Law enforcement responses facilitated by a fisheries crime approach: The South African example

• Jurisdiction: South Africa
• Date: 22 May 2019
• Author: Witbooi, E.
• Citation: 2017 JOLGA 1
• Published date: 22 May 2019
• Pages: 1-55

1

LAW ENFORCEMENT

RESPONSES FACILITATED BY A

FISHERIES CRIME APPROACH:

THE SOUTH AFRICAN EXAMPLE*

EMMA WITBOOI†

PescaDOLUS International Fisheries Crime Research Initiative

PHIL SNIJMAN††

Extraordinary Lecturer, Centre for Environmental Studies,

University of Pretoria

In line with international developments, South Africa is in the grips

of recasting its understanding of illegal fishing as a potential form

of fisheries crime that is frequently transnational and organised.

This unlocks the use of a number of previously untapped law

enforcement tools in the domestic and international criminal law

and procedure sphere towards addressing the problem. This article

extrapolates these tools in the context of surveying possible South

African law enforcement responses relating to fisheries crime from

both a legislative (theoretical) and a practical perspective with

reference to recent case law trends.

[Keywords] Transnational organised fisheries crime, law

enforcement, South Africa

* The authors wish to acknowledge the valuable and insightful input

and contributions made by the members of the PescaDOLUS network

of experts on fisheries crime. The views expressed are the authors’

own and do not necessarily represent those of any present or former

employers. Any errors are the authors’ own.

† BA LLB LLM PhD. This article was written whilst Dr Witbooi held a

post-doctoral fellowship under the South African Research Chair in

the Law of the Sea and Development in Africa, funded by the South

African Department of Science and Technology and hosted by the

Nelson Mandela University.

†† BA LLB MPhil LLM. Mr Snijman is also a consultant in environmental

law and management.

2017 JOLG 1

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2 JOURNAL OF OCEAN LAW & GOVERNANCE IN AFRICA

I INTRODUCTION

The content of this article is premised on the assumption that the

reader is familiar with the fisheries crime paradigm.1 It commences

with an introduction reacquainting the reader with this approach

and emphasizes the frequent transnational and organised nature

of fisheries crime. Thereafter the article is divided into two broad

sections.

The first is dedicated to the law enforcement responses facilitated

by a fisheries-crime compliance approach from a legislative

(theoretical) perspective. In this section, based on an understanding

of fisheries infringements which take place in the fisheries sector

(broadly defined as the entire value chain) as criminal offences

defined as such in South African and relevant international law,

we sketch the relevant legal landscape potentially pertaining to

addressing fisheries crime and pose a number of questions which

we also attempt to answer. The questions addressed are specifically:

Which State bodies are empowered to act under these laws? And

what aspects of the powers of such bodies potentially pertain to

addressing fisheries crime, including that which is organised and

transnational? The aim is to identify departments, agencies and

bodies with potentially overlapping and/or interfacing mandates

in the sphere of law enforcement pertaining to fisheries crime,

thereby highlighting where synergy and cooperation are required.

The second section of the article focuses on the criminal

and procedural law enforcement tools unlocked by employing

the fisheries crime paradigm. It does so by highlighting the

potential practical benefits of, and opportunities associated with,

cooperation and synergy between key agencies and bodies (both

domestically and transnationally) when it comes to successfully

tackling fisheries crime, with reference to recent key South African

cases including the investigation and successful prosecution of

those involved in the Marx syndicate case as well as the Bengis

case.2

The article is intended to be informative, with the overall

objective being the identification of ‘new’ actors and criminal law

enforcement responses or ‘tools’ that are facilitated by viewing

illegal fishing through a fisheries crime lens. This is done with

1 For a thorough introduction to the fisheries crime paradigm, as posited

in the South African context, see E de Coning & E Witbooi ‘Towards

a new “fisheries crime” paradigm: South Africa as an illustrative

example’ (2015) 60 MP 208.

2 See further below.

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Law enforcement responses facilitated by a fisheries crime

approach: The South African example 3

reference to practical examples and case studies. The focus of this

article is thus primarily on law enforcement. The authors have

chosen this topic in full recognition of the fact that improved

law enforcement is only one element of a comprehensive

solution to better addressing fisheries crime in South Africa and

internationally. Other vital facets include amongst others law and

policy review and reform, improved implementation of law and

enhanced research in the field.

II SETTING THE SCENE

Large-scale transnational illegal activity in the fisheries sector

has devastating effects on food security and coastal livelihoods.3

It also undermines coastal States’ economies, threatens marine

ecosystems and undermines States’ security.4 In 2008, the

Secretary General of the UN identified illegal fishing as one of

the seven main maritime security threats, highlighting the link

between illegal fishing and transnational organised crime. The

UN Food and Agriculture Organisation (FAO), in its 2014 State of

World Fisheries and Aquaculture Report, acknowledged that ‘[t]he

realities of corruption and organized crime, which add complexity

to the task of combating [illegal, unreported and unregulated

(IUU)] fishing, need to be addressed through supplementary

means extending beyond the realm of fisheries control and

enforcement’.5 In 2011, a UN Office on Drugs and Crime (UNODC)

report confirmed empirical evidence of the link between illegal

3 UN General Assembly ‘Fisheries: Interim report of the Special

Rapporteur on the right to food. Sixty-seventh session, Item 70(b) of the

provisional agenda: Promotion and protection of human rights: Human

rights questions, including alternative approaches for improving

the effective enjoyment of human rights and fundamental freedoms’

(UN Doc. A/67/268 (2012), available at http://www.fao.org/fsnforum/

cfs-hlpe/sites/cfs-hlpe/files/resources/20121030_fish_en%20(2).pdf,

accessed on 10 July 2016). This point is also emphasised in the African

Progress Panel ‘Grain, fish, money. Financing Africa’s green and blue

revolutions. Africa Progress Report’ (2014) (available at http://www.

africaprogresspanel.org/publications/policy-papers/2014-africa-

progress-report/, accessed on 10 July 2016).

4 See C Nellemann et al (eds) The Environmental Crime Crisis – Threats

to Sustainable Development from Illegal Exploitation and Trade in

Wildlife and Forest Resources (2014) (available at http://www.unep.

org/unea1/docs/RRAcrimecrisis.pdf, accessed on 10 July 2016).

5 FAO The State of World Fisheries and Aquaculture: Opportunities and

Challenges (2014) 132.

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