Marine Living Resources Act

27 Mei 199X It is hereby m)titid th~lt the P r e s i d e n t h:i~ \y t~} the t’oll<)win: Act which IS herehy publi~hed for genera] I g<dkeuring gehey bet ddn dic {Jnderi[:l:inde Wet W:I1 hicrhy in fornlati{)n:- Hierby w(ml hekencl yemmk d;it die P r e s i d e n t ter algemene inligting gepubliwcr wmd:- :Issented 1 ACT To provide for the conservation of the marine ecosystem, the long-term sustainable utilisation of marine living resources and the orderly access to exploitation, utilisation and protection of certain marine living resources; and for these purposes to provide for the exercise of control over marine living resources in a fair and equitable manner to the benefit of all the citizens of South Africa; and to provide for matters connected therewith. ARRANGEMENT OF SECTIONS Section

1. Definitions CHAPTER 1 INTRODUCTORY PROVISIONS

2. Objectives and principles

3. Application of Act

4. Conflict with other Acts CHAPTER 2 ADMINISTRATION Industrial bodies and interest groups

2. The Minister and any organ of state shall in exercising any power under this Act, 25 have regard to the following objectives and principles: (a) The need to achieve optimum utilisation and ecologically sustainable (b) (c) (d) (e) (f) (g) (h) (i) (j) development of marine living resources; the need to conserve marine living resources for both present and future generations; the need to apply precautionary approaches in respect of the management and development of marine living resources; the need to utilise marine living resources to achieve economic growth, human resource development, capacity building within fisheries and mariculture branches, employment creation and a sound ecological balance consistent with the development objectives of the national government; the need to protect the ecosystem as a whole, including species which are not targeted for exploitation; the need to preserve marine biodiversity; the need to minimise marine pollution; the need to achieve to the extent practicable a broad and accountable participation in the decision-making processes provided for in this Act; any relevant obligation of the national government or the Republic in terms of any international agreement or applicable rule of international law; and the need to restructure the fishing industry to address historical imbalances and to achieve equity within all branches of the fishing industry. 30 35 40 45 Application of Act 16 3. (1) Unless the context indicates otherwise, this Act shall apply— (a) (b) (c) to all persons, whether or not South African persons, and to all fishing vessels and aircraft, including foreign fishing vessels and aircraft, on, in or in the airspace above South African waters; to fishing activities carried out by means of local fishing vessels or South African aircraft in, on, or in the airspace above waters outside South African waters, including waters under the particular jurisdiction of another state; and to the Prince Edward Islands referred to in section 1 of the Prince Edward Islands Act, 1948 (Act No. 43 of 1948), and any reference in this Act to the Republic shall include a reference to those Islands. (2) This Act, including any applicable regulation, shall have extraterritorial application. (3) This Act shall not apply in respect of fish found in water which does not at any time form part of the sea. Conflict with other Acts

4. If any conflict relating to marine living resources dealt with in this Act arises between this Act and the provisions of any other law, save the Constitution or any Act expressly amending this Act, the provisions of this Act shall prevail. CHAPTER 2 ADMINISTRATION Establishment of Forum

5. Establishment of Forum

6. Functions of Forum

7. Composition of Forum 8.

9. Fishery control officers and honorary marine conservation officers

10. Marine Living Resources Fund

11. Appropriation of Fund

13. Permits CHAPTER 3 MANAGEMENT OF MARINE LIVING RESOURCES PART 1: FISHERIES PLANNING

5. The Minister shall establish a body called the Consultative Advisory Forum for Marine Living Resources. Functions of Forum

6. The Forum shall advise the Minister on any matter— (a) referred to it by him or her, and in particular— (i) the management and development of the fishing industry, including issues relating to the total allowable catch; (iv) (ii) marine living resources management and related legislation; (iii) the establishment and amendment of operational management proce- dures, including management plans; recommendations and directives on areas of research, including multi- disciplinary research; and the allocation of money from the Fund; and (v) in respect of the objectives and principles referred to in section 2 that in the opinion of the Forum should be brought to the attention of the Minister. (b) Composition of Forum 7. (1) The forum shall consist of at least five members, including a chairperson, appointed by the Minister for the period determined by him or her, but not exceeding three years at a time. (2) The Minister shall ensure that the Forum be broadly representative and multidisciplinary, with members qualified to make a substantial contribution towards the proper functioning of the Forum. (3) Before the members of the Forum are appointed, the Minister shall invite nominations by interested parties by notice in the Gazette: Provided that the Minister shall not be bound by any such nomination. (4) A member of the Forum shall vacate his or her office if he or she— (a) becomes insolvent; 5 10 15 20 25 30 35 40 45 18 (b) becomes of unsound mind; (c) is convicted of an offence and is sentenced to imprisonment without the option of a fine; is absent from three consecutive meetings of the Forum without leave of the chairperson; resigns by written notice to the Minister; or is removed from office by the Minister if there are sufficient reasons in the opinion of the Minister for doing so. (d) (e) (f) (5) The Director-General may pay to a member of the Forum who is not in the full-time employment of an organ of state, from money appropriated by Parliament for that purpose, the allowances which the Minister may determine in general or in a specific case, in consultation with the Minister of Finance. (6) The Minister may prescribe the necessary matters relating to meetings of the Forum. Industrial bodies and interest groups 8. (1) The Minister may, by notice in the Gazette, recognise any industrial body or interest group in a branch of the fishing industry which, in the opinion of the Minister, is representative of the specific body or group. (2) The Forum shall give consideration to information submitted to it by industrial bodies and interest groups recognised in terms of subsection (1). Fishery control officers and honorary marine conservation officers 9. (1) The Minister may, subject to the laws governing the public service, designate posts or ranks in any organ of state of which the incumbents shall be fishery control officers. (2) The Minister may by written notice to any other person that he or she deems fit to be an honorary marine conservation officer, appoint that person, and in doing so may specify the powers to be exercised by such a person in terms of this Act. (3) A fishery control officer and an honorary marine conservation officer shall be furnished by the Director-General with the prescribed identity card. Marine Living Resources Fund 10. (1) The Sea Fishery Fund referred to in section 27 of the Sea Fishery Act, 1988 (Act No. 12 of 1988), shall continue to exist under the name the Marine Living Resources Fund, notwithstanding the repeal of the said Act by section 84. (2) Into the Fund there shall be paid, notwithstanding the provisions of any other Act, but subject to section 22— 5 10 15 20 25 30 35 (a) money paid in respect of fines, penalties and interest for any offence committed in terms of this Act, including any proceeds from the sale of any vessel, vehicle, aircraft, gear or fish forfeited or seized in terms of this Act; (b) all interest and fees collected in terms of this Act; (c) money appropriated by Parliament for the realisation of the objects of the 40 Fund; interest on investments; (d) (e) donations, with the approval of the Minister in consultation with the Minister of Finance; (f) money which, with the approval of the Minister in consultation with the Minister of Finance, may accrue to the Fund from any other source; and (g) any levy on fish, fish products, aquatic plants or other marine resources, imposed and collected in terms of this Act, the Sea Fishery Act, 1988, or any other law. (3) The Fund shall be administered by the Director-General in consultation with the Minister, in accordance with an estimate or a supplementary or revised estimate of revenue and expenditure approved by the Minister with the concurrence of the Minister of Finance in respect of every financial year, which shall end on 31 March, and no expenditure payable from the Fund may be incurred except in accordance with such estimate of expenditure. (4) The Director-General shall be the accounting officer charged with the responsi- bility of accounting for money received and expenditure incurred by the Fund. 45 50 55 20 (5) The Director-General shall invest money in the fund not required for immediate use with the Public Investment Commissioners. (6) Any unexpended balance in the Fund at the end of a financial year shall be carried forward as a credit in the Fund to the next financial year. (7) The Auditor-General shall annually audit the books and accounts of the Fund. 5 Appropriation of Fund

11. The Fund shall provide for the administration of the provisions of this Act, including any activity aimed at reaching the objectives referred to in section 2. Register 12. (1) The Director-General shall keep a register of all rights of access, other rights, 10 permits and licences granted or issued in terms of this Act. (2) The Minister may prescribe— the format of the register contemplated in subsection (1); and (a) (b) any registration system that he or she deems necessary. (3) The register contemplated in subsection (1) shall be available for inspection by the 15 public at the prescribed places and times. Permits 13. (1) No person shall exercise any right granted in terms of section 18 or perform any other activity in terms of this Act unless a permit has been issued by the Minister to such person to exercise that right or perform that activity. (2) Any permit contemplated in subsection (1) shall— 20 (a) be issued for a specified period not exceeding one year; (b) be issued subject to the conditions determined by the Minister in the permit; and (c) be issued against the payment of any fees determined by the Minister in terms 25 of section 25(1). (3) The holder of a permit shall at all times have that permit available for inspection at the location where the right or activity in respect of which the permit has been issued, is exercised. (4) A permit to exercise an existing right in terms of this Act may be refused if the 30 conditions of a previously issued permit had not been adhered to. CHAPTER 3 MANAGEMENT OF MARINE LIVING RESOURCES PART 1: FISHERIES PLANNING Determination of allowable catches and applied effort 14. (1) The Minister shall determine the total allowable catch, the total applied effort, or a combination thereof. (2) The Minister shall determine the portions of the total allowable catch, the total applied effort, or a combination thereof, to be allocated in any year to subsistence, recreational, local commercial and foreign fishing, respectively. (3) In the execution of his or her powers in terms of this section, the Minister may determine that the total allowable catch, or the total applied effort, or a combination thereof, shall apply— (a) (b) in a particular area, or in respect of particular species or a group of species of fish; and in respect of the use of particular gear, fishing methods or types of fishing vessels. (4) If the allowable commercial catch in respect of which commercial fishing rights exist, increases, the mass of the increase shall be available for allocation by the Minister. 35 40 45 (5) The provisions of this section shall not be construed to mean that the Minister is 22 prohibited from determining that— the total allowable catch; (a) (b) a portion of the total allowable catch contemplated in subsection (2); or (c) shall be nil. an allocation in terms of subsection (4), Fisheries management areas 15. (1) The Minister may by notice in the Gazette declare any area of the South African waters to be a fisheries management area for the management of the species described in the notice. (2) The Minister may in respect of each fisheries management area approve a plan for the conservation, management and development of the fisheries. (3) The Minister shall, during the preparation of any plan contemplated in subsection (2), consult with the Forum and other organs of state affected by the plan. Emergency measures 16. (1) If an emergency occurs that endangers or may endanger stocks of fish or aquatic life, or any species or class of fish or aquatic life in any fishery or part of a fishery, the Minister may— (a) (b) (c) suspend all or any of the fishing in that fishery or any specified part of it; restrict the number of fishing vessels fishing in that fishery; or restrict the mass of fish which may be taken from that fishery. (2) The particulars of any measures taken in terms of this section shall be made known by notice in the Gazette and in any other appropriate manner. Priority fishing areas

14. Determination of allowable catches and applied effort

15. Fisheries management areas

16. Emergency measures

17. Priority fishing areas PART 2: LOCAL FISHING

17. If the Minister is of the opinion that special measures are necessary to ensure that authorised fishing within any area of the South African waters is not impeded or otherwise interfered with, he or she may, after consultation with the affected parties, by notice in the Gazette— (a) declare such an area to be a priority fishing area for the purposes stated in the notice; and (b) prohibit any activity determined in the notice. PART 2: LOCAL FISHING Granting of rights 18. (1) 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. (2) An application for any right referred to in subsection (1) shall be submitted to the Minister in the manner that the Minister may determine. 5 10 15 20 25 30 35 (3) The Minister may require an environmental impact assessment report to be 40 submitted by the applicant. (4) Unless otherwise determined by the Minister in relation to the holders of existing rights, only South African persons shall acquire or hold rights in terms of this section. (5) In granting any right referred to in subsection (1), the Minister shall, in order to achieve the objectives contemplated in section 2, have particular regard to the need to permit new entrants, particularly those from historically disadvantaged sectors of society. (6) All rights granted in terms of this section shall be valid for the period determined by the Minister, which period shall not exceed 15 years, whereafter it shall automatically terminate and revert back to the State to be reallocated in terms of the provisions of this Act relating to the allocation of such rights. (7) The Minister may determine sustainable conservation and management measures, including the use of a particular type of vessel or gear, or area of fishing, to which a right may be subject. 45 50 Subsistence fishing 24 19. (1) The Minister may, in order to achieve the objectives contemplated in section 9(2) of the Constitution, by notice in the Gazette— (a) establish areas or zones where subsistence fishers may fish; and (b) after consultation with the Forum, declare— (i) a specified community to be a fishing community, inhabitants may be declared to be subsistence fishers; or from which (ii) any other person to be a subsistence fisher; or (iii) any other fishing or related activity or the exercise of any other right in that area or zone to be prohibited. (2) No subsistence fishing permit shall be transferable except with the approval of and subject to the conditions determined by the Minister. Recreational fishing 20. (1) No person shall sell, barter or trade any fish caught through recreational fishing. (2) No recreational fishing permit shall be transferable. PART 3: COMMERCIAL FISHING Commercial fishing 21. (1) Subject to the provisions of this Act, a commercial fishing right may be leased, divided or otherwise transferred. 5 10 15 20 (2) An application to transfer a commercial fishing right or a part thereof shall be submitted to the Minister in the manner that the Minister may determine, and subject to the provisions of this Act and any applicable regulation, the Minister may, in writing, approve the transfer of the right or a part thereof. (3) The Minister may, after consultation with the Forum, make regulations 25 regarding— (a) the formula by which a commercial fishing right as a portion of the allowable commercial catch, the total applied effort, or a combination thereof, shall be determined; (c) (d) (b) guidelines or criteria concerning the transfer of any right of access, including determining limits on the transfer of rights between holders of such rights on a temporary basis; the maximum or minimum portion of the allowable commercial catch, the total applied effort, or a combination thereof, which may be allocated or transferred to, or acquired or otherwise held by, any person; reallocation of any right of access, having regard to any significant alteration in the long-term revenue derived from the resource being exploited or in the long-term availability of the resource; the determination of rights to, or disposition of, by-catches in relation to any right; the monitoring and control of the use of rights of access; subject to the provisions of the Labour Relations Act, 1995 (Act No. 66 of 1995), the employment of South African persons on board fishing vessels that are used for the utilisation of any right of access; the utilisation of South African fish processing establishments in the exercise of a right of access; and the other measures that may be necessary or desirable to achieve the effective implementation of a scheme for rights of access. (f) (g) (h) (e) (i) 30 35 40 45 Leasing of rights 22. (1) As from a date fixed by the Minister in the Gazette, the rights contemplated in 50 section 18 shall, subject to section 31, be leased by the State. 26 (2) The Minister may prescribe the method of allocation and payment in respect of leases contemplated in subsection (1), including criteria for the granting of the rights contemplated in section 18. (3) The method of allocation and payment contemplated in subsection (2), which may include tendering and fixed price leasing, may vary between branches of the fishing industry. (4) With the concurrence of the Minister of Finance, a determined portion of the money paid in respect of a right leased by the State shall be paid into the Fund and the remainder shall be paid into the National Revenue Fund. PART 4: GENERAL LOCAL MATTERS Local fishing vessel licence 23. (1) No person shall use a fishing vessel or any other vessel to exercise any right of access unless a local fishing vessel licence has been issued to such person. (2) An application for a local fishing vessel licence shall be submitted to the Minister in the manner that the Minister may determine. Reduction of rights

18. Granting of rights

19. Subsistence Fishing

20. Recreational Fishing PART 3: COMMERCIAL FISHING

21. Commercial Fishing

22. Leasing of rights PART 4: GENERAL LOCAL MATTERS

23. Local fishing vessel licence 4

24. Reduction of rights

26. Recovery of interest and fees

27. Fishing harbours

28. Cancellation and suspension of rights, licences and permits PART 5: FISHERIES TRANSFORMATION COUNCIL

24. The Minister may in respect of any fishery, determine, after consultation with the Forum, that the portions of the total allowable catch, the total applied effort, or a combination thereof, allocated in any year to subsistence, local commercial and foreign fishing, and rights granted in respect thereof, shall be reduced. Fees 25. (1) All rights, permits and licences in terms of this Act shall be granted or issued against the payment of the fees determined by the Minister in consultation with the Minister of Finance. (2) An application for any right, permit or licence in terms of this Act shall be accompanied by an application fee determined by the Minister in consultation with the Minister of Finance. Recovery of interest and fees

26. The Director-General may recover the amount of any interest or fee which is due and payable in terms of this Act in a competent court of law. Fishing harbours 27. (1) Subject to subsection (2), the Minister may by notice in the Gazette declare a harbour or a defined portion of a harbour or a defined area of the sea and the seashore, to be a fishing harbour. (2) If the Minister desires to declare a commercial harbour or a portion of such harbour to be a fishing harbour, he or she shall obtain the prior approval of the Minister of Transport. (3) The Minister may, in consultation with the Minister of Finance, determine the fees payable in respect of the use of a fishing harbour or the facilities available in such a harbour. Cancellation and suspension of rights, licences and permits 28. (1) If a holder of any right, licence or permit in terms of this Act— (a) has furnished information in the application for that right, licence or permit, or has submitted any other information required in terms of this Act, which is not true or complete; (b) contravenes or fails to comply with a condition imposed in the right, licence or permit; 5 10 15 20 25 30 35 40 45 28 (c) (d) (e) contravenes or fails to comply with a provision of this Act; is convicted of an offence in terms of this Act; or fails to effectively utilise that right, licence or permit, the Director-General may by written notice delivered to such holder, or sent by registered post to the said holder’s last known address, request the holder to show cause in writing, within a period of 21 days from the date of the notice, why the right, licence or permit should not be revoked, suspended, cancelled, altered or reduced, as the case may be. (2) The Director-General shall after expiry of the period referred to in subsection (1) refer the matter, together with any reason furnished by the holder in question, to the Minister for the Minister’s decision. (3) When a matter is referred to the Minister in terms of subsection (2), the Minister may— (a) (b) (c) (d) alter the terms or conditions of the right, licence or permit; or (e) decide not to revoke, suspend, cancel, alter or reduce the right, licence or revoke the right, licence or permit; suspend the right, licence or permit for a period determined by the Minister; cancel the right, licence or permit from a date determined by the Minister; permit. (4) Notwithstanding the provisions of subsections (1), (2) and (3), the Minister may, whenever he or she is of the opinion that it is in the interests of the promotion, protection or utilisation on a sustainable basis of a particular marine living resource, at any time by written notice to the holder of a right, licence or permit, revoke, suspend, cancel or reduce that right, licence or permit. PART FIVE: FISHERIES TRANSFORMATION COUNCIL Establishment of Fisheries Transformation Council 5 10 15 20 25

29. Establishment of Fisheries Transformation Council

30. Main object of Council

31. Allocation of rights to and by Council

32. Powers of Council

33. Management and control

34. Composition of Council

37. Abolishment of Council PART 6: FOREIGN FISHING 38. International agreements

39. Foreign fishing vessel licences PART 7: HIGH SEAS FISHING

40. Prohibition of high seas fishing

41. High seas licences 42. Implementation of international conservation and management measures CHAPTER 4 MARINE PROTECTED AREAS

40. No person shall undertake fishing or related activities on the high seas by means of a fishing vessel registered in the Republic unless a high seas fishing vessel licence has been issued in respect of such a fishing vessel. High seas licences 5 10 15 20 25 30 41. (1) The Minister may issue a high seas fishing licence in respect of a local fishing vessel, subject to the conditions that he or she considers appropriate. (2) A high seas fishing licence shall be valid for a period not exceeding one year. (3) A high seas fishing licence shall only be issued in respect of a local fishing vessel. (4) A high seas fishing licence shall terminate— 35 (a) on expiration of the period for which it was valid; (b) (c) should the vessel cease to be registered in the Republic; or should the master, owner or charterer of the high seas fishing vessel be convicted of an offence in terms of section 39(5). Implementation of international conservation and management measures 40 42. (1) The Minister may provide appropriate information in terms of international conservation and management measures to an international organisation of which the Republic is a member, or to states parties to such international conservation and management measures. (2) The Minister may exchange information, including evidentiary material, with other states that are parties to international conservation and management measures to enable the Republic and such other states to better implement the objects of such international conservation and management measures. 45 34 (3) If the Director-General has reason to suspect that a foreign fishing vessel was involved in a contravention of an international conservation or management measure, he or she may— (a) provide to the appropriate authorities of the flag state of the foreign fishing vessel concerned, such information, including evidentiary material, relating to that contravention; and (b) when such foreign fishing vessel is voluntarily in a port of the Republic, promptly notify the appropriate authorities of the flag state of the vessel accordingly. 5 (4) The Minister may from time to time publish by notice in the Gazette particulars of any international conservation and management measures or international agreement concerning marine living resources. 10 CHAPTER 4 MARINE PROTECTED AREAS Marine protected areas 43. (1) The Minister may, by notice published in the Gazette, declare an area to be a marine protected area— (a) (b) (c) for the protection of fauna and flora or a particular species of fauna or flora and the physical features on which they depend; to facilitate fishery management by protecting spawning stock, allowing stock recovery, enhancing stock abundance in adjacent areas, and providing pristine communities for research; or to diminish any conflict that may arise from competing uses in that area. (2) No person shall in any marine protected area, without permission in terms of subsection (3)— take or destroy any fauna and flora other than fish; (a) fish or attempt to fish; (b) (c) dredge, extract sand or gravel, discharge or deposit waste or any other polluting matter, or in any way disturb, alter or destroy the natural environment; (d) construct or erect any building or other structure on or over any land or water (e) within such a marine protected area; or carry on any activity which may adversely impact on the ecosystems of that area. (3) The Minister may, after consultation with the Forum, give permission in writing that any activity prohibited in terms of this section may be undertaken, where such activity is required for the proper management of the marine protected area. CHAPTER 5 PROHIBITED ACTIVITIES AND STOWAGE OF GEAR Prohibited fishing methods 44. (1) No person shall— (a) use, permit to be used, or attempt to use any explosive, fire-arm, poison or other noxious substance for the purpose of killing, stunning, disabling or catching fish, or of in any way rendering fish to be caught more easily; (b) carry or have in his or her possession or control any explosive, fire-arm, poison or other noxious substance for any of the purposes referred to in paragraph (a); or engage in a fishing or related activity by a method or in a manner prohibited by the Minister by notice in the Gazette. (c) 15 20 25 30 35 40 45 (2) No person shall land, sell, receive or possess any fish taken by any means in 50 contravention of this Act. Possession of prohibited gear 36

43. Marine protected areas CHAPTER 5 PROHIBITED ACTIVITIES AND STOWAGE OF GEAR

44. Prohibited fishing methods

45. Possession of prohibited gear Interference with gear 46.

48. Fish aggregating devices

49. Stowage of gear CHAPTER 6 LAW ENFORCEMENT

45. No person shall use, possess or have control of— (a) any net or trap, the mesh size of which does not conform to the prescribed minimum mesh size; (b) any gear which does not conform to the standards that may be prescribed for 5 that type of gear; or any gear which is prohibited in terms of this Act. (c) Interference with gear

46. No person shall— (a) remove, haul, empty, cast adrift or otherwise interfere with any fishing net, line, pot, trap, gear, tackle, or other equipment belonging to any other person without the consent of that person; (b) place any object in the water, or promote or undertake any activity in a manner so as to obstruct a fishing operation being carried out by another person; (c) destroy, damage, displace or move or alter the position of any fishing net, line, pot, trap, gear, tackle or other fishing equipment, or any buoy, float or other marker attached to it; or remove fish from any fishing net, line, pot, trap, gear, tackle or other fishing equipment belonging to any other person without the consent of that person. (d) Driftnet fishing

47. Except on the authority of a permit issued by the Minister— (a) no vessel shall be used for or to assist in any driftnet fishing activities; (b) no person shall engage or assist in any driftnet fishing activities; and (c) no person on board a local fishing vessel or a foreign fishing vessel in respect of which a foreign fishing vessel licence has been issued, shall be in possession of a driftnet or part thereof. 10 15 20 25 Fish aggregating devices 48. (1) An application to place a fish aggregating device in South African waters shall be submitted to the Minister in the manner that the Minister may determine. (2) A permit to place a fish aggregating device shall not confer any right to fish. (3) The Minister may by notice in the Gazette— 30 (a) declare any fish aggregating device to be a designated fish aggregating device for the purposes of this section; and (b) determine who may fish within a radius of one nautical mile of a designated fish aggregating device or a class of designated fish aggregating devices. 35 (4) Subject to subsection (3), no person shall fish within a radius of one nautical mile from a designated fish aggregating device without the permission of the Minister and unless in accordance with the conditions that he or she may determine. (5) Permission to use a fish aggregating device does not affect any obligation to observe applicable conservation or management measures, unless the Minister determines in writing that a particular measure does not apply in respect of fish caught within one nautical mile of that device. Stowage of gear 49. (1) Gear on board any foreign fishing vessel for which a foreign fishing vessel licence has not been issued shall be stowed in the prescribed manner while the vessel is within South African waters. (2) A foreign fishing vessel that is licensed in terms of section 39(2) to fish by means of a particular type of gear in any specific area of the South African waters— 40 45 38 (a) (b) shall stow any other gear on board the vessel in the prescribed manner while the vessel is within that area; and shall stow all gear on board the vessel in the prescribed manner while the vessel is within any other area of the South African waters where it is not licensed to fish. 5 CHAPTER 6 LAW ENFORCEMENT Observers 50. (1) The Director-General may designate a person in writing to act as an observer on vessels issued with fishing licences in terms of this Act and shall furnish such an observer with the prescribed identity card. (2) An observer may be designated in accordance with the terms of an agreement contemplated in section 38. (3) Any person designated in accordance with subsection (2) who is not a citizen of the Republic shall, while in South African waters, be subject to the provisions of this Act for the purposes of carrying out his or her duties and enforcing his or her rights. (4) An observer shall exercise the scientific, compliance, monitoring and other functions determined by the Minister. (5) Any person on board any vessel issued with a licence or permit shall permit any observer to board and remain on such vessel for the purposes of performing his or her functions. Powers of fishery control officers 51. (1) For the purposes of enforcing this Act any fishery control officer may with a warrant enter and search any vessel, vehicle, aircraft or premises or seize any property. (2) For the purposes of enforcing this Act any fishery control officer may without a warrant— (a) order any foreign fishing vessel in South African waters, and any local fishing (b) (c) vessel in or beyond such waters to stop; require the master of a vessel to stop fishing and take the gear of the vessel back on board; require the master of a vessel to facilitate the boarding of a vessel by all appropriate means; (d) go on board a vessel and take with him or her such other persons as he or she may require for assistance in the execution of his or her powers; (e) muster the crew of a vessel; (f) require to be produced, examine and make copies of a certificate of registry, licence, permit, log book, official documents, record of fish caught and any other document required in terms of this Act or relating to a vessel and to the crew or any member thereof or to any person on board the vessel which is in their respective possession or control on board the vessel; require the master to appear and give an explanation concerning the vessel, the crew, any person on board the vessel and any document referred to in paragraph (f); (g) 10 15 20 25 30 35 40 (h) make any examination or enquiry which he or she may consider necessary to 45 ascertain whether any provision of this Act has been contravened; (i) make an entry dated and signed by him or her in any vessel’s log book; (j) where he or she has reasonable grounds to believe that an offence in terms of this Act has been or is being committed, take or require the master to take the vessel to any place, port or harbour in the territory of the Republic for the purpose of carrying out any search, examination or enquiry; (k) give directions to the master and any crew member of any vessel stopped, boarded or searched as may be necessary or reasonably expedient for any 50 40 purpose specified in this Act or for the compliance by the vessel, master or any crew member with any condition of a licence; at all reasonable times enter and inspect any fish processing establishment or any other place where fish or fish products are kept or stored; and (l) (m) take samples of any fish found in any vessel, vehicle, aircraft or on any 5 premises searched in terms of this section. (3) A fishery control officer may, without a warrant— (a) enter and search any vessel, vehicle, aircraft or premises if he or she has reasonable grounds to believe that an offence has been or is being committed or that fish illegally fished or substances or devices for use contrary to section 44 or 45 are being stowed, if— (i) the person in control of the vessel, vehicle, aircraft or premises consents to such entry or search; or the fishery control officer has reasonable grounds to believe that a warrant will be issued, if he or she were to apply for such warrant, and the delay caused by the obtaining of such a warrant would defeat the object of the entry or search; (ii) (b) (c) stop, enter and search any vessel, vehicle or aircraft which he or she reasonably suspects is being used or is involved in the commission of an offence in terms of this Act; seize— (i) any property on board any vessel, vehicle or aircraft or on any premises if— (aa) the person in control of the vessel, vehicle, aircraft or premises consents to such seizure; or (bb) the fishery control officer has reasonable grounds to believe that a warrant will be issued, if he or she were to apply for such warrant, and the delay caused by the obtaining of such a warrant would defeat the object of the seizure; (ii) any vessel, including its gear, equipment, stores and cargo, and any vehicle or aircraft of which he or she has reasonable grounds to believe that it has been or is being used in the commission of an offence in terms of this Act or in respect of which he or she suspects such offence to have been committed or which he or she knows or has reasonable grounds to suspect that it has been seized or forfeited in terms of any provision of this Act; (iii) any fish or fish product which he or she has reasonable grounds to suspect to have been taken or produced in the commission of such offence or which are possessed in contravention of this Act; (iv) any substance or device which he or she has reasonable grounds to to have been used or to be possessed or controlled in suspect contravention of section 44 or 45; (v) any log book, chart or other document required to be maintained in terms of this Act or in terms of any licence, in respect of which he or she has reasonable grounds to believe that it shows or tends to show, with or without other evidence, the commission of an offence in terms of this Act; or (vi) anything which he or she has reasonable grounds to believe might be 10 15 20 25 30 35 40 45 used as evidence in any proceedings in terms of this Act; or (d) arrest any person whom he or she has reasonable grounds to suspect to have 50 committed an offence in terms of this Act. (4) In exercising the powers referred to in this section a fishery control officer may, where necessary, use only the minimum force which is reasonable in the circumstances, with due regard to human dignity and privacy. (5) A fishery control officer shall in the exercise of his or her powers in terms of this Act, be deemed to be a peace officer as defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). 55 Powers of fishery control officers beyond South African waters

51. Powers of fishery control officers

52. Powers of fishery control officers beyond South African waters

53. Seizure of vessels

54. Seizure of vehicles or aircraft 55.

56. Co-operation with officials

57. Duty to report Immobilisation of vessels, vehicles or aircraft 6 CHAPTER 7 JUDICIAL MATTERS

52. A fishery control officer may without a warrant following hot pursuit in 42 accordance with international law as reflected in article 111 of the United Nations Convention on the Law of the Sea— (a) stop, board and search outside South African waters, any foreign fishing vessel which he or she has reasonable grounds to believe has been used in the commission of an offence in terms of this Act in South African waters and bring such vessel and all persons and things on board to any place, port or harbour in the territory of the Republic; and (b) exercise beyond South African waters all the powers conferred on a fishery control officer in terms of this Act. Seizure of vessels 53. (1) Where any vessel is seized in terms of section 51, the master and crew thereof shall take the vessel to such place, port or harbour in the territory of the Republic as the fishery control officer shall require and the vessel may be detained pending the outcome of any proceedings in terms of this Act until it is released on payment or lodging of security in terms of section 62. (2) If a master fails or refuses to take a vessel contemplated in subsection (1) to the designated place, port or harbour, a fishery control officer may take charge of the vessel for the purpose of taking it to the designated place, port or harbour. Seizure of vehicles or aircraft 54. (1) Where any vehicle or aircraft is seized in terms of section 51, the driver or pilot thereof shall take the vehicle or aircraft to such place in the territory of the Republic as a fishery control officer shall designate as being the nearest or most convenient place for the holding of such vehicle or aircraft and the vehicle or aircraft may be detained pending the outcome of any proceedings in terms of this Act until it is released on payment or lodging of security in terms of section 62. (2) If a driver or pilot fails or refuses to take a vehicle or aircraft contemplated in subsection (1) to the designated place, a fishery control officer may take charge of the vehicle or aircraft for the purpose of bringing it to the designated place. (3) A court with jurisdiction over a vessel seized in terms of section 51, shall have jurisdiction over any vehicle or aircraft seized in connection with the same offence in terms of this section notwithstanding the whereabouts of the said vehicle or aircraft. Immobilisation of vessels, vehicles or aircraft 55. (1) Having regard to the safety of a vessel, vehicle or aircraft seized, taken or detained, which is in the custody of the State in terms of this Act, a fishery control officer may take steps to immobilise it and may remove any part thereof. (2) Any part removed as contemplated in subsection (1) shall be kept safely and returned to the vessel, vehicle or aircraft immediately upon its release from custody. Co-operation with officials 56. (1) Whenever a fishing control officer or an honorary marine conservation officer exercises any power or performs any duty in terms of this Act, he or she shall at the request of any person affected thereby, produce the identity card contemplated in section 9(3) to such person for inspection. (2) The master and each member of the crew of any fishing vessel, the driver of any vehicle and the pilot and crew of any aircraft shall immediately comply with any lawful instruction given or request made by a fishery control officer and shall facilitate safe boarding, entry and inspection of the vessel, vehicle or aircraft and any gear, equipment, register, document, fish and fish product. (3) The master and each member of the crew of any fishing vessel, the driver of any vehicle and the pilot and crew of any aircraft shall take all measures to ensure the safety of a fishery control officer in the performance of his or her duties. 5 10 15 20 25 30 35 40 45 50 44 (4) The holder of a permit for and all persons employed at any fish processing establishment, shall immediately comply with any instruction or request given by a fishery control officer, facilitate his or her safe entry and inspection of the fish processing establishment, records, documents, fish and fish products and take all measures necessary to ensure the safety of a fishery control officer in the performance of his or her duties. (5) No person shall— (a) assault, obstruct, resist, delay, refuse the boarding of, intimidate or fail to take all reasonable measures to ensure the safety of, or otherwise interfere with a fishery control officer or observer in the performance of his or her duties; incite or encourage any other person to assault, resist or obstruct any fishery control officer while exercising or performing his or her powers or duties, or any other person lawfully acting under the orders of the fishery control officer in his or her aid; (b) (d) (c) use threatening language or behave in a threatening or insulting manner or use abusive language or insulting gestures towards any fishery control officer or observer while exercising or performing his or her powers or duties, or towards any other person lawfully acting under the orders of a fishery control officer in his or her aid; fail to comply with the lawful requirements of any fishery control officer or observer; furnish to any fishery control officer any particulars which are false or misleading; impersonate or falsely represent himself or herself as a fishery control officer; or falsely represent himself or herself as a person lawfully acting under a fishery control officer’s orders or in his or her aid. (g) (e) (f) 5 10 15 20 25 Duty to report

57. A holder of a right, license or permit granted or issued in terms of this Act shall report to the Minister any contravention of the provisions of this Act by any other person. 30 CHAPTER 7 JUDICIAL MATTERS Offences and penalties 58. (1) Any person who, subject to the provisions of subsections (2) or (3)— 35 (a) undertakes fishing or related activities in contravention of— (i) a provision of section 13; (ii) the conditions of any right of access, other right, licence or permit granted or issued in terms of Part 1, 2 or 3 of Chapter 3; or (iii) an authorisation to undertake fishing or related activities in terms of Part 40 6 or 7 of Chapter 3, but excluding section 39(5); or (b) contravenes any other provision of this Act, shall be guilty of an offence and liable on conviction to a fine not exceeding two million rand, or to imprisonment for a period not exceeding five years. (2) Any person who contravenes— (a) a provision of an international conservation and management measure inside or outside South African waters, or otherwise fails to comply with any provision of Part 7 of Chapter 3, by means of a vessel registered in the Republic; or the conditions imposed in a high seas fishing permit or high seas fishing vessel licence, (b) shall be guilty of an offence and liable on conviction to a fine not exceeding three million rand. 45 50 46 (3) Any person who contravenes a provision of section 39(5), 45, 47, 48 or 49 shall be guilty of an offence and liable on conviction to a fine not exceeding five million rand. (4) A regulation made under this Act may provide that a person who contravenes or fails to comply with a provision thereof, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years. Limitation of liability 59. (1) The State, the Minister, any person in the employment of an organ of state or any person appointed to perform any function in terms of this Act shall not be liable by virtue of anything done in good faith under a provision of this Act. (2) The State, the Minister or any persons contemplated in subsection (1) shall not be liable, except in the case of any intentional act or omission on the part of any such person, to any person who, except in the performance of any function in terms of this Act or any other law— (a) makes use of any vessel, vehicle or aircraft which is the property or under (b) (c) control of the State; is present in any fishing harbour; or leaves any vessel or any other property in a fishing harbour or makes use of the facilities of a fishing harbour, or to the spouse or any dependant of any such person, for any loss or damage resulting from any bodily injury, loss of life or loss of or damage to any property caused by or arising out of or in any manner connected with the use of any vessel, vehicle of aircraft referred to in paragraph (a), the presence referred to in paragraph (b) or the presence of any property or the use of any facilities referred to in paragraph (c). Destruction of evidence 60. (1) No person who, being on board any vessel being pursued, about to be boarded or notified that it will be boarded by a fishery control officer shall throw overboard or destroy any fish, fish product, gear, explosive, fire-arm, poison, noxious substance, chart, log book, document or other thing to avoid the seizure thereof or the detection of any contravention of this Act. 5 10 15 20 25 (2) Subsection (1) shall as far as applicable also apply to vehicles, aircraft, fish 30 processing plants and other premises. Payment for information leading to conviction

58. Offences and penalties

59. Limitation of liability

60. Destruction of evidence

61. Payment for information leading to conviction

62. Security for release of vessel, vehicle or aircraft

63. Disposal of perishables

64. Treatment of things detained or seized

65. Application of security

66. Liability for loss, damage or deterioration of things in custody

67. Removal from custody

68. Forfeiture orders by court

69. Disposal of forfeited things and discharge of forfeiture orders 70.

71. Documentary evidence

72. Validity of certificates

73. Certificate as to location of vessel

74. Designated machines

75. Photographic evidence

76. Observation devices Jurisdiction of courts CHAPTER 8 GENERAL PROVISIONS

61. The Minister may from money appropriated by Parliament for that purpose and in consultation with the Minister of Finance, pay to any person, excluding a person in the employment of the State or an organ of state who has furnished any information or material of proof which leads to a conviction by a court, a remuneration in cash which, in the opinion of the Minister, is reasonable and fair in the circumstances. Security for release of vessel, vehicle or aircraft 62. (1) If a fishing vessel, vehicle or aircraft is taken, seized or detained in terms of this Act and judicial proceedings are instituted in respect of an offence for which the vessel has been detained, the master, owner, charterer or agent of the owner or the charterer of the vessel, vehicle or aircraft may at any time apply to the court which will hear the matter, for the release of the vessel, vehicle or aircraft on the provision of security in terms of this section. (2) On hearing the application the court shall— (a) determine the amount of security to be deposited with the court by adding to the value of the vessel, vehicle or aircraft— (i) the maximum fine for the offence or offences alleged; and 35 40 45 48 (ii) costs and expenses incurred or reasonably foreseen to be incurred by the State, and recoverable in terms of this Act, and order the release of the vessel subject to the lodging of a guarantee or depositing of the security as determined; or (b) where it is satisfied that there are special and exceptional circumstances to justify it doing so, order the release of the vessel, vehicle or aircraft subject to the payment of security which is less than the amount contemplated in paragraph (a). (3) The furnishing of security shall, subject to subsection (4), be subject to the conditions that the court determine. (4) Any security granted in terms of subsection (2) shall be subject to the condition that, if— (a) (b) the accused is found not guilty of the charge; or the accused, on being convicted of the charge, pays in full within 14 days, or such time as the court may determine, after he or she is convicted, the amount of the fine imposed by the court and the amount of all costs and expenses due by him or her to the State in terms of subsection (2), the security shall be of no effect and any amount that has been deposited, shall forthwith be returned to the accused. (5) Any security granted in terms of subsection (2) shall be recoverable in full in any court as a debt due to the State jointly and severally by the person or persons by whom the security has been given unless the person or persons prove the due performance of the conditions on which the security was given. (6) The Minister may order the release of any vessel, vehicle, aircraft or gear, equipment or fish seized in terms of this Act. Disposal of perishables 63. (1) If any fish or other thing of a perishable nature is seized in terms of section 51 the Minister may, notwithstanding any other provision of this Act— (a) return the fish or other thing to the person from whom it was seized on receiving adequate security equivalent to the value of the fish or thing; or (b) cause the sale of the fish or other thing at a price which is reasonable in the circumstances and, if court proceedings are instituted, pay the proceeds of the sale into a suspense account of the Department pending a court order in respect of the forfeiture of the proceeds or, if no proceedings are instituted, release the proceeds to the person from whom the fish or other thing was seized: Provided that, if, after making all reasonable efforts, the Minister is unable to sell the fish or other thing, or where such fish or other things are unfit for sale, he or she may dispose thereof in such other manner as he or she deems fit, including by destruction. (2) If any live fish has been seized in terms of section 51, it may be released or destroyed at the discretion of the seizing fishery control officer where he or she for any sufficient reason considers such act desirable. Treatment of things detained or seized 64. (1) If any vessel, vehicle, aircraft or other thing has been detained or seized in terms of section 51, and a person who has been properly charged with an offence in relation thereto fails to appear to answer the charge within 90 days of the detention or seizure, the Minister may apply to the court for it to be forfeited to the State and the court shall make such order as it shall deem fit. (2) If the lawful owner of a vessel, vehicle, aircraft or thing seized or detained in terms of section 51 cannot be traced within 90 days of such seizure it shall be forfeited to the State and be disposed of as the Director-General in his or her discretion shall consider fit. (3) If a vessel, vehicle, aircraft or thing has been seized or detained in terms of section 51 and the court does not order the forfeiture of it, any proceeds realised from its 5 10 15 20 25 30 35 40 45 50 50 disposal shall be returned to the owner thereof or the person having the possession, care or control of it at the time of such detention or seizure. (4) If the owner of a vessel, vehicle, aircraft or thing or the person having the possession, care or control of it at the time of its seizure or detention is convicted of an offence in terms of this Act and a fine is imposed, it may be detained until all fines, orders for costs and penalties imposed in terms of this Act have been paid. (5) If any payment contemplated in subsection (4) is not made within such time as the court may determine, the vessel, vehicle, aircraft or thing may be sold in satisfaction and the proceeds shall be dealt with in accordance with section 65. (6) Any vessel, vehicle, aircraft or other thing ordered to be forfeited in terms of this Act may, if no appeal has been lodged at the expiry of the time limited for appeal in a court, be disposed of in the manner that the Minister may determine. Application of security

65. Any security or net proceeds of sale held in respect of any vessel, vehicle, aircraft or other thing shall be applied as follows and in that order: (a) The discharge of any forfeiture ordered in terms of section 68; (b) the payment of all fines or a contribution towards such a fine, for offences in terms of this Act or penalties imposed in terms of this Act, arising out of the use of or in connection with the vessel, vehicle, aircraft or other thing; the discharge of all orders for costs in proceedings in terms of this Act arising out of the use of or in connection with the vessel, vehicle, aircraft or other thing; return as provided for in section 64. (c) (d) 5 10 15 20 Liability for loss, damage or deterioration of things in custody

66. The State shall not be liable to any person for any loss, damage to or deterioration in the condition of any vessel, vehicle, aircraft or other thing while in the custody of the State in terms of this Act. 25 Removal from custody 67. (1) Any person who knows or can reasonably be expected to know that a vessel, vehicle, aircraft or other thing is held in the custody of the State in terms of this Act and who removes such vessel, vehicle, aircraft or thing, shall be guilty of an offence. (2) If any vessel, vehicle, aircraft or other thing held or forfeited in terms of this Act has been unlawfully removed from the custody of the State it is liable to seizure in accordance with international law. Forfeiture orders by court 68. (1) If any person is convicted of an offence in terms of this Act, the court may, in addition to any other penalty, order that any fishing vessel, together with its gear, equipment, any fish caught unlawfully or the proceeds of sale of such fish or any perishables, and any vehicle or aircraft used or involved in the commission of that offence be forfeited to the State. (2) If any vessel, vehicle, aircraft or other thing seized in terms of this Act, or any security or net proceeds of sale in respect thereof is not forfeited or applied in the discharge of any fine, order for costs or penalty imposed in terms of this Act, it shall be made available to the registered owner or his or her nominee or, in the absence of such persons, a person who appears to be entitled to it. (3) If any vessel, vehicle, aircraft or other thing has been released upon the lodging of security, an order for forfeiture shall, unless the court for special reasons fixes a smaller sum, operate as an order for forfeiture of the security. 30 35 40 45 52 (4) If any vessel, vehicle, aircraft or other thing has been released upon the lodging of security, the court may order any person convicted of an offence in connection therewith and the owner of the vessel, vehicle, aircraft or other thing concerned, whether or not he or she is an accused, to pay the difference between the amount lodged in respect of security and the aggregate value of the forfeited property. Disposal of forfeited things and discharge of forfeiture orders 69. (1) Any vessel, including its gear, cargo, stores and fuel, and any vehicle or aircraft, gear, net or other equipment, explosive, fire-arm or poison ordered to be forfeited in terms of this Act shall be disposed of in such manner as the Minister may determine. (2) The owner or any other person with real security in any property forfeited in terms of section 68, may apply to court for the release of the property in question or for the realisation of his or her security therein, as the case may be. (3) The court may release the property contemplated in subsection (2) or order the realisation of the security therein, if the applicant proves that he or she was in no way implicated in the commission of the offence, and that he or she could not have prevented it. Jurisdiction of courts 70. (1) Any act or omission in contravention of any of the provisions of this Act which is committed— 5 10 15 20 (a) by any person within South African waters; (b) outside South African waters by any citizen of the Republic or any person ordinarily resident in the Republic; or (c) by any person on board any local fishing vessel; shall be dealt with and judicial proceedings taken as if such act or omission had taken place in the territory of the Republic. 25 (2) Any offence in terms of this Act shall, for purposes in relation to jurisdiction of a court to try the offence, be deemed to have been committed within the area of jurisdiction of the court in which the prosecution is instituted. (3) Notwithstanding anything to the contrary in any other Act, a magistrate’s court 30 shall have jurisdiction to impose any penalty prescribed by this Act. Documentary evidence 71. (1) The Minister may issue a certificate stating that— (a) a specified vessel was or was not a local fishing vessel or a foreign fishing vessel on a specified date; (c) (b) a specified vessel or person was or was not on a specified date the holder of any specified licence, permit, authorisation or certificate of registration; an appended document is a true copy of the licence, authorisation or certificate of registration for a specified vessel or person and that specified conditions were those of a licence, permit, authorisation or certificate of registration issued in respect of a specified vessel or person; (e) (d) a particular location or area of water was on a specified date within South African waters, or within an area of South African waters subject to specified conditions; an appended chart shows the boundaries on a specified date of South African waters, internal waters, territorial waters, the exclusive economic zone or any area within such waters or zones which is subject to specified conditions; a call sign, name or number is that of a particular vessel or has been allotted under any system of naming or numbering of vessels to a particular vessel; or (g) a particular position or catch report was given in respect of a specified vessel. (f) 35 40 45 50 54 (2) Any certificate issued in terms of this section shall be— signed by the person who made it; and (a) (b) headed ‘‘Certificate: Section 71 Marine Living Resources Act, 1998’’. (3) In the absence of evidence to the contrary, a document purporting to be a certificate issued in terms of this section shall be deemed to be such a certificate and to have been duly given. (4) In any proceedings for any offence in terms of section 44, a certificate as to the cause and manner of death or injury of any fish, signed by the Director-General, shall, in the absence of the evidence to the contrary, be sufficient evidence as to the matters stated in that certificate. Validity of certificates 72. (1) Subject to this section, in any proceedings in terms of this Act, a certificate issued in terms of section 71 shall be admissible in evidence and shall be prima facie evidence of the facts averred in it. (2) A court may, of its own accord or on application by any party to proceedings, require that the person who issued the certificate attend and give oral evidence at the hearing. (3) Any omission or mistake in any certificate issued in terms of section 71 shall not render it inadmissible in evidence unless the court considers such omission or mistake to be material to any issue in the proceedings concerned, or the court is of the opinion that the defendant or accused is unduly prejudiced thereby. Certificate as to location of vessel 73. (1) A certificate given by a fishery control officer or observer shall be prima facie evidence in any proceedings in terms of this Act, of the place or area in which a vessel has been at a particular date and time or during a particular period of time. (2) A fishery control officer shall in any certificate issued in terms of subsection (1) state the following: (a) His or her name, address, official position, place of appointment and provision (b) (c) (d) (e) (f) (g) in terms of which he or she is appointed; the name and, if known, call sign of the fishing vessel concerned; the date and time or period of time the vessel was in a place or area; the place or area in which it is alleged the vessel was located; the position fixing instruments used to fix the place or area referred to in paragraph (d) and their accuracy within their specified limits; that he or she checked the position fixing instruments a reasonable time before and after they were used to fix the position and that they appeared to be working correctly; and if a position fixing instrument which is not a designated machine or is not generally recognised as reliably accurate is used, that he or she checked the instrument as soon as possible after the time concerned against such an instrument. (3) Section 71 shall, with the necessary changes, apply to a certificate issued in terms 5 10 15 20 25 30 35 40 of this section. Designated machines 74. (1) The Minister may by notice published in the Gazette designate any machine or 45 instrument or class of machines or instruments as a designated machine. (2) The readings of a designated machine shall be admissible as evidence of the facts that they aver if— (a) (b) the readings were made by a person who has received training in the operation of designated machines; and the machine was checked for correct working a reasonable time before and after the readings it is sought to adduce in evidence were made and the machine appeared to be working correctly. (3) If a designated machine has been checked for correct working and read by a person trained in the operation thereof, it shall, in the absence of evidence to the contrary, be presumed to give accurate readings within the manufacturer’s specified limits. 50 55 56 (4) The readings of designated machines may be made from a printout or as observed from a visual display unit. (5) Any machine contemplated in subsection (1) must be capable either wholly or partially in itself of producing the readings concerned and not merely be a receiver of information or data. 5 Photographic evidence 75. (1) If a photograph is taken of any fishing or related activity and the date and time on and position from which the photograph is taken are simultaneously superimposed upon the photograph, it shall be prima facie evidence that the photograph was taken on the date, at the time and in the position so appearing. (2) The provisions of subsection (1) shall apply only when— (a) (b) the camera taking the photograph is connected directly to the instruments which provide the date, time and position concerned; and the instruments which provide the date, time and position are generally recognised as being accurate or are designated machines or were checked as soon as possible after the taking of the photograph against such instruments. (3) Any fishery control officer or observer who takes a photograph contemplated in subsection (1) may issue a certificate appending the photograph stating the following: (a) His or her name, address, official position, place of appointment and provision (b) (c) (d) (e) (f) in terms of which he or she is appointed; the name and call sign, if known, of any fishing vessel appearing in the photograph; the brand and model names of the camera, watch, clock or other instruments supplying the date and time, including the position fixing instrument, and that he or she checked those instruments a reasonable time before and after the taking of the photograph and, if necessary, in accordance with subsection (2)(b), and that they all appeared to be working correctly; the matters set out in subsection (2)(a); the accuracy of the fixing instrument if used within specified limits; the maximum possible distance and the direction of the subject of the photograph away from the camera at the time the photograph was taken. (4) Section 71 shall, with the necessary changes, apply to a certificate issued in terms of this section. Observation devices 10 15 20 25 30 76. (1) The Minister may, by notice published in the Gazette, designate any device or 35 machine or class of device or machine as an observation device. (2) The information or data concerning the vessel’s position and fishing activities referred to in subsection (3) may be fed or captured manually into the observation device or automatically from machines aboard the vessel or ascertained by the use of the observation device’s transmissions in conjunction with other machines. (3) All information or data obtained or ascertained by the use of an observation device, shall be prima facie evidence that such information— (a) came from the vessel so identified; (b) was accurately relayed or transferred; and (c) was given by the master, owner and charterer of the fishing vessel, 40 45 and evidence may be given of information and data so obtained or ascertained whether from a printout or visual display unit. (4) Subsection (3) applies irrespective of whether or not the information was stored before or after any transmission or transfer. (5) Any fishery control officer or observer may issue a certificate stating the 50 following: (a) His or her name, address, official position, place of appointment and provision (b) in terms of which he or she is appointed; that he or she is competent to read the printout or visual display unit of any machine capable of obtaining or ascertaining information from an observation device; 55 58 (c) (d) (e) the date and time the information was obtained or ascertained from the observation device and the details thereof; the name and call sign of the vessel on which the observation device is or was located as known to him or her or as ascertained from any official register, record or other document; and that there appeared to be no malfunction in the observation device, its transmissions or other machines used in obtaining or ascertaining the information. (6) Section 71 shall, with the necessary changes, apply to a certificate issued in terms of this section. (7) No person shall destroy, damage, render inoperative or otherwise interfere with an observation device or machine aboard a vessel, vehicle or aircraft which automatically feeds or inputs information or data into an observation device. (8) No person shall intentionally feed or capture information or data into an observation device which is not officially required in terms of this Act, or is false or inaccurate. CHAPTER 8 GENERAL PROVISIONS Power to make regulations 77. (1) The Minister may make regulations regarding— (a) any matter required or permitted to be prescribed in terms of this Act; and (b) generally all matters which are reasonably necessary or expedient to be prescribed in order to achieve the objects of this Act. (2) Without prejudice to the generality of the provisions of subsection (1), the Minister may make regulations— (a) prescribing fines greater in amount than those already specified in any provision of this Act— (i) if necessary as a result of inflation or a rise in the consumer price index; or to be in accordance with international law; (ii) (b) providing for the forfeiture of any vessel, vehicle, aircraft or thing used in the commission of an offence in terms of this Act; (c) providing for the forfeiture of any fish caught in contravention of any provision of this Act; (d) providing for the imposition of an additional fine to an amount representing the value in whole or in part of any vessel, vehicle, aircraft, gear, equipment or fish in the place of forfeiture of such vessel, vehicle, aircraft, gear, equipment or fish; (f) (e) prescribing fisheries management and conservation measures, including mesh sizes, gear standards, minimum species sizes, closed seasons, closed areas, prohibited methods of fishing or gear and schemes for limiting entry into all or any specified fisheries; to regulate the catching and utilisation of fish taken incidentally when fishing for a species for which a licence or permit has been issued; regarding licences or authorisation in respect of any vessel or class or category of vessels to be used for fishing, related activities or any other purpose pursuant to this Act, including application procedures and forms, and the format and requirements for the issuing of licences or permits, grounds for denial, terms and conditions; (g) (i) (h) prescribing different classes of and formats for licences or permits, including application procedures and forms, and the area or fishing method or type of gear in respect of which each class of licence or permit shall be valid; prescribing the operation of, and conditions and procedures to be observed by any fishing vessel while in South African waters, having due regard to the provisions of the United Nations Convention on the Law of the Sea; prescribing the operation of, and conditions and procedures to be observed by, (j) 5 10 15 20 25 30 35 40 45 50 55 60 any vessel which enters South African waters for any purpose, including transiting the South African fisheries waters, in terms of this Act; regulating— (i) the navigation of foreign fishing vessels through South African waters, having due regard to the provisions of the United Nations Convention on the Law of the Sea; and the manner in which gear is to be stowed aboard such vessels; (ii) regarding the catching, loading, landing, handling, processing, transshipping, transporting, possession and disposal of fish; (k) (l) 5 (m) regarding the import, export, trade in, distribution and marketing of fish and 10 fish products; (n) prescribing the manner in which any gear shall be stowed; (o) providing for the implementation of any agreement or arrangement entered (p) into under section 38 or 42; regarding the appointment, powers and duties of fishery control officers, honorary marine conservation officers and observers; (q) prescribing the duties and procedures to be followed by the master and crew of any vessel in respect of fishery control officers and observers; (t) (s) (u) (r) prescribing the licensing, control and use of fish aggregating devices and the rights to the aggregated fish, and setting times and the minimum distances from such devices any vessel may fish around such devices; regulating or prohibiting the use of any diving apparatus, spear guns or other similar devices for fishing or related activities; establishing standards and measures for the safety of local fishers and local fishing vessels; requiring the provision of statistical and other information related to fisheries, including fishing log books, and the format in which the information shall be recorded; regulating and controlling the operation of fish processing establishments, including quality control measures and inspection of such establishments; regarding the prevention of marine pollution; regulating or prohibiting, either generally or in any specified fisheries— (i) (ii) (iii) (iv) (v) establishing measures for the protection of specified species; the management and protection of marine protected areas; the taking of coral; the setting of fish traps, nets, fish pens or seine nets; the taking of fish for aquarium purposes; or the taking of turtles; (y) (z) governing the administration of fishing harbours and any other matter (w) (x) (v) incidental thereto; (aa) relating to the circumstances in which fish which have been caught shall be returned or not returned to the sea or shall be released or not released; (bb) relating to the dumping or discharging of anything which is or may be injurious to fish, or which may disturb or change the ecological balance in any area of the sea; (cc) to ensure the orderly development and control of mariculture in the Republic; (dd) to ensure the orderly development of high seas fishing by South African persons and vessels. Assignment to provinces 15 20 25 30 35 40 45

77. Power to make regulations

78. Assignment to provinces

79. Delegation of powers

80. Appeal to Minister

81. Exemptions 82. Inquiries

83. Scientific investigations and practical experiments

84. Repeal of laws, and savings

85. Transitional measures

86. Short title and commencement SCHEDULE 1 BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:— Definitions

78. The Minister may assign the administration of any provision of this Act to the 50 executive authority of a province. Delegation of powers 79. (1) The Minister may— 62 (a) upon the conditions that he or she deems fit, delegate any or all the powers conferred upon him or her in terms of this Act, save a power to make regulations, to the Director-General or an officer of the Department nominated by the Director-General; or (b) by notice in the Gazette, delegate any power conferred upon him or her in terms of this Act, excluding the power to make regulations, to an authority in the local sphere of government. 5 (2) The Director-General may delegate any power conferred upon him or her in terms of this Act to an officer in the Department upon the conditions that he or she deems fit. (3) No delegation of any power shall prevent the exercise of such power by the 10 Minister or the Director-General. Appeal to Minister 80. (1) Any affected person may appeal to the Minister against a decision taken by any person acting under a power delegated in terms of this Act or section 238 of the Constitution. (2) An appeal under subsection (1) must be noted and shall be dealt with in the manner and in accordance with the procedure prescribed by the Minister. (3) The Minister shall consider any matter submitted to him or her on appeal, after giving every person with an interest in the matter an opportunity to state his or her case. Exemptions 81. (1) If in the opinion of the Minister there are sound reasons for doing so, he or she may, subject to the conditions that he or she may determine, in writing exempt any person or group of persons or organ of state from a provision of this Act. (2) An exemption granted in terms of subsection (1) may at any time be cancelled or amended by the Minister. Inquiries 82. (1) The Minister may order an inquiry into any matter forming the subject matter of this Act. (2) For the purposes of an inquiry contemplated in subsection (1), the Minister may appoint one or more persons, including a chairperson, as a committee to conduct the inquiry. (3) A committee contemplated in subsection (2) may— (a) order any person who in its opinion may be able to give information of material importance concerning the subject of the inquiry, or who is believed to have in his or her possession or custody or control, any register, book, document or thing which may have a bearing on that subject, to appear before the committee with such register, book, document or thing; (b) call upon, and administer an oath to, or accept an affirmation from any person present at the inquiry, whether he or she has been or could have been ordered in terms of paragraph (a); interrogate or require any person who has been called upon in terms of paragraph (b) to produce a register, book, document or thing referred to in paragraph (a). (c) (4) An order for the attendance before a committee shall be in the form determined by that committee, and shall be signed by the chairperson. (5) The law relating to privilege as applicable to a person to give evidence or produce a register, book, document or thing before a court of law, shall be applicable in respect of the interrogation of, or production of a register, book, document or thing by, a person referred to in subsection (3). Scientific investigations and practical experiments

83. The Minister may, notwithstanding the provisions of this Act, permit any scientific investigation or practical experiment. 15 20 25 30 35 40 45 50 Repeal of laws, and savings 64 84. (1) The laws mentioned in Schedule 1 are hereby repealed to the extent indicated in the third column thereof. (2) A registration of, or any licence in respect of, a fishing boat, factory or implement and any right, permit or permission for the performance of any act in connection with fish or fish products under any provision of a law referred to in subsection (1) shall be deemed to be an appropriate registration, licence, permit, right or permission in terms of the corresponding provision of this Act (if any), respectively, for the unexpired portion of the period for which it would have been valid had this Act not been passed. (3) Notwithstanding the provisions of subsection (2), the Minister may by notice in the Gazette terminate a right of exploitation granted in terms of a provision of a law referred to in subsection (1). (4) An area set aside as a marine reserve under a provision of a law referred to in subsection (1), shall be deemed to have been declared a marine protected area in terms of this Act. Transitional measures

85. Notwithstanding the provisions of section 84, the Minister shall for a period of six months after the commencement of this Act, exercise the powers of all institutions established by or under any Act repealed by that section, including the Sea Fishery Advisory Committee and Quota Board established by the Sea Fishery Act, 1988 (Act No. 12 of 1988). Short title and commencement

86. This Act shall be called the Marine Living Resources Act, 1998, and shall come into operation on a date fixed by the President by proclamation in the Gazette. 5 10 15 20 66 Schedule 1 (Section 84) No. and year of law Short title Extent of repeal Act No. 12 of 1988 Sea Fishery Act, 1988 The whole, except— (a) section 1 in its application to sections 29, 38, 47 and 50(1), (2) and (3); (b) section 29; (c) section 38 in its application to shells; (d) section 47 in its application to sections 29 and 38; (e) section 48 in its application to shells; and (f) section 50(1), (2) and (3) in its application to shells Act No. 98 of 1990 Sea Fishery Amendment Act, The whole, except sections 1, 1990 10(d) and 12 Act No. 57 of 1992 Sea Fishery Amendment Act, The whole, except sections 1, 10 Act No. 129 of 1993 General Law Third Amendment Sections 66, 67 and 68 1992 and 18(a) Act, 1995 Act No. 15 of 1994 Maritime Zones Act, 1994 Section 15(1) in respect of the Act No. 74 of 1995 Act No. 49 of 1996 Sea Fishery Amendment Act, 1995 amendment of the Sea Fishery Act, 1988 The whole, except section 5 General Law Amendment Act, 1996 Section 1 in respect of the amendment of the Sea Fishery Act, 1988 Act No. 88 of 1996 Abolition of Restrictions on the Sections 103 and 104 Jurisdiction of Courts Act, 1996

1. In this Act, unless the context indicates otherwise— (i) (ii) ‘‘aircraft’’ means any craft capable of self-sustained movement through the atmosphere and includes a hovercraft; (lx) ‘‘allowable commercial catch’’ means that part of the total allowable catch available annually for commerical fishing rights in terms of section 14; (xliii) 5 8 (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv) (xv) (xvi) (xvii) (xviii) (xix) (xx) (xxi) ‘‘aquatic plant’’ means any kind of plant, algae or other plant organism found in the sea and in or on the seashore; (lxiv) ‘‘commercial fishing’’ means fishing for any of the species which have been determined by the Minister in terms of section 14 to be subject to the allowable commercial catch or total applied effort, or parts of both; (xx) ‘‘Constitution’’ means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996); (xv) ‘‘Council’’ means the Fisheries Transformation Council established in terms of section 29; (xxxii) ‘‘court’’ means a competent court of law; (xvii) ‘‘Department’’ means the Department of Environmental Affairs and Tourism; (v) ‘‘Director-General’’ means the Director-General of the Department; (vi) ‘‘driftnet’’ means a gillnet or other net or a combination of nets, the purpose of which is to enmesh, entrap or entangle fish by drifting on the surface of or in the water, irrespective of whether it is used or intended to be used while attached to any point of land or the seabed or to any vessel; (vii) ‘‘driftnet fishing activities’’ means fishing with the use of a driftnet and includes any related activities, including transporting, transshipping and processing any driftnet catch, and the provision of food, fuel and other supplies for vessels used or outfitted for driftnet fishing; (viii) ‘‘exclusive economic zone’’ means the exclusive economic zone as defined in section 7 of the Maritime Zones Act, 1994 (Act No. 15 of 1994); (x) ‘‘fish’’ means the marine living resources of the sea and the seashore, including any aquatic plant or animal whether piscine or not, and any mollusc, crustacean, coral, sponge, holothurian or other echinoderm, reptile and marine mammal, and includes their eggs, larvae and all juvenile stages, but does not include sea birds and seals; (xlix) ‘‘fish aggregating device’’ means an artificially made or partially artificially made floating, submerged or semi-submerged device, whether anchored or not, intended to aggregate fish, including any natural floating object on which a device has been placed to facilitate its location; (lvi) ‘‘fisheries management area’’ means a fisheries management area declared in terms of section 15(1); (lv) ‘‘fishery’’ means one or more stock or stocks of fish or any fishing operations based on such stocks which can be treated as a unit for purposes of conservation and management, taking into account geographical, scientific, technical, recreational, economic and other relevant characteristics; (liii) ‘‘fishery control officer’’ means any person appointed as a fishery control officer in terms of section 9; (liv) ‘‘fishing’’ means— (a) searching for, catching, taking or harvesting fish or an attempt to any such activity; (b) engaging in any other activity which can reasonably be expected to result in the locating, catching, taking or harvesting of fish; (c) placing, searching for or recovering any fish aggregating device or associated gear, including radio beacons; (d) any operation in support or in preparation of any activity described in this (e) definition; or the use of an aircraft in relation to any activity described in this definition; (lviii) ‘‘fishing harbour’’ means a declared fishing harbour contemplated in section 27(1); (lii) ‘‘fishing vessel’’ means any vessel, boat, ship or other craft which is used for, equipped to be used for or of a type that is normally used for fishing or related activities, and includes all gear, equipment, stores, cargo and fuel on board the vessel; (li) ‘‘fish processing establishment’’ means any vehicle, vessel, premises or place where any substance or article is produced from fish by any method, including the work of cutting up, dismembering, separating parts of, cleaning, sorting, lining and preserving of fish, or where fish are canned, packed, dried, gutted, 5 10 15 20 25 30 35 40 45 50 55 60 (xxii) (xxiii) (xxiv) (xxv) (xxvi) (xxvii) (xxviii) (xxix) (xxx) (xxxi) (xxxii) (xxxiii) (xxxiv) (xxxv) (xxxvi) 10 salted, iced, chilled, frozen or otherwise processed for sale in or outside the territory of the Republic; (lix) ‘‘fish product’’ means any product, whether in a processed form or not, wholly or partially derived from fish; (l) ‘‘foreign fishing vessel’’ means any fishing vessel other than a local fishing vessel; (iii) ‘‘foreign fishing vessel licence’’ means a licence issued in terms of section 39(2); (iv) ‘‘Forum’’ means the Consultative Advisory Forum for Marine Living Resources established under section 5; (xii) ‘‘Fund’’ means the Marine Living Resources Fund referred to in section 10(1); (xi) ‘‘gear’’ means, in relation to fishing, any equipment, implement or other object that can be used in fishing, including any net, rope, line, float, trap, hook, winch, aircraft, boat or craft carried on board a vessel, aircraft or other craft; (lvii) ‘‘high seas’’ means the waters beyond South African waters, but does not include waters subject to the particular jurisdiction of another state; (xxiv) ‘‘high seas fishing vessel’’ means a vessel in respect of which a high seas fishing vessel licence has been issued in terms of section 41(1); (xxv) ‘‘high seas fishing vessel licence’’ means a licence issued in terms of section 41(1); (xxvi) ‘‘internal waters’’ means the internal waters as defined in section 3 of the Maritime Zones Act, 1994; (ii) ‘‘international conservation and management measures’’ means measures to conserve or manage one or more species of marine living resources contained in international conventions, treaties or agreements, or that are adopted or applied in accordance with the relevant rules of international law as reflected in the United Nations Convention on the Law of the Sea, whether by global, regional or subregional fishery organisations and which measures are binding on the Republic in terms of international law; (xviii) ‘‘local fishing vessel’’ means any fishing vessel registered in the Republic which is— (a) wholly owned and controlled by one or more South African persons; (b) wholly owned by the State; (c) wholly owned and controlled by any body corporate, society or other association of persons incorporated or established under the laws of the Republic and in which the majority of the shares and the voting rights are held and controlled by South African persons; or 5 10 15 20 25 30 35 (d) wholly owned by a body corporate designated as an authorised body 40 corporate by the Minister; (xxx) ‘‘local fishing vessel licence’’ means a licence issued in terms of section 23(1); (xxxi) ‘‘mariculture’’ means the culture or husbandry of fish in sea water; (xxi) ‘‘master’’ means, in relation to a vessel, aircraft or other craft, the person having lawful command or charge, or for the time being in charge, of the vessel, aircraft or other craft, as the case may be, including a person who has principal responsibility for fishing on board, but does not include a pilot aboard a fishing vessel solely for the purpose of providing navigational assistance; (xxxvi) ‘‘Minister’’ means the Minister responsible for the Department; (xxii) (xl) (xxxvii) (xxxviii) ‘‘nautical mile’’ means the international nautical mile of 1 852 metres; (xxxv) ‘‘net’’ means a fabric of rope, cord, twine or other material knotted or woven (xxxix) into meshes by which fish can be taken; (xxiii) ‘‘observation device’’ means any device or machine placed on a fishing vessel in terms of this Act as a condition of its licence which transmits, whether in conjunction with other machines elsewhere or not, information or data concerning the position and fishing activities of the vessel; (lxiii) ‘‘observer’’ means any person authorised in writing by the Director-General in terms of section 50 to perform scientific, compliance, monitoring and other similar observation duties on board a fishing vessel in accordance with this Act; (lxii) (xli) 45 50 55 60 12 (xlii) (xliii) (xliv) (xlv) (xlvi) (xlvii) (xlviii) (xlix) (l) (li) (lii) (liii) (liv) (lv) (lvi) (lvii) ‘‘organ of state’’ means an organ of state as defined in section 239 of the Constitution; (xxxviii) ‘‘owner’’ means any person exercising or discharging or claiming the right or accepting the obligation to exercise or discharge any of the powers or duties of an owner whether on his or her own behalf or on behalf of another, including a person who is the owner jointly with one or more other persons and the manager, director, secretary, or other similar officer or any person purporting to act in such a capacity, of any body corporate or company which is an owner; (ix) ‘‘permit’’ means a permit contemplated in section 13; (xxviii) ‘‘person’’ includes a trust; (xxix) ‘‘prescribe’’ means to prescribe by regulation; (lxi) ‘‘recreational fishing’’ means, any fishing done for leisure or sport and not for sale, barter, earnings or gain; (xxxvii) ‘‘regulation’’ means a regulation made and includes a notice issued under this Act; (xxxiii) ‘‘related activities’’ include— (a) storing, buying, selling, transshipping, processing or transporting of fish or any fish product taken from South African waters up to the time it is first landed or in the course of high seas fishing; (b) on-shore storing, buying, selling or processing of fish or any fish product (c) from the time it is first landed; refuelling or supplying fishing vessels, selling or supplying fishing equipment or performing any other act in support of fishing; (d) exporting and importing fish or any fish product; or (e) engaging in the business of providing agency, consultancy or other similar services for and in relation to fishing or a related activity; (xlviii) ‘‘right of access’’ means a right of access to fish granted in terms of this Act; (xlii) ‘‘seashore’’ means the sea-shore as defined in section 1 of the Sea-shore Act, 1935 (Act No. 21 of 1935); (xxxix) ‘‘sedentary species’’ means organisms which, at the harvestable stage, either are immobile on or under the seabed, or are unable to move except in constant physical contact with the seabed or the subsoil; (xxxiv) ‘‘South African person’’ means— (a) a South African citizen in terms of the South African Citizenship Act, 1995 (Act No. 88 of 1995); (b) a company registered in terms of the Companies Act, 1973 (Act No. 61 of 1973), of which the majority of shareholders, as prescribed by the Minister, are South African persons; a close corporation in terms of the Close Corporations Act, 1984 (Act No. 69 of 1984), of which the majority of members are South African persons; or (d) a trust in which— (c) (i) (ii) the majority of trustees having the controlling power at any given time are South African citizens; or a majority of the beneficial interests are held by South African citizens; (xl) ‘‘South African waters’’ means the seashore, internal waters, territorial waters, the exclusive economic zone, and in relation to the sedentary species as defined in Article 77 of the United Nations Convention on the Law of the Sea, the continental shelf as defined in section 7 of the Maritime Zones Act, 1994, and such waters include tidal lagoons and tidal rivers in which a rise and fall of the water level takes place as a result of the tides; (xli) ‘‘subsistence fisher’’ means a natural person who regularly catches fish for personal consumption or for the consumption of his or her dependants, including one who engages from time to time in the local sale or barter of excess catch, but does not include a person who engages on a substantial scale in the sale of fish on a commercial basis; (i) ‘‘territorial waters’’ means the territorial waters as defined in section 4 of the Maritime Zones Act, 1994; (xiv) ‘‘this Act’’ includes any regulation or notice made or issued under this Act; (xvi) 5 10 15 20 25 30 35 40 45 50 55 60 14 (lviii) (lix) (lx) (lxi) (lxii) (lxiii) (lxiv) ‘‘total allowable catch’’ means the maximum quantity of fish of individual species or groups of species made available annually, or during such other period of time as may be prescribed, for combined recreational, subsistence, commercial and foreign fishing in terms of section 14; (xlv) ‘‘total applied effort’’ means the maximum number of fishing vessels, the type, size and engine power thereof or the fishing method applied thereby for which fishing vessel licences or permits to fish may be issued for individual species or groups of species, or the maximum number of persons on board a fishing vessel for which fishing licences or permits may be issued to fish individual species or groups of species; (xliv) ‘‘transship’’ means transferring fish or gear from one vessel to another; (xxvii) ‘‘trap’’ means an enclosure, not being a net, that may be used to take fish; (xiii) ‘‘United Nations Convention on the Law of the Sea’’ means the United Nations Convention on the Law of the Sea, 1982, adopted at Montego Bay on 10 December 1982; (xlvii) ‘‘vessel’’ includes any canoe, lighter, floating platform, decked boat, carrier vessel, vessel equipped with an inboard or outboard motor or any other craft, whether a surface craft or submarine; (xlvi) ‘‘year’’ means any period extending from a day in one year to a day preceding the day corresponding numerically to that day and month in the following year, both days inclusive. (xix) 5 10 15 20 CHAPTER 1 INTRODUCTORY PROVISIONS Objectives and principles

29. The Minister shall establish a body by notice in the Gazette, which shall be called the Fisheries Transformation Council. Main object of Council

30. The main object of the Council shall be to facilitate the achievement of fair and 30 equitable access to the rights referred to in section 18. Allocation of rights to and by Council 31. (1) The Minister may, notwithstanding the provisions of this Act, allocate rights to the Council. (2) The Council shall lease rights, according to criteria determined by the Minister, to persons from historically disadvantaged sectors of society and to small and medium size enterprises. 35 Powers of Council

32. The Council may, subject to restrictions determined by the Minister— lease commercial fishing rights; (a) (b) determine the price to be paid by lessees of rights; (c) determine the conditions applicable to leases granted in terms of this section, which conditions shall govern the circumstances under which the lease may be revoked, cancelled, suspended or altered; and 40 (d) assist in the development and capacity building of persons from historically disadvantaged sectors of society and small and medium size enterprises. 45 Management and control

33. For the purposes of management and control of the Council, the Minister may— issue criteria, guidelines and instructions for the operation of the Council; and (a) 30 (b) determine that the affairs of the Council shall be managed and controlled according to a business plan approved by him or her. Composition of Council 34. (1) The Council shall consist of at least five members, including a chairperson, appointed by the Minister for the period determined by him or her, but not exceeding three years at a time. (2) The Minister shall ensure that the Council be broadly representative and multidisciplinary, with members qualified to make a substantial contribution towards the proper functioning of the Council. (3) Before the members of the Council are appointed, the Minister shall invite nominations by interested parties by notice in the Gazette: Provided that the Minister shall not be bound by any such nomination. (4) No person who has a direct interest in any manner whatsoever in commercial fishing or mariculture shall be appointed in terms of this section. (5) A member of the Council shall vacate his or her office if he or she— (a) becomes insolvent; (b) becomes of unsound mind; (c) is convicted of an offence and is sentenced to imprisonment without the option of a fine; is absent from three consecutive meetings of the Council without leave of the chairperson; resigns by written notice to the Minister; or is removed from office by the Minister if there are sufficient reasons in the opinion of the Minister for doing so. (d) (e) (f) (6) The Director-General may pay to a member of the Council who is not in the full-time employment of an organ of state, from money appropriated by Parliament for that purpose, the allowances and remuneration which the Minister may determine in general or in a specific case, in consultation with the Minister of Finance. (7) The Minister may prescribe the necessary matters relating to meetings of the Council. Staff 5 10 15 20 25 30

35. The employees required for the proper performance of the Council’s functions, shall be appointed subject to the laws governing the public service. Reporting 36. (1) The Council shall annually not later than the first day of March, submit to the 35 Minister a report on all its activities during the previous year. (2) The report referred to in subsection (1) shall be laid upon the Table in Parliament within 14 days after it was submitted to the Minister, if Parliament is then in session, or if Parliament is not then in session, within 14 days of the commencement of the next ensuing session. 40 Abolishment of Council

37. The Minister may by notice in the Gazette, after consultation with the Forum, abolish the Council. PART 6: FOREIGN FISHING International agreements 38. (1) No international agreement entered into by the national government of the Republic concerning access to fish in South African waters shall exceed the total resources or the total mass of fish allowed to the appropriate category of foreign fishing vessels in terms of any applicable determination of the total allowable catch or applicable fishery plan. (2) Any international agreement entered into by the national government of the 45 50 32 Republic concerning access to fish in South African waters shall include a provision establishing the responsibility of the foreign state or an association to take necessary measures to ensure compliance by its vessels with the terms and conditions of the agreement and with the legislation relating to fishing in South African waters. Foreign fishing vessel licences 39. (1) No foreign fishing vessel shall be used for fishing or related activities in South African waters unless a foreign fishing vessel licence has been issued to such vessel. (2) Subject to the provisions of this Act, the Minister may issue a foreign fishing vessel licence in the prescribed format authorising a foreign fishing vessel to be used in South African waters, or any part thereof, for the fishing or related activities that may be determined in the licence. (3) Subject to subsection (4), no foreign fishing vessel licence shall be issued to any foreign fishing vessel unless there is in force with the government of the flag state of the vessel or with an association of which the owner or charterer is a member, a fishery agreement to which the national government of the Republic is a party. (4) Notwithstanding the absence of a fishery agreement contemplated in subsection (3), the Minister may issue a licence in respect of a foreign fishing vessel where the applicant provides sufficient financial and other guarantees relating to his or her fulfilment of all obligations arising in terms of this Act, as well as other conditions regarding insurance related to pollution and rescue, and the Minister is satisfied that those guarantees are adequate for that purpose. (5) If a fishing vessel is used in contravention of subsection (1) or of any condition of a foreign fishing vessel licence, the master, owner and charterer of that fishing vessel shall each be guilty of an offence. PART 7: HIGH SEAS FISHING Prohibition of high seas fishing