Deciphering South African legislation on great white sharks

Ian Cox sent me a very good response (from a legal point of view) on my post of catching a great white shark in South African coastal waters and thought it would give Feathers and Fluoro readers some insight on our National legislation; here is Ian’s response (and explanation):

“The Marine Living Resources Act is not my area of legal expertise but the legal principles that apply to this act and its enforcement are uniform. The Marine Resources act is what is termed enabling legislation. It is enabling because it creates a framework within which the objectives of the Act can be achieved through regulation. The MLRA applies a quota based system of management. Thus it is hoped that sustainable populations of commercial fish species can be maintained by the enforcement of a total allowable quota which must be divided amongst the various fishing disciplines, commercial, subsistence and recreational.

So called “commercial fish” can only be targeted under the authority of a permit.  Of course the language is more complex than that. Section 18 of the MRLA states: No person shall undertake commercial fishing or subsistence fishing, engage in mariculture or operate a fish processing establishment unless a right to undertake or engage in such an activity or to operate such an establishment has been granted to such a person by the Minister.Commercial fishing paradoxically does not mean the sort of fishing that requires a commercial fishing permit under the regulations but is in fact the act of fishing for commercially listed species.

Confusion caused by the inappropriate use of language is unfortunately the bane of much of our environmental legislation. Indeed I think scholars in the field of applied linguistics will find many PhD’s in the presently uncharted waters of the use of language in the environmental sciences.  But back to the issue at hand. The regulations referred to in Feathers and Flouro’s article on catching great white sharks is not in fact the latest version of the regulations.  They have undergone 10 amendments since those regulations were published in 2005. Many of these materially affect both the legality of the regulations themselves and what can and cannot be done lawfully with rod hook and line.

The scope of commercial fishing no longer reaches absurdly as it once did to all fish on the planet, be they fresh or salt water species. Only 78 of the 2200 or so fish species found in RSA’s marine waters are listed as commercial and thus require a permit. Anglers do not appear to need a permit when fishing for moonies for example but will need one when targeting wave garrick. This has perhaps unintended consequences as regards what may or may not be done in connection with so called prohibited species.

The MRLA does not specifically deal with prohibited species. The MRLA deals with the management of so called commercial fish species. This can include the issue of a zero permissible catch in respect of those species. The regulation states that “the holder of a recreational fishing permit shall not engage in fishing for, be in possession of, or sell any fish listed in the Prohibited Species List of Annexure 7″. This is inherently problematic as it  is not clear what is meant by “engage in fishing for”. If I go fishing for hammerhead and happen to pick up a great white I am not fishing for great white. Only an idiot would deliberately fish for great white shark if in possession of a permit. The second problem arises around possession. Possession is defined in law as the physical possession of a thing with the intention to possess. Restraining a great white shark so as to remove a hook from its mouth is not possession as both the physical act of possession and the mental intention are absent. Killing a great white shark is also not possession unless the physical and mental intention to possess is present. So as you can see enforcing this regulation is going to be tricky unless you catch the fisherman carting a great white off or attempting to sell it.

Kind regards

IAN COX – 082 574 3722

23 Jan Hofmeyr Road, Westville, 3629

PO Box 855, Gillitts, 3603

Tel: 031 266 7563, Fax: 086 505 6690

www.coxattorneys.co.za

email: iancox@coxattorneys.co.za

 

PS – my interest (and therefore these posts) in great white shark and other shark species in South African coastal waters is due to the fact that fly fisherman often chum to attract sharks to successfully target them on fly tackle. It would not be impossible to accidentally hook a juvenile great white while chumming and neither would any fly angler like to lose the entire fly line to a fish that is “illegal” to catch in our waters. Therefore, it is safe to say that a juvenile great white may and should be brought to the boat and released without removing it from the water.

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