Shipping vessels entering South African waters are subject to South African Law.  When there is an alleged violation of South African legislation and such violation constitutes a statutory crime, the arrest of the ship’s master or captain by the South African Police Services is always a possibility while the vessel is berthed in Durban Harbour.  This is so because the ship’s master can be construed as the responsible person for any violation of South African legislation committed by the “vessel”.  Examples of statutory violations where the ship’s master can be arrested are an incorrect tally of stored fish as reflected on fishing permits for fishing vessels or a security company having expired permits for anti-piracy weapons on a board vessel. 

The current practice, when there exist a reasonable suspicion that a statutory crime has been committed, is to immediately arrest the ship’s master and place him in the police holding cells.  The reason advanced for such an arrest is that the ship’s master would need to appear the next day in the Magistrates Court on the alleged charges and the only way to secure his presence at court, in the view of South African Police Services, is to take him into custody.  The reason why the South African Police Services will not allow him to be released on warning is because, in the view of the South Africa Police Services, it is impossible to identify a permanent physical address for a foreign ship’s master who is in South Africa very briefly.  The address of the ship’s South African agent or the ship (even if the ship is in for repairs or under seizure) shall not suffice as a permanent physical address for the ship’s master.

Essentially, two options are available to the ship’s master during his first appearance in court:  (1) He can apply for bail, or (2) he can admit guilt.  Should he opt to apply for bail and be successful in obtaining same, he shall be released into the care of the ship’s agent and will need to remain in South Africa until such time as the trial can be conducted which can be anything from four months onwards.  This option is not ideal since not only would the owner of the ship need to cover his expenses and salary while awaiting trial, the ship’s master would not be able to leave South Africa to visit his family for months. The other option for the ship’s master is to plead guilty to the allege crime and be sentenced.  Sentencing usually entails the payment of a fine.  Admitting guilt and paying the fine can be concluded on the first day appearance date.  This will allow the ship’s master to return to the vessel and sail at the first opportunity.  The downside of the option is the fact that the ship’s master would now have a criminal record in South Africa.

The practice of taking the offending master into custody is unnecessary where a warning, to appear at court the following day, will suffice.  The vessel can even be seized to ensure that the ship’s master can easily be found should he fail to appear in court.  There is no reason why the location of the ship in the harbour cannot be construed as a permanent physical address. Failure to appear at court the next day shall have serious repercussions for the ship’s master and he will then be arrested to secure his presence in court.  Applying for bail in the circumstances where there was a non-compliance with a warning to appear in court will complicated matters for the ship’s master.

While strict enforcement of South African legislation should be encouraged, care should be taken by the authorities not to try and enforce legislation where there has been no intention or willful ignorance by the individual.  A cardinal principle of our criminal law is embodied in the Latin maxim actus non facit reum, nisi mens sit rea – an act does not make a person legally guilty unless the mind is legally blameworthy.  In other words, a defence available to a ship’s master to any charge is that he did not have the knowledge of unlawfulness in respect of such act.

When a case is opened, the prosecuting authority should have the necessary expertise to determine immediately whether sufficient evidence exist to successfully prosecute the alleged crime and if not the charges against the master should be withdrawn on the first appearance.  If however, the prosecuting authority is of the sincere view that there is sufficient evidence of a clear violation of legislation; prosecution of such crimes should follow.

It is beneficial to the South African economy if foreign shipping fleets use our ports to resupply.  Before arresting or charging a ship’s master there should at least be some evidence that the master deliberately failed to comply with South African legislation and not just a mere contravention according to the letter of the relevant statute.  Otherwise, foreign fleets will be discouraged from using South African ports to resupply, especially when ship’s masters are placed in custody and forced to endure a night in a foreign country’s police holding cells.

This article first appeared in the Sunday Tribune.