Squid served up in South African courts

Courts deliver outcomes in squid fishery

SOUTH AFRICA: Squid was on the menu in court this month as two separate cases were heard relating to the total allowable effort in the fishery in applications brought against the Department of Forestry, Fisheries and the Environment (DFFE) in the Western Cape Division of the High Court.

In the first case, Acting Justice Siyo issued an order against the DFFE in a case brought by Visko SeeProdukte and 40 others on 7 October. As a result of this, the squid appeal decisions taken in June 2023 have now been set aside and the Minister has been ordered to pay costs.

The second case was brought by the South African Squid Management Industrial Association (SASMIA) to set aside the squid total allowable effort which apportioned 15% to the small scale fisheries sector.

In a judgement handed down on Friday, 11 October 2024 by Acting Judge Pangaker of the Western Cape Division of the High Court, the application was rejected paving the way for squid to continue to be included in the basket of species allocated within fishing rights granted to small-scale fishing cooperatives.

The Minister, Dr Dion George, has welcomed the decision which follows a long process to apportion part of the squid TAE to the small-scale fishers, but Shaheen Moolla of Feike Management notes that the case was only won on a technicality.

“The case that was won by DFFE was entirely on a technicality - the court rejected SASMIA’s application solely on the basis that it did not bring the review application within the stipulated 180-day review period,” he says adding that there are long term implications for the squid industry.

“The longer term implication is that the MLRA and the Minister now effectively support 19 fully fledged paper quotas who only sell their permits each year to highest payer, but refuse and fail to in any way get involved or invest in the harvesting, processing and marketing of squid,” he maintains.

The case relates to the introduction of the small-scale fisheries policy beginning in 2012 which recognised that certain species had been historically fished by small-scale fishers. At this time the policy excluded squid and SASMI contends that the species should remain excluded from the fishery.

Although squid was once again excluded from the list of species included in the 2016 regulations, there was a provision for the inclusion of non-listed species if requested.

The initial apportionment of squid was first announced as a split of 75% to 25% in favour of the commercial fishery prompting a reaction from SASMIA in 2018. The association highlighted that the split was arbitrary and that the granting of squid rights in the small-scale sector was illegitimate.

After undertaking socio economic studies and engaging further with the industry, the DFFE reconsidered the split and announced an 85% to 15% split in favour of the commercial fishery in June 2021.

SASMIA’s subsequent appeal to the Minister was dismissed and in February the following year 15-year rights were granted according to this split. This resulted in SASMIA initiating court action.

Ultimately, however, it has come down to what appears to be a bit of a sloppy handling of the motions on the side of the applicants. A reading of the judgement highlights this, noting that certain decisions would be moot if considered and that if SASMIA seeks to set aside the small scale rights, then logically their own rights would also be set aside.

And of course, the fact that SASMIA’s application to appeal the decisions by the Department was submitted well after the deadline, ultimately weighed against them.

Minister George, however, has welcomed the decision. “The decision of the Western Cape High Court is therefore a victory for the Department and for the members of the Small-scale Fishing Co-operatives who rely on fishing as a source of income and food security to feed their families and to look after their communities,” he said.

PHOTO SOURCE: Adobe Photostock