The impact of customary rights on marine spatial planning

• Jurisdiction: South Africa
• Date: 14 April 2020
• Author: Hamukuaya, H.
• Citation: 2018 JOLGA 78
• Published date: 14 April 2020

78

THE IMPACT OF CUSTOMARY RIGHTS ON

MARINE SPATIAL PLANNING

HASHALI HAMUKUAYA†

LLD Candidate, Nelson Mandela University

ANTHEA CHRISTOFFELS-DU PLESSIS‡

Lecturer, Department of Criminal and Procedural Law,

Nelson Mandela University

This article considers the potential conflict that may arise between

the cultural rights of members of coastal indigenous communities and

the application of the marine spatial planning legislation in South

Africa. Members of indigenous coastal communities are an integral

part of South Africa’s heritage and many of those communities have

suffered injustices in the past. The Constitution of South Africa

recognises and protects members of indigenous communities’ cultural

rights as customary law. The State also has a constitutional duty to

respect, protect, promote and fulfil the right to participate in the

cultural life of one’s choice. The article outlines the development and

current status of customary law in South Africa. Thereafter, a

discussion of how customary law has developed to the point of

enhancing the environmental rights of the members of indigenous

communities is provided, with specific reference to Alexkor Ltd and

Another v Richtersveld Community and Others and Gongqose and

Others v Minister of Agriculture, Forestry and Fisheries and Others;

Gongqose and Others v State. The article then discusses the potential

conflict between the customary law of members of coastal indigenous

communities who exercise their cultural rights and marine spatial

planning legislation to ascertain to which extent cultural rights may

be limited during the marine spatial planning process.

[Keywords] Marine spatial planning, customary law, cultural

rights, members of indigenous communities.

I INTRODUCTION

South Africa’s marine environment is undergoing a growing

demand for access and the use of the space and resources by

different users for multiple purposes. The latter include fishing,

maritime transport, oil and gas exploitation, aquaculture,

† LLB LLM.

†† LLB LLM.

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The impact of customary rights on marine spatial planning 79

biodiversity conservation, tourism and naval defence.1 The

increase in demand is adding pressure on the oceans and

increasing the likelihood of conflict between the various users.

Amongst these users are members of indigenous communities,

who have relied on the marine environment from time

immemorial. The people of the Dwesa-Cwebe Nature Reserve,

on the east coast of South Africa, north-east of East London, are

an example of members of an indigenous community who have

accessed the marine resources in the area for over 300 years.2

The members of these indigenous communities access and use

marine resources for daily subsistence and traditional practices

such as medicinal uses.3

The South African Constitution4 recognises the existence of

cultural rights of members of indigenous communities,5 rights

that have developed over the years. At the same time, it compels

the State to ‘respect, protect, promote and fulfil the [cultural]

rights in the Bill of Rights’.6 These cultural rights fall within

the ambit of sections 30 and 31 in the Bill of Rights, but they

should not be seen in isolation from other rights.

With regard to the environment, section 24 of the Constitution

requires that the State, ‘through reasonable legislative and other

measures’, ‘secure the ecologically sustainable development and

use of natural resources while promoting justifiable economic

and social development’.7 To that end, the South African

1 Operation Phakisa ‘Unlocking the economic potential of South Africa’s

oceans’ (15 August 2014) (available at https://www.operationphakisa.

gov.za/operations/oel/pmpg/Marine%20Protection%20and%20

Govenance%20Documents/Marine%20Protection%20and%20

Govenance/OPOceans%20MPSG%20Executive%20Summary.pdf,

accessed on 28 November 2019).

2 See Gongqose and Others v Minister of Agriculture, Forestry and

Fisheries and Others; Gongqose and Others v State2018 (5) SA 104

(SCA), 2018 (2) SACR 367 (SCA), 2018 (3) All SA 307 (SCA) 39.

3 For example, the Dwesa-Cwebe community uses the blue ray to treat

individuals who have fits. Cuttlefish is used to treat eye infection in

cattle and mussels are used to promote female fertility. See J Sunde

Customary Governance and Expressions of Living Customary Law at

Dwesa-Cwebe: Contributions to Small-Scale Fisheries Governance in

South Africa (unpublished doctoral thesis, University of Cape Town,

2014) 151.

4 Constitution of the Republic of South Africa, 1996 (‘the Constitution’).

5 See s 30 and 31(1).

6 Section 7(2).

7 Section 24(b)(iii) of the Constitution.

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