It has been argued that the actions of Raggy Charters are in contravention of the Sea Birds and Seals Protection Act, 1973 (Act 46 of 1973). Section 3(b) of the Act forbids any person to “wilfully disturb ... any sea bird”. The seagulls in the case at hand would qualify as “sea birds” for the purposes of the Act if they fall within the Laridae family (see the definition of the term “sea bird” in s 1 of the Act; other species also included are, for instance, penguins (Spheniscidae), gannets (Sulidae) and terns (Sternidae)). What the term “disturb” mean is less clear. It is not defined in s 1 of the Act and only appears in one other provision of the Act: s 11(1)(cB) which empowers the Minister of Water and Environmental Matters to “make regulations prohibiting or regulating the taking on board, without lawful reason, on any fishing boat … , of any fire-arm or any instrument or substance with which seals may be killed, disturbed or frightened away”. Moreover, there does not appear to be any reported case where the term was defined or applied.
The 2007 Policy on the Management of Seals, Seabirds and Shorebirds (published under Government Notice 1717 of 2007 in Government Gazette 30534 of 7 December 2007) includes Laridae species among the species of seabirds requiring protection (annexure C). The purpose of the Policy is “to outline the framework of principles and approaches which will guide and direct the responsible and orderly management of seals, seabirds and shorebirds for the benefit of present and future generations in South Africa. Simultaneously, it will guide and direct the drafting of revised legislation that will govern and regulate activities associated with the subject species in terms of” the Policy (par 3). With regard to disturbance by humans, the Policy states that “[t]he minimisation and regulation of disturbance to seals, seabirds and shorebirds is necessary and any disturbance, especially of breeding animals, will be subject to the issuing of a permit. Suitable restricted areas will be declared around breeding islands and mainland colonies, but provision will be made for sustainable tourism. Consideration should also be given to the restriction of speeding by recreational vessels close to breeding colonies. Eco-tourism vessels or vehicles will be subject to permit conditions and a code of conduct” (par 4.1.8, see also par 4.3.1). Interestingly, paragraph 4.10 of the Policy mentions film making as a possible source of income for funding research, monitoring and management of South Africa’s seals, seabirds and shorebirds. But once again, no definition of the term “disturb”.
The Concise Oxford Dictionary defines the verb “to disturb” as meaning “break the rest, calm, or quiet of, interrupt”. This seems to imply that, in order to disturb seagulls, one must either compel them to act in a way they would not otherwise have acted, or prevent them from acting in a way they would otherwise have acted. But this must surely be a matter of degree. Indeed, one would undoubtedly disturb seagulls if one were to walk close to or through an area where they are nesting, but is one “disturbing” seagulls whenever one causes them to fly off while walking on an empty beach ... ? (In terms of s 12(a) of the Act, a person who contravenes or fails to comply with the provisions of the Act is “guilty of an offence and liable on conviction to a fine not exceeding two hundred rand or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment”) Or put differently, does s 3(c) of the Act have the effect of closing off a beach once a seagull lands on it ... ? Anyway, in the case at hand, there does not appear to be any element of compulsion: the seagulls were neither forced to feed nor prevented from feeding, they were offered an easy meal! (Interestingly, there is no provision in the Act forbidding anyone to feed sea gulls) In other words, if there was disturbance, the birds were not its victims.
Finally, one must point out a loophole in the Act, which is well illustrated by this case. Section 3(c) forbids any person to disturb sea birds “within the territorial waters or fishing zone of the Republic or along the coast of the Republic between the low-water mark … and the high-water mark”. The problem is that the whole of Algoa Bay has been closed off by straight baselines, with the effect that its waters are not part of the South African territorial waters, let alone its “fishing zone”, now the exclusive economic zone or EEZ. The effect is that the waters of Algoa Bay have the status of internal waters, to which s 3(c) does not refer. This state of affairs results from a failure to update the Act when the Maritime Zones Act, 1994 (Act 15 of 1994) came into effect. Indeed, it makes no sense to protect sea birds between the high and the low-water mark as well as in the 200 nautical miles between the straight baselines and the outer edge of the EEZ, but not in the enclaves of internal waters landward of those baselines.
(to be continued)
