Viking Fishing's court bid a 'cynical, muscle-flexing' exercise - legal expert

Cape Town - Hake inshore trawling, which has been suspended following a Cape High Court interdict, will most likely resume after 6 February when the review application will be heard, said a legal advisor to the Department of Agriculture, Forestry. 

Shaheen Moolla, who was close to the process of granting new fishing rights late last year and a former advisor to the Department of Environmental Affairs, told Fin24 he was confident that the interdict will be discharged and that hake inshore trawling will continue after the set court date. 

On January 3, Judge Lee Bozalek granted an interim order to Viking Inshore Fishing, which placed all hake inshore trawling on hold until the review application will be heard on February 6. 

Moolla, who attended a media briefing on Friday hosted by Agriculture, Forestry and Fishing Minister Senzeni Zokwana, echoed the Minister’s sentiments that the court order granted was “unlawful”. 

“I think the minister raised valid points: the most perturbing aspect of the interdict is that an internal remedy process for objections to the allocation of fishing rights haven’t been exhausted,” Moolla said. “So in essence you have the cart put well before the horse.” 

On Friday during the media briefing, Zokwana said he was “greatly perturbed” by the interim interdict following an application from Viking Inshore Fishing, which was unhappy about the new fishing quotas that had come into effect since the beginning of the year. 

According to Zokwana, the court order denied his legal right and obligation to decide an internal appeals process that fishing companies can follow if they are not satisfied with the quota allocation. 

“The court disregarded that there’s an internal remedy process. But instead of following the internal appeals procedure through my office,” Zowana said, “Viking Fishing ran to court.” 

READ: Court interdict to suspend hake trawling 'unlawful' - minister

Moolla told Fin24 that Viking Fishing’s court bid was an “ambush application” and unnecessary muscle flexing. 

The Department is still waiting for the grounds on which the High Court granted the interdict, said Moolla.  “There seems to be bottlenecks at the Cape High Court in getting the reasons which we find strange, because this (court application) was all very urgent. 

He continued, saying Viking’s move was “cynical” as they knew the Department’s officials were on leave when they served the 120-page founding affidavit. 

“At the time, the decision-makers weren’t available and people can’t prepare adequately and Viking knew that. It’s as if they want to say to the industry: ‘We’ll show you – we’ll stop the entire industry.’” 

'Viking not reliant on hake' 

Moolla emphasised that Viking was not solely reliant on hake inshore trawling, compared to the smaller, black-owned fishing companies. 

“They’re not reliant on hake at all. People going to lose their jobs because of that. But smaller companies will like BMC Fisheries and Fisherman’s Friend – black-owned small companies that have hake trawlers at sea – they have to call them in.” 

The suspension of hake inshore trawling has a ripple effect, as skippers are not being paid containers that have been booked and paid for to ship fish to Europe will now be empty, said Moolla. 

Fishing quota allocation was ‘fair and transparent’ 

Rory Williams, director of Viking Fishing Holdings, said in the affidavit submitted to the Cape High Court that his company has had 11.85% of the hake fishing rights for a 10-year period, which came to a halt at the end of 2015 after Zokwana had allocated new quotas on 21 December 2015.

Viking Inshore Fishing Holdings argued that its fishing quotas were cut by 60% and that the formula used by government to allocate new quotas was irrational, unfair and illegal. 

READ: Inshore hake trawling in SA temporarily suspended

In the court documents, Williams further alleged that the Department was resolute to reduce the fishing rights of white-owned fishing companies, despite the technical merits and the transformation initiatives undertaken by white firms. 

Moolla however said that the process that had been followed in the new quota allocation was transparent and fair. 

“We looked at sustainability, investment and transformation and we went to the letter of these things when we granted the new rights.” 

Fifteen new fishing rights were granted, while 12 existing rights were maintained. 

“Nothing is secret and everything has been explained,” Moolla said. “We took (BEE) score sheets into account and all the applications forms are transparent.”