Thereafter the appellant pleaded not guilty to the main charge and a written statement of admitted facts was, in terms of section
115 of the Criminal Code, handed in on the appellant's behalf. In this statement, while denying that a contravention of Section 22A
of the Sea Fisheries Act disclosed an offence in respect of the area of the sea between twelve and two hundred nautical miles (as
measured from the low water mark) from the coast of Namibia, the appellant admitted all the material facts pleaded in the main charge,
which admissions were recorded in terms of section 220 of the Criminal Code. No evidence was adduced by either the State or the defence.
On the basis of the aforesaid admissions, and in the light of his earlier dismissal of the objection to the main count, Levy, J accordingly
found the appellant guilty on this count. The learned Judge, in his reasons for convicting the appellant, relied on the abovementioned
admissions made by the appellant in terms of section 115 of the Criminal Code and his previous ruling on the law when dismissing
the objection in terms of section 85 of the Criminal Code, and naturally did not repeat the reasons for such legal ruling which,
as previously stated, were merely a confirmation and incorporation of an identical ruling in S. v Marlines. I shall, for the sake of convenience and in order to avoid unnecessary circumlocution, treat those portions of the
judgment in JL
v Martinez- which deal with the legal issues
relating to conviction (including the dismissal of the objection
4
to the main charge) as though they have been incorporated in the judgment of the Court a quo in this case. When referring to
passages in ’L
v Martina? such reference must be understood in
the above contex. It should also be noted that Levy, J also gave judgments on identical legal issues in S. v Curras (in unreported judgments dated the 7th and 13th February 1991 respectively).
The main thrust of the present appeal against the appellant's conviction falls within a narrow legal ambit and raises in substance
only one question of law, namely, does a contravention of section 22A(4)(b) of the Sea Fisheries Act read with the Namibian Act 3
of 1990 constitute an offence in Namibian Law? A second, and alternative, contention on the merits is that, at worst for the appellant,
the aforesaid contravention only constitutes an offence in that portion of the exclusive economic zone of Namibia contiguous to the
port and enclave of Walvis Bay. It is common cause that the actions of the appellant relied on by the State in support of the conviction
took place outside this zone (i.e. outside the zone contiguous to the port and enclave of Walvis Bay).
In the charge sheet the offence is alleged to have taken place "on or about or between 18 November 1990 and 24 November 1990".
In his aforementioned statement in terms of section 11.5 of the Criminal Code the appellant only admitted performing the acts in
question from the 20th to the 24th November. On the 18th March 1931 Levy, J convictec the accellant on the main count "as charged"
but in his jucgment on sentence the learned Judge made
5
it plain that the conviction related only to the period of the 20th to the 24th November 1990.
The central issue in the appeal against conviction relates to the issue whether section 22A(4)(b) of the Sea Fisheries Act applies
to the entire national territory of Namibia and its maritime zone, or only to Mthe enclave, harbour and port of Walvis Bay, as well as the off-shore islands of Namibia" (hereinafter for convenience referred
to simply as "Walvis Bay") and its maritime zone or to no portion of the national territory of Namibia. If, on a proper
construction of the relevant statutes, it appears that the aforesaid section 22A(4)(b) of the Sea Fisheries Act does not apply at
all to the national territory of Namibia and its maritime zone, or if it is found to apply only to the territory of Walvis Bay and
its maritime zone, then the appellant's conviction cannot be sustained because, as al readying catec, the facts which would constitute
a contravention of section 22A(-I)(D) all occurred outside the territory and maritime zone of walvis Bay. Some of the issues to be dealt with have been discussed by CFP
Briesch & DM Powell in a lucid and instructive note on the Maritinez and Curras judgments entitled Fighjna for Convictions: The Namibian Maritime Zonal Regime and
ii2s\Incorporation
Of
the
’&a
Fisheries Act 58 of 1973
into.
NamibianJjaw in 109 (1992) SALJ 129, to which I will refer again in the course of this judgment. Reference may also usefully be made
to a publication by Prof. DJ Devine Maritime- Zone UgigiatLLojiJLar a new South Africa: Historical, Contemporary and International Perspectives, a Special Publication No. 17 (1992)
\\\\\\\IIPP\\1
6
of the Intitute of Marine Law, University of Cape Town (hereinafter cited as "Maritime Zona Legislation") and to an
article by Prof. Devine Some
Observations on South
African
Maritime Zone Legislation in Sea Changes No. 1 (1985) at 107.
Article 1(4) of the Constitution defines the national territory of Namibia as follows:
"The national territory of Namibia shall consist of the whole of the territory recognised by the international community through
the organs of the United Nations as
Namibia, including
tils
enclave, harbour and port of
WalVJS
Sax*
&a
W’.D
as
the off-shore islands
of
Namibia , and its southern ooundary shall extend to the
¡
middle of the Orange River" (emphasis added).
i
Article 140(1) of the Constitution contains the following
provision in relating to laws which were in force immediately
before the date of Independence (i.e. immediately before the 21st
March 1390):
I
"Subject to the provisions of this Constitution, all laws which were in force immediately before the date of Independence shall
remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent Court".
The Territorial Waters Act No. 37 of 1363 applied, by virtue of section 8 thereof, to "the territory cf . South-West Africa".
Being a statute cf the Recuolic of South Africa the legislature would have intended the phrase 'in the territory of South-West Africa"
to exclude Walvis Bay. 8/ the same token howe-zer "Walvis Bay would of course have beer, included in references to the Republic of South Africa. In terms of secticn U'iii) "Republic"
7
included "the territory of South West Africa". This act created three maritime zones:
3)
six nautical miles from low water mark "territorial waters" (section 2);
4)
a "fishing zone", outside the territorial waters* but within a distance of twelve nautical miles from low-water mark, in
respect of which the Republic would, in relation to fish and the catching of fish have and exercise the same rights and powers as
in respect of its territorial waters (section 3). Briesch and Powell, op c/t, refer at p. 130 to this zone as the "exclusive fishing zone"; and
5)
a zone, corresponding in area to the exclusive fishing zone, in which the Republic would have any powers which might be necessary
to prevent contravention of any fiscal law or any customs, emigration or sanitary law. To this zone Briesch and Powell, ibid refer as the "contiguous zone" (section 4 read with section 3).
In 1373 the Administrator-General of South West Africa issued a proclamation (Proclamation AG 32, Official Gazette Extraordinary of
South West Africa 4034 of 7 November 1373) which would have had the effect of extending the territorial waters and fishing zone to
the 12 and 200 nautical mile limits respectively. Doubts have been expressed as to whether this proclamation ever came into force
(Devine, Some Observations on South African Maritime Zone Legislation, supra, at 120 note 3; Devine, Maritime Zone Legislation, supra, at 12-13 and Briesch & Powell, op eft, 130). Proclamation AG 32 of 1373 was made in terms of powers conferred by Proclamation 181 GG 5713 of 13th August 1377 which
in turn was made under section 38(1) of the South West Africa Constitution Act Nc. 33 of 1368, Section 38(2) of this lastmentioned
Act (as amended by section Kb) of the South West Africa Constitution Amendment Act No. 35 of 1377) provided that
8
"If any authority is by any law made in terms of subsection (1) empowered to make laws, a law made by any such authority by virtue
of that power, shall not be of force and effect until it has been approved by the State President".
Both Devine, ibid and Briesch & Powell, ibid, observe that there is no indication that the State President in fact consented. It is fortunately unnecessary to pronounce on this
point in the present case because Proclamation AG 32 of 1979 was repealed by-section 7 of the Namibian Act 3 of 1990.
In 1977 the South African legislature enacted the Territorial Waters Amendment Act No. 98 of 1977, which came into operation on the
1st November 1977. Section 4 of this Act expressly excluded from its operation "the territory of South West Africa", but
preserved the operative effect of the principal Act in South West Africa. The South African legislature, by section 4 of the amending
Act, did not of course exclude Walvis Bay from the amending Act's operation. Insofar as Walvis Bay is concerned, the effect of the
amending Ac; was to provide for 12 nautical miles territorial waters (section 2); a 200 nautical mile contiguous zone anc a 200 nautical
mile exclusive fishing zone (section 3 read with section 2).
If, after Independence, and by virtue of the operation of Article 140(1) read with Article 1(4) of tne Constitution, the provisions
of the Territorial Waters Act relating to Walvis Bay (referred to above) became part of the law of Namibia, a "differantiated
maritime zonal regime" (see Briesch & Powel":, op cit% p. 131; would have come into existence for Namibia. The Territorial
9
Waters Act 1963, as amended, would have remained in force in Walvis Bay, (providing for the aforementioned zones of 12 nautical miles,
200 nautical miles and 200 nautical miles respectively), while the unamended provisions, providing for the more limited zones, would
have remained in force in the rest of Namibia.
Article 100 of the Constitution amended the maritime zonal regime by providing that
"Land, water and natural resources below and above the surface of the land and in the continental shelf and within the territorial
waters and the exclusive economic zone of Namibia shall belong to the State if they are not otherwise lawfully owned".
As Briesch & Powell, op cit, p. 131 point out:
"(t)he article refers to an exclusive economic zone (EEZ5. No such zone existed before independence. The Constitution must therefore
be construed as having created an EEZ of an unspecified extent".
It is unnecessary for purposes of this judgment to decide what this somewhat unusual provision meant, for the position was clarified
when the Namibian Act 3 of 1990 came into operation on 10 July 1990. This now governs the Namibian maritime zonal regime and provides for the following three zones:
(a) in terms of section 2(1) for a 12 nautical mile territorial sea;
lb) in terms of section 4(1) for a 200 nautical mile Exclusive Economic Zone; and
(c) in terms of section 4(3 )(b) for a 200 nautical mile contiguous zone.
10
Whatever doubts may exist as to. the incorporation, on Independence, into the law of Namibia of the law in force in Walvis Bay immediately
before the date of independence, it is clear that, when sections 1(4) and 140(1) of the Constitution are read together in conjunction
with the Namibian Act 3 of 1390, it was certainly the intention of the legislature that the latter Act would apply to the entire
national territory of Namibia. Upon independence, therefore, there was created, in the words of Briesch & Powell
Ma uniform maritime zonal regime along the entire
Namibian coastline
M
at least insofar as the provisions of the Namibian Act 3 of 1930 were concerned.
The Sea Fisheries Act, 1973 came into operation on the 12th October 1373, In terms of section 1(i;<) "fishing zone" is
defined as meaning
"the territorial waters of the Republic and the fishing zone as aefined in sections 2 and 3, respectively, of the Territorial
Waters Aci, 1353 (Act No. 87 of ises)*'.
The "fishing zone" was (before the Territorial Waters Amendment
Mv w VI i 3' # # vctf
A.-*- .-..? iQ77 -^me int,c operation) the sea within a distance of
twelve nautical miles from low-water mark. In terms of section 1(:<x) "Republic" included "the territory of Scuth
West Africa" and in terms of secticn lixxvii) "territory" meant "the territory of South West Africa". In
terms of section 24.(1} the Act and any amendment thereof were (wit:i %a:i exception net relevant to this case) also applicable in the territory of South West Africa. The
11
Act deals with a wide range of matters relating to the control of sea fisheries including, inter alia, the appointment of fisheries advisory councils; the appointment of various categories of policing officials; the registration of fishing
boats and the licensing of boats and factories; restrictions on the catching of fish; the creation of offences and the imposition
of penalties; the forfeiture and seizure of fishing vessels and matters relating thereto. The Act contained no provisions in any
way 1 imitating or restricting foreign vessels from fishing in the exclusive fishing zone of South Africa or South West Africa.
The Gea Fisheries Amendment Act,
No. 99 of 1977, which came into
operation or. 1st November 1977,
introduced section 22A into the
principal Act, sub-sections (4)
and (5) whereof providing the
following:
"(4) Any person using a vessel registered in a foreign State as a fishing boat or factory -
6)
within the territorial waters;
7)
within the fishing zone without a permit having been issued in respect thereof in terms of subsection (2);
8)
within the fishing zone in contravention* of or without complying with any condition or restriction on which a permit has been issued
in respect thereof in terms of sub-sect i on v ?! 7,
shall be guilty of an offence and liable on conviction to a fine not exceeding R50 000 or to imprisonment for a period not exceeding
7 years or to both such fine and such imprisonment.
'fishing zone' means the fishinc zona, as defined in section 3 of the Territorial Waters Act, 1963
12
(Act No. 87 of 1963), of the Renuhlic excluding
ibs
territory; 'territori ai waters' means the
territorial waters, as defined in section 2 of the Territorial Waters Act, 1963 of the Republic excluding the territory". (emphasis
added).
In this way section 22A of the Sea Fisheries Act excluded from its operation the geographic area then known as South West Africa but
included Walvis Bay. Although the Sea Fisheries Act was repealed and replaced, under South African law, by the Sea Fisheries Act
12 of 1938, the law relating to South West Africa and Namibia was not (at least for present purposes) effected by provisions cf Act
12 of 1888. The only sections of this latter Act which came into operation prior to the Independence of Namibia were sections 7 to 14 (dealing with the recognition of, and provisions concerning, industrial bodies and other interest groups
in different, branches of the fishing industry) and sections 27-29 (dealing with the Sea Fisheries Fund, its appropriation and various
levies on fisn), which sections came into operation or. the 1st September 1380, All other sections (including the penal provisions
(secticn 47): the forfeiture and seizure provisions (section 48); and ^he restriction on the use of foreign vessels as fishing ooats
ana factories in fishing zones as well as the penal provisions relating tnereto (section 52)) only came into operation on the 1st
July 1390 after the Independence of'Namibia. In terms of sect:ion 54 (read with Schedule 2) of whis Act, the Act applied to Walvis
Bay and the Penguin islands. Inasmuch, however, as section 54 also only came into operation on 1st July 1930, i.e. after Namibian
Inceoenaence, none OT the provisions of Act 12 of 1938 could have become incorporated into the law of
13
Namibia by operation of the provisions of Article 1(4) read with Article 140(1) of the Constitution.
Immediately prior to Independence, therefore, section 22A of the Sea Fisheries Act applied to Walvis Bay,- but not to any other area
which subsequently became the territory of Namibia on Independence.
The Namibian Act 3 of 1990 came into operation, as already indicated, on the 10th July 1990. Section 4(4), on which a great deal of
the debate in this appeal focussed, reads as follows:
"Any law in force in Namibia at the commencement of this Act relating to any fishing zone, shall apply-within the exclusive economic
zone of Namibia, and any reference in any such law to any fishing zone shall be deemed to be a reference to the exclusive economic
zone as defined in this ActM.
By virtue of section 7, read with the Schedule to the Act, various sections of the Sea Fisheries Act were amended or replaced, including
the following:
Section 17 was replaced with the following section:
"17 (1) The court convicting any person of any offence in terms of this Act may, in addition to any other penalty it may impose,
declare any fish, sea-weed, shells or implement or any fishing boat or other vessel or vehicle in respect of which the offence was
committed or which was used in connection with the commission thereof, or any rights of the convicted person thereto, to be forfeited
zo the State, and cancel or suspend for such period as the court may think fit, any registration done in respect of the convicted oerson
or any licence or permit issued or granted to sucfi person in terms of this Act: Provided that such a declaration of forfeiture shall
not effect any rights which
14
any person other than the convicted person may have to such implement, boat, vessel or vehicle, if it is proved that such other person
took all reasonable steps to prevent the use thereof in connection with the offence.
9)
The provisions of section 35(3) and (4)
of the Criminal Procedure Act, 1977 (Act 51
of 1977), shall mutatis mutandis apply
in respect of any such rights,
10)
Any fish, seaweed, shells, boat, vessel, vehicle or implement or any right thereto forfeited to the State under the provisions of
this section or section 6(6), may be sold or destroyed or may be dealt with in such other manner as the President may direct".
Section 22A was amended in the following respects: Firstly, the maximum fine provided for in sub-section (4) was increased to one
million rand and the phrase "or to imprisonment for a period not exceeding 7 years or to both such fine and such imprisonment"
in sub-section (4) deleted. Secondly, sub-section (5) (which had, for purposes of section 22A, defined "fishing zone" in
a manner which had excluded South West Africa and defined "territorial waters" in a manner which excluded the territorial
waters of South West Africa) was repealed and replaced with the following sub-section:
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