Goodbye, and thanks for all the fish – landmark ruling against illegal lobster harvesting

In early January the US Court of Appeals delivered a landmark verdict which was related to rock lobsters (crayfish) illegally harvested (poached) and smuggled out of South Africa to the United States between 1987 and 2001.

According to the judgment, the directors of both the South Africa company (exporter) as well as the US based importer owe the South African government compensation for the unlawfully harvested south and west coast lobsters. In the current case, the US Court of Appeals overturned the judgment of the lower court on the issue of whether or not the South African government had an ownership claim on the lobsters in question - and therefore, as owners of the lobsters and victim of the poaching, they had a claim for compensation against the defendants.

The amount owed is still to be set but it is estimated that this could be as high as 400 million Rand. This is the estimated cost to restore the lobster fishery to the level it would have been if there had been no overharvesting. According to South African lawyers involved in this case this is the first time that a court anywhere in the world has determined that a person can be liable for damages to the overharvesting of fish stocks and sets an important international precedent for overharvesting of natural resources.

This judgement is particularly significant as a court from another country accepted our government's interest in illegally harvested fish and marine resources goes beyond the function of just regulating fishing in South Africa's waters. The Marine Living Resources Act is silent on who owns fish in South African waters, and in terms of common law fish are 'res nullius' (not owned by anyone). However, the moment marine resources are illegally caught and without the relevant permits or quotas the state has the duty to confiscate that resource and arrest and penalise the perpetrators.

This should have positive ramifications for other forms of poaching and illegal harvesting of resources and perhaps particularly in the case of the illegal trade and poaching of rhinos. If Vietnamese and Chinese judiciary for example applied the same principles to convicted illegal rhino traders, we would be in a strong position to address and stem this scourge currently affecting our country. It has been reported that over twenty rhino have already been poached this year in South Africa.

In the latest living planet report released by WWF late last year, humanity could be exceeding the earth's capacity and resources by more than 50%, the report states "just as it is easy to withdraw more money from a bank account than the interest this money generates, it is possible to harvest renewable resources faster than they are been generated. More wood can be taken from a forest each year than re-grows, and more fish can be harvested than are replenished each year. But doing so is possible only for a limited time, as the resources will eventually be depleted". Fisheries supply 110 million tons of food each year but 70% of commercial marine fish species are threatened by over fishing; in South African waters 20 of our 25 key commercial marine fish species are over-fished. This perhaps puts into perspective the significance of the US court ruling.

Active and visual law enforcement and successful prosecution of perpetrators are the two main ingredients in addressing the poaching and illegal harvesting of our resources. I like many others in environmental conservation hold the view that it is only through the coming together of civil society groups, government agencies, law enforcement agencies and the judiciary and on a global scale that we will address and stem poaching and the illegal and unsustainable harvesting of our resources. Until we get this right many of our sought after wildlife and marine species will always be on the brink of and in some cases, will become extinct.