CUSTOMARY RIGHT TO FISHING NOT NEGATING UNLAWFULNESS

S v GONGQOSE AND OTHERS 2016 (1) SACR 556 (ECM)

Conservation — Fishing — Within marine reserve in contravention of Marine Living Resources Act 18 of 1998, s 43(2)(a) — Customary rights accorded to appellants not negating unlawfulness.

Conservation — Fishing — Within marine reserve in contravention of Marine Living Resources Act 18 of 1998, s 43(2)(a) — Constitutionality of provision in respect of conflict with customary rights to exploit marine resources — Nothing in provision offending against Constitution.

 

The appellants appealed against their conviction and sentence in a magistrates’ court for attempting to fish in a marine reserve without permission in contravention of s 43(2)(a) of the Marine Living Resources Act 18 of 1998 (the Act). The magistrate found that the appellants were members of a community that had rights in terms of customary law to the marine resources within the reserve and the marine protected area (MPA). The court found further that the decision to proclaim the marine reserve and MPA had been taken with little or no consultation with the local community. The ban on fishing imposed by the Act had also extinguished the community’s customary rights without any consultation. The court held, however, that it had no power to strike down s 43 as being unconstitutional and that the appellants would have to have the constitutionality of the section determined on appeal if they so wished.

On appeal the appellants contended that the court a quo had erred in failing to find that proof of a customary-law right to access to the resources negated unlawfulness. Accordingly, the court ought to have found that their conduct was not unlawful in terms of s 43. They contended further that the MPA declared by the Minister of Environmental Affairs and Tourism fell to be set aside on the grounds that the decision was reviewable in terms of PAJA the Minister of Environmental Affairs and Tourism fell to be set aside on the grounds that the decision was reviewable in terms of PAJA in that it was unlawful, unreasonable and procedurally unfair. They also contended that the provisions of s 43 and the related provisions of the Act were inconsistent with the Constitution and accordingly invalid.

Held, as to whether the existence of a customary right negated unlawfulness on a charge under the Act, that the customary rights contended for, which were of limited territorial application, operated in parallel with the Act, which was of national application. The introduction of a law of general application, aimed at preserving and protecting marine living resources for the benefit of all, had not had the effect of jettisoning the customary rights that had been exercised by the appellants’ communities. It must have been within the contemplation of the legislature when enacting the Act that there were persons such as the appellants exercising customary rights in respect of marine resources, hence the provision made for persons to apply to be exempted from obtaining a permit for fishing. Further, nothing in the Act prevented the appellants from seeking such an exemption, even on the basis that in terms of customary law such a permit was not required. The appellants had not done so before setting out to fish. Their conduct was unlawful in terms of the Act and the rights accorded to them by customary law therefore did not negate the existence of unlawfulness.

Held, further, as to the constitutionality of s 43, nothing in the section offended against the Constitution. Nor was there scope for an interpretation that disregarded or extinguished the appellants’ customary rights of access to marine resources. If regard were had to the purpose of the declaration of an MPA, it was also not clear as to what bearing customary law had on such a declaration. Section 43 was accordingly not unconstitutional for not permitting the recognition of customary-law rights of access to marine resources.

The appeal was accordingly dismissed. A simultaneous review application brought by the appellants was also dismissed.

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