In three weeks, the Bredasdorp Magistrates’ Court in the Western Cape is expected to deliver a judgment that will set a precedent for illegal fishing in South Africa – irrespective of which way the decision goes.
In the case between the State and Unathi-Wena Fishing, the State is prosecuting the fishing company for likely causing a detrimental impact on the environment by fishing inside the De Hoop Marine Protected Area (MPA). This has never been done before and the offence carries a much larger fine.
Unathi-Wena Fishing is a large-scale fishing operation based in Gqeberha. In May 2019, the company’s vessel, the White Rose, was caught allegedly illegally fishing in the De Hoop MPA. Photographic evidence shows fishermen pulling out several fish, including sharks and rays, some of which are endangered.
De Hoop MPA, unlike some MPAs which allow fishing under very strict conditions, is a restricted zone, which means it’s illegal to commercially fish there at any time.
After years of the State gathering evidence and building a case, in mid-2022 the accused pleaded guilty to fishing inside the De Hoop MPA. With this charge, filed under the Marine Living Resources Act, the accused is liable on conviction to a fine of up to R800,000 or imprisonment of up to two years.
In a first, the State has also brought the charge of the likelihood that the environment could be degraded because of the fishing activity within the no-take MPA. This charge is filed under the National Environmental Management Act and has a penalty clause of R5-million.
The State hopes that a guilty verdict and maximum penalty on this charge will serve as a deterrent to other fishing companies operating in restricted MPAs.
Daily Maverick previously reported that in the same month Unathi-Wena was caught, a second vessel, the tuna long-liner Prins Willem, was also seized when it docked in Port Elizabeth. It had allegedly been illegally fishing in the Amathole MPA off East London.
Imraan Patel, the chief operations manager of Unathi-Wena, representing the company, admitted through defence counsel Francois van Zyl, that “on the 8th, the 9th and 10th May 2019, accused 2 [the skipper] unlawfully and negligently engaged in fishing 20 activities in and/or entered without lawful cause or permit in the De Hoop Marine Protected Area”.
But he denied “that the fishing activities in De Hoop and/or the entering without lawful cause or permit of De Hoop are or is likely to detrimentally affect the environment”.
Van Zyl submitted that although fishing activities were carried out within De Hoop on those three days, “the actual catch that was landed in Port Elizabeth on 15 May 2019 did not contravene the permit conditions in respect of the species targeted or landed and offloaded”.
The White Rose has a permit to undertake commercial fishing for demersal sharks, including the smooth-hound, soupfin, bronze, rays, skates and other fish that were offloaded at Gqeberha on 15 May 2019. While White Rose has permits for the fish they offloaded, they don’t have a permit to fish inside the De Hoop MPA.
In the plea explanation, defence advocate Van Zyl said, “De Hoop was not proclaimed a Marine Protected Area in order to provide protection to numerous aquatic and plant species, including shark and ray species.”
Van Zyl argued that De Hoop was proclaimed an MPA primarily to protect shoreline cultural and heritage sites, such as historical Khoisan fish traps and cultural landmarks, and as a refuge for reef and line fish like galjoen, steenbras and musselcracker and, more recently, for migrating southern right whales.
Ostensibly, the defence is arguing that because De Hoop was not proclaimed an MPA to protect shark and ray species, the fact that White Rose fished sharks and rays isn’t damaging the environment.
And because the White Rose has a permit to fish for the species they caught (outside MPAs), it doesn’t harm the overall environment.
Unathi-Wena’s Patel, who is the first accused, declined to comment.
The State brought in expert witnesses to testify to the broader benefits MPAs provide to the ecosystem, and specifically how the sharks and rays that the White Rose were caught fishing (like soupfin and smooth-hound), rely on De Hoop MPA for their survival.
“Marine Protected Areas are essential,” said John Filmalter, the state’s first expert witness, who has a PhD in Fishery Science.
“We are in a situation in South Africa and globally where our marine resources are under significant pressure from fishing.”
Filmalter was on the boat that photographed the White Rose illegally fishing in De Hoop in 2019.
At the time, he was conducting research comparing the movements of sharks and rays inside and outside of MPAs.
When introducing himself to the court, UCT fisheries professor Colin Attwood said that when he was first employed to work for the Department of Marine Coastal Management in the mid-1990s, he investigated the purpose and function of what was then called marine reserves (now MPAs).
“The chief director, in fact, asked me to tell him why we have marine reserves and that if, after six months I could not, he was going to take them all away,” said Attwood.
“After six months, I told him we definitely need them – and, in fact, we need a whole lot more.”