The accused was the master of a Spanish fishing vessel, the Isla De Tambo, who was charged with illegal fishing in the Namibian exclusive economic zone (EEZ). The State clarified that the alleged offences 'did not occur in that portion of the exclusive economic zone contiguous to the enclave of Walvis Bay but in the portion outside such contiguous area'. The defence argued that the charges should be dismissed on the grounds that s 22A of the Sea Fisheries Act 58 of 1973 was not incorporated into the law of South West Africa nor into the law of Namibia; or, in the alternative, that s 22A only applied in respect of the EEZ of Namibia contiguous to the port and enclave of Walvis Bay. The judge rejected this jurisdictional argument in respect of the main charge under s 22A. The charge was then put to the accused who pleaded not guilty, but subsequently admitted the charge. One of the issues was whether the sentence could include a term of imprisonment.

Counsel for the accused argued that imprisonment could not be imposed as a matter of international law. The Law of the Sea Convention (UNCLOS) was adopted in Jamaica in 1982. It required acceptance by 60 States to become law but to date only 47 had signed. Counsel nevertheless argued that Namibia was bound by UNCLOS because the Vienna Convention on the Law of Treaties 1969 provided that parties to a Convention that had not reached binding status were nevertheless obliged to adhere to the terms of any such Convention as if it had binding effect. Although Namibia only became independent on 21 March 1990, in 1982 the Convention was signed and ratified by the United Nations Council for Namibia. The Council for Namibia had been established by the United Nations Organisation in terms of General Assembly Resolution 2248 of 1966 following a prior Resolution (2145) which had revoked South Africa's mandate over Namibia and rested responsibility for Namibia in the United Nations. Subsequently Security Council Resolution 264 of 1969 endorsed Assembly Resolution 2145. Counsel for the accused argued that Namibia was therefore bound by the provisions of UNCLOS. 

Held: The accused is sentenced to pay a fine of ZAR 300,000 and, should he fail to pay the fine, he shall go to prison for 4 years. The ship, the Isla De Tambo, with all its equipment and implements are declared forfeited. All the fish which was caught in EEZ of Namibia is forfeited to the State.

While it may be argued that the signature of the United Nations Council for Namibia constitutes signature by Namibia, the court has not been able to establish whether or not the Council for Namibia was also a signatory to the Vienna Convention on the Law of Treaties 1969. If it was not, Namibia is clearly not bound by the terms of UNCLOS which still lacks 13 signatures to make it a binding treaty. Assuming that Namibia was a signatory to both Conventions, counsel for the accused argues that Namibia would be bound by art 73.3 of UNCLOS which expressly prohibits imprisonment as a form of punishment for violations of regulations in any EEZ.

However, on a proper reading of arts 73.1, 73.2 and 73.3 of UNCLOS it will be seen that the provision only intends to prohibit direct imprisonment. It does not prohibit indirect imprisonment. Article 73.2 provides for release of arrested vessels and crew on posting of security. If there is no security there is no release. To fine a convicted person without security for payment of such fine would be futile. Such security would be afforded by the posting of an appropriate bond or by imposition of a fine and on default of payment a term of imprisonment. The coastal State would not then be imposing direct imprisonment. In fact, the accused would himself be responsible for his imprisonment by failing to pay the fine. In jurisprudence this is referred to as indirect imprisonment as opposed to direct imprisonment. Article 73.3 refers only to direct imprisonment and this is confirmed by reference to the final phrase thereof which prohibits 'other forms' of corporal punishment, that is, direct punishment such as imprisonment.

Furthermore, if the Namibian legislature had intended art 73.3 of UNCLOS to be applicable, it would have said so in so many words. It is correct that there have been momentous developments in international law and that unlawful acts in the EEZ of coastal States concern foreign States as well as the relevant coastal State. While punishment of the offender is still desirable, the emphasis is no longer on the individual as such. The offence is a commercial or economic one and is therefore more appropriately punished in the first instance by the payment of a fine and only in default thereof imprisonment. The effect of amending s 22A of the Sea Fisheries Act by deleting the provision relating to direct imprisonment means that in the first instance the court must consider the imposition of a fine on an offender and then consider an appropriate term of imprisonment in the event of his failing to pay the fine.