SA wins fishing victory in US court

SA wins fishing victory in US court

2011-01-05 16:02

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.

  • AnneB - 2011-01-05 16:46

    This is very good news. I only hope that the restitution received will be ploughed back into the Dept of Fisheries and is used to build up our stocks.

  • chuckv - 2011-01-05 17:01

    It's high time that globalisation has a positive effect.

  • Skipper - 2011-01-05 17:22

    "The position in common law is that fish are 'res nullius' - not owned by anyone," so why the hell do I have to get a permit to catch fish that belongs to nobody??

  • Excalibur - 2011-01-05 18:51

    Skipper. 1. There are closed seasons for many fish. West and South Coast Lobster is one of those. 2. There are marine reserves within which you are not allowed to fish. 3. There are licensing restrictions on many species. No license, no fishing. These restrictions are in place to make sure that ignorant skippers do not wipe out entire populations and species just to make a fast buck. Clear. Good.

  • Hein - 2011-01-05 18:58

    @skipper: If you didn't have a licence, would you stop at your quota or would you carry on until your bait was finished? Hence, the permits.

  • Praetor - 2011-01-05 20:49

    @Skipper. Fish is not res nullius anymore.. in terms of internatuonal law all countries have a 12km teritorial zone over and above it have a 200km exclusive economic zone of the see adjacent to the country. Same reason why America can fine BP for the oilspill in the gulf of Mexico

  • Karel - 2011-01-06 02:54

    Skipper, because there will always greedy people, like the people mentioned in the article.

  • Feppie - 2011-01-06 06:29

    Good news! The bloody agents!

  • Chillipepper - 2011-01-06 07:21

    @ Skipper, the fish are not owned by anyone - so long as they are left alone and untouched. The moment you touch/catch those fish, they are then "property" and subject to the South African government's regulations as to what may be taken OUT of the sea. You dont need a permit to see and view the fish. You need the permit the second you take them out of the water and claim them as yours.

  • Amazing - 2011-01-06 07:26

    The Scorpions can win a case with such distinction on such a difficult point in law but cannot prosecute a slam dunk case in the arms deal?????

  • Joe @ Skipper - 2011-01-06 07:46

    And you are the legal expert? 'res nullis' dates from Roman Law more than 2000 years ago. Surely some things become obsolete. I can't sell liquor without a lisence, or hunt indiscriminately, or fish even with a single fishing rod, let alone a trawler, without a lisence. Regulation is necessary because people choose to not self-regulate. Personally I could not have asked for a better ruling. Now we can apply the same principle to mining, oil, etc. Only then will we pay the real price of our lifestyles. It is going to be difficult but we've run out of choices.

  • Beesblaas - 2011-01-06 07:55

    Hey Skipper, you can catch it but it doesn't belong to you. So if you claim it for yourself by taking it home or selling it you are plundering and that is were prosecution comes in.

  • Sharky - 2011-01-06 08:19

    @Skipper - you need to realise that the oceans are an interconnected ecosystem. The fish are actually owned by everyone, as we all have a common stake in sustainability on the planet. Why sart with this case? Well, punishing house robbers also had to start somewhere.

  • James - 2011-01-06 08:28

    Simple answer Skipper, one is only allowed to land a quota, i.e. licensed amount, in order to ensure that there will, in future, be some fish left in the ocean for you to land.

  • Fisherman - 2011-01-06 08:31

    @Skipper, you may ask the question as to where have all the fish gone, when you do not have any to put on the table or are paying through the roof for the product. Am quite sure that if any of our fishing companies did the same in the USA 'nationial water" their boats would have been sunk instead of fined and confiscated. Or are you the person that fishes out a bag fulll of Shad when the limit is two?

  • Verkrag - 2011-01-06 08:54

    Fantastic, a great platform finally to nail the perlemoen poachers that have raped our coastline.

  • Concerned - 2011-01-06 10:00

    This is great news. I hope this is the first step in taking up the challenge of prosecuting other internationals in their own country. In the USA we have a country that wants to do the right thing (most of the time). Would it have been possible to prosecute and get a conviction if the perpetrators came from a country such as China, Veitnam etc? This was an easier fish to fry, now lets go to the real problem countries who are reducing our natural capital and heritage - including perlemoen and rhino horn!...Oh but the brilliant scorpions are no longer...

  • Freddy - 2011-01-06 10:16

    For many people, fishing is the only means of survival to put bread & butter on the table for families. Aliens fishing illegally in our waters are destroying that. If a fisherman's livelyhood is governed by permits, then what alternative's are there actually for that type of person?

  • aresh - 2011-01-06 10:29

    With this as a precedant,we can now tackle the "Rhino Horn" problem. aresh

  • JIM - 2011-01-06 10:51

    Great news , Our waters are being raped by foreigners. Lock the B@^4%^& up. "BLOODY AGENTS"

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