WALVIS BAY – Defence lawyer Sisa Namandje says the State does not have a case against his clients – a captain, chief engineer and crew member of the Angolan-flagged MFV Lucimar vessel – who were arrested for alleged illegal fishing in Namibia on 18 December last year.
He made the argument during the trio’s bail application in the Walvis Bay Magistrate’s Court this week.
The accused are captain Rodrigues Jose, chief engineer Charl Le Corre, and crew member Mateus Sikalepo Ambrosio.
They were part of a 19-member crew, comprising 15 Angolan nationals, two Senegalese, one South African and one Portuguese found on the vessel.
The crew was allegedly found fishing approximately 24km within the Namibian territorial waters near the Angolan-Namibian border without the necessary permission.
Investigations by fisheries inspectors found that the crew did not have a licence or permit to harvest marine resources in Namibian territorial waters, and that it had also contravened other fisheries-related Acts.
The vessel was then escorted to the Walvis Bay port, by Namibia’s Nathaniel Maxuilili patrol vessel, and was impounded.
The trio applied for bail this week, when Namandje challenged parts of the Fisheries Act.
He argued during court proceedings that the State’s case was weak, and that the alleged offences his clients are charged with do not exist. Namandje pointed to section 49, sub-section 1, stating that whenever a vessel not authorised by a licence to harvest marine resources is in Namibian waters, all fishing gear carried on board such a vessel shall be dismantled, stowed, or secured in such a manner as not to be readily available for harvesting, or as may be prescribed.
According to him, this section only regulates fishing gear, and how it must be stored and not be available for use.
“There is no such offence. How can you charge a person with a section where there is no charge? This is malicious,” Namandje argued.
He said section 52, sub-section 1 states that any person who, being the owner, leassee, charterer, or the master of a foreign-flagged vessel uses such a vessel in Namibian waters for harvesting marine resources, or allows it to be so used without the authorisation of a valid licence in respect thereof, shall be guilty of an offence, and be liable on conviction, to a fine not exceeding N$2 million.
“None of my clients is the owner of the vessel, nor do they lease or charter the vessel, or are they the masters. These charges are poorly drafted and malicious,” Namandje reasoned.
Jose then testified that they did not catch any fish in Namibian waters, but had fish onboard which were caught and frozen the previous day in Angolan waters. He told the court that they were fishing in Angola when they noticed that one of their nets was broken.
Jose further testified that the partially-broken net was brought up to the deck, where he and the 19 crew members repaired it. It took them about six hours to mend the broken net.
“That’s when I realised that we had drifted into Namibian waters. I got up to the bridge of the vessel to start steaming, and I also told my crew to go down. However, I heard someone saying ‘stop the engine or we will shoot’. That is when I saw the patrol vessel,” Jose continued.
The captain said the authorities on the patrol vessel came on board, and asked what they were doing in Namibian waters. Jose was also questioned about the fish onboard, whereby he told the authorities that the fish was frozen, as it had been caught the previous day in Angola.
“There was no fresh fish on the vessel when we were arrested. There were fish parts stuck in the net due to our previous catches, and that is normal,” the captain testified. Their fishing gear was also on the net drums, as they were not fishing.
During cross-examination, public prosecutor Annakletta Kandjimi questioned Jose whether the automatic identification system (AIS) - an automatic tracking system which shows the exact position of vessels - was not on at the time of their arrest. Jose admitted that the system was not on.
“Yes, it has not been working for about three weeks, and we have been waiting for parts that had been ordered,” he responded.
He was also questioned about the wet fishing gear which still had fish parts on it, and he said they were not fishing but were mending their nets, and that finding pieces of fish stuck in nets was common.
The prosecutor also questioned Jose why he increased the vessel’s speed when ordered to stop. “You did not stop when you were asked to, but instead increased your speed,” Kandjimi put it to the accused, and Jose responded that he did not see the patrol vessel.
The outcome of the bail application will be delivered on Friday.
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