The appellant was convicted in the magistrate's court, Durban, of contravening Regulation 52(a) of the Regulations promulgated under the Marine Living Resources Act 18 of 1998. He possessed four east coast rock lobsters (crayfish) with carapaces measuring less than 65mm (measuring 62.6, 62.8, 63.7 and 63.7mm). On the day in question, the appellant, an experienced fisherman with 26 years' experience, was diving at Salt Rock beach at Tiffanys reef from approximately 15h00 to 17h30. He caught seven lobsters and placed them in his dive bag. After leaving the water, he walked across the beach (approximately 70 paces from shoreline) and up a grass embankment toward concrete steps leading to the road where his vehicle was parked. Inspector Nxumalo of the KZN Nature Conservation Service had been watching him. The appellant stated he intended to measure the lobsters at the concrete steps and discard any undersized ones. Nxumalo claimed the appellant was heading to his vehicle to leave and only stopped when he saw the inspector. The magistrate sentenced the appellant to a fine of R2,400 or 90 days imprisonment. The court a quo reduced this to R600 or 30 days, suspended for three years.
The appeal was allowed. The appellant's conviction and sentence were set aside.
For a conviction under Regulation 52(a) of the Marine Living Resources Act Regulations, the State must prove: (1) the physical element of possession, being control over undersized rock lobsters; (2) the mental element of possession, being the intention to exercise such control for personal gain or benefit (not merely for the limited purpose of measuring to determine compliance); and (3) mens rea in the form of dolus. Where an accused's version is that he assumed control of lobsters solely for the purpose of measuring them to determine whether they were undersized, with the intention of discarding any that were, and this version is reasonably possibly true, the mental element of possession is not present and no conviction can follow. The regulation must be interpreted sensibly and realistically to give effect to the legislature's true intention and to avoid manifest absurdities that would criminalize legitimate fishing activities.
The court observed that Regulation 44(1)(a), which appears in Part 8 dealing with both west and east coast lobsters and prohibits 'keeping, controlling, storing or transporting' in addition to possession, uses wider wording than Regulation 52(a). This suggests that Regulation 52(a) requires a narrower interpretation. The court left open the question of whether a fisherman is legally obliged to return an undersized rock lobster to the sea, preferring not to decide this point as it was not argued. To the extent that the decision in S v Bailey 1968 (3) SA 267 (N) is at variance with the court's reasoning regarding the elements of possession, the court indicated it considered Bailey to have been wrongly decided. The court noted that Inspector Van Schoor's evidence confirmed that fishermen frequently measured their catch at their vehicles, which was corroborative of common practice.
This case is significant in South African environmental/conservation criminal law as it establishes important principles for interpreting possession offences under conservation regulations. It demonstrates that courts must avoid overly literal interpretations that would lead to absurd results and criminalize ordinary, legitimate conduct. The judgment clarifies that possession for regulatory offences requires more than mere physical control - there must be intention to exercise control for personal gain or benefit. It protects fishermen who take reasonable steps to comply with regulations by measuring their catch, and confirms that the mental element of possession is a separate requirement from mens rea. The case also demonstrates the appellate court's willingness to reassess probability findings and credibility assessments made by lower courts when dealing with purely factual inferences.