CHAPTER ONE
INTRODUCTION AND OVERVIEW OF THE STUDY
1.1 Background to the study
South Africa, being a maritime country, has a vitally important fishing industry. The industry employs about 27 000 people and produces fish with a total wholesale value of over R1 000 million1. South Africa hosts a predictable16 percent of the total amount of marine fish species in the world, most of which have at some time or other been over-exploited.2
The abalone industry in South Africa originated in 1949. The sought after abalone species is known as Haliotis midae. South Africa has one of the oldest commercial abalone fisheries in the world,3 and ranks as one of the top five to ten wild abalone fisheries in the world, after Australia and Japan.
The South African fishery industry remained relatively stable between 1972 and 1995, with abalone catches totaling between 600 and 660 tons annually. This was the case until 1996, when initial distributions of only 400 tons, later adjusting to 550 tons, were caught for that season. Although this was a result of over-exploitation, biological uncertainty and political pressure, this dramatic cut indicated the seriousness of the problem.4
By 2003, global abalone production levels fell to less than 10 000 tons, about one-third of the level three decades previously. By 2005, the scale of abalone fishing had grown tremendously, with a task force of 30 purpose-built vessels harvesting 1 000– 2 000 tons of abalone, an attaining an export value of US$35–70 million per year.5 South Africa has 13 abalone farms which currently produce a total of about 1000 tons of abalone per year. While abalone fishing is among the smallest industries in South Africa, as regards yield, it is the most lucrative in unit value.6
The over exploitation of abalone in South African marine waters is exacerbated by the fact that abalone harvesting and trading is legal in China, where the demand for abalone is high, given its presumed aphrodisiac properties. But it is expensive. The annual turnover in China for the sale of abalone coming from the Western Cape is about R1 billion per year. According to Redpath "[t]he South African government has been trying to negotiate a bilateral agreement with China to limit the unlicensed, illegal trade."7
According to the Department of Environmental Affairs and Tourism (DEAT), abalone farming "generates more income and employment than any other farmed fish product in the marine aquaculture sector. Besides providing gainful employment to more than 800 people – 80% of the total employed in the marine aquaculture sector – abalone harvesting generated more than R141 billion in revenue in 2006."8
The uncontrolled fishing has reduced the stock of abalone drastically. This has had a direct impact on the marine environment, threatening the long term sustainability of the abalone resource. According to Raemaekers and Britz, "[t]he failure of the state to issue fishing rights and conduct effective sea based compliance, combined with the incentives to fish abalone (high price, low cost, ease of access) created the conditions for a full scale illegal fishery to emerge very rapidly."9
Chinese organised crime groups, known as triads, with their international networks, are key to the continuing profitability of marine poaching. They treat their buyers well to ensure a constant supply of the product that their culture demands. However, due to the secretive nature of these syndicates and the precision with which they work, law enforcement officers find it difficult to intervene in their operations.10 Whenever the law enforcement officers raid an illegal abalone storage facility, or when people are caught transporting abalone illegally, the media report about this in a dramatic way. But very little, if anything, is said in the press about the outcomes of such cases.
It is against this background that this study is being undertaken. The intention is to establish how the South African criminal justice system is responding to this menacing criminal activity.
1.2 Significance of the study
The South African public is not ignorant of the fact that abalone poaching takes place on a large scale along the Western Cape coast. There are intermittent reports in the press and on television which draw attention to the problem of marine poaching. But this reporting occurs mainly in relation to persons being arrested for suspected poaching of abalone. Until now, there has been no coherent study on how the cases are processed through the criminal justice system. The importance of this study lies in the fact that it attempts to describe more comprehensively how abalone related cases are dealt with in the course of criminal proceedings. More importantly, the thesis attempts to determine the kind of difficulties the State has to deal with when prosecuting such cases and how these difficulties manifest themselves in public.
The author has been motivated to undertake this study because, as a court interpreter, she has had the opportunity to experience at close range criminal trials involving abalone poaching. She has also had access to the dockets of decided cases, which will serve as one of the primary sources of this study.
1.3 Research question
The question this thesis will attempt to answer is this: What are the main obstacles to the successful prosecution of accused persons charged with poaching of abalone?
1.4 Methodology
This study will utilize both primary and secondary sources. These will include laws, cases, reports, textbooks, journal articles, electronic sources, media reports and basic data related to abalone poaching.
1.5 Scope of the research
This research is limited to abalone