Gongqose & others v Minister of Agriculture, Forestry & Fisheries and others

Flashcards covering vocabulary and key concepts from the South African Supreme Court of Appeal case concerning customary fishing rights in a marine protected area.

Customary Law and Fishing Rights

A customary right of access to and use of marine resources can be a defense to unlawfulness under the Marine Living Resources Act 18 of 1998 (MLRA).

Central Issue of the Appeal

The exercise of a customary right of access to marine resources as a defense in criminal proceedings for fishing in the Dwesa-Cwebe Marine Protected Area (MPA) without a permit.

Dwesa-Cwebe Marine Protected Area (MPA)

Located in the former Transkei, incorporates approximately 19 km of rocky shore coastline and extends 6 nautical miles (10.8 km) out to sea.

Dwesa-Cwebe Communities

Communities with shared rules of access to land and marine resources, including the Hobeni, Cwebe, and Mendwane communities.

Transkei Nature Conservation Act 6 of 1971

Act that prohibited persons from fishing, save in accordance with its provisions, and regulated the areas in which certain fish could be caught.

Sea Fisheries Act 58 of 1973

Authorized the Minister to take measures to protect fish, including prohibiting fishing in specified areas and placing restrictions on the quantity of fish that could be caught.

Land Claim

Lodged by the Dwesa-Cwebe communities in 1996 with the Eastern Cape Regional Land Claims Commission for restitution of their land.

Dwesa-Cwebe Settlement Agreement

Concluded on 17 June 2001, stating that communities should have access to sea and forest resources based upon the principle of sustainable utilisation as permitted by law but expressly excluded the MPA from its ambit.

Marine Living Resources Amendment Act 5 of 2014

Amended the MLRA to establish a new structure for the recognition of small-scale customary fishing rights.

Status of Customary Law

Customary law is recognized as an independent and original source of law.

Section 211(3) of the Constitution

Provides that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.

Section 30 of the Constitution

Everyone has the right to use the language and participate in the cultural life of their choice.

Section 31 of the Constitution

Persons belonging to a cultural community may not be denied the right to enjoy their culture and form cultural associations.

Section 39(2) of the Constitution

Enjoins courts to promote the spirit, purport, and objects of the Bill of Rights when interpreting legislation and developing customary law.

Customary Rights Determination

The nature and content of the appellants’ rights of access to and use of marine resources in the MPA must be determined by reference to customary law.

Test of Extinguishment

The Sovereign’s intention must be clear and plain if it is to extinguish an aboriginal right.

Canadian Test

The test that fits perfectly with the text and purpose of s 211(3) of the Constitution (a clear and plain intention to extinguish a customary right).

Article 26 of UNDRIP

Indigenous peoples have the right to the lands, territories, and resources which they have traditionally owned, occupied, or otherwise used or acquired.

General Approach to Statutory Interpretation

The lawgiver does not intend innocent violations of statutory prohibitions to be punishable, unless there are clear and convincing indications to the contrary.

Presumption of Unlawfulness

If a statute does not specifically refer to the element of unlawfulness, there is a general presumption that the defenses excluding unlawfulness would be available to a person charged with contravening a criminal prohibition in a statute.