Commercial fisherman regains livelihood after 2 years
A SOUTH Coast commercial fisherman, who has had sleepless nights after a magistrate ordered that his boat be seized more than two years ago, says he can finally return to his livelihood after his appeal was upheld in the Pietermaritzburg High Court, last week,
Naraina Puckree Naidoo, 59, of Park Rynie, was charged under the Marine Living Resources Act and Criminal Procedure Act, after he failed to inform the fishery control officer of his landing time for the purposes of inspection and being in possession of three endangered fish species, commonly known as “74”, in Rocky Bay on December 29, 2021.
In August 2022, Naidoo, who pleaded guilty in the Scottburgh Magistrate’s Court, was sentenced to 10 months in prison or a R15 000 fine on each of the two charges.
However, the magistrate at the time further ordered that his 20-foot (6m-long) Kanya Kanya vessel, which is named after his daughter, Lee-Ann, be forfeited to the State.
Naidoo, who was represented by attorney, Mark Tomlinson, appealed the ruling in the Durban High Court.
In his arguments, Tomlinson said that the lower court did not give due consideration to the fact that Naidoo had been a commercial fisherman for 34years and had a spotless record.
He said the lower court erred in finding that the number of fish was not a factor when considering the severity of the sentence.
“The lower court magistrate went to such an extent as to state, ‘to say it was only three fish really is of no concern to me’.”
Tomlinson further told the court that asset seizure in terms of Section 68 (1) of the Marine Living Resources Act 18 of 1998 had not yet been embraced by the courts and case law reflected that.
“The courts have issued stern sentences such as direct imprisonment for first offenders but this was where the accused was found guilty of taking hundreds and even thousands of units of the restricted living marine resource.
“The number of units taken is clearly crucial for sentence and the learned magistrate’s statement that, ‘to say it was only three fish really is of no concern to me’, is a grave misdirection on the part of the magistrate in the court,” he said.
Last week, in the Pietermaritzburg High Court, Judge President Thoba PoyoDlwati, upheld the appeal and ruled that the order made by the magistrate be set aside.
“In my view, the order for forfeiture over and above payment imposed on the appellant is disproportionate to the offence committed. It is startlingly different to what this court would impose if it were the court a quo. Our interference under the circumstances, is warranted…”
Judge President Poyo-Dlwati said that while it was true that the vessel was linked to the commission of the
offence, it was however not the proceeds of such crime.
“For instance, in incidents involving
culpable homicide arising from vehicle accidents or offences involving the speed limit, it is not often that the motor vehicles are forfeited to the State.
“The point I am making is that, having taken into consideration all the factors ordinarily considered during sentencing, it was not warranted that the vessel be forfeited to the State. The appellant was sacrificed at the altar for deterrence to would-be offenders. That in my view, was shockingly disproportionate,” she said.
Following the judgment, the father of three, a daughter, 31, and two sons, 26 and 17, said after years of restless days and sleepless nights, he was finally able to move forward.
“I can finally return to normality. My livelihood and that of the nine people I employed was hanging in the balance. I am so grateful.”
The grandfather of two said he hailed from a family of fishermen.
“I come from a line of fishermen. My grandfather and father were professional surf anglers.
“My brothers were also fishermen. From the age of 12, I would go out deep-sea fishing with my now late elder brother, who was a commercial fisherman. I used to be part of his crew. It was from then that my passion for commercial fishing started and I wanted to carry on his legacy.
“I initially started as a charter fisherman and would take fishermen out to sea. In my early twenties, I applied for my commercial fishing licence and was successful. Since then, I have not looked back.
“Fishing has not only brought me joy but also enabled me to put food on the table for my family and that of my employees. My 17-year-old son also wants to follow in my footsteps and leave a legacy behind,” he said.
Naidoo said some of his catches included red roman, musselcracker, steelback and salmon.
“These fish bring in some income. However, being a fisherman is a gamble – on some days you get lucky, and others you come home with just a few.
“I can now go out again, and fish freely, just in time as the Cape Salmon will make its way down in June,” he said.
Tomlinson said: “I was overjoyed with the decision of the judge president to uphold our appeal and set aside the order made by the lower court.
“Considering the facts of this case, namely that my client was found in possession of only three fish that are on the endangered list, I felt it was disproportionate for the court to also seize his vessel which has a replacement value of about R1 million.
“My client pleaded guilty to the charges and was fined R30 000. It was my view that this was a sufficient punishment considering my client was a first-time offender.
“I can honestly say that this is one of the proudest moments in my legal career so far. I think it is also a fine example to the public that the checks and balances in our legal profession are alive and well. The wheels of justice may turn slowly, but they do turn,” he said.