PUNISHING PERLEMOEN* POACHING – DEVELOPMENTS BOTH RECENT AND POSSIBLY FUTURE?

The problems related to curbing the poaching of abalone are legion. First, abalone is an easily accessible target. Sedentary in nature, occurring in shallow subtidal kelp beds rarely deeper than ten metres, growing slowly (taking 8-9 years to reach minimum legal size) and non-cryptic in behaviour, abalone presents little difficulty for exploitation (Houthoofd “Towards Some Solutions Relating to the Conservation of Abalone” 1997 4 SAJELP 301; and Hauck “Regulating Marine Resources in South Africa: The Case of the Abalone Fishery” 1999 Acta Juridica 211 212). Secondly, the authorities have struggled in the face of the systematic depletion of the abalone stocks. Conservation operations such as Operation Neptune, aimed at combating the poaching, have been largely unsuccessful (see Botha “See Weer Stropers se Speelplek” 23 December 2004 Die Burger 13). This state of affairs is not entirely surprising, given the limited resources on the part of the State, further hampered by bribery of conservation officials, as opposed to the enormous financial muscle of the poaching syndicates, associated with the Chinese Triads (see Hauck 1999 Acta Juridica 219ff). With the price of dried abalone currently at $1 000/kg, and the demand showing no sign of diminishing, the problem appears intractable, if not insoluble, without some radical intervention (Botha 23 December 2004 Die Burger 13). It has been argued that had South Africa previously listed the abalone species with the Convention on International Trade in Endangered Species (CITES), other countries would have assisted in monitoring the trade in abalone and enforcing the legality of shipments (Allen et al “A Review of Developments in Ocean and Coastal Law 2003” 2003 9 Ocean & Coastal Law Journal 139 161). As it is, the illegal poaching continues and the abalone population continues to decline at “an alarmingly rapid rate” (Allen et al 2003 9 Ocean & Coastal Law Journal 161). The way in which the crime has been dealt with in the courts has further complicated efforts to deal with poaching. Effective enforcement has been hampered on occasion by judicial perceptions that offences such as poaching are not serious (see Njobeni “Courts Score Low on Environmental Law” 7 September 2004 Business Day (http://www.bdfm.co.za/cgi-bin/pp/print.pl)). The aim of this note is to examine one aspect of judicialenforcement of this particular environmental offence, namely sentencing.