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Gongqose and others v Minister of Agriculture, Forestry and Fisheries and others; Gongqose and others v The State

1 June 2018

Supreme Court of Appeal 

Citation: Gongqose & others v Minister of Agriculture, Forestry & Fisheries and others; Gongqose & others v State & others (1340/16 & 287/17) [2018] ZASCA 87 (01 June 2018)

Date: 1 June 2018

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

In this matter, the Supreme Court of Appeal handed down a judgment in which it found that the exercise of a customary right of access to marine resources rendered their conduct in attempting to fish in a marine protected area without a permit lawful.

Mr Gongqose and several others were convicted in the Elliotdale Magistrate’s Court of offences in terms of the Marine Living Resources Act, 1998 (MLRA) (see below). The offences related to attempting to fish in a “no-take” zone in the Dwesa-Cwebe Marine Protected Area (MPA) on the Wild Coast in the Eastern Cape Province. [Note: The National Environmental Management: Protected Areas Act, 2004 now governs marine protected areas.] The convictions were upheld by the Mthatha High Court in 2016 (see below).

On appeal to the Supreme Court of Appeal, it was found that the MLRA’s prohibition against fishing in the MPA did not extinguish the communities’ customary right of access to and use of marine resources. These rights continued to exist subject to the limitations already imposed by customary law.

The Court held that customary rights and conservation can co-exist and that it is important to remember that as regards conservation and long-term sustainable utilisation of marine resources in the MPA, the Dwesa-Cwebe communities have a greater interest in marine resources associated with their traditions and customs, than any other people. These customs recognise the need to sustain the resources that the sea provides.

The Court’s conclusion was that the appellants have proved that at the time of the commission of the offence, they were exercising a customary right to fish. That right was not extinguished by legislation specifically dealing with customary law. The appellants’ conduct was therefore not found to have been unlawful.

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High Court of the Republic of South Africa, Eastern Cape Division, Mthatha 

Case no. CA&R 26/13

Date of judgment: 18 February 2016

Judge: Mbenenge J (Giffiths J concurring)

Type of case: criminal appeal and judicial review

Legislation considered: Marine Living Resources Act, 1998; Environmental Conservation Decree, 1992; National Environmental Management: Protected Areas Act, 2003; Constitution of the Republic of South Africa, 1996 

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Willowvale Magistrates’ Court, held at Elliotdale (Eastern Cape) (S v Gongqose and others)

Case number: E382/10

Date of judgment: (unknown)

Magistrate: Mr Nel

Legislation considered: Marine Living Resources Act, 1998; Environmental Conservation Decree, 1992; Constitution of the Republic of South Africa, 1996

Download the judgment 

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Section 24of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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