The accused, a Spanish male, was the master of the Spanish-registered fishing vessel, the Friopesca Uno. He was charged with fisheries offences for illegally fishing in the Namibian EEZ without a permit. The accused pleaded guilty. One of the issues for the court was whether the sentence imposed could include a term of imprisonment.

Held: The accused is sentenced to pay a fine of ZAR 400,000 and, should he fail to pay such fine, imprisonment for 6 years. The ship, the Friopesca Uno, with all its equipment and implements and fishing catch, shall be forfeited to the State.

The Territorial Sea and Exclusive Economic Zone of Namibia Act brought about significant changes in the Sea Fisheries Act in respect of Namibia. First, that Act, as read with art 1(4) of the Namibian Constitution, provided for the establishment off the coast of Namibia, including the enclave of Walvis Bay, of an 'exclusive economic zone' (EEZ) which extended from the low water line or any other base line 200 nautical miles out to sea; and, secondly, provided that any law in force in Namibia at the commencement of Act 3 of 1990 relating to any fishing zone would apply to the EEZ. Act 3 of 1990 deleted from s 22A those provisions which had previously made s 22A applicable only to the Republic of South Africa and s 22A with its penal provisions became applicable to the EEZ of Namibia. The definitions of 'fishing zone' in the Sea Fisheries Act 1973 and the 'exclusive economic zone' in Act 3 of 1990 are not identical. The only relevant difference is that, in determining the extent of the 'territorial sea' of Namibia, and the territorial sea included in the EEZ, 'due regard shall be had to the rules embodied in the Convention'. 'Convention' is defined as 'the United Nations Convention on the Law of the Sea of 1982, adopted on 30 April 1982, by the United Nations Conference on the Law of the Sea' (UNCLOS).

Counsel for the accused contended that the deletion relating to imprisonment in s 22A must be interpreted with regard to art 73.3 of UNCLOS: 'Coastal State penalties for violations of fisheries laws and regulations in the EEZ may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.' It was argued that the legislature abolished imprisonment in s 22A in order to bring the penalty into line with the provisions of UNCLOS and that the court should be guided accordingly. In other words, counsel argued that the court can only impose a fine on the accused and cannot impose imprisonment, even as an alternative to a fine. Counsel for the State argued that, had the legislature intended to bring the penalties in the Sea Fisheries Act into line with art 73.3 of the Convention, it could have done so specifically.

Counsel for the accused did not contend that Namibia is a signatory to UNCLOS. In any event UNCLOS had not come into operation at that date, as only 47 signatures of the 60 required to bring it into force had been obtained. He did not argue that Namibia was therefore bound by way of treaty to comply with any of the articles of UNCLOS. However, local or municipal legislation can refer to any of the provisions in UNCLOS and provide that these provisions are to be taken into account.

However, all that art 73.3 of UNCLOS, as read with art 73.2, provides is that an offender is not to be sent directly to prison. This is to be gathered from art 73.2 which provides: 'Arrested vessels and their crew shall be promptly released upon the posting of reasonable bond or other security.' From this it is to be gathered that the crew shall be detained until the posting of reasonable security; the captain is a member of the crew. This can relate to both bail and a fine. In other words should he not pay the fine imposed on him he shall remain in, or go to, prison. The phrase in art 73.3 'or any other form of corporal punishment' found in the article also supports this argument. Furthermore, when the imprisonment is made alternative to the fine, it is the offender himself who brings about his imprisonment by not paying the fine and not the court or the legislature of the coastal State concerned. Even if art 73.3 of UNCLOS is to be regarded as part of the customary international law, such rules of law inconsistent with local law are not enforceable. The effect of the deletion from s 22A(4) of the expression 'or to imprisonment for a period not exceeding seven years or to both such fine and such imprisonment' is to provide that only a fine may in the first instance be imposed and, in default of payment thereof, the court has a discretion as to the term of imprisonment it may impose.