IN A first for SA, a magistrate ruled yesterday that the fishing tradition of a Wild Coast community gave them a constitutionally protected customary right to fish in a marine protected area inside the Dwesa-Cwebe Reserve.
This means SA’s legal system has taken a step towards recognising customary fishing rights, as is the case with the recognised rights of traditional communities in places such as Canada, Norway, the Pacific Islands, Australia and New Zealand.
Elliotdale magistrate Greg Nel convicted three members of the Hobeni community for contravening the Marine Living Resources Act, but said the ban on the community fishing in the marine reserve amounted to "a complete extinguishment of (their) customary rights".
The three would now go to the high court in Mthatha to challenge their conviction for contravening the Marine Living Resources Act by entering the reserve and fishing, or attempting to fish, after the magistrate said he had no authority to strike down the provisions of the act, Legal Resources Centre attorney Wilmien Wicomb said yesterday.
Mr Nel said he had no choice but to convict the three of this charge — one of four charges that they faced — because it was not within his powers as a magistrate to make declarations on the constitutionality of laws. He gave the trio — two adults and a child — suspended sentences.
"There can be no other conclusion than that the absolute ban on fishing and/or harvesting of marine resources in the reserve amounts to a complete extinguishment of the customary rights of the communities of Dwesa and Cwebe to practise these customs in that specific geographical area," he said.
"The fact that such extinguishment occurred without consultation is also irrefutable. Whether the provisions of the Marine Living Resources Act (18 of 1998) in so far as section 43 are concerned would survive a test of constitutional validity is debatable."
The three were charged under the Marine Living Resources Act and a Transkei military decree (9 of 1992), which had not been repealed. They were acquitted of three other charges.
Ms Wicomb said the judgment was " better than we expected " and an appeal would be lodged in the Mthatha court shortly.
University of Cape Town social researcher Jacqueline Sunde said in court papers the community had a long history of using the area’s marine resources and that "several international and regional human rights and fisheries instruments developed in the past three decades articulated the obligation of states to recognise, protect and promote the customary rights of fishing communities".