IS THE ARREST OF A SHIP’S MASTER NECESSARY?
SHIPPING vessels entering South African waters are subject to the country’s laws. When an alleged violation of South African legislation constitutes a statutory crime, the arrest of the ship’s master or captain by the SAPS is always a possibility while the vessel is berthed in Durban harbour.
This is because the ship’s master can be construed as the person responsible for any violation of South African legislation committed by the “vessel”.
Examples of statutory violations where the ship’s master can be arrested are an incorrect tally of stored fish, as reflected on permits for fishing vessels, or a security company having expired permits for anti-piracy weapons on board.
The current practice, when there exists a reasonable suspicion that a statutory crime has been committed, is to arrest the ship’s master and place him in the police holding cells. The reason advanced for such an arrest is that the master would need to appear the next day in the magistrate’s court on the alleged charges, and the only way to secure his presence at court, in the view of the SAPS, is to take him into custody.
The reason the SAPS will not allow him to be released on warning is because, in their view, it is impossible to identify a permanent physical address for a foreign ship’s master who is in South Africa briefly.
The address of the ship’s South African agent or the ship (even if it’s in for repairs or under seizure) shall not suffice as a permanent physical address for the master.
Essentially, two options are available to the ship’s master during his first appearance in court: he can apply for bail or he can admit guilt.
Should he succeed in obtaining bail, he would be released into the care of the ship’s agent and need to remain in South Africa until the trial can be conducted – which can be anything up to four months.
This option is not ideal, since not only would the owner of the ship need to cover his expenses and salary while awaiting trial, but the master would not be able to leave South Africa to visit his family for months.
The other option is to plead guilty to the alleged crime and be sentenced. Sentencing usually entails the payment of a fine. Admitting guilt and paying the fine can be concluded on the first appearance date.
This would allow the ship’s master to return to the vessel and sail at the first opportunity. The downside of the option is that the ship’s master would now have a criminal record in South Africa.
The practice of taking the offending master into custody is unnecessary where a warning to appear at court the following day would suffice. The vessel can even be seized to ensure the ship’s master can easily be found.
There is no reason the location of the ship in the harbour cannot be construed as a permanent physical address. Failure to appear at court the next day shall have serious repercussions for the ship’s master, and he would then be arrested to secure his presence in court.
Applying for bail in circumstances where there was non-compliance with a warning to appear in court would complicate matters for the ship’s master.
While strict enforcement of South African legislation should be encouraged, care should be taken by the authorities not to try to enforce legislation where there has been no intention or wilful ignorance.
A cardinal principle of our criminal law is embodied in the Latin maxim actus reus non facit reum nisi mens sit rea
– an act does not make a person legally guilty unless the mind is legally blameworthy.
In other words, a defence available to a ship’s master to any charge is that he did not have knowledge of unlawfulness in respect of such act.
When a case is opened, the prosecuting authority should have the necessary expertise to determine whether sufficient evidence exists to successfully prosecute for the alleged crime; if not, the charges against the master should be withdrawn on the first appearance.
If, however, the prosecuting authority sincerely believes there is sufficient evidence of a clear violation of legislation, prosecution of such crimes should follow.
It is beneficial to the economy if foreign shipping fleets use our ports to resupply. Before arresting or charging a ship’s master, there should at least be some evidence that the master deliberately failed to comply with South African legislation, and it was not just a mere contravention according to the letter of the relevant statute. Otherwise, foreign fleets will be discouraged from using South African ports to resupply, especially when ship’s masters are placed in custody and forced to endure a night in a foreign country’s police holding cells.
Robertson is a senior associate at Bowmans, Durban.