David Gongqose and two other fishermen from Hobeni, Dwesa-Cwebe in the Eastern Cape last week asked the Supreme Court of Appeal to find unlawful the 2000 declaration of the Marine Protected Area (MPA) along their coastline without consultation or consideration of their customary fishing rights. The closure of the coastline robbed the community of its main source of food and livelihood, the men, who were represented by the Legal Resources Centre, argued on Friday 4 May.
The case arose when 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 Marine Protected Area. They were arrested and charged with, among 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 which had lived and fished in the area for more than 100 years.
The Magistrate’s Court found that the community indeed had a customary law system that includes fishing rights, but found that they were still guilty of an offence in terms of the Marine Living Resources Act (MLRA).
Later that year, the Small Scale Fisheries Policy was promulgated, finally recognising the existence of customary small-scale fishing communities in South Africa.
In 2016, the Mthatha High Court again confirmed that the community had customary fishing rights to the resources in the MPA, and confirmed that those customary rights were not extinguished by the MLRA, when it granted the Minister the right to regulate fishing rights in South Africa.
The Court agreed with the fishermen that any legislation that extinguished their customary rights, without any proper justification, would be unconstitutional. However, the High Court held that the men should have requested an exemption from the Minister in terms of the Act (something which, the LRC says, they did multiple times without success over more than a decade).
The Court also rejected the men’s challenge to the decision to declare the MPA without considering their customary rights, on the basis that they raised the issue subsequent to their criminal conviction in the Magistrate’s Court.
The fishermen are challenging the High Court’s decision in the SCA. They argued that the High Court was correct in finding that their customary fishing rights were not extinguished, but that the Minister cannot, at the same time, have an unlimited discretion as to whether to recognise those customary rights. Customary fishing communities along the Eastern Cape and KwaZulu-Natal coastline have gone unrecognised by successive Ministers since the coming into force of the MLRA.
The fishermen also contend that they had the right to challenge the Minister’s 2000 decision to declare the MPA without any consultation with them or any consideration of the rights of the communities most directly affected by it.
The Minister of Environmental Affairs is opposing the appeal.