The accused are officers and crew of three Spanish fishing vessels intercepted in the exclusive economic zone (EEZ) of Namibia and charged with fisheries offences. One of the arguments advanced by counsel for the accused that it could not have been proven that the accused had fished within the EEZ as no southern boundary to the zone had yet been determined, are required in terms of s 2(2) of Act 3 of 1990 with due regard to the rules embodied in the United Nations Convention on the Law of the Sea 1982 (UNCLOS).

Held: Accused convicted as charged.

Counsel for the accused raised a special plea as to lack of jurisdiction that was brought before the High Court in motion proceedings which preceded this criminal prosecution (see Pineiro v Minister of Justice (CMI438)). The Full Bench rejected this special plea. That decision is binding on this court.

Counsel for the accused argued that s 4(2) of Act 3 of 1990 applies the provisions of s 2(2) which relate to the determination of the extent of Namibia's territorial waters mutatis mutandis to the determination of the extent of the EEZ. As far as the territorial waters are concerned, s 2(2) provides that their extent shall be determined with due regard to the rules embodied in UNCLOS or any other international Convention binding on Namibia. Counsel referred the court to art 74 of UNCLOS which sets out how, among other things, States with adjacent coasts must determine the boundary by agreement. It further provides that, pending such an agreement, the States shall make every effort to enter into provisional arrangements of a practical nature. Counsel submitted that, until Namibia fixes its borders to the north and south, the State cannot say with any degree of certainty whether or not positions seaward of the area in the vicinity of its northern border or southern border fall within the Namibian EEZ.

The court contrasted the northern EEZ border between Angola and Namibia and the southern border between Namibia and South Africa. First, although Angola was already then an independent state no agreement was entered into with that State to establish a boundary. Secondly, the area for which it was supposed to be a boundary, namely the EEZ of South West Africa as proclaimed by the Administrator General, was not recognised by the international community. In contrast, the southern boundary was drawn to protect and demarcate a legitimate fishing zone, namely that of South Africa. It was drawn on the equidistance principle which is internationally accepted as one of the methods by which such boundaries can be determined. It is correct that South West Africa had no say in the demarcation of this boundary and at best, seen from South West Africa's side, it could only be recognised interdepartmentally as it was not yet an independent State and there was no legitimate government to recognise it. Because of this and because of the fact that South West Africa was then administered by South Africa there was, on the part of South West Africa, also nobody who could object to it. The boundary is drawn on official charts and it is there. After the independence of Namibia the situation has of course changed. There is now a legitimate government which can act on behalf of an independent State, namely the Republic of Namibia. There is now also an EEZ proclaimed which is accepted internationally and as far as the boundaries thereof are concerned it is the Government of the Republic of Namibia that has the powers to negotiate.

However, as far as the southern boundary of the EEZ is concerned, it cannot be said that that boundary disappeared into thin air on the event of Namibia's independence, leaving it and the Republic of South Africa with a void. The only way in which to change the present southern border is spelled out in s 4(2) read with s 2(2) of Act 3 of 1990, namely to negotiate a bilateral agreement as prescribed by UNCLOS and if that cannot be achieved to follow the steps set out in the Convention. It follows that, until such negotiations or steps are concluded, the southern boundary of the EEZ is the line drawn by the equidistance method on the official chart.

Whether the Government of Namibia recognises the southern boundary of the EEZ as an interim measure until such time as a final agreement is reached is of course a matter which can finally be cleared only by the Government. To that effect the court could ask the Government for a certificate stating its attitude.  However, bearing in mind the nature of the boundary and the fact that there is no evidence that the Government of Namibia exercises jurisdiction beyond this boundary or not up to this boundary, it is unnecessary to apply for a certificate. The arrest and capture of these boats in South African waters was not based on a claim of exclusive jurisdiction exercised by the Government beyond this boundary. On the other hand, the applicants based their claim on the fact that they were captured in South African waters on this boundary.

If these issues were raised in respect of the northern boundary of the EEZ of Namibia, counsel's submissions may very well have succeeded. In the result, the submissions made concerning the southern boundary of the EEZ of Namibia must be rejected.

The State has therefore proved beyond reasonable doubt that the three vessels, the Cabu Primero, the Altasa Cuarto and the Cotorredondo Cuarto were used as fishing boats within the EEZ of Namibia and that they did not have the necessary permits to do so. The accused, having been on the vessels when the offences were committed, are found guilty of the charges brought against them.