Press Release: Court finds fishing restrictions at Langebaan irrational – calls for transformation
Published by Legal Resources Centre 01 November 2016
For Immediate Release: 1 November 2016
Yesterday, 31 October 2016, in the Cape Town High Court, relief was granted to a traditional small-scale net fishing community, represented by the Legal Resources Centre, who were restricted from fishing in an area of the Langebaan lagoon known as ‘Zone B’.
The court found that the decision by the Department of Agriculture, Forestry and Fisheries to ban the Langebaan small-scale community from fishing for harders in Zone B is arbitrary and irrational and constitutes unfair discrimination against the fishers on the grounds of race. These restrictions were set aside.
The Langebaan lagoon has a long history of net fishing and the fishers are descendants of a long line of net fishers. They were removed from their land adjacent to the lagoon as a result of apartheid removals but continued to make their way to the lagoon to fish for harders.
In 1991, in an ironic twist, the new white landowners of this land adjacent to the lagoon, and by then incorporated into the West Coast National Park, were granted access to fish in Zone B. This arrangement continues to this day, even after the authorities decided, some years ago, that the small-scale fishers may no longer do so. As a result, only white landowners are allowed access to Zone B.
The small-scale fisher community challenged their restrictions from Zone B in court.
The Department argued that the exclusion of the small-scale fishers from Zone B, while allowing white landowners to do so, was justified given that the policy on the allocation of net-fishing rights provides that persons must live “adjacent” to the fishing zone where they have rights. However, the Court found that:
[I]n the context of this matter, the provisions in question serve, perversely, to exclude persons such as the applicants who are historically disadvantaged black fishermen whose ancestors used to live adjacent to the lagoon before they were forcibly removed from the area by the apartheid regime as part of its spatial planning. As it stands, therefore, the impact of these provisions in the Net-fishing policy, whilst having a laudable intention, serves to discriminate indirectly between white fishermen who now reside alongside Zone B at the expense of black, historically disadvantaged fishermen who used to live there. Although the distinction is sought to be made on a geographical basis, the effect thereof is to discriminate unfairly, on a racial basis, between white and black fishermen, and thus on this ground too the imposition of the restrictive condition is unfair and unconstitutional.
The Langebaan small-scale fishers argued, with the help of expert evidence, that the available scientific evidence does not indicate that net fishing in Zone B will have an unacceptable ecological impact. They argued that, by the Department’s own admission, no up-to-date assessment of the relevant fish stocks is available.
The court agreed. In addition, Sher J found that the department acted irrationally in not taking into account the need to transform the fishing industry and provide sustainable and equitable access to small-scale fishing communities. The court noted the adoption of the Small Scale Fisheries Policy in 2012 which provides for preferential access for small-scale fishing communities. The Department took none of these considerations into account in banning the Langebaan fishers from Zone B.
“If a complete ban on fishing was imposed on the entire Langebaan lagoon, there can be little doubt that this would result in an improvement in fish numbers and sizes. But in exercising the powers they have in this regard in terms of the MLRA, the Minister and other departmental functionaries who must determine whether or not to grant rights to fish in terms of permits or exemptions, are not required to have sole regard for the imperatives of ecological conservation at the expense of all the other considerations listed in the Act.”
The LRC welcomes the court order and supports the court’s call upon the departments to engage with the traditional fishers, “with a view to arriving at a fair and suitable accommodation in terms of which they are granted some rights to fish, of a sort, in such areas as the experts may deem to be suitable, and on such terms and conditions as may be deemed to be appropriate in the light of the various factors which need to be taken into account including the applicants’ historical claim to traditional fishing rights, the imperatives of transformation and the need for ecological conservation whilst also allowing for sustainable utilisation and development of the resources concerned.”
The judgment comes at an important time as small-scale fishing communities across South Africa, and in particular many living adjacent to Marine Protected Areas, continue to struggle for the proper implementation of the Small Scale Fisheries Policy.