A chumming row in Nelson Mandela Bay was reported in the press on 29 March 2011 (see here). The facts were apparently as follows. On 24 March, the holder of a boat-based whale watching license in Algoa Bay, Raggy Charters, threw fish off-cuts overboard less than 100 m from the shore between Humewood Beach and Kings Beach in Port Elizabeth in order to lure seagulls for a film crew working on a documentary about bird migration. The activity, which was captured on the municipality’s CCTV system, apparently caused “public panic” in view of the risk of it resulting in sharks being attracted to some of the city’s main recreational beaches and the life of swimmers, including individuals training for forthcoming major sporting events, being endangered.
The report refers to the contentious nature of the awarding of the whale watching license to Raggy Charters (the dispute relates to the affirmative action credentials of the latter) and the argument that the activity described above is blown out of proportion in order to smear the operator. Legally, the actions on 24 March are not related to the awarding of the license. The latter is governed by the Regulations for the Management of Boat Based Whale Watching and Protection of Turtles, 2008 (the WWR were made in terms of s 77(1)(b), 2(g), 2(x)(v) and 2(y) of the Marine Living Resources Act, 1998 (Act 18 of 1998) and published under Government Notice R725 of 2008 in Government Gazette 31212 of 4 July 2008). The factors to be considered when issuing a permit are listed in regulation 6. The only factor of some import in this case is: “[w]hether the applicant has been convicted of any offence in terms of the Act or regulations made in terms of the Act and the seriousness thereof” (reg 6(e)). It will be noticed that three elements are required: (1) there must be a conviction; (2) the offence must be in terms of the Marine Living Resources Act or regulations made under it; and (3) the offence must be serious enough to have an impact on the decision whether to issue the permit. Neither the Act nor the 1998 Regulations (made in terms of sections 7(5), 9(3), 12(2)-(3), 39(2), 45, 47, 50(1), 77 and 80(2) of the Act and published under Government Notice R1111 of 1998 in Government Gazette 19205 of 2 September 1998) do mention “chumming”. The prohibited activities dealt with in chapter 5 of the Act relate to fishing, which was evidently not the purpose in the case of Raggy Charters. As far as the Regulations are concerned, regulation 87(1) provides that waste must be taken back to port and no waste may be disposed of at sea. However, the waste concerned is waste “generated on a fishing vessel”, which the vessel operated by Raggy Charters was not (in terms of regulation 1 read with section 1 of the Act, the term “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”).
The actions of Raggy Charters took place within that part of Algoa Bay which falls within the limits of the port of Port Elizabeth (see regulation 2(5) and appendix 5 of the Port Limits Regulations, 2010 made in terms of section 80(1) of the National Ports Act, 2005 (Act 12 of 2005) and published under Government Notice R11 of 2010 in Government Gazette 32873 of 22 January 2010). On that basis, the National Ports Act applies together with the Port Rules, 2009 (made in terms of section 80(2) of the Act and published under Government Notice 255 of 2009 in Government Gazette 31986 of 6 March 2009. See rule 3 read with rule 1(1)(jj) and sections 1(1) and 10 of the Act). Rule 85 requires that all persons within the port limits take all reasonable steps to prevent, minimise and mitigate pollution or damage to or degradation of the marine environment. Rule 86(1) forbids any person to throw from a vessel “any harmful matter or substance of whatsoever nature” without the permission of the Harbour Master. Finally rule 86(7) requires that any person who drops an article “that might cause danger, obstruction, pollution, a negative impact upon the environment or a nuisance”, and any person who witnesses a person doing this, report the matter to the National Ports Authority immediately. In the present case, there was clearly no obstruction. It is unlikely one could speak of pollution or a negative impact upon the environment. There may have been some danger, but there is little doubt that a nuisance was caused.
(to be continued)
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