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Maritime Piracy and Illegal Fishing in Africa: A South African Case Study


(Safeguarding international shipping lanes during sector patrols. Photo Credit: ADF Maritime Auxiliary)



With the escalation of maritime crimes within the Gulf of Guinea on the west coast of Africa, we are seeing a surge in foreign military response as countermeasure to perceived threats to commercial shipping transiting the region. This surge in military response are primarily Naval resources deployed by the EU (NATO) as a means of safeguarding [mainly] European flagged vessels operating within the region. However, as beneficial as this response might be perceived at first, this reaction is in fact a double-edged sword for the reasons to be explained in more details within this article. The main challenge with all ‘anti-piracy’ operations is the applicable rule of law which determines who is mandated with the jurisdiction of enforcement and deterrence. As simple as a military solution may appear, it is unfortunately an extremely complicated mission looking at operational interpretation of applicable legal authority.


To understand this complex situation better, this article will discuss the details surrounding the following main points of conclusion, namely:


1. In Africa, Maritime Piracy is an effect of coastal fishing economy decline caused by foreign exploitation of fishing resources through targeted and coordinated illegal, unregulated and unreported fishing.


2. A military response alone is not the ideal countermeasure to combatting Maritime Piracy, Maritime Crimes, and Fishing Crimes, but due to the military’s inherent planning, C4SIR and CCIR expertise, a joint-agency response under military coordinated leadership provides for the most suitable legally compliant response in the absence of a para-military Coast Guard.


3. Maritime crimes, fishing crimes, and land based organized crime are commonly interlinked within the Africa insecurity scenario.


4. An effective long-term strategy requires a permanent inter-agency approach with a collective knowledge base to pursue maritime crimes (which includes maritime piracy), fishing crimes and associated organized crime exploring all legal avenues following an advanced Special Operations doctrine with sufficient overlapping capabilities (See Special Operations Forces and the 21st Century: How can it help Africa?).


5. A cooperative regional international approach is fundamental to ensuring the success of any countermeasure strategies and enforcement operations.


6. The consistent sustainability of efforts is crucial in achieving an effective and efficient border- and maritime protection strategy. That said, both border (land)- and maritime (sea) protection strategies are interlinked, and critical success factors determined for both concepts of operation cannot effectively be achieved if managed independently.


Within this discussion the term ‘Maritime Crimes’ is defined as:


Criminal activity perpetrated at sea often directed at vessels or maritime structures, but also including the transportation of illicit substances or trafficking in persons by organized transnational criminal networks, and all activities violating coastal state sovereignty and exclusive economic privilege, to include ocean resources exploitation.


For simplification of understanding, the following abbreviations are used:


CCIR: Commander’s Critical Information Requirements

CPA: Criminal Procedures Act (Republic of South Africa)

C4ISR: Command, Control, Communications, Computers, Intelligence, Surveillance, Reconnaissance

DAFF: Department of Agriculture, Forestry and Fisheries (South Africa)

DOJ: Department of Justice (South Africa)

EEZ: Exclusive Economic Zone

GOA: Gulf of Aden

GOG: Gulf of Guinea

IMO: International Maritime Organization

INTERPOL: The International Criminal Police Organization

ISR: Intelligence, Surveillance and Reconnaissance

ISTAR: Intelligence, Surveillance, Target Acquisition, Reconnaissance

IUU: Illegal, Unreported, Unregulated

MATT: Multi-Agency Task Team

MCS: Monitoring, Control, Surveillance

MLRA: Marine Living Resources Act (Republic of South Africa)

NPA: National Prosecuting Authority (South Africa)

SADC: Southern African Development Community

SAAF: South African Air Force

SANDF: South African National Defence Force

SAPS: South African Police Services

SARS: South African Revenue Services


Looking at the evolution of The Great Power Competition and how it specifically affects Africa (click here to read article), we already notice two major economies with strategic plans to expand their respective ocean economies through commercial fishing activities in African ocean territories.


Maritime Piracy vs Maritime Crimes:


To understand the Maritime Piracy phenomenon better, we need to understand the legalities relevant to any possible solution before any actions can be taken. Basically, Maritime Piracy involves the plundering, hijacking or detention of a ship within international waters, and falls within the scope of international law. Maritime Crime, on the other hand, includes the same acts implying Maritime Piracy, but it also includes various other acts considered illegal within territorial waters and therefore falls within the jurisdiction of domestic laws controlled by the coastal state. However, this is where the first misconceptions exist in terms of legality, and specifically the jurisdiction of law enforcement. To understand this better, we need to understand the zones in which the sea (or waters) are divided as per the rules set out by the United Nations (UN) Convention on the Law of the Sea. This convention basically zones sea territories as follows:

  • Territorial: An area of the sea that extends 12 nm from the coastal baseline (low-tide mark) of a coastal state which confers full sovereignty to the coastal state on and below surface. It is also referred to as territorial waters (or territorial sea), and therefore this area falls within the jurisdiction of the relevant coastal state as prescribed by appropriate and applicable domestic laws.

  • Exclusive Economic Zone (EEZ): An area of the sea that stretches out 200 nm from the coastal baseline. This area is only ‘sovereign right’ territory which refers to the coastal state’s rights beneath the surface of the sea. The surface waters are however considered international waters, and therefore international law applies in terms of all activities occurring on the surface.

  • International: The area of ocean that extends from the 12 nm limits of the territorial waters (surface water), and both surface and sub-surface territories beyond 200 nm (EEZ boundary) from the coastal baseline of a coastal state. This area falls within the jurisdiction of international law.

The main point of note is that the precise location of the perceived illegal act(s) while at sea will determine the relevant jurisdiction (and who has the legal powers of enforcement and prosecution), and what the legally accepted response to these activities may be (including use of force). Now, looking at the subject of this discussion, in Africa there is a direct relation between the occurrence of Maritime Piracy / Maritime Crimes within ocean territories exposed to Illegal, Unreported and Unregulated (IUU) Fishing. In addition to this, there also exists links between illegal (IUU) fishing activities and international organised crime syndicates operating within the affected coastal states which includes logistical support to trafficking in narcotics, people, and weapons. Yes, it is complicated. However, the complexity increases from a legal authority perspective when trying to define these crimes in terms of enforcement within the different maritime zones as follows:

  • Territorial Waters: Maritime Piracy is defined as criminal offences (maritime crime), which falls within the law enforcement jurisdiction of the coastal state (not military jurisdiction) for the reason that the crimes committed are prosecuted under domestic criminal law and procedures. Usually the military only acts within the presence of appropriately qualified law enforcement officials, whereas the role of the military is restricted to enabling physical interdiction, apprehension of suspects, and protection of law enforcement personnel during any operation involving suspected maritime crime activities. However, military personnel do have restricted powers of arrest prescribed with very precise limits when employed along international borders, whether it be on land or at sea.

  • Exclusive Economic Zone: It is within this zone where legal authority becomes confusing (and commonly misunderstood by inappropriately skilled enforcement officials), the zone where the majority of Maritime Piracy and Maritime Crimes occur. From a legal authority perspective, The EEZ is categorized as international waters, and therefore international laws apply. A coastal state may not prosecute any supposed suspects of any perceived maritime crimes fitting the definition of Maritime Piracy under domestic legislation for the reason that the acts of Maritime Piracy occurred on the surface and therefore falls within international jurisdiction. Within the EEZ, the coastal state only has ‘sovereign privilege’ of resources below the surface (referring to natural resources, energy, fishing, etc). Looking at Illegal, Unreported and Unregulated (IUU) Fishing activities within the EEZ, the coastal state has the jurisdiction to interdict, apprehend, and prosecute any suspects if it can prove that such activities were conducted within the coastal state EEZ (which highlights the importance of all-weather maritime ISR capabilities), or while catching the perpetrators in the act of the crime. However, looking at the Illegal Fishing scenario as a possible maritime crime within an EEZ, the coastal state is extremely limited in terms of enforcement whereas no reliable evidence exists confirming any suspected criminal activities, irrespective of whether reasonable suspicions exist to believe a crime was committed. Basically, maritime crimes committed within the EEZ/international waters fitting the definition of Maritime Piracy would be categorized as an international crime, and would therefore require INTERPOL representation. However, if the relevant coastal state can provide reliable evidence by means of suitable ISR capabilities that a maritime crime in fact originated within the boundaries of its territorial waters (or sovereign jurisdiction), then the coastal state will have jurisdiction to interdict the suspects of a crime within the EEZ/international waters for prosecution and trial under relevant domestic legislation upon the condition that credible evidence exists supporting prosecution. The same applies to IUU fishing crimes, whereas a coastal state can prosecute any suspect(s) under domestic legislation if it has reliable evidence confirming a vessel and its crew being guilty of engaging in IUU fishing activities within the EEZ (for the reason that fish as a resource are sub-surface, and falls within the sovereign privilege of the coastal state).

The inherent problem facing Africa and its ocean economies is its lack of effective and efficient maritime patrol and surveillance capabilities, which is one of the major reasons why areas such as the Gulf of Guinea has depleted fishing resources, and why Maritime Piracy is such a great threat to all forms of international shipping transiting the area. Looking at the Piracy dilemma, the majority of the so-called ‘pirates’ are members of the fishing communities living along the coastline, who in turn became pirates as a result of depleted fishing resources within their respective coastal waters. Basically, if the affected coastal economies had effective and sufficient maritime patrol and enforcement capabilities, its ocean(s) would not be over-fished, and the coastal communities would still have earned a living from sustainable fishing practices. Therefore, to understand the African maritime piracy situation better, we can say that uncontrolled foreign exploitation of fishing resources is the main cause for maritime piracy in Africa, and a secondary cause for depleted fishing resources can be accounted to uncontrolled maritime pollution especially within the Gulf of Guinea, which severely affects the environmental rehabilitation process negatively. The current maritime crimes / piracy hotspots around Africa, along with continued poor government funded and coordinated maritime patrol resources plus a reduced political will in terms of priority and understanding of the problem (especially understanding lost benefits to the affected countries’ economies), further exacerbates the already volatile situation in Africa. Going even deeper into the root cause for diminished MCS capabilities being of national interest to safeguard national resources to the benefit of its citizens, we enter the ‘Failed State’ domain.


The South African Case Study: Illegal, Unregulated and Unreported Fishing


The coastline of South Africa stretches about 2,798 km and it serves as an important shipping route connecting Asia with the eastern coastline of North- and South America. The Southern Africa coastline is home to large quantities and varieties of commercially viable fish stock, which makes it a great target for highly profitable illegal and unregulated fishing operations. However, the South African situation is much more complex for the reason that South Africa and it’s well developed infrastructure is considered the gateway to Africa, especially to the Southern African Development Community (SADC) which collectively controls the majority natural resources in Africa. However, as a result of these resources, the Southern Africa region is also much more industrialised than the Central- and Northern regions, and with this increased economic activities there also exists a demand for unregulated and illegal exports of restricted goods, as well as the import of wholesale arms and narcotics. Looking at the South African scenario, unregistered fishing vessels have become the chosen means of transporting illegal goods within the Southern Ocean, most of these vessels bringing goods into the country’s territorial waters and then receiving other illegal goods on behalf of other ‘customers’ on the return journey (abalone, rhino horn, ivory). Along the way as a result of fishing resources being valued at highly profitable international prices, unlawful fishing activities are also conducted within the shallower territorial waters by the same vessels due to the increasing absence of effective coastal patrol capabilities within the South African security forces. These vessels usually enter under nightfall, escaping the territorial waters before first light or upon the first indications of security forces activities. The greatest deficiency in the South African maritime patrol strategy is the absence of suitable airborne surveillance (ISR) assets with all-weather day/night capability to effectively patrol all maritime patrol zones. However, taking into account the current decline in domestic security, the fragility of the South African political system, and increased incidence of government corruption and mismanagement (much thereof being foreign instigated), further contributes to the decline in safeguarding of ocean resources along it’s coastline.

(South African Air Force Douglas C-47TP Dakota. This aircraft is the primary Maritime Patrol Aircraft of the SAAF, originally inducted during the early 1990's as an interim replacement for the retired Avro Shackleton long-range MPA from SAAF maritime patrol service. This platform was originally envisioned with a limited service life of around 10 years until replacement with a more suitable all-weather long-range MPA. Unfortunately due to severe budget cuts, this platform has far exceeded its original anticipated service life, presently considered obsolete in terms of desired capabilities, and still utilized with no foreseeable replacement in future).



This section will discuss the complexities facing the Republic of South Africa in its ongoing battle against maritime crimes and exploitation within its territorial waters and EEZ. For simplification, this section will be divided into two parts, namely;


Part 1: Legal Authority

Part 2: Concept of Operations



PART 1: LEGAL AUTHORITY


Just to recap, the most important aspects about effectively countering maritime crimes within territorial waters are:


1. Knowing the precise location of the suspected criminal act;

2. Having access to reliable evidence confirming any activities being illegal;

3. Knowing the applicable legal authority justifying prosecution;

4. Having the capability to deploy effective and efficient resources to interdict and deter infringers;

5. Application of fair and deterring criminal justice administration to achieve successful prosecution.


Evidence of the act confirming that a crime was committed is extremely important to ensure that no rights of especially foreign parties were compromised under any international law(s), and also to ensure that no diplomatic incidents may arise causing for unnecessary escalation of conflict where nation-state assets are implicated in any forms of wrong-doing (as is the case with the majority Chinese state-owned fishing vessels being part of the PRC militia causing for it to be of further concern from a national security perspective in terms of countering foreign government surveillance and espionage).


THE ILLEGAL, UNREPORTED AND UNREGULATED (IUU) FISHING DILEMMA IN SOUTH AFRICA:

(Chinese fishing trawlers operating in groups. The majority Chinese fishing vessels are state owned, and forms part of the PRC militia. Australia has had a long-term challenge countering PRC fishing trawlers operating within its EEZ, also suspected of conducting surveillance operations targeting the Royal Australian Navy).



Within Africa, South Africa has the most advanced means and strategy to effectively counter the ever-deteriorating situation within its oceans economy. However, the response is not simple, and at best extremely challenging due to various factors contributing to the present IUU fishing dilemma within the South African EEZ summarized as follows:

1. Poor inter-agency cooperation and communication due to the lack of a proper MATT (Multi-Agency Task Team) composed of operational elements drawn from the Department of Agriculture, Forestry and Fisheries (national fisheries management body), South African National Defence Force, South African Police Services, South African Revenue Services, Immigration Services, National Prosecuting Authority, Ports Authority, and the Department of Justice;


2. Loose controls at ports;


3. Inadequate information sharing technology, systems and procedures;


4. Under-resourced enforcement patrols, surveillance and credible evidence gathering capabilities;


5. Industrial-sized commercial fishing vessels not required to have unique IMO vessel identification numbers (in terms of international maritime law) which complicates proper identification and verification of ownership of infringing vessels allowing for plausible deniability to the benefit of vessel flag-states;


6. Complex, poorly defined, poorly understood, confusing and/or outdated domestic fisheries laws when looking at countering IUU fishing by only following the Marine Living Resources Act;


7. Traditionally fisheries offences were not treated as crimes, and related laws were designed to regulate the fishing industry rather than to deal with organised crime currently operating within it (especially at the large scale and frequency currently experienced);


8. Outdated regulations prescribing low penalties for fishing crimes that are not just a poor deterrent, but also creating the perception amongst criminal justice officials that fisheries crimes are a low priority and not worth the effort due to the limited outcomes upon successful conviction, especially taking into consideration current backlogs in more serious criminal investigations and prosecutions, which consequently results in fishing crimes receiving less investigative effort;


9. Intelligence gathering is often hampered by a lack of transparency with respect to vessel ownership resulting from frequent vessel name changes, reflagging and complex corporate structures purposefully designed to hide the identity of the true beneficial ownership;


10. Poor awareness and understanding of fisheries laws amongst law enforcement personnel, surveillance- and interdiction forces, prosecutors and magistrates, to include not understanding the economic magnitude and impact of fisheries crime on the greater South African economy, GDP, exports and lost tax revenue; and


11. The international nature and complicated corporate structures supported by high earnings relating to IUU fishing means that it is very difficult for any one country or regional fisheries management organisation to achieve a successful conviction without competent cooperation between all agencies with the skills, resources and expertise to effectively counter maritime crimes in all its forms.

LEGAL ASPECTS RELEVANT TO OPERATIONS AGAINST IUU FISHING WITHIN THE SOUTH AFRICAN EEZ:

Current Perceptions:

The legal aspects surrounding illegal fishing is still perceived as more questions than answers, and one of the reasons for this is because many of the government stakeholders still have independent ideas about how things should be done, instead of focussing on existing legislation in effect. The current perceptions surrounding IUU fishing is summarised as follows:

1. It is difficult to interdict illegal fishing vessels which can easily escape to international waters. This assumption holds value due to current limited availability of naval- and fisheries management vessels required to successfully interdict vessels operating unlawfully within the South African EEZ, an area of ocean greater than 1,000,000 km² in size. Also, the situation is further complicated by the absence of suitable airborne monitoring, control, and surveillance (ISR) platforms capable of recording maritime infringements within the South African territorial waters and EEZ which could be used to pursue infringing vessels beyond the limits of the South African EEZ (the requirement being the availability of credible evidence to prove infringement of South African laws justifying interdiction in international waters);


2. If a vessel and its crew is successfully interdicted and apprehended, then it will be difficult for authorities to frame charges that can be successfully prosecuted (as based on recent cases where in one case, no fish were found on the vessel, and in another case, the fish found on the vessel was determined to be caught outside of South African waters after DNA tests were conducted confirming the species of fish not being commonly found within South African waters);


3. Any fine will be happily paid by foreign owners to avoid a court trial. In fact, based on most recent fishing crimes case studies, it would appear that vessel owners would rather pay a fine than be found ‘not guilty’ through trial (the reason being that in terms of the current South African fisheries fines schedule it is cheaper to pay the fine and be on your way as soon as possible with vessel and equipment intact, than to be subjected to a lengthy trial process leading to losses in revenue);


4. The fines currently issued are unlikely to be a deterrent to illegal fishing in future. At current ZAR foreign exchange rates, along with an outdated fines schedule, current fisheries fines are considered a small price to pay by foreign vessel owners, and the financial value of the cost of interdiction far exceeds the fine values. The implication hereof is that the infringing vessel operators know that at some stage security forces operations will be scaled down as a result of current budget deficits.

Prosecuting ‘Fishing Crimes’ vs ‘Illegal Fishing’:

Whereas ‘illegal fishing’ has been addressed until now via prescriptive and enforcement jurisdictions of flag states, ‘fisheries crime’ by definition is a broader concept which involves offences such as corruption, money laundering, document fraud, tax fraud, and customs fraud, some of which are continuous or land based, and therefore grant more states with potential jurisdiction to investigate and prosecute such criminal behaviour. Therefore, ‘fisheries crimes’ can be defined as related criminal offences defined as such in domestic laws (including, but not limited to, such offences defined in the Marine Living Resources Act), as committed within the fisheries sector, with the ‘fisheries sector’ referring to the entire value chain from vessel registration to the sale of the commodity. It follows that we are thus not only concerned with illegal fishing ‘per se’ (that is, the extraction of marine living resources in contravention of law, which is the current concern of the mainstream fisheries management discourse), but a whole range of criminal offences, including document fraud, customs and tax evasions, human trafficking, drug trafficking, money-laundering, arms trafficking and insurance fraud.

South Africa is relatively unique in that the violation of almost all of the provisions of the MLRA (Marine Living Resources Act) amounts to a criminal offence, and consequently attracts a penalty of a fine not exceeding ZAR 2 million (2021: US$ 140,000), or imprisonment not exceeding 2 years [Sec 58(1) of the act]. This includes, for example, undertaking any fishing or related activities in contravention of Sec 13 (concerning permits) and violation of conditions attached to fishing rights and permits [Sec 58(1)(a)(i) and (ii)]. In fact, standard administrative enforcement tools in the form of notices and directives are not provided for in the legislation although a procedure is available for cancellation or suspension of licences. Certain stipulated offences may only attract a fine (excluding imprisonment as a penalty), which includes non-compliance with provisions concerning prohibited gear, interference with and storage of gear, and the use of drift nets. Furthermore, imprisonment as a sentencing option is excluded in the case of contraventions of international conservation and management measures [in accordance with article 73(3) of UNCLOS]. In terms of the Act, Fisheries Control Officers appointed under section 9 of the MLRA, are the primary officials empowered with jurisdiction to enforce the provisions of the law. Fisheries Control Officers are deemed ‘peace officers’ as defined in Section 1 of the Criminal Procedure Act. These officials are granted extensive compliance and enforcement powers under Section 51 of the MLRA, including (with a warrant) the ability to enter and search any vessel, vehicle, aircraft or premises, or seize any property. Without a warrant they retain extensive powers that include arrest of any person on reasonable grounds of suspicion for having committed an offence under the Act [Sec 51(2)(3)]. Certain powers fall beyond their ambit however, and rather falls within the jurisdiction of the South African Police Services (an example being the power to establish roadblocks during land-based operations), and therefore cooperation with the police is thus required in these instances since the maritime logistics chain of organised crime extends onto land. A key element of future success in addressing illegal fishing from a fisheries crime angle will be increased, but consistent cooperation between the SAPS and fisheries authorities and other pertinent authorities (such as the SANDF, Customs and Excise, SARS, etc). Ultimately, Fisheries Control Officers’ powers are constrained by the Constitution of the Republic of South Africa. Although the National Environmental Management Act is not directly concerned with fisheries, it includes a number of relevant provisions. One particularly noteworthy (and arguably under-utilized) provision [Sec 34(1)(3)] empowers Prosecutors (National Prosecuting Authority) to apply for costs from persons convicted of criminal offences cited in schedule 3 arising from loss or damage caused by the offence committed ‘to any organ of state or other person’, including costs of ‘rehabilitating the environment’. MLRA offences cited in schedule 3 of the Act include possession of prohibited gear and contravention of international conservation and management measures. Efforts to prevent the violation of fisheries rules are thus, ultimately, primarily the responsibility of Fisheries Control Officers who form part of the Monitoring, Surveillance and Control component of the Fisheries Directorate within the Department of Agriculture, Forestry and Fisheries (DAFF).

Recent fisheries crime initiatives have included concerted effort from within the DAFF to focus on investigative techniques when handling illegal fishing activities with a view to looking beyond regarding an act as an isolated minor offences, but instead addressing illegal fishing activities as facets of potentially broader, organised illegal operations. To this end, increased cooperation by the MSC unit with the SAPS, in particular the Directorate for Priority Crime Investigation (the ‘Hawks’), has been encouraging. Underpinned by, and in collaboration with ongoing cooperation with INTERPOL’s Fisheries Crime Working Group and PescaDOLUS (an independent international fisheries crime research network), the DAFF is also seeking to facilitate capacity-building within both its own department, and involving personnel in the criminal justice system along the line of an intelligence-driven investigatory compliance and enforcement approach to dealing with fisheries offences. This would include skills ranging from improved evidence-gathering to facilitate successful criminal prosecution, and enhanced inter-agency cooperation and information sharing. This feeds into the Department’s recent internal Integrated Fisheries Security Strategy which is grounded in promoting and strengthening inter-agency cooperation and collaboration in addressing illegal fishing domestically. However, all the respective government stakeholders are limited in fulfilling their future ambitions due to a severe lack of funding and resources to achieve these objectives in time. At the time of writing this article, this concept was already 20 years in the making with no improvements in capabilities at present, further hampered by the ongoing COVID-19 pandemic restricting especially government capacity (but not the organisations engaged in illegal activities). Looking at COVID-19, the associated regulations issued by government under the Disaster Management Act (No 57 of 2002) did allow for a window of opportunity to side-line certain restrictive bureaucratic processes to effectively gain- and maintain control over South African ocean territories, but unfortunately the government failed in effectively exploiting this opportunity due to a lack of foresight and political will to the [unintended] benefit of infringing entities who effectively had carte blanche to exploit South African territorial waters offshore while the armed forces were focussed on restricting inshore maritime activities during lockdowns.

Enforcement Mandate:

In South Africa, fisheries management falls under the jurisdiction of the Department of Agriculture, Forestry and Fisheries (DAFF), and at the operational level [unarmed/non-tactical] Fisheries Control Officers are responsible for ensuring compliance and enforcement with fisheries rules. The countering of Organised Crime, however, falls squarely within the mandate of the South African Police Services (SAPS) and is regulated by various relevant laws, the key statute being the Prevention of Organised Crime Act (1998). Traditionally, there have been few coordinated enforcement efforts between the two agencies with regards to crime in the fisheries sector for the reason that the SAPS, being an agency already considered overwhelmed on a daily basis, does not have the interest nor the capacity to enforce legislation on behalf of another department who is allocated its own dedicated budget and resources with powers of enforcement. The main dilemma with this situation is that the SAPS is inherently more specialised in the handling of complex high-risk crime by nature of its better equipped and trained tactical- and operational capabilities which includes various forms of Special Operations Forces (SOF) who are better suited to the types of operations involving high-risk vessel boarding operations, whereas the Fisheries Control Officers do not possess such advanced capabilities, especially taking into consideration that more vessels engaged in illegal activities at sea are armed. For this reasons, the DAFF most commonly followed a more low-risk modus operandi when operating alone, such as the failed DAFF efforts to curb the scourge of abalone poaching along the Agulhas coastline by means of a soft-approach ‘keep the resource in the water’ campaign, despite clear evidence confirming the involvement of armed organised crime syndicates (predominantly Chinese sponsored). Law enforcement operations in terms of a new fisheries crime paradigm becoming more violent in nature necessitates a mind-shift on the part of the main agents involved in fisheries compliance (Fisheries Control Officers, SAPS, port state inspections), from the traditional narrow focus on securing quick convictions for violations of common fishing rules to a more advanced awareness of the likelihood that individual offenders may be part of a broader organised criminal network. It will be important for all agencies to be well-versed in their respective legislative powers and duties in terms of all potentially applicable legislation, that is, not only fisheries law, but also key criminal statutes such as the Criminal Procedure Act and the Prevention of Organised Crime Act. Accompanying this, they will need to develop the ability to ascertain when it is appropriate to shift from an inspection-based approach in response to a particular violation, to an investigative mode. Additionally, authorities will need to be sufficiently familiar with the criminal procedure system to facilitate successful criminal prosecution in compliance with domestic- and international laws (including, for example, with regards to evidence-gathering, witness statements, etc). Coordination and cooperation between the respective departments (including the DAFF and the Department of Transport and Public Enterprises as pertaining to port facilities), government agencies (such as the South African Maritime Safety Authority and the South African Revenue Services who is responsible for Customs and Excise), the South African Police Service, the South African National Defence Force, and individuals on the ground will be vital to ensuring effective and timely information exchange to avoid duplication of effort. Looking at the roles of the SANDF, the military will be responsible for providing all required support to enable all-weather ISR, interdiction, protection and facilitation of safe apprehension of perpetrators (which includes escalation of force and self-defence if necessary) in the absence of a dedicated para-military Coast Guard (similar in function and mandate as the US Coast Guard).

Conclusion:

Looking at the complexities of countering fishing crimes and associated organized crime leading to the gradual decline of a coastal state’s fishing economy (as is the current case with all coastal states within the Gulf of Guinea and Gulf of Aden), the South African approach could be considered pioneering amongst the coastal nations in Africa who are constantly subjected to uncontrolled exploitation due to the absence of specialized capabilities in intelligence gathering and processing, criminal justice administration, maritime law enforcement, and multi-domain maritime patrol, surveillance and interdiction. However, South Africa does have a more advanced economy and government infrastructure due to its level of industrialisation which the majority African states cannot afford. However, through a collective regional approach, affected states can use the South African scenario as a practical example of how a government might proceed with implementing this paradigm at ground level, starting with neighbouring states joint operations to obtain a ‘next layer’ of enforcement to create a buffer zone for improved concentration of efforts.


However, the South African case study is not free from any challenges that are mainly caused by a certain degree of poor inter-agency cooperation, government procrastination, poor initiative and innovation, and lack of funds to expand on the resources required to effectively control the territorial waters and EEZ through multi-domain surveillance, patrol, and timeous interdiction. What we also need to understand is that the implementation of new strategies and capabilities do not show immediate results, and on average it will take at least 5 – 10 years before a gradual improvement in the situation will be observed. The COVID-19 pandemic also restricted much of the progress made throughout the continent, but following South Africa's progress will likely assist other African states in identifying the potential ‘best’ path suited to its own circumstances and needs towards adopting a fisheries crime approach domestically as developed by an African state having experienced similar challenges as targets of the same aggressors. The bottom line looking at the South African scenario is that countering IUU fishing following only the [outdated] Marine Living Resources Act will not achieve much success, but combining the MLRA with other Acts involving the Prohibition of Organised Crimes, Customs and Excise, Drug- and Arms Trafficking, Money Laundering, Marine Pollution, etc, will expand the legal framework for enforcement jurisdiction, to include tougher penalties on successful convictions that includes imprisonment (currently not a common penalty under the MLRA). The main objective will be to establish and maintain some degree of deterrence for prospective offenders where the risks out way the rewards.


Also, as can be derived from the legal environment, Maritime Operations (and Border Operations to a lesser degree), are subject to a multitude of established laws and regulations (domestic and international), which includes various government agencies, each assigned with its own enforcement jurisdiction and responsibilities. The main problem until now was bringing them all together. Still focussing on the South African scenario in terms of borders management, this used to be in place until 2002 when all border patrol operations and maritime patrol operations were coordinated and managed by the SANDF (through a country-wide network of Regional Joint Task Force HQ units). As the foreign military responsibilities of the SANDF increased as a result of peace support operations commitments throughout the continent, these responsibilities were handed back to the responsible departments (Border Protection: Dept of Home Affairs, SAPS, SARS), and IUU Fishing Patrols (DAFF), for these departments had allocated budgets for performing these functions (not being the case with the SANDF), and until then only ‘piggy backed’ on the SANDF to provide the Monitoring, Control and Surveillance capabilities to facilitate prosecution of offenders. The SANDF then demobilised the majority of its internal operations Command and Control structures (which was responsible for coordinating inter-departmental joint operations through a country-wide network of Joint Operations Centres), due to all domestic responsibilities being transferred to other departments, and consequently there were no further needs for maintaining obsolete structures within the predominantly conventional structures of the SANDF. Also, back then the situation was not as bad as it is presently for various reasons not necessarily referring to the changed political landscape in South Africa, but also as a result of expansion of targeted foreign exploitation in the form of a growing presence of international organised crime syndicates and unconventional expansion of foreign resources/influence interest. Looking at the current evolution of borders management and control, the major lessons learnt from the past 20 years was the value the military coordination efforts contributed to maintaining the greater spectrum of borders- and maritime protection, and how the military in fact is the synergy within any multi-agency operations. In South Africa, the SANDF was reallocated the responsibility of borders- and maritime protection after an absence of 15 years, but as is also the current case with Nigeria in the Gulf of Guinea, it is extremely difficult to regain lost capabilities due to lost expertise and resources. However, the one advantage that South Africa gained was its development framework for regional military cooperation with both Namibia and Mozambique which enabled the South African Navy to deploy its limited blue water capabilities in support of both these neighbouring countries to counter and deter any acts of maritime piracy to reach Southern African territorial waters. However, due to budget cuts and the outbreak of the COVID-19 pandemic, South African Navy operations were scaled down in the Mozambique Channel, which in turn created a security vacuum leading to the escalation of land-based hostilities by the so-called Islamic State in Cabo Delgado province, Mozambique. The impact of the withdrawal of the South African Navy and South African Air Force assets from this region allowed for resupply of the land-based terror group via the sea from as far away as Somalia.



PART 2: CONCEPT OF OPERATIONS (CONOPS)

Now that we have a better understanding of the legal requirements (and resulting options), prescribing the legal means of countering maritime crimes, we need to look at how a coastal state's armed forces fits into the greater Border- and Maritime Protection strategy, especially during times of peace. Since a coastal state’s territorial waters also serves as an international border, it is vital that both Border Protection and Maritime Patrol have integrated, multi-domain overlapping capabilities. Basically, the military will be responsible for providing effective MCS (Monitoring, Control, Surveillance) capabilities to the Joint Agency Task Team (JATT), to include fulfilling the roles of Operations Coordination, Planning, Intelligence, and Command and Control.

Based on the current maritime threats modus operandi within the coastal waters off Africa, the military should have the following minimum capabilities to be effective in its roles in support of a dedicated Joint Agency Task Team:


1. Airborne Border Patrol / ISR (Land Borders, Territorial Waters, EEZ)


2. Long-range Maritime Patrol (EEZ, International Waters);

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