In May 2007, just before the enquiry in the Equality Court was due to begin, the Minister of Environmental Affairs and Tourism Martin Van Schalkwyk agreed by consent of all the parties to find a long-term policy solution for more than 1000 traditional artisanal fishers. These fishers lived on the West and South Coast of South Africa, and had been excluded from the fishing industry with devastating social consequences.  The agreement, which later became an order of the court, provided for relief mechanisms to allow the fishers to make a living through sale or barter and to feed their families until a permanent solution could be implemented.  The emergency plan was that 120 to 140 tons of crayfish per season would be reserved for poor fishers.

This was a praiseworthy decision by the Minister, especially considering that these fishers, who for generations depended on the fruits of the sea for survival, were excluded from the fishing industry merely because they failed to fit within the categories provided for in the fishing policy. They were not commercial fishers and failed to access commercial fishing rights, because these rights were not designed with their level of fishing operations in mind. Many of them had recreational rights, but they were not allowed to sell their catch and could therefore not make a living.  They were also not subsistence fishers because they needed to sell their small catch to qualify.

More than a year after the Minister’s decision, the West Coast Rock Lobster (WCRL) Association and the big fishing companies it represents are challenging the interim fishing rights in the Cape High Court, asking for a declarator and that the Minister’s decision be reviewed and set aside because it was irrational and ultra vires (beyond his powers).  They acknowledge that the traditional artisanal fishers were unfairly discriminated against, but believe that the Minister’s decision will result in the destruction of the crayfish resource and force the closure of the industry. They claim that the government will not be able to monitor the number of crayfish that the fishers take out of the sea, and that it is similarly unfair that the industry should suffer as a result of its bad policy making.

Advocate Jeremy Gauntlett, instructed by the LRC to act on behalf of the fishers, is arguing that the WCRL Association and its affiliates are attempting to outflank the unterminated proceedings of another court already dealing with the rights in question.  He is arguing further that the decision made by the Minister was valid in law and on the facts, and was in accordance with an order of court.  And that even if all other arguments are dismissed, the fishers cannot be deprived of the interim protection that they have received from the Equality Court. In court papers, the affidavit of Kenneth Blaauw, a traditional artisanal fisher and a community representative, supports the responses of the 1241 fishers who have been left out in the cold.

It is interesting that the fishing industry claims to be acting in the interests of the WCRL resource, when as a direct result of its exploitation for decades, the resource has been reduced from 16000 tons to only 2571 tons of its original biomass. In his affidavit, the Minister maintains that the interim relief plan for the poor fishers contains provisions aimed at ensuring the well-being of the crayfish industry and that to date the measures implemented have not impacted on commercial activities.  ‘Although they may consist of large numbers of participants, the quantum of fishing involved is relatively small compared to that exploited by the medium and large commercial enterprises,’ the Minister said, adding that the department was obligated to assist the fishers.