Case note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018
| Author | Paterson, A. |
| DOI | https://doi.org/10.47348/SAJELP/v26/a5 |
| Published date | 10 December 2021 |
| Date | 10 December 2021 |
| Citation | (2020) 26 SAJELP 134 |
| Pages | 134-160 |
134
https://doi.org/10.47348/SAJELP/v26/a5
THE INTERFACE BETWEEN CUSTOMARY
RIGHTS AND ENVIRONMENTAL
LEGISLATION: LESSONS FROM
GONGQOSE & OTHERS VS MINISTER
OF AGRICULTURE, FORESTRY AND
FISHERIES & OTHERS (SCA) 2018
Alexander Paterson*
Abstract
The Constitution of the Republic of South Africa, 1996, recognises customary
law as an independent and original source of law, subject to the Constitution
itself and legislation that specifically deals with customary law. As recognised
by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community
(2004), customary law, as an independent source of law, may give rise to
rights including rights to access and use natural resources. Rights to access
and use natural resources are often comprehensively regulated by legislation.
Conflicts between customary law and legislation relevant to natural resources
may arise, as evidenced in the case of Mr Gongqose, who along with several
other community members were caught fishing in the Dwesa-Cwebe Marine
Protected Area situated off the Eastern Cape coastline. Notwithstanding their
claims to be exercising their customary rights to fish in the area, they were
convicted in the Magistrate’s Court for certain offences in terms of the Marine
Living Resources Act (1998), under which the marine protected area had
been established. Their appeal to the High Court proved unsuccessful and the
Supreme Court of Appeal was tasked with considering the relationship between
their customary rights to fish and legislation purportedly extinguishing these
rights. The SCA’s judgment in Gongqose & Others vs Minister of Agriculture,
Forestry and Fisheries & Others (2018) is the first of its kind in South Africa
to consider the extinguishment of customary rights to access and use natural
resources through post-constitutional legislation. This note critically considers
the guidance the SCA provided on proving the existence of customary rights
to access and use natural resources, and the manner in which they may be
extinguished through legislation. While the focus is on marine living resources,
the lessons emerging from this case are relevant to other natural resource
sectors.
* BSocSci LLB LLM (Environmental Law) PhD (UCT) Professor of Law,
Institute of Marine and Environmental Law, Faculty of Law, University of
Cape Town�
(2020) 26 SAJELP 134
© Juta and Company (Pty) Ltd
135
THE INTERFACE BETWEEN CUSTOMARY RIGHTS AND
ENVIRONMENTAL LEGISLATION
https://doi.org/10.47348/SAJELP/v26/a5
1 INTRODUCTION
Our grandfathers just knew that they should go to the sea; it was
not a right like we call it today, it was life� It wasn’t given by the
government� These words we use today are not even appropriate�
Ideally we would like to live the way our grandfathers did� But
perhaps we can’t have that life again� Now we are living in a
time of rights� So at minimum now we want our right�1
This quote from interviews with members of the Dwesa-Cwebe
community several years ago, highlights the central dispute which
played out to final conclusion recently in the Supreme Court of
Appeal (SCA), namely how to resolve overlaps and conflicts
between customary rights over natural resources and domestic
legislation seeking to regulate these natural resources� Dating
back to a range of criminal charges laid against the appellant (Mr
Gongqose) and two others in September 2010, and following the
matter traversing through both the Magistrate’s Court2 and the
High Court,3 the Supreme Court of Appeal in Gongqose & Others
v Minister of Agriculture, Forestry and Fisheries and Others4 was
tasked with determining whether Mr Gongqose and his fellow
convicted could on appeal raise the exercise of a customary right
as a successful defence in criminal proceedings� The judgments of
both the Magistrate’s Court5 and the High Court6 have previously
been subject to rigorous legal academic enquiry, and it is not
the purpose of this note to traverse this territory in detail again�
Similar rigorous academic enquiry regarding the SCA’s judgment
1 Interviews with Dwesa-Cwebe Community Members held in January
2012, quoted in J Sunde Customary Governance and Expressions of Living
Customary Law at Dwesa-Cwebe: Contributions to Small-scale Fisheries
Governance in South Africa� Thesis presented for the degree of Doctor of
Philosophy, University of Cape Town (August 2014), at 101 and 153-154�
2 S v Gongqose & Others unreported case no E382/10�
3 S v Gongqose & Others 2016 (1) SACR 556 (ECM)�
5 See K Lehmann ‘Fishing in protected waters: Balancing customary rights
and conservation imperatives’ (2011) 18 SAJELP 77-93; L Feris ‘A customary
right to fish when fish are sparse: Managing conflicting claims between
customary rights and environmental rights’ (2013) 16(3) PER 555-580�
6 See W Freedman ‘Constitutional aspects of criminal justice’ (2017) 1
SACJ at 130-135�
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