The Hon Mr M van Schalkwyk
Minister of Environment Affairs and Tourism
Private Bag X9154 CAPE TOWN

Fax No: (021) 465-3216

6 September 2005
Our ref: 7/2-5924/05/WC

Dear Minister van Schalkwyk



1. Please be advised that this Office has received a complaint from Seal Alert SA (Complainant) concerning the alleged failure by the Ministry to respond to Seal Alert SA’s numerous requests, including an email petition, that the Ministry consider banning guns from fishing vessels. We believe that your Ms M Willemse and Ms C Lenders have received much of the comprehensive background correspondence in this regard, including that between Seal Alert SA and this Office.

2. Our understanding of Complainants' allegations is set out in the paragraphs 3 – 16 below.

The complaint

3. It is an offence in terms of the Sea Birds and Seals Protection Act, 1973 (‘the Act’), to harm or kill seals.

4. However, despite this prohibition, seals have been and are frequently hurt or killed by operators in the fishing industry. The Department of Environment Affairs and Tourism (‘the Department’) has been aware of this widespread illegal activity for at least 15 years, since the 1990 Report of the Sealing Commission. Furthermore, fishery/seal interaction research conducted by Professor Patti Wickens between 1992 and 1994 confirmed that just a few sectors of the 19-sector fishing industry were responsible for thousands, possibly tens of thousands, of illegal seal deaths. Other sectors were impossible to scientifically assess and quantify.

5. Among the offences committed by such operators is the deliberate shooting of seals, either because they are perceived to be ‘stealing’ catch or merely for malicious purposes. A statement by the former Deputy Director-General of the Department’s Marine and Coastal Management Directorate, Mr Horst Kleinschmidt, appears to support the truth of the allegation of such unlawful deliberate killings. He has reportedly stated that: “Some fishers shoot seals, injuring or killing them. We are equally opposed to such conduct. They do this believing that seals consume catches they feel are theirs. Their behaviour is uninformed and demands unequivocal condemnation. We prosecute if wild animals on land are shot at or trapped. The same holds true for seals. If anyone shoots at seals, we will prosecute. We do not condone conduct of this kind and ask people to come forward with evidence of this.”

6. However, despite Mr Kleinschmidt’s acknowledgement of the problem, few if any prosecutions have been initiated, let alone convictions secured, following the commission of such offences. Complainant has been informed by a senior officer in the South African Police Service that they cannot and will not commence an investigation into such an allegation without a witness statement. However, almost invariably, the provision of such a statement is either impossible or unlikely given that most shootings happen from a boat or ship in the presence of colleagues who are unlikely to report such illegal behaviour.

7. Current draft policy on Seals, Shorebirds and Seabirds, gazetted in March 2004, envisages certain restrictions on the carrying or use of firearms, ammunition or explosives on fishing vessels, specifically in an endeavour to control the illegal shooting of seals by fishers. However, the authority and opportunity to introduce regulations providing for similar restrictions has existed in terms of the Act, but has not been utilised. Consequently, the draft policy represents no real progress.

8. In any event, in view of the practical constraints described above, any restrictions are unlikely to prove effective in reducing the incidence of this unlawful conduct. Furthermore, it is unlikely that the Department will in the foreseeable future enjoy the capacity to police and enforce any restrictions.

9. The only alternative is a more easily enforceable complete ban on firearms / weapons, ammunition and explosives on board fishing

10. Such a ban would be consistent with the right to an environment that is not harmful to health and well-being, and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that inter alia promote conservation (s. 24 of the Constitution, 1996), in that seals (a protected species given special protection by the Act, in addition to protection by other applicable legislation prohibiting cruelty) would no longer be exposed to a significant source of a real danger of unlawful killing and serious injury.

11. Such a ban would also not be inconsistent with the right to bear arms in self-defence, as the incidence of violent attacks on fishing vessels or their crew close inshore (where most shooting of seals takes place) is apparently minimal, if it exists at all.

12. The draft policy on Seals, Shorebirds and Seabirds also provides that “[f]or seals, which at present are not of conservation concern, Government will not fund rehabilitation, but will encourage privately-funded rehabilitation facilities”.

13. Firstly, Complainant disputes this assertion that the status of seals is not of conservation concern. Complainant is willing to furnish detailed analysis of its conclusion to the contrary. For example, Complainant cites the following figures, which are not exhaustive:

13.1 Despite annual pup births of 40 000, there has been no growth in the Cape Fur Seal population in South Africa.

13.2 300 000 seals died of starvation on Namibian beaches during the 2000 breeding season. This is not an unusual occurrence.

13.3 40 000 pups are washed off rocks and drowned annually.

13.4 60 000 pups are clubbed to death for their pelts annually in Namibia and a further 7 000 bulls are shot there annually for their penises.

However, even if the status of Cape Fur Seals is not of conservation concern, considerations of cruelty against and welfare of this protected specie are, for practical purposes, ignored by the current draft policy.

14. Secondly, Complainant in its recent open letter dated 1 September 2005 (copy attached), refers to the 1990 Commission on Sealing Report, in which eleven experts “recommended that the Minister gives priority attention to liaison with the relevant authorities in Namibia with a view to the possible implementation of a unified policy for seal management”. Complainant submits that this fundamental step, taken on an international level in regard to other species, such as whales, has not been taken in the development of the current draft policy in regard to seals, and the current draft of the policy does not envisage such a logical extension of seal management. This specie is similarly given to moving freely across international boundaries, for example, between South Africa and Namibia. The current version of the draft policy is, therefore, essentially flawed for this reason also, submits Complainant. Any policy, whether it restricts or bans guns on fishing vessels, must be internationally enforceable.

15. As mentioned above, the Department’s draft policy intends to make no contribution to remedial, palliative or rehabilitative costs, preferring instead to leave that to other sectors of society, while simultaneously proposing to merely restrict firearm use, as well as failing to deal with the issue on an appropriate – international – level. Complainant argues that the proposed policy in its current form will have the effect of further increasing the substantial and growing seal rehabilitation task already facing such other sectors of society as a result of shootings and other activities of the fishing industry and fishers in general. As such, it represents an abandonment by the state of its responsibilities in this matter. While Complainant is not opposed to the ‘privatising’ of seal welfare in principle, for the state to do so while not simultaneously adopting all reasonable measures to reduce the need for such activities is irresponsible, unfair and, ultimately, unlawful.

16. Complainant and its supporters have, to date, sought to utilise the policy development consultative process to state their concerns and have, for example, raised them at a workshop held to consider inputs to the draft policy. However, they believe these concerns have been given insufficient weight in the current version of the draft policy. Complainant has, consequently, sought to bring these concerns to the attention of the Ministry, as described above, but without reply.


17. Would you kindly comment on these allegations in order to enable the Public Protector to properly consider whether Complainant or any other person is being or may be improperly prejudiced, whether by the alleged undue delay in responding to its submissions or as a result of current or proposed state action. Please note that these enquiries are made in terms of the provisions of section 6(7) of the Public Protector Act, 1994. Your response is requested within 20 working days hereof. Thank you in advance for your co-operation and assistance.

With kind regards

Yours sincerely