Three Eastern Cape traditional fishers scored a victory when the SCA found that they were exercising their customary right to fish in a marine protected area. A Cape Times report says the fishers had been arrested in 2010 for fishing in a marine protected area inside the Dwesa-Cwebe Reserve and were found guilty of fishing unlawfully in a marine protected area (MPA) without permits.

However, in what has been hailed as a landmark judgment, the SCA on Friday ruled in favour of the three, who – through the Legal Resources Centre (LRC) – had challenged that decision, arguing they were exercising their traditional rights, which they and their parents had been doing for centuries.

LRC spokesperson Claire Martens said: ‘In overturning their convictions by the Elliotdale Magistrate’s Court, upheld by a full Bench of the High Court, 'the SCA held that the lawfulness of the conduct of the appellants could not be determined in terms of the Marine Living Resources Act (MLRA) or common law, but in terms of customary law. If Parliament wants to extinguish those customary rights, they must do so in a clear and justifiable manner through legislation. Simply ignoring customary rights, like the MLRA did before its amendment in 2014, cannot amount to extinguishing those rights. Indeed, the Constitution provides those customary rights special protection.’

She added the judgment set an important precedent, not only for communities accessing marine resources in terms of customary law, but also those accessing land and other natural resources in terms of the customary law of their communities.

Full Cape Times report (subscription needed)

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