SA wins fishing victory in US court

Johannesburg - The US Court of Appeals has delivered a groundbreaking judgment, ordering that three men pay restitution to SA following extensive unlawful harvesting of south and west coast rock lobster in South African waters.

The three, Arnold Bengis, Jeffrey Noll and David Bengis, indulged in the over-fishing between 1987 and 2001.

Bengis was the managing director of Hout Bay Fishing Industries.

The accused had US citizenships at the time of the offence.

The judgment, handed down on Tuesday, follows an investigation by the now-defunct Scorpions and the successful prosecution of Hout Bay Fishing in SA in April 2002.

Hout Bay Fishing paid a fine of R12m and two of its fishing vessels were forfeited to the state.

US authorities commenced their own investigations after being informed of the offences in 2001 by the South African government.
After they were charged in the US the three were sentenced to various terms of imprisonment and were fined a total of $13.3m in 2004. These charges specifically related to violation of American law by importing fish without authorisation.

Marius Diemont, a partner at Webber Wentzel specialising in environmental and fisheries law, said that the outcome of this case had been eagerly anticipated around the world.

"This is the first time that a court has determined that a person can be liable for damages from the overharvesting of fish stocks and sets an important international precedent for overharvesting of natural resources."

The amount of restitution is to be determined by a US district court.

Based on comments made by the US Court of Appeals regarding the methodology for determination of the restitution amount, it is possible that restitution of $54.9m could be granted.

This is the cost to restore the lobster fishery to the level it would have been at had there been no overharvesting.

Diemont advised the US department of justice on the South African legal aspects of the case.

"A key aspect of the case was whether it could be established that SA did have a property interest in the overharvested lobster. The Marine Living Resources Act is silent on who owns fish in South African waters. The position in common law is that fish are 'res nullius' - not owned by anyone," he said.

"However, we were able to persuade the US Court of Appeals that the moment fish are illegally caught, the state acquires a property right to that fish, as they are subject to seizure and forfeiture."

The court accepted that SA's interest in illegally harvested fish goes beyond the exercise of regulating fishing in South Africa's waters, Diemont said.
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