Monday, May 28, 2012

What Customary Fishing Rights?

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. 



  1. You miss the argument. Communities don't have a constitutionally protected right to fish in MPAs, they have a constitutionally protected right to fish in customary fishing grounds, which in this case represents the coast adjacent to their village, as provided for in living and historical custom everywhere along the Wild Coast. No community will be able (or have any intent) to claim beyond their accompanying coastal waters, traditionally seen as part-and-parcel of living space occupied by their communities. I do not need to define community, as every and any coastal community inherently understands and grasps the definition of the group, as it is simply based on practical walking distances. If you live too far from the sea, you have no rights. These rights are not being claimed for purposes of commercial exploitation, but livelihoods survival.

    The court reluctantly found the accused guilty because it recognised that it lacked the power to overturn law on constitutional grounds. The magistrate did pass carefully considered and argued adverse commentary on the application or constitutional validity of certain Acts. Substantive expertise were made use of by both prosecution and defence, and all parties clearly understood that this case was likely to end up in the Constitutional Court. The guilty verdict is little more than a technical necessity, not a resolution of a complex issue.

    What is not apparent from this case is a broader human rights crisis, with an escalating number of people shot in the back, with no witnesses present, by Parks Board officials, supposedly for resisting arrest while apprehended for poaching (read fishing); or ludicrous recent convictions where, for example, taking mud prawns 5km inland on the Mbashe river, clearly adjacent to village land, landed the accused with a 5-year suspended sentence. What's wholly absent from your perspective is the continuous arrest of often very elderly people with accompanying assaults, transport to distant police stations, and repeated court postponements (typically 10 times). The accompanying environment of terror, in the name of the MPA, is currently being scrutinised by the Human Rights Commission.

    In practical terms, the most intransigent governmental unit (in terms of undoing the land claims court agreed benefits of restitution) has been Marine and Coastal Management. You were in charge part of that time. And your former Department maintained a position, both before and after the restitution agreement, of living in the past in terms of people's rights and expectations.

    The agreement itself has been a swindle: formally signed by then Deputy-President Zuma, no title deed to either the reserve land or the local hotel has ever been transferred; settlement monies found its way to municipalities and consultants instead of claimants; and co-management - a critical agreement prior to full management accompanying ownership of the reserve (the reserve is leased for 21 years) - has never been entertained.

  2. Sorry, Andre "communities" (and your definition does not work) do not have a constitutional right to fish - there is no provision in the Constitution for the guarantee of access to "customary fishing grounds". Have you ever tried to identify the fishing community in say, Lamberts Bay, Doring Bay or any really ancient fishing village on the west coast? The definable concept of fishing community may have existed in the early part of the last century but certainly not now, particularly as people regularly migrate in and out of these coastal villages and towns and cities.

  3. Parts of the judgment read as follows: "Whether the provisions of the Marine Living Resources Act 18 of 1998 in so far Section 43 are concerned would survive a test of constitutional validity is debatable to say the least. Whether fortunate or otherwise, such determination of constitutional validity does not fall to be determined by this court; such authority being expressly excluded by section 170 of the Constitution." The court also noted the constitutional entrenchment of customary law (see Section 39 in particular). The case is on appeal (Mthatha High Court). The issue is customary law.

    Definition of community: I expressly referred to the Wild Coast, most certainly not the West Coast. Wild Coast fishing communities reside on communal tenure land, with migration generally temporary and linked to customary land rights. Unfortunately you fail to grasp the sharp distinction in land tenure, customary rights and user practices, with regard to the Western and Eastern Cape (and KZN). As did Marine and Coastal Management on a constant basis since 1994, happy to service a Western Cape fishing industry, clueless about - and likely constitutionally at odds with - realities elsewhere on this coast.

  4. Andre, section 43 of the MLRA gives effect to various international and other national law obligations aimed at protecting and recovering fish stocks. I am more than happy to stake my professional reputation on the line and emphatically state that no court will or could declare section 43 invalid, particularly as it gives direct effect to section 24 of the Bill of Rights. The Constitution and section 39 in particular does not entrench customary law! Section 39 explicitly requires the DEVELOPMENT of customary law to be in accordance with the spirit, objectives and purport of the Bill of Rights! In other words, where custom or tradition exists, this must accord with the Bill of Rights, such as section 24; NOT the way around!

    Oh yes, communities in that part of the world exist at the behest of tribal authorities and chiefs. Lets see what the High Court says about the Magistrate's Court's obiter statements about section 43.