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

Case Overview

• Case Name: Gongqose & others v Minister of Agriculture, Forestry & Fisheries and others; Gongqose & others v State & others
• Case Numbers: 1340/16 & 287/17
• Court: Supreme Court of Appeal of South Africa
• Date of Judgment: 01 June 2018

Parties Involved

Appellants

• MALIBONGWE DAVID GONGQOSE (FIRST APPELLANT)
• SIPHUMILE WINDASE (SECOND APPELLANT)
• NKOSIPHELA JUZA (THIRD APPELLANT)
• VUYELWA SIYALEKO (FOURTH APPELLANT)
• TATANA MXABANI (FIFTH APPELLANT)
• BENJAMIN VON MEYER (SIXTH APPELLANT)
• THE HOBENI COMMUNITY (SEVENTH APPELLANT)
• THE MENDWANE COMMUNITY (EIGHTH APPELLANT)
• THE CWEBE COMMUNITY (NINTH APPELLANT)

Respondents

• MINISTER OF AGRICULTURE, FORESTRY AND FISHERIES (FIRST RESPONDENT)
• DEPUTY DIRECTOR: FISHERIES, DEPARTMENT OF AGRICULTURE, FORESTRY AND FISHERIES (SECOND RESPONDENT)
• MINISTER OF ENVIRONMENTAL AFFAIRS (THIRD RESPONDENT)
• DEPUTY DIRECTOR: OCEANS AND COASTAL MANAGEMENT, DEPARTMENT OF ENVIRONMENTAL AFFAIRS (FOURTH RESPONDENT)
• THE STATE (RESPONDENT in Case No: 287/17)

Key Legal Issue

• Whether the appellants could raise the exercise of a customary right as a defense in criminal proceedings, specifically, fishing in the Dwesa-Cwebe Marine Protected Area (MPA) without a permit.

Background Facts

• The MPA was declared on 29 December 2000 under s 43 of the Marine Living Resources Act 18 of 1998 (MLRA) on a 'no take' basis.

• The MPA is located in the former Transkei, incorporating approximately 19 km of coastline and extending 6 nautical miles (10.8 km) out to sea.

• The appellants are members of the Hobeni community, adjacent to the Dwesa-Cwebe Nature Reserve, with shared rules of access to land and marine resources (Dwesa-Cwebe communities).

• The Dwesa-Cwebe communities were dispossessed of their land and historically relied on forest and marine resources for their livelihood.

• Prior to the MPA declaration, access to marine resources was restricted by various laws.

  • Transkei Nature Conservation Act 6 of 1971
  • Sea Fisheries Act 58 of 1973

• In 1975, the Reserve was proclaimed, extending the conservation area and ending the communities’ access to forests, grasslands, and the seashore.

• In 1991, the shoreline abutting the Reserve, tidal waters, and inland waters up to 6 nautical miles were incorporated as a marine reserve under the Sea Fisheries Act.

• The Transkei Nature Conservation Act was repealed by the Transkei Environmental Conservation Decree No 9 of 1992.

• In 1996, the Dwesa-Cwebe communities lodged a claim for restitution of their land under the Restitution of Land Rights Act 22 of 1994.

• The Land Claims Commissioner described the history of dispossession, noting the communities' long-standing presence in the reserves and their removal to give priority to white traders and farmers.

• On 17 June 2001, the Dwesa-Cwebe Settlement Agreement was concluded, granting communities access to sea and forest resources based on sustainable utilization, but excluding the MPA.

• Enforcement of the fishing prohibition in the MPA began around 2005, while the Dwesa-Cwebe communities continued fishing according to customary practices.

• On 22 September 2010, the appellants were arrested and charged with attempting to fish in a marine protected area without permission, among other charges.

Trial and Appeals

• The appellants pleaded not guilty, arguing their conduct was not unlawful because they were exercising their customary right to fish.

• The Magistrate convicted them of contravening s 43(2)(a) of the MLRA but acquitted them on the remaining charges.

• The High Court upheld the convictions, stating that the appellants should have applied for an exemption as contemplated in the MLRA.

• The High Court dismissed the review application, citing collateral challenge and unreasonable delay.

• The appellants were granted leave to appeal only against the dismissal of the review.

• Two important developments occurred before the appeal and review were heard:

  • The Marine Living Resources Amendment Act 5 of 2014 repealed s 43 of the MLRA, establishing a new structure for the recognition of small-scale customary fishing rights.
  • The Minister published new regulations for the management of the MPA, introducing limited access for community members.

Key Arguments

• Appellants' Argument: They were exercising their customary right to fish, which had not been extinguished by statutory regulation, and therefore their conduct was lawful. If the MLRA or the Conservation Decree was interpreted to prevent them from exercising their customary rights, then those laws are inconsistent with the Constitution and invalid.
• State's Argument: (Initially) The NDPP chose to abide by the decision of the Court, which was later criticized for not providing sufficient legal argument.

Court's Analysis and Findings

Status of Customary Law

• The Constitution recognizes customary law as an independent and original source of law (s 211).
• Courts must apply customary law when applicable, subject to the Constitution and any legislation that specifically deals with customary law.
• Customary law is protected by and subject to the Constitution and may require adjustment to align with the Constitution.
• The legislative authority of Parliament to pass laws dealing with customary law is recognized.
• Recognition of customary law is further entrenched by ss 30, 31, and 39 of the Constitution, pertaining to cultural rights, cultural community rights, and the interpretation of legislation.
• Customary law may give rise to rights, such as access and use rights to resources.

Proof of Customary Rights

• The appellants admitted to being arrested within the Reserve, intending to fish without permits.
• They claimed membership of the Hobeni community, governed by a system of customary law regulating access to marine resources.
• Mr. Gongqose testified about the customs and traditions of fishing passed down through generations, the allocation of fishing spots, and reliance on the sea for traditional customs.
• Ms. Siyaleko described customary rituals relating to the sea and its intrinsic value to ancestral ceremonies.
• Expert evidence was presented by Dr. Derick Fay and Ms. Jacqueline Sunde, who testified to the existence of a customary system governing the use of natural resources in the Dwesa-Cwebe communities and the impact of statutory regulation on customary law and practices.
• The State presented evidence by Dr. PJ Fielding, who testified concerning the benefits of marine protected areas in sustaining resources and managing fish stocks.
• The court emphasized that the validity of a custom is determined by reference to the Constitution, not common law.
• 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.
• The appellants proved the existence of a customary system governing all aspects of life in the Dwesa-Cwebe communities, including access to and use of natural resources.
• The Magistrate found that the evidence established the existence of a customary right to fish within the relevant coastal waters by the Dwesa-Cwebe communities.
• The High Court acknowledged that these rights were always subject to some form of regulation under customary and traditional practices.

Extinguishment of Customary Rights

• The court noted that only clear and justified extinguishment of customary rights is permissible.
• Referenced Canadian and Australian jurisprudence on aboriginal fishing rights and native title.
• The Canadian test requires a clear and plain intention to extinguish a customary right.
• The Australian approach suggests that regulation of fishing through a permitting scheme does not extinguish native title rights.
• The court held that a customary right can only be extinguished by legislation specifically dealing with customary law, either expressly or by necessary implication.
• There is nothing in the language of the MLRA that specifically deals with customary rights.
• The purposes of the MLRA are consistent with the continued existence of customary rights of access to and use of marine resources.
• An interpretation that the appellants’ customary rights survived the enactment of the MLRA grants them the fullest protection of their customary system guaranteed by s 211 of the Constitution.
• International law recognizes the rights of indigenous peoples to their lands and resources traditionally owned.
• The MLRA did not extinguish the appellants’ customary right of access to and use of marine resources.

Unlawfulness of Conduct

• The appellants were charged with a contravention of s 43(2)(a) of the MLRA, which prohibits fishing in a marine protected area without permission.
• The court noted that when a statute is silent on the elements of an offense, there is a general presumption that the defenses excluding unlawfulness would be available.
• A defense excluding unlawfulness in a statutory offense is possession of the ‘necessary authority’.
• The appellants proved that at the time of the commission of the offense, they were exercising a customary right to fish.
• That right was not extinguished by legislation specifically dealing with customary law.
• Therefore, the appellants’ conduct was not unlawful.
• The court rejected the High Court’s finding that the appellants’ conduct was unlawful because they had not sought an exemption under s 81 of the MLRA.
• The court also rejected the High Court’s finding that to contend that a customary right negates unlawfulness on a charge under the MLRA would elevate the rights to culture at the expense of the right to a healthy environment.
• The requisites for special leave to appeal have been met.

Court Order

1. The application for special leave to appeal in case number 287/17 is granted.
2. Paragraph 1 of the order of the High Court is set aside and replaced with the following order: ‘The appeal is upheld and the appellants’ convictions and sentences are set aside.’