Paragraph 7.2(a) of the Draft Sector Specific Policies states that
“applicants will be evaluated in terms of the following balancing criteria which will be weighted in order to evaluate and assess applications:

(a) Transformation
The South African population percentage composition of demographic groups (79.6% Black, 9% Coloured, 8.9% White, and 2.5% Asian) may, amongst other transformation criteria, be used to prefer applicants from others when allocation of fishing rights and Rights Holder’s apportionment of the Total Allowable Catch (TAC) and /or Total Applied Effort (TAE) is being considered.”

The Foundation pointed out that the Draft Sector Specific policies would violate several core constitutional rights of the Coloured fishing community of the Western Cape, who have for generations made their livelihood from the sea fisheries off the Western Cape Coast. These rights include the foundational values of non-racialism, human dignity and equality.

They would clash with section 9(2) of the Constitution insofar as the measures involved are directed, not in favour of, but against, a community who themselves are a category of persons disadvantaged by unfair discrimination. They would constitute unfair racial discrimination by the State in terms of section 9(3) – without any attempt at establishing whether the discrimination is fair – as is required by section 9(5).

The Draft Sector Specific Policies would deprive the Coloured fishing community of their traditional means of livelihood – which constitutes an intimate aspect of their identity, culture, traditions and self-respect – and would seriously undermine their right to human dignity in terms of Section 10.

The Draft Policies would also deprive the Coloured fishing community of the Western Cape of their right to choose their trade, occupation or profession freely and would undermine their right to practise the cultural life of their choice – which is intimately interwoven with their traditional involvement in the fishing industry.

The Foundation also drew the attention of the Department to the recent judgment of the Labour Appeal Court in Solidarity and Others v the Department of Correctional Services and Others – which must now be considered by the Constitutional Court. In their judgment in the Labour Appeal Court Waglay JP and Davis JA pronounced as follows on the question of the regional demographics:

“In summary, the respondents failed to take account of the particular regional demographics of the Western Cape which was a mandatory requirement at the time that the plan was conceived. The failure to do so could result in a large scale reduction in the workforce of members of the designated group, who themselves had suffered egregious discrimination as a result of Apartheid. Even if the word “may” is employed in this enquiry, it is our view that, given South African history, the failure to take account of the impact of regional demographics on the nature and purpose of the plan adversely reduces the contribution of restitution towards substantive equality and hence the attempt to achieve the effect goal of developing a non-racial and non-sexist society. This complete failure to examine the region in which the plan is conceived, constitutes a sufficient legal obstacle against the plan being held to be in compliance with the EEA.”

In the light of all these circumstances the Foundation requested the Department to withdraw the reference in paragraph 7.2(a) of the Draft Sector Specific Policies to national demographics as a consideration for the allocation of fishing rights.

Issued by the FW de Klerk Foundation

Photo credit: DanieVDM / Foter / CC BY-NC-SA