Johannesburg - The US Court of Appeals has delivered a groundbreaking
judgment, ordering that three men pay restitution to SA following
extensive unlawful harvesting of south and west coast rock lobster in
South African waters.
The three, Arnold Bengis, Jeffrey Noll and David Bengis, indulged in the over-fishing between 1987 and 2001.
Bengis was the managing director of Hout Bay Fishing Industries.
The accused had US citizenships at the time of the offence.
The
judgment, handed down on Tuesday, follows an investigation by the
now-defunct Scorpions and the successful prosecution of Hout Bay Fishing
in SA in April 2002.
Hout Bay Fishing paid a fine of R12m and two of its fishing vessels were forfeited to the state.
US authorities commenced their own investigations after being informed of the offences in 2001 by the South African government.
After
they were charged in the US the three were sentenced to various terms
of imprisonment and were fined a total of $13.3m in 2004. These charges
specifically related to violation of American law by importing fish
without authorisation.
Marius Diemont, a partner at Webber
Wentzel specialising in environmental and fisheries law, said that the
outcome of this case had been eagerly anticipated around the world.
"This
is the first time that a court has determined that a person can be
liable for damages from the overharvesting of fish stocks and sets an
important international precedent for overharvesting of natural
resources."
The amount of restitution is to be determined by a US district court.
Based
on comments made by the US Court of Appeals regarding the methodology
for determination of the restitution amount, it is possible that
restitution of $54.9m could be granted.
This is the cost to restore the lobster fishery to the level it would have been at had there been no overharvesting.
Diemont advised the US department of justice on the South African legal aspects of the case.
"A
key aspect of the case was whether it could be established that SA did
have a property interest in the overharvested lobster. The Marine Living
Resources Act is silent on who owns fish in South African waters. The
position in common law is that fish are 'res nullius' - not owned by
anyone," he said.
"However, we were able to persuade the US Court
of Appeals that the moment fish are illegally caught, the state
acquires a property right to that fish, as they are subject to seizure
and forfeiture."
The court accepted that SA's interest in
illegally harvested fish goes beyond the exercise of regulating fishing
in South Africa's waters, Diemont said.