with recent activity in the bag limit sector we be

[jb2]

Marthin wrote:

skarrel kind wrote:

The term 'irrespective' to me means regardless of bag limit per species etc etc so I am reading that paragraph as saying that the cumulative amount of fish in your possession should not exceed 10 fish regardless if the fish has a bag limit or not

far as i understand section (b), you cannot have more than the daily limit in your possession.  That means 2 gallies, 5 kabeljou, then you can only keep 3 white stump

Equals the cumulative bag limit of 10 fish regardless of species.  So if you already have your 10 yellowtail, you can't keep another snoek.  Or if you have your 10 snoek you can't go catch red roman.  Or if you have 10 yellowtail in the freezer you must maar catch and release if you want to go out again tomorrow.

Hi Marthin

I have not been persuaded by the 10 per day including the freezer argument.

My wife and I are co possessors of the contents of our freezer.

If we have 10 fish in our freezer, are neither of us allowed to retain our catch?

It would get even more tricky in a family where there are parents and kids over 12 or 14 years old fishing.

DAFF can not pro rata the fish between family members.

I am a bit old school and go for a "purposive approach" to the problem.

What is DAFF trying to address? What is the "mischief" that they are trying to address?

DAFF wants people to stick to catching only 10 fish per person per day at the water.

There is no restriction on storing lots of fish. as long as you abide by your daily limit.

I would focus on capture per day and not abstract possession.


https://en.wikipedia.org/wiki/Purposive_approach

 

[Expat]

Ek gaan vang gereeld op Struisbaai kabeljou. Mag ek in my vrieskas dan 1 of 4 kabeljou hier in Kaapstad hê? En as die jul antwoord 4 is, mag niemand wat in Struisbaai bly meer as 1 kabeljou in hul vrieskas hê nie, al is hulle by Brandfontein gevang?

 

[Expat]

jb2 wrote:

Marthin wrote:

skarrel kind wrote:

The term 'irrespective' to me means regardless of bag limit per species etc etc so I am reading that paragraph as saying that the cumulative amount of fish in your possession should not exceed 10 fish regardless if the fish has a bag limit or not

far as i understand section (b), you cannot have more than the daily limit in your possession.  That means 2 gallies, 5 kabeljou, then you can only keep 3 white stump

Equals the cumulative bag limit of 10 fish regardless of species.  So if you already have your 10 yellowtail, you can't keep another snoek.  Or if you have your 10 snoek you can't go catch red roman.  Or if you have 10 yellowtail in the freezer you must maar catch and release if you want to go out again tomorrow.

Hi Marthin

I have not been persuaded by the 10 per day including the freezer argument.

My wife and I are co possessors of the contents of our freezer.

If we have 10 fish in our freezer, are neither of us allowed to retain our catch?

It would get even more tricky in a family where there are parents and kids over 12 or 14 years old fishing.

DAFF can not pro rata the fish between family members.

I am a bit old school and go for a "purposive approach" to the problem.

What is DAFF trying to address? What is the "mischief" that they are trying to address?

DAFF wants people to stick to catching only 10 fish per person per day at the water.

There is no restriction on storing lots of fish. as long as you abide by your daily limit.

I would focus on capture per day and not abstract possession.


https://en.wikipedia.org/wiki/Purposive_approach

 

[rofflign]

jb2 wrote:

Marthin wrote:

skarrel kind wrote:

The term 'irrespective' to me means regardless of bag limit per species etc etc so I am reading that paragraph as saying that the cumulative amount of fish in your possession should not exceed 10 fish regardless if the fish has a bag limit or not

far as i understand section (b), you cannot have more than the daily limit in your possession.  That means 2 gallies, 5 kabeljou, then you can only keep 3 white stump

Equals the cumulative bag limit of 10 fish regardless of species.  So if you already have your 10 yellowtail, you can't keep another snoek.  Or if you have your 10 snoek you can't go catch red roman.  Or if you have 10 yellowtail in the freezer you must maar catch and release if you want to go out again tomorrow.

Hi Marthin

I have not been persuaded by the 10 per day including the freezer argument.

My wife and I are co possessors of the contents of our freezer.

If we have 10 fish in our freezer, are neither of us allowed to retain our catch?

It would get even more tricky in a family where there are parents and kids over 12 or 14 years old fishing.

DAFF can not pro rata the fish between family members.

I am a bit old school and go for a "purposive approach" to the problem.

What is DAFF trying to address? What is the "mischief" that they are trying to address?

DAFF wants people to stick to catching only 10 fish per person per day at the water.

There is no restriction on storing lots of fish. as long as you abide by your daily limit.

I would focus on capture per day and not abstract possession.


https://en.wikipedia.org/wiki/Purposive_approach

Well said! Not that any of this effects me as my freezer is always empty.

 

[jb2]

kennylau wrote:

You are supplying the answer yourself bud.
"Keep or Controle"
This comes down to possession at any time.

Hi Kenny

I take a different approach to the words keep or control.

One way of approaching words or phrases in a statute suggests that you should know the word by the company that it keeps. Who is it hanging out with?

So keep and control should be read with whole phrase.

The full list is "Catch, disturb, land, keep or control".

So look at keeping or controlling as a part of landing or catching and not storing.

Another useful statutory interpretation technique would use the maxim that "If one is included then the others are excluded.

This means that a list is provided but the word "store" is not included. If store was meant to be there it would have been included.

In other parts of the act the storage of fish is covered and the word "store" is used.


http://www.merriam-webster.com/dictionary/expressio%20unius%20est%20exclusio%20alterius

https://en.wiktionary.org/wiki/noscitur_a_sociis

 

[grootvis]

Unfortunately, by fact, persons have been prosecuted for having over the allowable quota per day in the freezers. I personally know such individuals, so its not hear say. But , its per person, so if you have each persons qouta it is justified. Like i was trying to mention, the law can nail us far more than we think, but it all depends who you get on the day. If i was caught with a freezer full of steenbras, and explained its from 2 years of fishing, you think they will let me off the hook, no, they will make me prove that im not a seller, and also the reason for the fish, at the end of the day you will be found guilty. Get caught with a zol and its usually not so bad, get caught with a bankie and you a dealer!.....lol. get the picture?

 

[Dr halibut hoffman]

A "keep" is a "store", to "keep" is to "store". Same difference If your wife has a licence and you do to, then you are each allowed to keep what each of you can keep on that licence. If you store it together then it is so..and probably the only way to have more than your bag limit in the freezer is to have someone elses fish, within their qouta, and they are licenced and can be proven to co-habit with you, ie not in your possesion but in a proven "shared" possesion. Also one may not disturb the fish that have limits if the daily limit is reached so to continue to practice catch and release you must stop on your 9th yellowtail or snoek if your freezer at home is empty. I think it is pretty clear?

"(b) more fish than the bag-limit listed in respect of each species in Species List of Annexure 6 during any one day. Furthermore,
there is an overall cumulative daily bag limit of ten, irrespective of the species caught and provided that this limit does not apply
to those species listed here with no bag limit, and to those with a bag limit exceeding ten;"

Also skarrel, read the second part of 9(b) ...and provided..etc.. it does not apply in the case of things like mullet and mackerel.

 

[kennylau]

Well said Grootvis!! I agree.

JB2

I hear you friend. I would really have agreed with you if i did not know the true interpretation by the courts. Your interpretation is the one I like and which everyone would like as well, however, I did not want to mention it here on an open forum like this but I was involved in the investigation and subsequent arrest of people in KZN some time ago. Without identifying people or going into the detail of the case, the charge had to do with "potato bass" and numerous other fish. The Potato Bass is evident, a big no-no, but with regards to the other fish the facts in short:-

Angler A from KZN caught and stored Sammon (Cobbies) for person B and C (friends) from Gauteng. Whether or not he wanted to sell it was not in question as we could not prove it. Upon arrest for the Potato Bass, we searched his house as well and discovered the freezers full of other fish. He was found guilty and sentenced. His boat, vehicle etc. was declared government property from there on in and he got a big fine. The magistrates interpretation was the same as Martins' above. It all came down to possession in terms of bag limits and the statutes.

The defence did not want to appeal.

 

[kennylau]

DR HH

 

[kennylau]

Guys, what a nice thread!! Without any aggression or antagonism..and yet we do not all agree on certain points.

Amazing how everyone can learn from this.

Keep this kind of arguments going...it is very interesting and we all learn something from it.

 

[subaruseun]

thanks for the clarity Emile and JB2


your catch limit is what the law states per day. i do not believe in keeping that limit, personally i rather tag n release.

interpretation is exactly that until a good defense lawyer/prosecutor can manipulate the understanding of the english used in a court it might go either way.


for leauge the angler, 10 in the freezer makes it difficult, then the tour guide, how does he store his bait? or is he granted amnesty by the fact that he can prove he does extreme angling tours? or is this an opportunity for daff to get competitive anglers to buy another permit?

 

[jb2]

grootvis wrote:

Unfortunately, by fact, persons have been prosecuted for having over the allowable quota per day in the freezers. I personally know such individuals, so its not hear say. But , its per person, so if you have each persons qouta it is justified. Like i was trying to mention, the law can nail us far more than we think, but it all depends who you get on the day. If i was caught with a freezer full of steenbras, and explained its from 2 years of fishing, you think they will let me off the hook, no, they will make me prove that im not a seller, and also the reason for the fish, at the end of the day you will be found guilty. Get caught with a zol and its usually not so bad, get caught with a bankie and you a dealer!.....lol. get the picture?

Hi Doc

What DAFF inspectors (FCO's) prosecute people for has no bearing on reality.

I work with people who are given nonsensical fines on a regular basis. DAFF's fines are treated with utter contempt by the prosecutors in Cape Town, Wynberg (Hout Bay) and Simons Town.


The two years worth of steenbras in the freezer example is a bit strained. It is also based on an outdated approach to prosecutions.

There was a time when South African Law allowed for a presumption of guilt. (If you have over a certain mass of ganja in your possession then you are deemed to be dealing in the boom.)

These presumptions no longer form part of South African Law and any allegation of dealing would have to be backed up by evidence of actual transactions.

 

[Marthin]

For bait ud have to buy. Have invoice and such I guess or keep to limits.

 

[EugeneC]

subaruseun wrote:

or is this an opportunity for daff to get competitive anglers to buy another permit?

I don't think you can buy more than one permit and fill the quotas of all the permits you own. Marthin beat me to it, I also think you would have to prove that you purchased your bait.

 

[subaruseun]

EugeneC wrote:

subaruseun wrote:

or is this an opportunity for daff to get competitive anglers to buy another permit?

I don't think you can buy more than one permit and fill the quotas of all the permits you own. Marthin beat me to it, I also think you would have to prove that you purchased your bait.

no not more than one permit, which would mean you buy a quota!

i meant and additional permit to allow you to hold reasonable bait? more for league guys... how does the bait club guys at angling clubs do it? they too go out and catch bait.

thats it, when mackeral or yt is bought from the brokers, there is no invoice...

bait is not always available so it makes sense to sometimes buy reasonable amounts to carry you forward.

 

[jb2]

kennylau wrote:

Well said Grootvis!! I agree.

JB2

I hear you friend. I would really have agreed with you if i did not know the true interpretation by the courts. Your interpretation is the one I like and which everyone would like as well, however, I did not want to mention it here on an open forum like this but I was involved in the investigation and subsequent arrest of people in KZN some time ago. Without identifying people or going into the detail of the case, the charge had to do with "potato bass" and numerous other fish. The Potato Bass is evident, a big no-no, but with regards to the other fish the facts in short:-

Angler A from KZN caught and stored Sammon (Cobbies) for person B and C (friends) from Gauteng. Whether or not he wanted to sell it was not in question as we could not prove it. Upon arrest for the Potato Bass, we searched his house as well and discovered the freezers full of other fish. He was found guilty and sentenced. His boat, vehicle etc. was declared government property from there on in and he got a big fine. The magistrates interpretation was the same as Martins' above. It all came down to possession in terms of bag limits and the statutes.

The defence did not want to appeal.

Hi Kenny

Interesting example and particularly important for the guys in KZN. Maybe it is also a question of scale as well. If you have chest freezers of fish and prohibited species then the magistrate looks around for something to bust you on.

One magistrate's decision does not bind any one else though.

I would still say that if you don't have chest freezers full of fish that you are holding for another person then your odds re better.

 

[EugeneC]

subaruseun wrote:

EugeneC wrote:

subaruseun wrote:

or is this an opportunity for daff to get competitive anglers to buy another permit?

I don't think you can buy more than one permit and fill the quotas of all the permits you own. Marthin beat me to it, I also think you would have to prove that you purchased your bait.

no not more than one permit, which would mean you buy a quota!

i meant and additional permit to allow you to hold reasonable bait? more for league guys... how does the bait club guys at angling clubs do it? they too go out and catch bait.

thats it, when mackeral or yt is bought from the brokers, there is no invoice...

bait is not always available so it makes sense to sometimes buy reasonable amounts to carry you forward.

Got you all wrong first time around, my bad! ::hippy1:

 

[Dr halibut hoffman]

I still think the courts would not rule in your favour in a discrepancy, as you would have items which are prohibited in your possession already in evidence. The onus would be on oneself to prove as to why these items are not in fact prohibited in the first place and you would have to explain why the prosecution is mistaken. To discount the evidence against you, you would have to provide invoices etc. for the farmed import yellowtail or commercially caught fish and things with no daily limit like mackerel would not be included and over your 20 chokka you would need invoices. The fact that you were not provided any would not help your case. That's what I reckon but this is a good discussion, I'm not a lawyer in the least!

 

[jb2]

Dr halibut hoffman wrote:

I still think the courts would not rule in your favour in a discrepancy, as you would have items which are prohibited in your possession already in evidence. The onus would be on oneself to prove as to why these items are not in fact prohibited in the first place and you would have to explain why the prosecution is mistaken. To discount the evidence against you, you would have to provide invoices etc. for the farmed import yellowtail or commercially caught fish and things with no daily limit like mackerel would not be included and over your 20 chokka you would need invoices. The fact that you were not provided any would not help your case. That's what I reckon but this is a good discussion, I'm not a lawyer in the least!

Hi Doc

Kenny's example supports your understanding. It is also important since it is an actual magistrates court prosecution.

I studied law (BA LLB) and did a masters in marine law (LLM) at UCT. I am an admitted attorney but I have stayed away from criminal law as far as possible.

It has just been my experience around Cape Town that there are so many nonsense fines written out that the prosecutors have no time for DAFF.

Similarly EKZN Wildlife officers are far more professional that Cape FCO's.

I also subscribe to the school of thought that the judicial decision that you get is based more on the make up of the judge.

We are supposed to say that the judge looks at the facts / evidence, applies the law and reaches a decision.

A legal realist would say that the judge looks at the facts, makes a decision and then hunts around in the law to justify his decision.

https://en.wikipedia.org/wiki/Legal_realism

 

[subaruseun]

Dr halibut hoffman wrote:

I still think the courts would not rule in your favour in a discrepancy, as you would have items which are prohibited in your possession already in evidence. The onus would be on oneself to prove as to why these items are not in fact prohibited in the first place and you would have to explain why the prosecution is mistaken. To discount the evidence against you, you would have to provide invoices etc. for the farmed import yellowtail or commercially caught fish and things with no daily limit like mackerel would not be included and over your 20 chokka you would need invoices. The fact that you were not provided any would not help your case. That's what I reckon but this is a good discussion, I'm not a lawyer in the least!

i do agree with keeping invoices, it will make life easier

however, i have to differ based on law and fact.

if law states, as quoted earlier in the thread, that it is any one day, why would one have to go to court?

how is the items prohibited? if law allows the any one day 10 rule?

prohibited would be when you have illegal
we get yt, snoek etc form brokers fresh at R30-50, in a shop that will costs R90-R150 then they include an invoice. its getting expensive to fish and more expensive to get an invoice for something not deemed required.

when an angler / seller of fish sells, it will be obvious what the purpose of the freezer is, there will be articles used for the sale such as bags, scales, petty cash box!