A recent case has drawn a hard line on drone use in South Africa in one of the most unsuspecting places: fishing.
Drones are incredibly useful for tracking and surveying, particularly for the emergency response, security, and journalism industries. However, South Africans are barred from using drones for fishing and could have their equipment confiscated if caught doing so.
Lucinde Rhoodie, Kara Meiring and Claudia Grobler at Cliffe Dekker Hofmeyr analysed a case between sellers of bait-carrying remote-controlled drones and the Ministry of Forestry, Fisheries
and the Environment.
Case breakdown
The applicants were in the business of selling bait-carrying drones, but in February 2022, the Chief Director of Fisheries Operations Support issued a public notice banning the use of certain devices for fishing – including drones. Transgressors would be prosecuted and have their drones taken away.
This severely hampered the sales of drones designed for fishing, and the applicants approached the court to have the bans on bait-carrying drones withdrawn.
The applicants said that Marine Living Resources Act included aircraft in the list of devices which could be used for fishing. They argued that the only difference between an aircraft and a drone was that the pilot was not in the vehicle.
They added that bait-carrying drones should be seen as gear according to what is stated in the Act.
In addition, the applicants looked at the regulations in terms of the Act, which defined ‘angling’ as recreational fishing that used a rod, reel or something similar. They said that bait-carrying drones use a manually-controlled reel and thus abide by the regulations.
However, the respondents questioned whether bait-carrying drones used the correct permits for recreational fishing. They said that bait-carrying drones are not authorised by angling permits, as they only authorise the physical operation of a rod, reel and line.
The Ministry also said that it had the constitutional obligation to ensure that fishing activities did not negatively affect the stability of the fish population.
The applicants said that the respondent’s argument was simply emotive, and attempted to bypass the process of amending the regulations by intimidating the public into believing that the use of a bait-carrying drone was a criminal offence.
The final arguments from the respondents said that due to the complicated nature of the legislation and regulation of fisheries management, that the court should avoid interfering with the interpretation of the legislation.
Ruling
The court said that the legislature had not left room for any ambivalence in what comprises lawfully-permitted fishing.
However, the court did not make a ruling based on the interpretation of the legislature, instead highlighting that the matter was just before the Easter weekend – an active time for recreational fishing.
The court also said that the economic impact of its decision would likely be irreversible – whether favourable or unfavourable. The court also held that the definitions of angling still form part of the legislature, as the regulations form part of the Act.
Thus, the court ruled to dismiss the application due to considerations of judicial deference.
The court’s ruling means that those using a bait-carrying drone for fishing can be prosecuted and have their device confiscated by the state.
Read: What the law says about security cameras at your home in South Africa
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