FOSAF NEWS - Flyfishing and Covid 19 by Ilan Lax

The Covid 19 lockdown has prevented many flyfishers from getting out to exercise their chosen form of recreation.

 

FOSAF is being inundated with a range of queries from clubs and individuals with regard to what is permissible under the lockdown, especially in the light of the directions published by Minister Creecy last Friday that appear to permit recreational angling. To read the directions click here

A preliminary issue to note is that the regulations published with regard to Alert Level 3 (and 4) have been declared unconstitutional and are subject to possible changes to be published shortly. However, notwithstanding that and until appealed, the current regulations remain in force until replaced.

From a flyfishing perspective it must be borne in mind that the regulations are focused, among other things, on:

“Movement of persons” (Reg 33) and the basis on which this is permitted; and then “Places and premises closed to the public” (Reg 39). 

The general premise as per Regs 33(1) and 39(1) is that people must stay at home except to do the things specifically permitted. Reg 33(1)(e) allows people to exercise between 06h00 and 18h00. Unlike the previous regulation no radius is given.

Reg 33(4) however, sets a boundary and reads “Movement of persons between provinces, metropolitan areas and districts and hotspots is prohibited except for-”.  None of the exceptions apply to angling or exercise.  A hotspot is defined as “a geographical area or cluster of geographical areas;". The listed hotspots are metros and districts.

Exercising within the confines of one’s metropolitan area and district or hotspot would be permissible.  However see the discussion below about where one might fish.  It is worth noting that metropolitan areas and districts cover a much wider area than local municipalities.  As an example, I live in the District Municipality of uMgungundlovu which consists of seven local municipalities, based in the accompanying towns: Impendle – Impendle, Mkhambathini – Camperdown, Mpofana – Mooi River, Msunduzi – Pietermaritzburg, Richmond – Richmond, uMngeni – Howick, and uMshwathi – New Hanover/Wartburg.  I can thus exercise anywhere within the confines of the district.

There is a misunderstanding that regulation 33(4) allows free movement within the province.  This is a mistake given the clear wording of the regulation.

So at what places can one exercise (fish)?  Regulation 39(1) commences from the premise that certain places and premises are closed to the public. The regulation reads as follows:

“39. (1) A place or premises normally open to the public, where cultural, sporting, entertainment, leisure, exhibitional, organisational or similar activities may take place, is closed to the public and all gatherings at these places or premises are prohibited.”

It is thus clear from the above, that all such places or premises “normally open to the public” are closed.  Furthermore, gatherings at these places are prohibited.

Regulation 39(2) then lists additional places that are included under the general description noted in 39(1).  These include amongst other things:

“(g) private and public game reserves, except to the extent that these facilities are required for the remaining tourists confined to such facilities and activities as envisaged in subregulation (3);” and 

“(m) beaches and public parks.”

Regulation 39(3) reads as follows:

“(3) Tourist attractions must remain closed except for private self-drive excursion activities.”

Again the key elements here are places that are closed to the public and the prohibition and avoidance of gatherings.

From the above one must conclude that only places not normally open to the public can be accessed for recreational fishing.  Club, syndicate and other private venues would fall within this designation.

It is thus my respectful view that provided individuals take care not to constitute a gathering, by exercising social distancing practices and wearing masks, fly fishing as such (as a form of exercise) at a place not normally open to the public, flyfishing should not fall foul of the regulations and should not constitute a gathering.

Given the restrictive nature of the regulations, they would most likely be interpreted “in favorem libertatis” (in favour of liberty) and purposively by a court and this purpose as I’ve pointed out is to prevent gatherings.  This is self-evident because gatherings appear to constitute a serious risk for further increasing infections and spreading of the virus. The point of the lockdown appears to be to minimise this.

I therefore remain of the view that “exercise” in the form of walking and flyfishing at such private places within your metropolitan area and district or hotspot, would be lawful.

The directions published by Minister Creecy appear to make recreational fishing (but only with a permit) a form of exercise.  This brings recreational flyfishing (permits aside) within the bounds of the main regulations.

Flyfishers could, if resident in a particular metro or district or hotspot, exercise and flyfish in that place. 

A note on the issue of permits.  The fact that one can’t get a permit in many places or that as in e.g. KZN, a permit has not be required for almost 20 years, is not something the Minister appears to be aware of. The Minister’s requirement would be an impossibility and therefore in such places not a lawful requirement.  Furthermore if you live at the coast and have a permit although you are allowed to fish you’re not allowed on the beach. So how can you lawfully fish there?

These are some of the irrational matters that arise in this context.  We’ll have to see what the restructured regulations look like in a week’s time.

FOSAF urges all flyfishers to be safe, lawful and mindful of the risks of not maintaining social distancing measures.

Tight Lines

Ilan Lax

FOSAF National Chairperson

9 June 2020

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