Press Release: Court recognises customary rights but fails to give relief to Dwesa-Cwebe fishers
Published by Legal Resources Centre 22 February 2016
For Immediate Release: 22 February 2016
In a judgment handed down on Thursday last week, the Eastern Cape High Court has found that the declaration of Marine Protected Areas (MPAs), previously done in terms of the Marine Living Resources Act (MLRA), does not extinguish the exercise of the customary rights of access of coastal communities to their marine resources.
It is the first time that a High Court has confirmed the existence and status of the customary rights of a fishing community in South Africa. In doing so, the Court has vindicated many similar communities, particularly in the Eastern Cape and KwaZulu-Natal, who have claimed the same recognition for years.
Judge Mbenenge (with Judge Griffiths concurring) found that the mechanism for the exercise of these customary rights is to seek an exemption from the Minister in terms of the MLRA to do so.
The matter concerned the appeal from three fishers from the Hobeni village in a greater area known as Dwesa-Cwebe on the Wild Coast, against their conviction in the Elliotdale Magistrate’s Court for fishing unlawfully within an MPA. The three fishers were later joined at the Court by the rest of the customary fishing communities of Hobeni, Mendwane and Cwebe. The communities, situated in the poorest district in South Africa, told the Court that they fish for subsistence, cultural and economic reasons.
The Court accepted that these communities had systematically been prevented from exercising their customary rights to the resource as a result of decades of removals and regulations, while this prohibition became absolute with the declaration of the Dwesa-Cwebe MPA as a ‘no-take’ zone in 2001.
The fishers argued that they were fishing in the MPA on the strength of their customary rights of access to that specific resource and were, therefore, not acting unlawfully. The Court agreed with the fishers that, under the Constitution, legislation cannot extinguish customary rights without doing so expressly and, given the constitutional recognition and protection of customary rights, any actual extinguishment would be subject to the limitation clause in the Constitution.
While the High Court thus confirmed the finding of the Magistrate’s Court that the community has customary rights to the resources, “existing parallel to […] the MLRA, [and] recognised and preserved by the Constitution”, it disagreed that this made their actions lawful.
The Court found that the fishers should have sought an exemption from the provisions of the MLRA from the Minister (in terms of section 81 of the Act) on the basis that they have customary rights.
In doing so, the Court glossed over the evidence on the record that showed the fishers had been engaging the relevant departments for recognition of their rights of access in terms of the MLRA consistently since at least 2001. In October and December 2013, when the Legal Resources Centre had taken up the representation of the communities, the fishers requested an exemption from the Minister in terms of the MLRA and in writing, but never received any response.
In fact, despite the publicised struggles of customary small-scale fishing communities for recognition of their rights to access the resource, the Minister has never granted an exemption to any community based on its customary rights of access.
The communities intend to appeal the judgment.