The ancient, customary right of traditional anglers on the Wild Coast to fish in marine protected areas has been upheld by the Supreme Court of Appeal.
Yesterday, in a judgment, the SCA exonerated three Wild Coast anglers who were found guilty of fishing unlawfully in the Dwesa-Cebe reserve. The SCA ruled that conservation rights had to co-exist with customary rights.
David Gonqose, Siphumle Windasi and Nkosiphendule Juza, who are fishermen from Hobeni village, were arrested in 2010 for fishing in a marine protected area (MPA) inside the reserve without permits and were found guilty of fishing illegally by the Elliotdale Magistrate’s Court. However, in what has been hailed as a landmark judgment, the SCA last Friday ruled in favour of Gongqose and others.
The three, through the Grahamstown Legal Resources Centre (LRC), challenged that decision, arguing they were exercising their traditional rights, which they and their parents had been doing for centuries.
Speaking to the Daily Dispatch, Gongqose said the Hobeni community was situated directly adjacent to the reserve and had shared access to land and marine resources. “We have historically relied on forest and marine resources for our livelihood and for generations we were a thriving community,” said Gongqose.
They were charged with three counts, including entering a wildlife reserve area without a permit; entering a national wildlife reserve while in possession of a weapon or trap, fishing rods, lines and hooks; and willfully killing, injuring or disturbing wildlife other than fish caught in line with the law.
He said they pleaded not guilty, and when they were acquitted on other charges – except the first count of not having a permit – they decided to appeal on the grounds that the declaration of the MPA in 2000 by the then minister of agriculture, forestry and fisheries (DAFF) had failed to recognise their customary rights.
Gongqose said in 2015 DAFF attempted a compromise when the Marine Living Resources Amendment (MLRA) Act established a new structure for the recognition of small-scale customary fishing rights and set out new regulations for the management of MPAs which introduced limited access to the MPA for community members.
“This could not work because there were many conditions, for example the regulations only allowed 39 permit-holders to catch no more than 10 fish each daily and also there was a prescribed set of hours that one could fish, which is tricky because the tide often comes in later in the day and by then one had to have left the area, so we were not happy and we decided to not give up on the appeal,” said Gongqose.
He said he was 10 when he was taught the skills and traditions of fishing from his father and these included how to conserve and protect fishing spots. “For example there are rules in our community that small fish and fish with eggs should be left so that there could be more fish in the coming years, so I feel we have a right because we grew up there and our great-grandparents have been fishing there for over 100 years,” he added.
Gongqose said the community experienced immeasurable hardships thanks to the ban on fishing and now he hoped the judgment would set an important precedent, not only for communities having access to  marine  resources  in terms of  customary law, but also those accessing land and other natural resources  in terms of the  customary law  which was upheld in their communities.
LRC spokeswoman Claire Martens said the SCA held that the lawfulness of the conduct of the fishermen could not be determined in terms of the  Marine Living  Resources  Act (MLRA) or common law, but only in terms of  customary law.
SCA acting judge Ashton Schippers said if parliament wanted to extinguish those customary rights, it should be done in a clear and justifiable manner through legislation.
“Simply ignoring customary rights, as the MLRA did before its amendment in 2014, cannot amount to extinguishing those rights.
“Indeed, the constitution provides those customary rights (with) ‘special protection’,” said Schippers.
He said the rights and practices of customary fishing were in existence long before the MLRA came into force in 1998, and were subject to significant regulation under customary law. When it came to conservation and long-term  sustainable  use of  marine  resources  in the MPA, Dwesa-Cwebe communities had a greater interest in  marine  resources,  associated with their traditions and customs, than any other people.
“The appellants have proved that at the time of the offence they were exercising a customary right to fish. That right was not extinguished by legislation dealing with customary law. Therefore the appellants’ conduct was not unlawful,” said Schippers. — ziphon@dispatch.co.za..