Asserting Customary Fishing Rights in South Africa

Abstract

The recent judgment in Gongqose vs Minister of Agriculture, Forestry and Fisheries recognises that customary fishing rights can continue to be exercised, notwithstanding legislation purporting to prohibit fishing without a permit. This article explores the implications of that judgment for customary fishing rights in South Africa, and for customary law generally. It posits an analytical framework to assert customary rights in the face of legislation that could be read to alter or extinguish those rights. The starting point is whether customary fishing is a right under customary law, or a customary practice without legal status. Both are substantively protected under Gongqose, but the customary rights get additional procedural protections. The primary procedural guarantee – and the key innovation of Gongqose – is that customary law can only be altered by legislation if the legislature has considered the content of customary law. Even then, legislation must be read to avoid or limit any alteration or extinguishment of customary law. If interference is inevitable, there will ordinarily be a limitation of rights that the state must justify. Justifications sourced in conservation must be carefully scrutinised, and justified by scientific evidence, not assumptions. Environment-based justifications must also be evaluated through a lens that sees people as part of the environment, not separate from it, and that recognises the need for equitable access to resources. Finally, a court may develop customary law, although that approach risks distorting the character of customary law.