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Landmark August 12 verdict expected over illegal fishing inside Marine Protected Areas

Landmark August 12 verdict expected over illegal fishing inside Marine Protected Areas
A pregnant bronze whaler shark being processed aboard the White Rose, a Unathi Wena Vessel. Photo taken by a previous crewman. (Photo: Supplied)
Julia Evans
By Julia Evans
23 Jul 2024
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The State is for the first time trying to prove that by illegally fishing inside a Marine Protected Area, a large-scale fishing operation is not only liable for fishing illegally but also responsible for causing a detrimental impact on the environment.

In three weeks, the Bredasdorp Magistrates’ Court in the Western Cape is expected to deliver a judgment that will set a precedent for illegal fishing in South Africa – irrespective of which way the decision goes.

In the case between the State and Unathi-Wena Fishing, the State is prosecuting the fishing company for likely causing a detrimental impact on the environment by fishing inside the De Hoop Marine Protected Area (MPA). This has never been done before and the offence carries a much larger fine. 

Unathi-Wena Fishing is a large-scale fishing operation based in Gqeberha. In May 2019, the company’s vessel, the White Rose, was caught allegedly illegally fishing in the De Hoop MPA. Photographic evidence shows fishermen pulling out several fish, including sharks and rays, some of which are endangered.

Drone shot of the White Rose as they leave the De Hoop Marine Protected Area, off the eastern boundary in 2020. This still shows an endangered hammerhead landed alive and not returned to the ocean. (Photo: Supplied)



De Hoop MPA, unlike some MPAs which allow fishing under very strict conditions, is a restricted zone, which means it’s illegal to commercially fish there at any time. 

After years of the State gathering evidence and building a case, in mid-2022 the accused pleaded guilty to fishing inside the De Hoop MPA. With this charge, filed under the Marine Living Resources Act, the accused is liable on conviction to a fine of up to R800,000 or imprisonment of up to two years.

In a first, the State has also brought the charge of the likelihood that the environment could be degraded because of the fishing activity within the no-take MPA. This charge is filed under the National Environmental Management Act and has a penalty clause of R5-million.

The State hopes that a guilty verdict and maximum penalty on this charge will serve as a deterrent to other fishing companies operating in restricted MPAs. 

Daily Maverick previously reported that in the same month Unathi-Wena was caught, a second vessel, the tuna long-liner Prins Willem, was also seized when it docked in Port Elizabeth. It had allegedly been illegally fishing in the Amathole MPA off East London.

The charges and defence


Imraan Patel, the chief operations manager of Unathi-Wena, representing the company, admitted through defence counsel Francois van Zyl, that “on the 8th, the 9th and 10th May 2019, accused 2 [the skipper] unlawfully and negligently engaged in fishing 20 activities in and/or entered without lawful cause or permit in the De Hoop Marine Protected Area”.

But he denied “that the fishing activities in De Hoop and/or the entering without lawful cause or permit of De Hoop are or is likely to detrimentally affect the environment”.

Van Zyl submitted that although fishing activities were carried out within De Hoop on those three days, “the actual catch that was landed in Port Elizabeth on 15 May 2019 did not contravene the permit conditions in respect of the species targeted or landed and offloaded”.

The White Rose has a permit to undertake commercial fishing for demersal sharks, including the smooth-hound, soupfin, bronze, rays, skates and other fish that were offloaded at Gqeberha on 15 May 2019. While White Rose has permits for the fish they offloaded, they don’t have a permit to fish inside the De Hoop MPA.



In the plea explanation, defence advocate Van Zyl said, “De Hoop was not proclaimed a Marine Protected Area in order to provide protection to numerous aquatic and plant species, including shark and ray species.”

Van Zyl argued that De Hoop was proclaimed an MPA primarily to protect shoreline cultural and heritage sites, such as historical Khoisan fish traps and cultural landmarks, and as a refuge for reef and line fish like galjoen, steenbras and musselcracker and, more recently, for migrating southern right whales.

Ostensibly, the defence is arguing that because De Hoop was not proclaimed an MPA to protect shark and ray species, the fact that White Rose fished sharks and rays isn’t damaging the environment.

And because the White Rose has a permit to fish for the species they caught (outside MPAs), it doesn't harm the overall environment.

Unathi-Wena’s Patel, who is the first accused, declined to comment.

The State brought in expert witnesses to testify to the broader benefits MPAs provide to the ecosystem, and specifically how the sharks and rays that the White Rose were caught fishing (like soupfin and smooth-hound), rely on De Hoop MPA for their survival. 

A ragged tooth shark which was killed, jaw taken and dumped by the White Rose, a Unathi Wena Fishing vessel. (Photo: Supplied)



The State’s argument

“Marine Protected Areas are essential,” said John Filmalter, the state’s first expert witness, who has a PhD in Fishery Science. 

“We are in a situation in South Africa and globally where our marine resources are under significant pressure from fishing.”

Filmalter was on the boat that photographed the White Rose illegally fishing in De Hoop in 2019. At the time, he was conducting research comparing the movements of sharks and rays inside and outside of MPAs.

When introducing himself to the court, UCT fisheries professor Colin Attwood said that when he was first employed to work for the Department of Marine Coastal Management in the mid-1990s, he investigated the purpose and function of what was then called marine reserves (now MPAs).

“The chief director, in fact, asked me to tell him why we have marine reserves and that if, after six months I could not, he was going to take them all away,” said Attwood. 

“After six months, I told him we definitely need them – and, in fact, we need a whole lot more.”

Read more: Marine Protected Areas are our insurance policy for a climate-uncertain future

A pregnant bronze whaler shark being processed aboard the White Rose, a Unathi Wena Vessel, taken by a previous crewman. (Photo: Supplied)


Benefits of MPAs


The State, through expert witnesses, highlighted that ​​MPAs offer numerous benefits that extend beyond their immediate boundaries. These areas are crucial for:

Conservation: Alison Kock, a marine biologist at SANParks, testified about the importance of De Hoop MPA – one of South Africa's oldest MPAs – emphasising that this area, located in the biologically diverse Agulhas bioregion, is vital for conserving the region’s ecological processes and biodiversity.

Kock said during the case that, by providing a haven free from human activities like fishing, these areas support the regeneration of fish populations and the overall health of marine ecosystems.

Research and management: The expert witnesses explained that, untouched by fishing, MPAs provide valuable reference sites for scientists to study ecosystems in their natural state – thus providing a research and monitoring tool.

Fisheries: During the trial, Attwood explained that by limiting the number of fish that can be extracted from the ocean, MPAs help ensure the productivity of fisheries. Overfishing can deplete fish stocks to levels where they are unable to replenish their losses themselves or provide economic benefits

Filmalter explained to the court that because many fish stocks are overexploited or collapsed in SA, creating protected zones that exclude fishing is a very important tool to allow fish stocks to recover and then withstand the fishing pressure.

Filmalter noted that fishing is the largest threat to the majority of fish stocks, both in SA and globally, especially for our shark stocks. A 2021 study found that more than one-third of sharks and rays are threatened by overfishing.

The DFFE acknowledged to Daily Maverick the critical role of MPAs, saying, “The role played by MPAs on the ecosystem cannot be ignored and it must be acknowledged that in South Africa, MPAs have always played a dual role in terms of environmental protection and fisheries management.” 

The DFFE added that there were ongoing studies to establish the impact of fishing within MPAs.

Does fishing impact a Marine Protected Area?


The State’s argument is that fishing within MPAs disrupts the ecological balance and thus causes a detrimental impact on the environment.

Ecological balance


The State’s expert witnesses argued that fishing activities within MPAs can significantly disrupt the ecological balance, leading to the depletion of fish populations and the degradation of habitats. 

Kock, who has her PhD in Shark Ecology, explained that the removal of large numbers of sharks – in this case, the 331 smooth-hound, 75 bronze whaler sharks and 44 soupfin sharks taken by the White Rose over three consecutive days – disrupts the ecological balance. She explained that as predators, and as food for bigger predators,  sharks play a crucial role in maintaining the health of marine environments.

“Those animals cannot contribute to the breeding population any more,” said Kock while on the stand. 

“They have been removed and their regulatory role has been removed as well. So in my view, that detrimentally impacts that ecosystem.”

Genetic diversity


The expert witnesses also emphasised that overfishing within MPAs threatens genetic diversity and thus the long-term survival of species. They explained that the loss of genetic variability reduces a species’ ability to adapt to environmental changes and increases the risk of extinction. 

“If the State cannot prevent fish decline below some threshold value, it is also in danger of losing genetic variability and that will impair the ability of a species to persist in the long run,” said Attwood. 

“I am talking 50, 100 years – that is environmentally damaging.” 

Do sharks need to be protected?


The defence noted that the White Rose has permits to fish for shark species and that the De Hoop MPA was not originally promulgated to protect shark and ray species – ostensibly arguing that the White Rose fishing sharks did not damage the environment. 

In their questioning of the State’s expert witnesses, the defence noted that while shark species like the soupfin and smooth-hound, are globally classified as critically endangered and endangered, respectively, by the International Union for Conservation of Nature (IUCN) Red List of Threatened Species, the species (that the White Rose caught) are not on South Africa’s TOPs list of threatened species. 

When asked about this during his cross-examination, Filmalter noted the slow process of updating these lists. The first Marine TOPs list came out in 2017, before the IUCN updated the sharks’ classifications in 2020.

“The reason that those species did not make it onto the TOPs list is not because they are not threatened,” said Kock during the trial, explaining that the department’s decisions to continue targeting different sharks consider biological information, but also tries to balance that out with the socio-economic considerations of that activity. 

The DFFE noted that IUCN Red List assessments are based on subpopulations in specific regions, not on a country scale.

The first comprehensive assessments of soupfin and smooth-hound sharks by the DFFE in 2019 showed a high probability that these sharks are fished unsustainably. 

For soupfin sharks, all assessment scenarios indicated a more than 99% chance of unsustainable fishing. For smooth-hound sharks, three out of four scenarios suggested overfishing, though the most optimistic scenario still predicted a future decline.

Despite this, the DFFE told Daily Maverick that smooth-hound stocks are currently at optimal status and not endangered according to the 2023 Status of the South African Marine Fisheries Resources. 

However, the same status report notes that smooth-hounds are under heavy fishing pressure. The department added that the Marine Living Resources Act is under review to better protect marine species, along with efforts to align it with the Marine TOPs list.

Kock emphasised in the trial that there’s a wealth of scientific studies from around the world to show that when you remove sharks, it impacts the ecosystem. For example, smooth-hound sharks feed on shellfish, while bronze whalers prey on small fish, each playing a unique ecological role. In the De Hoop MPA specifically, smooth-hound and soupfin sharks generally use the area as breeding grounds and would be severely impacted by fishing activities.

The counter-argument


During cross-examination, the defence questioned how MPAs can protect fish – like sharks – that generally move outside the MPA’s boundaries available to catch. 

“Sharks do move in and out of Marine Protected Areas, but the time they spend within these protected boundaries is crucial,” said Kock.

“It provides them with a safe environment to feed, breed, and grow without the pressure of fishing. This period of safety can help sustain their populations even when they venture out of the MPA.”

She noted that studies have shown more sharks are found inside the De Hoop MPA than outside, which supports the effectiveness of MPAs in shark conservation. 

Kock and Attwood emphasised that the benefits of MPAs extend beyond their borders, explaining the spillover effect, where the protection within MPAs leads to healthier and more abundant populations that can migrate to adjacent areas, contributing to the ecological balance in other regions.

A study by DFFE marine scientists in 2013 looked into how effective MPAs are for sharks, by studying the movements of individual smooth-hound sharks in the small (34km2) no-take zone part of the Langebaan Lagoon Marine Protected Area over two years. They found that sharks spent the majority of time (79%) in the reserve. And while some sharks did not leave, those that did leave – in spring and winter – all returned before the end of the study period. 

“Remember that moving is costly,” said Attwood. “And they will not undertake such turnings unless there is a reason to overcome that cost.

“On land, we recognise that farming and hunting are important socio-economic activities. However, we don’t allow them within the Kruger National Park to protect its natural environment, including its wildlife, habitats and function,” Kock told Daily Maverick.

“Similarly, fishing, though also important socio-economically, is not allowed in the De Hoop Marine Protected Area because it can harm the environment. By restricting these activities in protected areas, we aim to conserve healthy and diverse environments for future generations in accordance with the Constitution of South Africa.”

The court is set to deliver its judgment on 12 August.

The verdict will be precedent-setting for how South Africa handles illegal fishing in MPAs. If the State wins, it will set a precedent that fishing inside MPAs holds much bigger fines, skewing the risk:benefit ratio. DM

https://www.youtube.com/watch?v=REeWvTRUpMk

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