A recent judgement by the Willowvale Magistrates Court (Case No. E382/10) in State v David Gongqoze and 2 Others has been reported by, inter alia, the Business Day newspaper as a seminal judgement affirming traditional fishing rights. The spectre was raised that this case allowed for some constitutionally protected right for fishing communities to fish in marine protected areas. If fishing communities have some constitutionally protected right to fish in MPA, they would certainly have free access to fish anywhere else then.
This would of course be unlawful under the Marine Living Resources Act and would be contrary to a raft of international policies and soft laws on fisheries management.
Thankfully, the judgement does not recognise customary fishing rights to trump national fisheries law. What it does recognise in passing is that where national and provincial government departments promise and undertake to recognise and protect certain access rights, then these should be respected. The court in fact found the accused to be guilty of contravening the provisions of section 43 of the Marine Living Resources Act in that they unlawfully fished in an MPA without a permit.
In this regard, the court pointedly referred to a June 2001 agreement concluded between members of the Dwesa-Cweba community and representatives of, inter alia, the erstwhile Department of Environmental Affairs and Tourism to allow community members some level of access to the fish stocks in the MPA which was essentially unilaterally declared in 2000. The court also referred to a 2009 promise and undertaking provided by Dr Alan Boyd of the department of environmental affairs where he promises to re-open a section of the coast for fishing and where Boyd then commissions an evaluation of opening of the MPA by Dr. Peter Fielding who subsequently recommends against such opening!
So, the Gongqoze judgement does confirm that the provisions of the MLRA, and particularly section 43 pertaining to MPA, must be enforced; that fishing in an MPA without a permit is illegal and customary or traditional fishing "rights" do not trump any provision of the MLRA.
The judgement furthermore highlights the poverty and exclusion of, and the extent to which governments (in the national, provincial and local spheres) have failed rural coastal communities. Populist, empty promises about access to resources are currently again being made by the Minister of Fisheries in the small scale fisheries policy. The result however is the creation of false hope, forced poaching and biological destruction resulting in increased poverty.