small-scale fishers who do not have the experience of operating as commercial enterprises or the capital necessary to succeed.
Artisanal fishers up and down the coast had high hopes that this policy would recognise and accommodate them however this new policy further entrenched their exclusion. The application process was extremely costly and complicated and the application forms were only provided in English, which is not the home language of the fishers. Also, the process of consultation on the policy was nowhere near being substantially participatory.
The fishers were forced to either form companies or other legal entities with others and compete with the large commercial companies for the high value species or apply as individuals for meagre quantum in a few limited near shore species.
The majority of the artisanal fishers have been completely excluded from obtaining long term fishing rights. For example, in the near shore West Coast Rock Lobster sector, of the 4070 fishers who applied, only 813 have been allocated rights. Those who have been allocated rights have only received between 750 and 250 kilograms per annum.
Once their catching and marketing costs have been deducted these fishers will barely be living above the poverty datum line and those allocated only 250 kilograms will be way below the poverty line.
Those who did get long term rights have to operate in the narrow confines as laid down in the policy. They are not skilled operators within this system and thereby remain totally vulnerable for exploitation.