Gongqose and Others v Minister of Agriculture and Others

• Jurisdiction: South Africa
• Judge: Maya P, Majiedt JA, Dambuza JA, Plasket AJA and Schippers AJA
• Judgment Date: 01 June 2018
• Citation: 2018 (5) SA 104 (SCA)
• Docket Number: 1340/17 [2018] ZASCA 87
• Hearing Date: 01 June 2018
• Counsel: T Ngcukaitobi (with M Bishop) for the appellants. K Pillay for the third and fourth respondents.
• Court: Supreme Court of Appeal

Schippers AJA (Maya P, Majiedt JA, Dambuza JA and Plasket AJA concurring):

[1] This appeal brings customary law, which has not occupied its rightful D place in this country, directly to the fore. The central issue is whether the appellants could successfully raise the exercise of a customary right as a defence in criminal proceedings against them, more specifically, whether the exercise of a customary right of access to marine resources rendered their conduct in attempting to fish in the Dwesa-Cwebe Marine Protected Area (the MPA) in the district of Elliotdale, without a permit, E lawful.

Factual background

[2] The MPA was declared by the former Minister of Environmental Affairs (the Minister) on 29 December 2000 under the now repealed F s 43 of the Marine Living Resources Act 18 of 1998 (the MLRA), on a strictly 'no take' basis, ie no fishing nor harvesting of resources in the MPA was permitted. [1] It is located in the former Transkei, on the east coast of South Africa, north-east of East London. It incorporates approximately 19 km of mainly rocky shore coastline and extends 6 nautical miles (10,8 km) out to sea. The MPA is adjacent to the G Dwesa-Cwebe Nature Reserve (the Reserve) which was the subject of a successful land claim by communities of the area, as appears more fully below.

[3] The appellants are members of the Hobeni community, situated directly adjacent to the Reserve. The Cwebe community is located north H of Hobeni adjacent to the border of the MPA and the coastline. The Mendwane community is also located adjacent to the Reserve, but it has no access to the coastline. These communities, hereafter referred to as 'the Dwesa-Cwebe communities', have shared rules of access to land and marine resources and as such, constitute communities in terms of customary law.

[4] I It is common ground that the Dwesa-Cwebe communities were dispossessed of their land and that they historically relied on forest and

Schippers AJA (Maya P, Majiedt JA, Dambuza JA and Plasket AJA concurring)

marine resources for their livelihood. Prior to the declaration of the MPA A in 2000, their access to marine resources was restricted by various laws, referred to hereafter. The Transkei Nature Conservation Act 6 of 1971 (the Transkei Nature Conservation Act) prohibited persons from fishing, save in accordance with its provisions, and regulated the areas in which certain fish could be caught. B

[5] In terms of the Sea Fisheries Act 58 of 1973 (the Sea Fisheries Act) the Minister was entitled to take measures to protect fish, which prohibited fishing in a specified area. The Minister was also entitled to place restrictions on the quantity of fish that could be caught or processed. C

[6] In 1975 the Reserve was proclaimed in terms of the Transkei Nature Conservation Act, which extended the conservation area from the forests to include the shoreline, rivers and estuaries. Measures that accompanied the 'independence' or sovereignty of Transkei, [2] brought about the end of the communities' access not only to the forests, but the grasslands and seashore as well. D

[7] In 1991 the shoreline abutting the Reserve, the tidal waters and the inland waters up to six nautical miles were incorporated as a marine reserve in terms of special regulations made under the Sea Fisheries Act. This further exacerbated exclusion of communities from E marine resources. No collection of any marine organism was permitted under the rules of the marine reserve and anyone found contravening that rule was liable for a fine of up to R50 000 or six years' imprisonment. The Sea Fisheries Act authorised the Minister to take measures to protect fish, including the prohibition of fishing in a specified area; and to place restrictions on the quantity of fish that could be caught. F

[8] The Transkei Nature Conservation Act was repealed by the Transkei Environmental Conservation Decree No 9 of 1992 (the Conservation Decree), [3] which authorised the Minister, inter alia, to designate a closed season during which fish of any defined species could not be caught; to prohibit the catching or wilful disturbing of fish; and to authorise the G catching of fish. [4]

[9] In 1996 the Dwesa-Cwebe communities lodged a claim with the Eastern Cape Regional Land Claims Commission for restitution of their land known as the Dwesa-Cwebe Nature Reserves, in terms of the Restitution of Land Rights Act 22 of 1994 (the Restitution Act). H On 19 April 1996 the land claims were gazetted.

[10] The history of the dispossession of the Dwesa-Cwebe communities was described by the Regional Land Claims Commissioner: Eastern I

Schippers AJA (Maya P, Majiedt JA, Dambuza JA and Plasket AJA concurring)

Cape A (the Land Claims Commissioner) in a memorandum as follows. [5] The communities have been living within the Reserves for some 300 years. In 1885 the Cape government annexed the area within which the Dwesa Reserve is situated in terms of Proclamation 140 of 26 August 1885 and annexed the area within which the Cwebe Reserve is situated under the Tembuland Annexation Act 3 of 1885. In 1890 Dwesa was B declared a state forest but local people continued to use the land and its resources for residential and agricultural activities until well after 1913. Between 1900 and 1950 local villages, including Cwebe, were destroyed and residents moved out of the reserves.

[11] C In the 1930s the Dwesa community was removed from the area and relocated to land adjacent to the fenced reserves of Dwesa and Cwebe. The removal was effected to give white traders and farmers priority access to prime land. Black families were not allowed to live in the reserves but the communities continued to use the land and its resources. In the 1970s further forced removal took place as part of 'betterment' D planning in respect of black communities as a means of concentrating them within easily controllable areas, in line with government policy at the time. The Transkei Conservation Act established the Dwesa-Cwebe Nature Reserves in 1975, and fencing of the reserves commenced with the resultant denial of access to the local villagers. During that period E white families were allowed to maintain residential areas within the reserves and use the forest and sea resources whilst the local black communities were denied access to the Reserve and its resources.

[12] The Land Claims Commissioner recommended that the claim by the Dwesa-Cwebe communities be settled in terms of s 42D of the F Restitution Act. [6] He also recommended compensation for the claimant communities pursuant to their agreement that the land remain a protected conservation area in perpetuity, and payment of restitution and settlement planning grants to a trust to be formed on behalf of the claimants. These recommendations were accepted. On 17 June 2001 the Dwesa-Cwebe Settlement Agreement was concluded. The agreement G stated that 'the communities should have access to sea and forest resources, based upon the principle of sustainable utilisation as permitted by law' and that they would 'enjoy favoured status in terms of benefits from eco-tourism, employment opportunities, resource rights, input to management policies etc in accordance with the management plan'. However, the Settlement Agreement expressly excluded the MPA H from its ambit.

[13] Enforcement of the prohibition on fishing in the MPA only began around 2005 and the Dwesa-Cwebe communities continued to fish

Schippers AJA (Maya P, Majiedt JA, Dambuza JA and Plasket AJA concurring)

according to their customary practices. From 2006 to 2008 correspondence A passed and numerous meetings were held between representatives of the communities and the Department of Environmental Affairs and Tourism concerning access by the communities to, and sustainable utilisation and benefit of, marine resources in the MPA, but without success.

[14] On 22 September 2010 the appellants were arrested and charged B with attempting to fish in a marine protected area without permission, in contravention of s 43(2)(a) of the MLRA (count 1); entering a national wildlife reserve area without a permit in contravention of s 29(1)(a) of the Conservation Decree (count 2); entering a national wildlife reserve while being in possession of a weapon or trap, to wit, fishing rods, lines C and hooks, in contravention of s 29(1)(b) of the Conservation Decree (count 3); and wilfully killing or injuring or disturbing any wildlife animal other than fish caught in accordance with such regulations as may be prescribed in terms of the Conservation Decree, in contravention of s 29(1)(c)(count 4).

[15] The appellants were tried in the Magistrate's Court, Elliotdale. D They pleaded not guilty to the charges. Their defence was that their conduct was not unlawful because they were exercising their customary right to fish. Despite finding that the appellants indeed exercised that right at the material times, the magistrate convicted them of contravening E s 43(2)(a) of the MLRA (count 1) and acquitted them on the remaining charges. The first and second appellants were sentenced to a fine of R500 or 30 days' imprisonment, wholly suspended for one year on condition that they were not convicted of contravening s 43(2)(a) of the MLRA, during the period of suspension. The third appellant (a minor) was cautioned and discharged. F

[16] The appellants were granted leave to appeal against their convictions. One of the grounds of appeal was that the declaration of the MPA by the Minister on 29 December 2000 (the impugned decision) was reviewable and fell to be set aside, inter alia, on the ground that in declaring the MPA, the Minister failed to recognise the appellants' G customary rights. Consequently, on 12 December 2013 the appellants and the Dwesa-Cwebe communities launched an application to review and set aside the...