Abstract
The correct application of customary law post constitutionalism continues to be the subject of much judicial and academic deliberation. This is especially true where the existence and/or scope of customary rights and cultural practices are not well defined in a specific case. Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA) presents a perfect example of the dissonance between the recognition of customary law by the Constitution of the Republic of South Africa, 1996 and the regulation of rights and cultural practices emanating from customary law. The case grapples with the meeting point of customary rights and customs and the need to preserve the environment. This intersection is considered in view of earth jurisprudence as an emerging legal thought topic in environmental law. On the whole, the decision of the SCA demonstrates encouraging signs of an appreciation of customary law as deserving of an equal place on the legal podium.
Highlights
Gongqose v Minister of Agriculture, Forestry and Fisheries1 pits two interests on different scales of the law against each other
Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA) presents a perfec t example of the dissonance between the recognition of customary law by the Constitution of the Republic of South Africa, 1996 and the regulation of rights and cultural practices emanating from customary law
There are customary rights or cultural practices, which stem from customary law, while on the other hand there is a question of the preservation or sustainability of the ecosystem, which for the purposes of this case note falls to be considered under marine law
Summary
How to cite this article Monyamane L and Bapela MP "Gongqose v Minister of Agriculture, Forestry and Fisheries – A Tale of CustomaryRituals and Practices in Marine Protected Areas " PER / PELJ 2019(22) - DOI http://dx.doi.org/10.17159/17273781/2019/v22i0a5937
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