Chumming for your chum (part two)

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)

Chumming for your chum (part one)

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)

A definition of "marine tourism law"

I see marine tourism law as a part of attractions law, which I defined earlier as “the body of legal rules that regulate the relationships of the tourists while they are involved in the attraction that motivated their journey” (P Vrancken “Introduction” in P Vrancken Tourism and the Law in South Africa (2002) 274). I agree with Orams that what distinguishes marine tourism law from other parts of attractions law is the fact that, in the case of marine tourism law, the attractions “have as their host or focus the marine environment (where the marine environment is defined as those waters which are saline and tide-affected)” (Orams Marine Tourism. Development, Impacts and Management (1999) 9). It is necessary to narrow the scope of marine tourism law down further in order to exclude work-related attractions such as commercial fishing and marine scientific research, so as to avoid including almost the entire law of the sea. Indeed, in a sense, humans being land-based creatures, any individual spending at least one night at sea is a tourist. I therefore suggest that “marine tourism law” be defined as “the body of legal rules that regulate the relationships of the tourists while they are involved in non-work-related attractions which have as their host or focus the marine environment, the latter being understood as including all bodies of saline water connected permanently or episodically to the open sea”.

BLT model for law purposes

The difficulties involved in defining marine tourism (see Orams Marine Tourism. Developments, Impacts and Management (1999) 8-11) are matched by those encountered when identifying the wide-range of legal relationships involved. A useful tool to tackle those obstacles is the BLT model, a sociology tool which, on the one hand, identifies tourism brokers, locals and tourists as the main actors in tourism and, on the other hand, facilitates the identification of their relationships (Miller and Auyong “Coastal Zone Tourism. A Potent Force Affecting Environment and Society” (1991) 15 Marine Policy 76-77). In that model, the tourists are the individuals who consume the tourism services and the locals are the individuals who live at the place where the tourism services are consumed. As far as they are concerned, the brokers either supply the tourism services (private brokers) or regulate the supply of those services in the public interest (public brokers).  To the extent that law is understood as the normative system which can be adjudicated upon by the judicial organs of the State, the model’s distinction between public brokers and private brokers needs to be highlighted in view of the central role played by the former when marine tourism is approached from a legal perspective. To that end, the following adaptation of the model is proposed: