South Africa: Drone fishing lobbyists lose Supreme Court Appeal

The final verdict is now in; and it is not good news for drone fishing enthusiasts in South Africa: using drones for recreational fishing is now really banned in the country and anybody caught flouting this will be liable for prosecution.
The development was confirmed by this week’s ruling by the Supreme Court of Appeal, in judgement to an appeal against another ruling by the High Court, which had also confirmed legitimacy of a 2022 public notice by the Department of Forestry, Fisheries and the Environment (DFFE) 2022 that prohibited the use of drones in recreational fishing.
The latest case was heard in May this year, before Supreme Court of Appeal Justices Fikile Mokgohloa, Wendy Hughes, Pieter Meyer, Sharise Weiner and Phillip Coppin, who this week dismissed the appeal with costs, mainly on the basis that the appellants had failed to prove their case.
This judgement puts to a close the storm that was torched in February 2022 when Sue Middleton, the Deputy Director in the DFFE issued a public notice outlawing the use of drone technology in recreational fishing.
But the drone fishing community – comprising business entities who manufacture, import, market and sell fishing and angling equipment, such as bait carrying drones and other remote-controlled bait-carrying devices – immediately appealed this notice in the Gauteng Division of the High Court, seeking to have it set aside because it contravened Section 44 of South Africa’s Marine Living Resources Act 18 of 1988.
44. (1) No person shall-
(a) use, permit to be used, or attempt to use any explosive, fire-arm, poison or other noxious substance for the purpose of killing, stunning, disabling or catching fish, or of in any way rendering fish to be caught more easily;
(b) carry or have in his or her possession or control any explosive, fire-arm, poison or other noxious substance for any of the purpose referred to in paragraph (a); or
(c) engage in a fishing or related activity by a method or in a manner prohibited by the Minister by notice in the Gazette.
(2) No person shall land, sell or possess any fish taken by any means in contravention of this Act.
Section 44 of the Marine Act lists prohibited fishing methods under the act, and does not specifically mention the use of drones as part of the prohibited methods.
The appeal cited Middleton and the Minister of Forestry, Fisheries and the Environment as the respondents.
Sadly, their appeal was thrown out by the High Court in April 2022, which prompted them to approach the Supreme Court of Appeal.
The appellants therefore took their case up with the Supreme Court, seeking leave to have the drones brought back into the fishing game, arguing that the use of drones, bait carrying remote controlled boats and other remotely operated devices, are not prohibited in terms of the Marine Act.
Another obvious reason why the fishing companies appealed the deputy director’s notice related to business: Obviously, the publication of the notice had a devastatingly adverse effect on the drone fishing service providers’ businesses; as they claim they experienced a rapid decline in demand for the drones and other bait-carrying devices.
In some instances, orders which had previously been placed for drones were cancelled and other clients demanded that they be reimbursed for past purchases.
In the latest appeal that was heard in May this year in Bloemfontein, and whose judgement was released this week, the Deputy Director General contended that drone technology had no place in recreational angling; convincing the court that the practice may only be conducted by manually operating a rod, reel and line on one or more separate lines to which no more than ten hooks are attached per line.
The respondents argued that the interpretation of the statutory requirement for lawful recreational fishing endorsed for angling alleged by the appellants conflicts with the purposive interpretation of the provisions of the Marine Act and its regulations.
“The respondents contended that the regulations prescribe the different categories and methods of fishing which may be authorised under the Marine Act,” the judgement reads in part.
“They contended that ‘recreational fishing’ is recognised as a discreet fishing category, subject to the acquisition of a recreational fishing permit, which is then endorsed with the type or method of fishing permitted.
“Angling falls within this definition.
“The endorsement of the permit issued for recreational fishing, so the contention went, determines what method of fishing is authorised in terms thereof. The method of recreational fishing and the type of permit required is chosen by indicating either ‘angling’ or ‘spearfishing’ or ‘cast/throw net’ on the application form.
“According to the respondents, as angling is defined in Regulation 1 (of the Act) to mean ‘recreational fishing by manually operating a rod, reel and line or one or more separate lines to which no more than ten hooks are attached per line’, any method that falls outside of the ‘manual operation’ of a rod, reel and line is not and cannot be permitted as recreational fishing endorsed for angling.
“The respondents requested the high court to appreciate that the subject matter of fisheries management is a policy-laden and polycentric provision that entails a degree of specialist knowledge and expertise that very few judges may be expected to possess. They contended that a court has no discretion to declare that the lawful obligations imposed by the relevant legislation should not be complied with.”
The SCA agreed with the respondents and also agreed with the High Court ruling, which had found that, although some the wording used in the public notice was not in the Marine Act, the very fact that the definition of “this Act” in Section 1 of the marine Act “includes any regulation or notice made or issued under this Act” had the effect that the court inclines towards dismissing this Application with costs”.
Jacques Venter, founder of Gannet RSA, a developer and distributer of fishing drones and release systems said this was a sad development for the fishing community in South Africa, but now there was nothing to do but to comply with the ruling.
“Drone fishing along with bait-boats and anything “mechanical” has now been declared as an unauthorised method of “angling” in South Africa under the word definition of “Angling” from the 2005 MLRA regulations,” a dejected Venter wrote in a Facebook post.
“Guys this is serious. Don’t go and do it as, if caught, you will be up for criminal prosecution, and based on this SCA verdict you will lose. Meaning you will get a criminal record, your gear and even car can be forfeited to the state and you can even end up with jail time.
“There is no point to argue it any further, the court has spoken, (whether) we agree or not is irrelevant.”

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