In a ground-breaking judgment for the protection of customary rights of access to resources in South Africa, the Supreme Court of Appeal has held that three fishermen, who were found guilty of fishing unlawfully in a Marine Protected Area without permits, were exercising their customary right to fish and were therefore acting lawfully.
In overturning the convictions of David Gongqose and two other fishermen from Hobeni, Dwesa-Cwebe in the Eastern Cape by the Elliotdale Magistrate’s Court, upheld by a full bench of the High Court, the SCA held that the lawfulness of the conduct of the appellants could not be determined in terms of the Marine Living Resources Act (MLRA) or common law, but in terms of customary law.
If Parliament wants to extinguish those customary rights, they must do so in a clear and justifiable manner through legislation.
Simply ignoring customary rights, like the MLRA did before its amendment in 2014, cannot amount to extinguishing those rights. Indeed, the Constitution provides those customary rights “special protection”, the Court found.
The case arose when Mr Gongqose and two others entered Dwesa-Cwebe Nature Reserve (land transferred in ownership to the communities in terms of a restitution agreement in 2001) in order to fish inside the adjacent MPA.
They were arrested and charged with, amongst other things, attempting to fish illegally inside an MPA.
The accused fishermen told the Elliotdale Magistrate’s Court that they should not be found guilty, as they were, in fact, exercising their rights to fish in terms of the customary law of their community who had lived and fished in the area for more than a hundred years.
In the judgment, Schippers, AJ, writing for a unanimous Court, held that:
These rights and practices [of customary fishing] were extant long before the MLRA came into force in September 1998 and are subject to significant regulation by customary law.
Customary rights and conservation co-exist. And it is important to remember that as regards conservation and long-term sustainable utilisation of marine resources in the MPA, the Dwesa-Cwebe communities have a greater interest in marine resources associated with their traditions and customs, than any other people.
The judgment sets an important precedent not only for communities accessing marine resources in terms of customary law, but also those accessing land and other natural resources in terms of the customary law of their communities.
In the words of Schippers AJ, it brings “customary law, which has not occupied its rightful place in this country, directly to the fore”.
Photo: Robbie Irlam