The applicants in this matter are the officers, crew and owners of three Spanish fishing vessels. The respondents are the Minister of Justice, the Minister of Environmental Affairs and Agriculture and the Magistrate for the District of Keetmanshoop. The applicants sought an urgent declaration that their arrest and detention and the seizure of their vessels within the fishing zone of the Republic of South Africa and their transportation to the Republic of Namibia was in breach of international law, wrongful and unlawful; that the Magistrate's Court at Keetmanshoop had no jurisdiction to order the further detention of the applicants for the purposes of their trial; and that the officers, crew and vessels should be released immediately.

Held: Application denied.

In the affidavits before the court the parties on both sides referred to an area of sea off the coast of South Africa as the 'fishing zone'. Act 3 of 1990 of Namibia substituted the term 'exclusive economic zone' for 'fishing zone' in so far as Namibia is concerned. The terms are also to be found in the United Nations Convention on the Law of the Sea 1982 (UNCLOS). While the term 'exclusive economic zone' (or EEZ) does not appear to be used in any South African legislation it is nevertheless the term which is used by international lawyers to describe the sea outside the territorial sea but within 200 nautical miles from low water line or any other base line from which the territorial sea is measured, but such lawyers should only do so where the coastal state itself has proclaimed it as such. The territorial sea of a coastal state is the sea within a distance of 12 nautical miles from low water line of that state.

Territorial seas and territorial waters are international law concepts. That particular area of sea which is 200 nautical miles from low water mark but excluding the territorial water, is described in the South African legislation as the 'fishing zone'. In terms of s 3 of the Territorial Waters Act, 87 of 1963, (an Act of the South African Parliament applicable in South Africa and specifically made applicable to South West Africa as this country was previously known) provides a definition of 'fishing zone'. Section 4 of that Act provides: 'The Republic (ie South Africa) shall have the right to exercise in the fishing zone ... any powers which may be considered necessary to prevent contravention of any fiscal law or any customs, emigration, immigration or sanitary law.'

Section 6(1) of the Sea Fisheries Act (Act 58 of 1973) empowers an inspector who has reasonable grounds for suspecting that an offence in terms of the said Act has been committed in respect of any fish, or, upon any fishing boat, to seize such fishing boat, while s 6(5) permits such inspector to exercise powers of seizure outside the fishing zone. In the light of the provisions of Act 3 of 1990, the fishing zone became the 'exclusive economic zone' in respect of Namibia. Therefore the inspectors have the right to seize such fishing boats outside the EEZ of Namibia even though such seizure may take place in the fishing zone of South Africa. Therefore according to the municipal law of both South Africa and Namibia the seizure of the vessels was permissible and lawful.

There is no suggestion on the papers that the seizure was in conflict with, or in breach of, any of those rights within the fishing zone which South Africa had reserved for itself. There is also no complaint or protest by South Africa that its sovereignty was invaded. On the contrary, the affidavits of the applicants make it clear that the South African Navy was in communication with the South African authorities and that the Navy played an active role in escorting the fishing vessels of the applicants to Lüderitz.