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[2016] ZAECMHC 1
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Gongqose and Others v S; Gongqose and Others v Minister of Agriculture, Forestry and Fisheries and Others (CA&R26/13) [2016] ZAECMHC 1; [2016] 2 All SA 130 (ECM); 2016 (1) SACR 556 (ECM) (18 February 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE NO: CA&R
26/13
REPORTABLE
In
the matter between
SIYABONGA
GONGQOSE
First
Appellant
SEPHUMILE
WINDASE
Second
Appellant
NKOSIPHENDULE
JUZA
Third
Appellant
and
THE
STATE
Respondent
CASE
NO: 3001/13
In
the matter between
MALIBONGWE
DAVID GONGQOSE
First
Applicant
SIPHUMILE
WINDASE
Second
Applicant
NKOSIPHELA
JUZA
Third
Applicant
VUYELWA
SIYALEKO
Fourth
Applicant
TATANA
MXABANI
Fifth
Applicant
BENJAMIN
VON MEYER
Sixth
Applicant
THE
HOBENI COMMUNITY
Seventh
Applicant
THE
MENDWANE COMMUNITY
Eighth
Applicant
THE
CWEBE
COMMUNITY
Ninth
Applicant
and
MINISTER OF
AGRICULTURE, FORESTRY
AND
FISHERIES
First
Respondent
DEPUTY
DIRECTOR: FISHERIES
,
DEPARTMENT
OF AGRICULTURE
,
FORESTRY
AND FISHERIES
Second
Respondent
THE MINISTER OF
ENVIROMENTAL
AFFAIRS
Third
Respondent
DEPUTY
DIRECTOR: OCEANS AND
COASTAL
MANGEMENT, DEPARTMENT
OF
ENVIRONMENTAL AFFAIRS
Fourth
Respondent
JUDGMENT
Mbenenge
J
:
Introduction
[1]
This matter encompasses an appeal and a review simultaneously serving
before this court by reason thereof that it was, as will
become
clearer hereunder, convenient to do so. Even though there are
other issues raised in the appeal and the review, what
straddles both
proceedings is a complaint concerning the entitlement of the
customary fishing community of the Hobeni,
[1]
Cwebe
[2]
and Mendwane
[3]
communities (hereinafter conveniently referred to as the Dwesa-Cwebe
communities) to exercise their customary rights to access
certain
marine resources in a marine protected area.
[2]
The Dwesa-Cwebe communities, of which the appellants and some of the
applicants are a part, reside outside the borders of the
Dwesa-Cwebe
Nature Reserve (the Reserve). The Reserve, together with its
neighbouring marine protected area, is located on
either side of the
Mbhashe River, and occupies a narrow coastal strip of approximately
19 km long that is between 2 km and 4 km
wide on the terrestrial side
extending 6 nautical miles out to sea on the marine side,
[4]
within the boundaries of the Amathole District Municipality and the
Mbhashe Local Municipality.
[3] Over a long
period of time the Dwesa-Cwebe communities enjoyed customary law
rights of access to the marine resources in the
Reserve. During
the period 1900 to 1950 the Dwesa-Cwebe communities were relocated to
land adjacent to the Reserve.
This resulted in these
communities being excluded from a significant portion of their
ancestral land and barred from exercising
their customary law rights
of access to the marine resources in the marine protected area (the
MPA).
[4]
The MPA was first proclaimed by the then Transkeian military
government in terms of the Transkei Environmental Decree 9 of 1992.
With the advent of the new constitutional dispensation and the
reincorporation of the Transkei into the wider South Africa in 1994
the Reserve reverted to the Republic of South Africa and the MPA then
became governed by the Sea Fisheries Act 12 of 1988.
In terms
of the dispensation governed by the Decree and the Sea Fisheries Act
there was limited access to a portion of the MPA.
[5]
[5]
In 1998 the Marine Living Resources Act 18 of 1998 (the MLRA) was
promulgated. On 29 December 2000 the then Minister of
Environmental Affairs and Tourism, acting under section 43 of the
MLRA, declared the Reserve a strict “
no
take
”
zone. This in effect prohibited even members of the Dwesa-Cwebe
communities from exercising any form of access to
the marine
resources. Section 43(2)(a) of the MLRA makes it an offence for
anyone to fish or attempt to fish in a marine
protected area without
the permission of the Minister responsible for environmental affairs.
[6] Section 43(3) of
the MLRA provides:
“
(3)
The Minister may, after consultation with the Forum, give permission
in writing that any activity prohibited in terms of [section
43] may
be undertaken where such activity is required for the proper
management of the marine protected area.”
[7] Section 81 of
the MLRA deals with exemptions, and provides, in subsection 1, that
“
[i]f in the opinion of the Minister [of Agriculture,
Fisheries and Forestry] there are sound reasons for doing so he or
she may,
subject to the conditions that he or she may determine, in
writing exempt any person or groups of persons or organ of state from
a provision of this Act.
”
[8] Enforcement of
the regulatory framework introduced in terms of the various
dispensations and eventually the MLRA had not been
strict until
around 2005. Even when the regulatory framework was first
imposed the members of the Dwesa-Cwebe communities
continued
exercising their customary right of acess to the MPA and the Reserve.
[9]
Meanwhile, pursuant to the provisions of the Restitution of Land
Rights Act 22 of 1994 ( the Restitution Act), a claim for the
restitution of rights in land demarcated as “
the
Dwesa-Cwebe Nature Reserves
”,
was lodged by the Dwesa-Cwebe communities
[6]
with the Eastern Cape Regional Land Claims Commission. The
claim was gazetted on 19 April 1996 and eventually yielded fruit
when, on 17 June 2001, a settlement agreement in terms of section 42
D of the Restitution Act
[7]
was
signed by and between the claimant communities and the then Minister
of Land Affairs in terms of which the claimed land would
be restored
to these claimant communities.
[10] The settlement
agreement excluded the MPA proclaimed in accordance with the MLRA
from its ambit, but confirmed that “
the communities should
have access to sea and forest resources, based upon the principle of
sustainable utilisation as permitted
by law.
” In
terms of the settlement agreement the claimant communities were
granted the right to participate in the management
of the nature and
forest reserves and were made beneficiaries of eco-tourism.
[11] The background
part of the judgment would be incomplete without mention being made
of two letters that featured prior to the
launch of the instant
proceedings. The one letter, dated 07 August 2013, was
addressed, on behalf of the Hobeni Fishing and
Mussel Committee,
including the appellants, to the Ministries of Environmental Affairs
and of Agriculture, Forestry and Fisheries,
and to the Chief
Executive Officer of the Eastern Cape Parks and Tourism Agency,
requesting that an undertaking be made that the
declaration of the
MPA would not be implemented alternatively, requesting the relevant
Minister to exercise the power to grant
a suitable exemption
“
consented to by the Community
” in terms of
section 81 of the MLRA. The other letter, which is in effect a
follow-up letter, was penned on 10 October
2013. None of these
letters attracted a response from the relevant government
functionaries.
The criminal
proceedings
[12] The decision of
the Minister of Environmental Affairs to declare the Reserve an MPA
was implemented when, on 22 September 2010,
the first, second, third
and applicants (otherwise conveniently referred to as the appellants)
were arrested and arraigned on charges
of-
a)
attempting to fish in an MPA without perminssion in terms of section
43(2)(a) of the MRLA
(count 1);
b)
entering a national wild life reserve without a permit in terms of
section 29(1)(a) of the Decree
(count 2);
c)
conveying into a national wild life reserve or being within such
reserve whilst still being
in possession of any weapon, explosive,
trap or poison, in terms of section 29(1)(b) of the decree (count 3);
d)
wilfully killing or injuring or disturbing any wildlife animal other
than fish caught in accordance
with such regulations as may be
prescribed in terms of the decree, in terms of section 29(1)(c) of
the decree (count 4).
[13] On 13 March
2012 the appellants pleaded not guilty to the charges. On their
behalf a written explanation of plea in terms
of section 115 of the
Criminal Procedure Act 51 of 1977 (the CPA) was tendered. The
appellants further admitted, in terms
of section 220 of the CPA, that
they had been arrested within the Reserve on 22 September 2010,
intending to fish using fishing
rods, lines and hooks and were in
possession of these items when being arrested, and without having
been issued with fishing permits
in terms of the MLRA or the Decree.
[14] The relevant
plea-explanation statement reads:
“
We
enter a plea of not guilty. Each of the three accused is a
member of the Hobeni Community forming part of the broader community
at Dwesa-Cwebe. Our community is governed in part according to
customary law. The system of customary law in operation
in our
community also regulated the use of marine resources. Under the
system the Hobeni community enjoyed a customary right to
have access
to marine resources along the coastline and stretching from the Bashe
River, and the Nkonyane River. When we
were arrested, we were
intending to fish in accordance with our customary rights. The
statutory regulation of marine resources
has not extinguished our
customary rights of access to marine resources. Therefore our
conduct was not unlawful in terms
of the MLRA and/or the Decree.
In the alternative if the MLRA and/or the decree are interpreted to
prevent us from exercising
or customary rights, it is submitted that
the MLRA and the Decree are in consistent with the constitution and
invalid. The
ground on which the constitutionality will be
challenged will be more fully set out on appeal if necessary.”
[15] The trial
proceeded and the appellants eventually found guilty on count 1
(attempting to fish in an MPA without the requisite
permission), and
acquitted on all other counts. The first and second appellants
were thereupon sentenced to pay a fine of
R500 or in default of such
payment to undergo 30 days imprisonment. The sentence was
wholly suspended for a period of one
year conditional upon the first
and second appellants (jointly or individually) not being convicted
of a contravention of section
43(2)(a) of the MLRA committed during
the period of suspension. The third appellant (a juvenile
offender), on the other hand,
was cautioned and discharged.
[16] The court
a
quo
made the following findings:
16.1
that the appellants were members of a community that had rights in
terms of customary law in relation to the natural
resources,
including marine resources, within the Reserve and the MPA; and
16.2
that the community’s customary law rights included the right to
have access to the marine resources.
[17] Based on the
evidence of the expert witness called by the prosecution, the court
a
quo
concluded that “
the decision to proclaim the Marine
Reserve an MPA was taken with little or no consultation with local
communities and certainly
did not engage them in any formal
discussions
.” The court further held that the ban on
fishing imposed by the MLRA and the resulting impugned decision on
fishing
“
extinguished
” the community’s
customary right without any consultation.
[18] Whilst
expressing doubt as to the constitutionality of section 43 of the
MLRA, the court remarked that it had no power to strike
down the
provision, this being an issue falling to be determined on appeal by
a high court with the requisite jurisdiction.
[19] With the leave
of the court
a quo
, the appellants noted an appeal against
that part of the judgment and order of the court
a quo
finding
the appellants guilty of a contravention of section 43(2)(a) of the
MLRA, in May 2013.
[20]
The appellants, together with other members of the Dwesa-Cwebe
communities, also launched proceedings during December 2013
seeking,
in the main, an order reviewing and setting-aside the decision of the
Minister of Environmental Affairs dated 29 December
2000 declaring
the MPA in terms of section 43 of the MLRA on a strictly “
no-take
”
basis, and further and/or alternative relief about which more will be
said later in this judgment.
The Appeal
[21] The appeal part
of the instant proceedings is predicated on three contentions,
namely:
21.1
that the court erred in failing to interpret section 43 of the MLRA
to require proof of unlawfulness and in failing
to hold that the
proof of a customary law right to access negates unlawfulness, and
should have found that the appellants’
conduct was not unlawful
in terms of section 43 of the MLRA;
21.2
that the MPA declared by the Minister of Environmental Affairs and
Tourism pursuant to section 43 of the MLRA on
29 December 2000 and
promulgated in Government Gazette No. 21948 falls to be set aside on
the grounds that the decision of the
Minister is reviewable in terms
of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA)
in that it was unlawful, unreasonable
and procedurally unfair; and
21.3
in the event of the MLRA being interpreted to prevent the appellants
from exercising their customary rights, that
section 43 and the
related provisions of the MLRA are inconsistent with the Constitution
and therefore invalid.
[22] It is
convenient to first deal with the issues raised in the appeal before
considering those canvassed in the review application,
the focus,
being on whether the court
a quo
erred in not holding that the
appellants’ conduct was not unlawful in terms of section 43 of
the MLRA and the constitutionality
or otherwise of the section.
Nature and
content of customary rights
[23]
The record establishes that when the appellants were arraigned and
eventually convicted they, and the rest of the members of
the
Dwesa-Cwebe communities, had been accessing the MPA and fishing not
only to sustain their families, but as an expression of
the
communities’ culture and for economic reasons; they regarded
the sea, rocks and coastline at and around the Reserve as
sacred to
them and the home of their ancestors; they claim to have known and
used a range of fish and other
inter-tidal
resources since the time of their ancestors; they understood that
nature had a way of protecting itself and this is what regulated
their harvesting; the tides and the weather did not allow them to go
fishing every day; they also had their own way of making sure
that
there would be enough fish for the generations to come, having been
taught by their fathers and elders not to take juveniles
and to put
the small fish back. These rights were never unregulated, and
were always subject to some form of regulation either
under customary
and traditional practices,
[8]
or
through official state regulation. It is this customary right
existing parallel to section 43 of the MLRA, recognised
and preserved
by the Constitution, that the appellants seek to assert and which
they contend negates the existence of unlawfulness
on a criminal
charge brought pursuant to section 43.
[24] Mr Brickhill
who, together with Mr Bishop appeared for the applicants, dispelled
any notion that the appellants were asserting
an unqualified
customary right of access to marine resources, stating that the right
being asserted was one in principle subject
to appropriate
regulation.
Does proof of the
existence of the customary right negate unlawfulness on a charge
under the MLRA?
[25]
Unlawfulness is one of the general requirements for criminal
liability. Even though the National Wildlife Reserve
Regulations
1992 promulgated under the Decree makes it an offence for
one to “
unlawfully
”
fish without a permit, section 43 of the MLRA is, however, silent on
lawfulness as an element of the offence created by
the section.
The parties hereto are in agreement that the requirement of
unlawfulness must be read into the section.
Indeed, the
legislature is presumed, unless there are clear and convincing
indications to the contrary, not to have intended innocent
violations
of statutory prohibitions to be punishable.
[9]
[26]
Therefore, although a statute may not specifically refer to the
element of unlawfulness, there is a general presumption that
the
general defences excluding unlawfulness would be available to a
person charged with contravening a criminal prohibition in
a
statute.
[10]
To that
end, section 250(1) of the CPA casts an onus on a person charged with
offences based on the lack of necessary authority
in the form of a
licence, permit, permission or other authority or qualification to
adduce evidence that she/he has the necessary
authority.
[27]
The appellants are not on record as contending that prior to being
arraigned they had obtained the requisite permit in terms
of the MLRA
or that they had been exempted from the provisions of the MLRA by the
Minister of Agriculture, Fisheries and Forestry
by virtue of section
81 of the MLRA.
[11]
The
upshot of their contention is that the existence of a customary right
of access to the conduct in respect of which they
were prosecuted
renders the conduct lawful.
[28] What is
considered “
unlawful”
has also been looked at from
the perspective of a community’s perception of justice or the
legal convictions of the community,
thus affording one a defence were
the conduct complained of not to be contrary to the community’s
perception of justice or
the legal convictions of the society.
This consideration brings to the fore the question of whether
lawfulness in this instance
ought to be determined on the basis of
the perceptions of the Dwesa-Cwebe communities or the entire South
African Community.
[29]
In our constitutional dispensation the Bill of Rights enshrined in
Chapter 2 of the Constitution is pivotal in a determination
of
whether conduct is in conflict with public policy or the community’s
perception of justice and therefore unlawful.
[12]
[30]
It is so that customary law is indubitably recognised by the
Constitution as an independent and original source of law.
[13]
Gone are the days when custom was considered, as in
Van
Breda v Jacobs
[14]
,
a useful accessory, filling in normative gaps in the common law.
[15]
[31]
The appellants’ contention for the negation of unlawfulness
rests primarily on sections 30, 31, 39 and 211 of the Constitution.
Sections 30
[16]
and 31
[17]
of the Constitution entrench respect for cultural diversity, whilst
section 39(2) enjoins a court interpreting customary law to
promote
the spirit, purport and objects of the Bill of Rights. At the
same time, section 39(3) provides that the Bill of
Rights does not
deny the existence of any other rights or freedoms that are
recognised or conferred by customary law as being consistent
with the
Bill of Rights. Section 211
[18]
of
the Constitution accords institutional protection of customary law.
[32]
In
Alexkor
Ltd v Richtersveld Community
[19]
the
Constitutional Court held:
“
While
in the past indigenous law was seen through the common law lens, it
must now be seen as an integral part of our law. Like
all law it
depends for its ultimate force and validity on the Constitution.
Its validity must now be determined by reference
not to common law,
but to the Constitution. The courts are obliged by section
211(3) of the Constitution to apply customary
law when it is
applicable, subject to the Constitution and any legislation that
deals with customary law. In doing so the courts
must have regard to
the spirit, purport and objects of the Bill of Rights. Our
Constitution:
“
.
. . does not deny the existence of any other rights or freedoms that
are recognised or conferred by common law, customary law
or
legislation, to the extent that they are consistent with the Bill [of
Rights].”
It is clear,
therefore that the Constitution acknowledges the originality and
distinctiveness of indigenous law as an independent
source of norms
within the legal system. At the same time the Constitution, while
giving force to indigenous law, makes it clear
that such law is
subject to the Constitution and has to be interpreted in the light of
its values. Furthermore, like the common
law, indigenous law is
subject to any legislation, consistent with the Constitution, that
specifically deals with it. In
the result, indigenous law feeds
into, nourishes, fuses with and becomes part of the amalgam of South
African law.”
[20]
[33] Against this
background the appellants contend that the MLRA, which does not
recognise the appellants’ customary fishing
rights, has not
extinguished those rights. Such extinguishment would have had
to be done expressly and satisfy the requirements
of section 36 of
the Constitution. As they had been fishing in terms of their
rights derived from their customary law system,
the appellants argue
that their conduct was lawful; customary law confers on them the
necessary authority to fish in the MPA without
a permit.
[34]
It is the cultural diversity of the people of this country, its
fascinating history, and the uniqueness and preciousness of
the
country’s wild life
[21]
that give rise to the question at hand.
[35]
We should, at this juncture, also remind ourselves of the following
remarks by Navsa JA in
Oudekraal
Estates (Pty) Ltd v City of Cape Town
:
[22]
“
Regrettably,
humankind has not always been aware of the importance of treading
softly on this planet. Environment concerns
have only recently
begun to receive the necessary attention and, even then, humankind is
not always sufficiently aware of the environmental
perils consequent
upon deeds or inaction. In
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and
Environment, Mpumalanga Province, and Others
2007
(6) SA 4
(CC);
2007 (10) BCLR 1059
at para 54 the Constitutional
Court referred with approval to the following dictum of the
International Court of Justice in
Gabcikovo-Nagymaros
Project (Hungry/Slovakia)
37 ILM 162 (1988) 200 in para 140:
‘
Throughout
the ages, mankind has, for economic and other reasons, constantly
interfered with nature. In the past, this was
often done
without consideration of the effects upon the environment.
Owing to new scientific insights and to a growing awareness
of the
risks for mankind-for present and future generations-of pursuit of
such interventions at an unconsidered and unabated pace,
new norms
and standards have been developed, set forth in a great number of
instruments during the last two decades. Such
new norms have to
be taken into consideration, and such new standards given proper
weight, not only when States contemplate new
activities but also when
continuing with activities begun in the past. This need to
reconcile economic development with protection
of the environment is
aptly expressed in the concept of sustainable development.’”
[36]
In its wisdom the legislature enacted the MLRA so as to “
provide
for the conservation of the marine ecosystem, the long term
sustainable utilisation of marine living resources and the orderly
access to exploitation utilisation and protection of certain marine
living resources and the orderly access to exploitation utilisation
and protection of certain marine living resources and for these
purposes to provide for the exercise of control over marine living
resources in a fair and equitable manner to the benefit of all
citizens of South Africa
”
.
[23]
[37] The customary
rights contended for which are of limited territorial application
operate in parallel with the MLRA which is
of national application.
I do not believe that the introduction of a law of general
application aimed at preserving and protecting
marine living
resources for the benefit of all, including the Dwesa-Cwebe
communities, has had the effect of jettisoning (and not
preserving)
the customary rights that have been exercised by these communities as
contended for in these proceedings. It
must have been within
the contemplation of the legislature when enacting the MLRA that
there were persons such as the appellants
exercising customary rights
in respect of marine resources, hence provision is made for persons
or a group of persons to lodge
an application to be exempted from the
requirement of obtaining a permit for fishing. Upon a proper
reading of the relevant
provisions of the MLRA nothing prevents any
person or group of persons, including the appellants, from seeking
exemption even on
the basis that in terms of customary law such
permit is not required. The appellants had not sought the
exemption before
setting out to fish. Their conduct was
unlawful in terms of the MLRA. Therefore, the rights accorded
to them by customary
law did not negate the existence of
unlawfulness.
[38] The Dwesa-Cwebe
communities agreed to the restoration of the Dwesa-Cwebe Nature
Reserves and to have access to sea and forest
resources “
based
upon the principle of sustainable utilisation as permitted by law
”.
The contention that exercising their customary rights negated the
existence of unlawfulness on a charge under the
MLRA is not
consistent with their acceptance that they would access the sea in
accordance with the dictates of the law giving expression
to the
concept of sustainable development. On their own showing, the
appellants’ exercise of customary rights had always
been
subject to regulation, and had never been unqualified. The
enactment of the MLRA was in fact part of such regulation.
[39] Moreover and in
any event, the rights accorded by sections 30 and 31 of the
Constitution are not to be exercised in a manner
that is inconsistent
with any provision of the Bill of Rights. One of such
provisions is section 24, which,
inter alia
, gives everyone
the right to have the environment protected for the benefit of
present and future generations through legislative
and other measures
that prevent ecological degradation, promote conservation and secure
ecologically sustainable development and
use of natural resources
while promoting justifiable economic and social development. To
contend that the mere existence
of a customary right negates
unlawfulness on a charge under the MLRA would serve not only to
elevate the sections 30 and 31 rights
at the expense of the right to
the environment, but would make nonsense of the objects of the MLRA.
Constitutionality
of section 43 of the MLRA
[40] Having found
that the appellants’ attempt to fish without the requisite
permit in terms of the MLRA was unlawful, I cross
to deal with the
appellants’ alternative submission namely, that section
43(2)(a) of the MLRA is inconsistent with the Constitution
and
invalid to the extent that it does not recognise existing customary
law rights of access to marine resources and criminalises
the
exercise of customary law rights that have never been extinguished in
circumstances that would satisfy the Constitution.
[41]
It is timely to mention that section 43 of the MLRA has since been
repealed by section 90(3) of
National Environmental Management:
Protected Areas Act 57 of 2003
.
[24]
The declaration of the Dwesa-Cwebe MPA as contained in stipulation
2(7) of the declaration Notice named Declaration of Areas
as Marine
Protected Areas in Government Gazette 2948, Notice No. 1429 of 29
December 2000 has similarly been withdrawn and repealed
by the
Dwesa-Cwebe Marine Protected Area Regulations published in Government
Gazette 39379 under Notice No. 1074 dated 06 November
2015 which came
into operation on 01 December 2015. The repeal affords no
solace to the appellants who have already been
convicted on the
strength of section 43, hence this Court has residual jurisdiction to
inquire into the constitutionality of the
section.
[42] It has greatly
exercised my mind whether it is felicitous to inquire into the
constitutionality of the replacement provisions
(sections 22A and 48A
of the NEMPAA) given that these provisions had no bearing on the
appellants’ conviction which is the
subject of the appeal.
[43] It is
convenient to quote in full the now repealed section 43 of the MLRA
on the basis of which the appellants were convicted.
The
section reads:
“
(1)
The Minister may, by notice published in the Gazette, declare an area
to be a marine protected
area—
(a)
for
the protection of fauna and flora or a particular species of fauna or
flora and the physical features on which they depend;
(b)
to
facilitate fishery management by protecting spawning stock, allowing
stock recovery, enhancing stock abundance in adjacent areas,
and
providing pristine communities for research; or
(c)
to
diminish any conflict that may arise from competing uses in that
area.
(2)
No person shall in any marine protected area, without permission in
terms of subsection
(3)—
(a)
fish or attempt to fish;
(b)
take or destroy any fauna and flora other than fish;
(c)
dredge, extract sand or gravel, discharge or deposit waste or any
other polluting
matter, or in any way disturb, alter or destroy the
natural environment;
(d)
construct or erect any building or other structure on or over any
land or water within
such a marine protected area; or
(e)
carry on any activity which may adversely impact on the ecosystems of
that area.
(3)
The Minister may, after consultation with the Forum, give permission
in writing that
any activity prohibited in terms of this section may
be undertaken, where such activity is required for the proper
management of
the marine protected area”
[44] As a starting
point the appellants have urged this Court to interpret section 43 so
as to permit the recognition of customary
law rights of access to
marine resources. The appellants’ constitutional attack
is premised purely upon the Court adopting
a construction of the
section that precludes the recognition and exercise of customary
rights of access to marine resources.
In as far as the
provisions of section 43 “
purport to disregard or extinguish
these rights
”, so the argument goes, the impugned
provisions are inconsistent with the Constitution and invalid to that
extent.
[45]
It is trite law that the validity of customary law cannot be tested
with reference to common law or statutory law. In
Bhe
[25]
the
Constitutional Court held that:
“
an
approach that condemns rules or provisions of customary law merely on
the basis that they are different to those of the common
law or
legislation, such as the Intestate Succession Act, would be
incorrect. At the level of constitutional validity, the
question in this case is not whether a rule or provision of customary
law offers similar remedies to the Intestate Succession Act.
The issue is whether such rules or provisions are consistent with the
Constitution.”
[26]
[46] There is indeed
no scope for arguing that the Dwesa-Cwebe communities have no
customary rights because the MLRA does not recognise
those rights.
Ms Pillay, who appeared for the third and fourth respondents, did not
contend so.
[47]
In terms of section 211(3) of the Constitution customary law is
subject to legislation that deals specifically with customary
law.
Even though customary law may be regulated in terms of other
legislation,
[27]
such
regulation will only amount to extinguishment of the customary law
rights if done explicitly,
[28]
otherwise the rights derived from customary law prevail.
[48] There is thus
merit to the appellants’ contention that because the MLRA was
promulgated after the coming into force of
the Constitution such
promulgation could not only amount to an extinguishment of customary
law rights if the MLRA expressly provided
for it and the
extinguishment could only be valid if it satisfied the requirements
of section 36 of the Constitution.
[49] Upon a plain
reading of section 43 nothing in the section offends the
Constitution. Nor is there scope for an interpretation
that
disregards or extinguishes the appellants’ customary rights of
access to marine resources. If one has regard to
the purpose of
the declaration of an MPA (conservation and protection), it is not
clear as to what bearing customary law has on
such a declaration.
[50] I accordingly
conclude that section 43 is not unconstitutional for not permitting
the recognition of customary law rights of
access to marine
resources.
[51]
In as far as the appellants may be said to be entitled to challenge
the constitutionality of sections 22A
[29]
and 48A
[30]
of the NEMPAA, my
conclusion would not differ. Section 22A(2) of the NEMPAA also
refers to conservation and protection as
being the purpose of the
declaration of an MPA. Section 48A merely restricts
activities in MPAs.
The Review
Application
[52] There are two
decisions at the heart of the review application. The review
grounds also constitute a further ground of
the appeal in the
alternative. The one decision is that of the Minister of
Environmental Affairs taken on 29 December 2000
declaring the
Dwesa-Cwebe Nature Reserve an MPA on a strictly “
no take
”
basis (the MPA decision), and the other decision that of the Minister
of Agriculture, Forestry and Fisheries not to grant
the Hobeni,
Cwebe, and Mendwane Communities an exemption in terms of section 81
of the MLRA.
[53] In addition to
seeking a review of the decisions referred above, the applicants seek
an order directing the parties to engage
one another meaningfully
regarding the manner in which the Communities may exercise their
rights of access and property or other
associated rights under
customary law and, subject to reasonable regulation, to maintain the
resources in the MPA.
[54] The applicants’
principal complaint in relation to the MPA decision is that they were
not consulted at all when the impugned
declaration was made.
They claim that they were never informed that such decision would be
made; they were not asked to make
comments when it was being proposed
to issue the declaration. They had no knowledge that the
decision had been taken at all
until 2005 when steps were being taken
to implement the decision. They contend that the MPA decision
is reviewable on the
grounds that it was procedurally unfair;
unreasonable and irrational; inconsistent with sections 30, 31, 39(3)
and 211 of the Constitution;
and inconsistent with the right to
environmental justice and equitable access to natural resources.
[55] Because the
letter seeking an exemption in terms of section 81 of the MLRA was
not responded to by the relevant government
functionaries, upon whom
it was incumbent to decide on the matter, the non-response consists
of a failure to take a decision and
is, according to the applicants,
reviewable on the grounds that it is unreasonable and irrational,
infringes the applicants’
customary law rights of access to
marine resources and the right to the environment.
[56]
The third and fourth respondents (the respondents) contend that the
applicants are time-barred from launching the review of
the MPA
decision as it was brought more than 180 days after the decision was
taken.
[31]
The
applicants have, on the other hand, adopted the stance that the delay
rule, and thus section 7 of the PAJA, finds
no application in
hoc
casu
because the application constitutes a collateral challenge to the
implementation of the MPA decision in prosecuting and convicting
the
appellants and that the applicants have, in any event, made out a
case for condonation. It is proposed to deal with these
preliminary issues seriatim.
Collateral
Challenge
[57]
It is trite law that whilst the validity of the administrative act is
generally challenged by way of judicial review, such
challenge may
arise not by the initiation of the proceedings, but by way of a
defence, as a collateral issue, in a claim for the
enforcement of a
private law right, as the case may be.
[32]
[58]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[33]
dealt with the nature and ambit of a collateral challenge in the
following terms:
“
But
just as some consequences might be dependent for validity upon the
mere factual existence of the contested administrative act
so there
might be consequences that will depend for their legal force upon the
substantive validity of the act in question. When
construed against
the background of principles underlying the rule of law a statute
will generally not be interpreted to mean that
a subject is compelled
to perform or refrain from performing an act in the absence of a
lawful basis for that compulsion. It is
in those cases – where
the subject is sought to be coerced by a public authority into
compliance with an unlawful administrative
act – that the
subject may be entitled to ignore the unlawful act with impunity and
justify his conduct by raising what has
come to be known as a
‘defensive’ or a ‘collateral’ challenge to
the validity of the administrative act.
Such a challenge was allowed,
for example, in Boddington v British Transport Police, in which the
defendant was charged with smoking
a cigarette in a railway carriage
in contravention of a prohibitory notice posted in the carriage
pursuant to a byelaw. The House
of Lords held that the defendant was
entitled to seek to raise the defence that the decision to post the
notice (which activated
the prohibition in the byelaw) was invalid
because the validity of the decision was essential to the existence
of the offence.
(It happened that the decision to post the notice was
held to be valid but that is not material for present purposes). At
153H-154A
Lord Irvine LC said the following:
‘
It
would be a fundamental departure from the rule of law if an
individual were liable to conviction for contravention of some rule
which is itself liable to be set aside by a court as unlawful.
Suppose an individual is charged before one court with breach of
a
byelaw and the next day another court quashes that byelaw – for
example, because it was promulgated by a public body which
did not
take account of a relevant consideration. Any system of law under
which the individual was convicted and made subject to
a criminal
penalty for breach of an unlawful byelaw would be inconsistent with
the rule of law
.’
And
at 160 and 161 he went on to say the following:
‘
[160C-G]
However, in every case it will be necessary to examine the particular
statutory context to determine whether a court hearing
a criminal or
civil case has jurisdiction to rule on a defence based upon arguments
of invalidity of subordinate legislation or
an administrative act
under it. There are situations in which Parliament may legislate to
preclude such challenges being made,
in the interest, for example, of
promoting certainty about the legitimacy of administrative acts on
which the public may have to
rely ... [161C-D] However, in
approaching the issue of statutory construction the courts proceed
from a strong appreciation that
ours is a country subject to the rule
of law. This means that it is well recognised to be important for the
maintenance of the
rule of law and the preservation of liberty that
individuals affected by legal measures promulgated by executive
public bodies
should have a fair opportunity to challenge these
measures and to vindicate their rights in court proceedings.
’
As
Lord Steyn pointed out at 173A-B:
‘
Provided
that the invalidity of the byelaw is or may be a defence to the
charge a criminal case must be the paradigm of collateral
or
defensive challenge.
’
Dealing with an
earlier decision of the Divisional Court that precluded a collateral
challenge to the procedural validity of subordinate
legislation in
criminal proceedings he went on to say the following at 173E-G:
‘
My
Lords, with the utmost deference to eminent judges sitting in the
Divisional Court I have to say the consequences of Bugg’s
case
are too austere and indeed too authoritarian to be compatible with
the traditions of the common law. In Eshugbayi Eleko v
Government of
Nigeria
[1931] A.C. 662
, a habeas corpus case, Lord Atkin observed,
at p 670, that “no member of the executive can interfere with
the liberty or
property of a British subject except on condition that
he can support the legality of his action before a court of justice.”
There is no reason why a defendant in a criminal trial should be in a
worse position. And that seems to me to reflect the spirit
of the
common law.’
[34]
It
is important to bear in mind (and in this regard we respectfully
differ from the court
a
quo
)
that in those cases in which the validity of an administrative act
may be challenged collaterally a court has no discretion to
allow or
disallow the raising of that defence: the right to challenge the
validity of an administrative act collaterally arises
because the
validity of the administrative act constitutes the essential
prerequisite for the legal force of the action that follows
and
ex
hypothesi
the
subject may not then be precluded from challenging its validity.
On the other hand, a court that is asked to set aside
an invalid
administrative act in proceedings for judicial review has a
discretion whether to grant or to withhold the remedy.
It is
that discretion that accords to judicial review its essential and
pivotal role in administrative law, for it constitutes
the
indispensable moderating tool for avoiding or minimizing injustice
when legality and certainty collide. Each remedy thus has
its
separate application to its appropriate circumstances and they ought
not to be seen as interchangeable manifestations of a
single remedy
that arises whenever an administrative act is invalid.
”
[35]
[59]
The applicants seek to gain mileage from a statement made in the
Oudekraal
case
[36]
to the effect that a person is entitled to bring a collateral
challenge at any point and that a court confronted with it has no
discretion but to consider it.
[37]
The matter does not end there because “
[a]
collateral challenge to the validity of the administrative act will
be available, in other words, only ‘if the right remedy
is
sought by the right person in the right proceedings
’”.
[38]
This statement should be understood as meaning that the remedy must
be sought by the person entitled thereto in the right
forum at the
opportune stage.
[39]
[60] An examination
of the facts and circumstances surrounding this case, with a view to
testing whether it is opportune stage for
the applicants to launch
the review (the collateral challenge), is necessary. One issue
needs to be disposed of without ado.
Whilst the relief sought
in this application may have a bearing on the criminal appeal, no
stretch of imagination is required for
one to conclude that it is not
a collateral challenge to the criminal prosecution.
[61] The founding
affidavit makes it abundantly clear that the launch of the review was
a sequel to a decision about which
the applicants were never
informed and which took some time before being given effect to, and
was prompted by their inability to
access the marine resources and
sustain their livelihoods.
[62]
As a further bow to their arrow, the applicants placed reliance on
Kouga
Municipality v Bellingan and Others.
[40]
In
this case the respondents brought a review of a by-law concerning the
trading hours for liquor stores more than 2 years after
the by-law
had been enacted. The court, having been of the view that the
application was in the form of a direct challenge,
but in substance a
defensive or collateral challenge to the validity of the by-law,
[41]
held:
“
I
can conceive of no reason why a collateral challenge to the validity
of a piece of legislation cannot be brought in civil proceedings
for
a declaratory order by a person who has been charged with
contravening such legislation.”
[42]
[63] The cases are
distinguishable in a vast manner. In the
Kouga
matter
the criminal proceedings were postponed, and after the applicants had
sought and obtained advice regarding the conduct of
their case, they
instituted an application to challenge the validity of the bylaw.
In the instant matter, however, the criminal
trial ran to a finish
without any application for review having been instituted. The
instant review application has been
instituted at appeal stage
against the conviction in the criminal proceedings.
[64] I am not
persuaded that the applicants brought the review in the right
proceedings at the opportune stage. The relief
sought in the
review application therefore does not constitute a collateral
challenge.
Was there an
unreasonable delay?
[65]
Section 7(1)(b) of the PAJA makes it incumbent on a person bent on
challenging an administrative action on review under the
PAJA to
resort to such proceedings without unreasonable delay and not later
than 180 days after the date on which the person concerned
was
informed of the administrative action, became aware of the action and
the reasons for it or might reasonably have been expected
to have
become aware of the action and the reasons. The instant review
application is founded on the PAJA and the Constitution.
Section 7(1) is thus of application. In any event, it is a long
standing rule that a legality review must be initiated without
undue
delay and that courts have, as part of their inherent jurisdiction to
regulate their own proceedings,
[43]
to refuse a review application in the face of an undue delay in
initiating proceedings
[44]
or
to overlook the delay in the exercise of the discretion informed by
the values of the Constitution.
[45]
[66]
The reasonableness or unreasonableness of a delay is entirely
dependent on the facts of any particular case, and have nothing
to do
with the exercise of the court’s discretion.
[46]
The
raison
d’etre
of
the rule is said, in
Wolgroeiers
Afstlaer (Edms) Bpk
[47]
,
to
be twofold: first, the failure to bring a review within a
reasonable time may cause prejudice to the respondent; secondly,
there is a public interest element in the finality of administrative
decisions and the exercise of administrative functions.
[48]
“
It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public interest to allow such decisions or
acts to be
set aside after a unreasonably long period of time has elapsed –
interest
reipublicae
ut sit finis litium. . . Considerations of this kind
undoubtedly constitute part of the underlying reasons for
the
existence of this rule.
”
[49]
It should, on the other hand, be mentioned that, as adverted to in
National
Industrial Council for the Iron, Steel, Engineering and Metallurgical
Industry v Photo Circuit SA (Pty) Ltd and Others
,
[50]
according to the majority decision in
Wolgroeiers
,
[51]
although prejudice to other parties is a relevant factor, the
demonstration of such prejudice is not a prerequisite for a court
to
non-suit an applicant on the grounds of delay.
[67] From the
background facts presented above, it will be observed that the
decision subject to these proceedings was taken on
09 December 2000,
approximately 13 years before the launch of the review application.
The MPA decision was only given effect
to around 2005, 8 years before
the application was launched. More than 3 years after the
arrest of the appellants, on 22
September 2010, the application was
resorted to. The trial before the court
a quo
commenced
in March 2012, resulting in the appellants being convicted on 22 May
2012, more than 18 months before the application
was launched.
[68]
It is clear that it took an inordinately and unreasonably lengthy
period before the MPA decision was brought on review.
What
remains to be considered, and involves the exercise of a discretion,
is whether the delay should be condoned.
[52]
Should the delay
be condoned?
[69]
In their quest for the extension of the 180 day period in terms of
section 9(1)(b)
[53]
of
the PAJA the applicants have pointed to various factors that
demonstrate that it is in the interests of justice to extend the
period: the MPA declaration is causing on-going prejudice to the
constitutional rights of the applicants; the declaration has been
relied upon to secure the conviction of the appellants; the affected
communities, being among the poorest in the country, had access
to
legal advice and representation when the prosecution of the
appellants commenced, after they had consistently engaged with the
relevant government departments in an attempt to assert their rights,
to no avail.
[70] The applicants
urge the court not to bar them, and to consider the merits of the
application.
[71] The
respondents, on the other hand, contend that they have been
prejudiced in opposing the review proceedings because of the
passage
of time in various ways; several new ministers of the Department of
Environmental Affairs (DEA) have, in the interim, succeeded
the
Minister responsible for the Declaration in 2000; some relevant
officials are no longer in the employ of the DEA; key documentation
that could point to consultative processes preceding the Declaration
decision are no longer to hand; the legal framework has changed
from
what it was at the time of the Declaration.
[72]
There is much to be said regarding the contentions that the relevant
officials are no longer available and key documentation
no longer
possible to locate.
[54]
[73] Here is what is
dispositive of this aspect of the review application. The
applicants have proffered no acceptable explanation
for their neglect
to seek a postponement of the criminal case whilst seeking to review
the impugned decision. Most importantly
and in any event, this
Court is being asked to grant condonation in relation to a decision
that was taken 15 years ago and implemented
10 years ago in
circumstances where that underlying decision is no longer operational
and has been set aside by a new regime.
In my view, the
interests of justice do not favour the grant of the condonation
sought, hence the plea of undue delay is upheld.
The Exemption
Decision
[74] In the
background part of this judgment I made mention of two letters that
featured prior to the launch of the review application.
One of
the letters forms the basis of the alternative relief being sought in
the review application, founded on section 81 of the
MLRA, which
grants the Minister of Agriculture, Fisheries and Forestry (Minister
of Agriculture) the power to exempt any persons
or group of persons
from a provision of the MLRA.
[75] As already
pointed out, the letter of 7 August 2013 is directed primarily at the
Minister of Agriculture for and on behalf
of “
the Hobeni
Fishing and Mussel Committee, include three individuals members who
were recently found guilty by the Elliotdale Magistrate’s
Court
for intention to fish in Dwesa-Cwebe Reserve
”. The
letters also purport to have been written on behalf of “
other
individual member of Hobeni, Mendwane and Ntubeni Communities
situated around the Dwesa-Cwebe Reserve
”. Apart from
mapping out the history relative to the matter, the letter requests
that the Legal Resources Centre, Cape
Town be furnished with an
undertaking that the decision of 29 December 2000 declaring the
Dwesa-Cwebe Marine Protected Area a “
no-take
” zone
be withdrawn within 10 days of receipt of the letter.
Alternative to that request, the Minister of Agriculture
was required
to exempt the Hobeni Fishing and Mussel Committee (including the
appellants) and certain faceless and unidentified
individual members
of the affected committees from the provisions of the MLRA
prohibiting access to the marine resources in the
MPA “
in
terms negotiated with the community
”.
[76] The letter
attracted no response from the relevant Ministry. At the very
least, conduct of this nature constitutes a
failure to take a
decision and is reviewable in terms of section 6(2)(g) of the PAJA.
[77] The exemption
was sought at a time when the appellants had already been convicted,
on behalf of the Fishing and Mussel Committee
of which the appellants
are members, and not on behalf of all the applicants in the review
application. Were the relief sought
to be granted the court
would, at the very least, be entitled to direct the Minister of
Agriculture to decide whether the persons
on whose behalf the subject
letter was written are entitled to be exempted from the provisions of
the MLRA prohibiting access to
the marine resources in the MPA, in
terms of section 8(2) of the PAJA. A provision of the MLRA
effectively prohibiting access
to the marine resources in the MPA is
section 43. That section has since been repealed. Any
order the court were to
grant, even if it were to take the decision
itself, would be without a lawful basis, as the enabling section has
been repealed.
This part of the review application must also
fail.
Costs
[78]
The criminal appeal, by its nature, attracts no cost order.
Even though the applicants have not been successful in the
review
application, in keeping with the
Biowatch
[55]
principle,
they are not liable to pay the costs of the application. Ms
Pillay, quite correctly so, did not press for a cost
order.
Conclusion
[79] In all these
circumstances, the order that I grant is the following:
1.
The appeal is dismissed.
2.
The review application is dismissed with no order of costs.
_____________________
S M MBENENGE
JUDGE OF THE HIGH
COURT
I agree
__________________
R GRIFFITHS
JUDGE
OF THE HIGH COURT
Counsel for the
Appellants/Applicants:
Mr J Brickhill (with him, Mr M Bishop)
Instructed by The
Legal Resources Centre, Cape Town
Locally
represented by:
Potelwa
and Co.
Mthatha
Counsel for the
First Respondent:
Ms EM van Wyk
Office
of the Director of Public Prosecutions
Mthatha
Counsel for the
other Respondents:
Ms K Pillay
State
Attorney, Cape Town
Locally Represented
by
State
Attorney, Mthatha
Date
heard:
13 November 2015
Date
delivered:
18 February 2016
[1]
This
community is situated directly adjacent to the Dwesa-Cwebe Nature
Reserve.
[2]
Cwebe lies
to the north of Hobeni adjacent to the border of the Marine
Protected area and the coast line.
[3]
Located
adjacent to the Dwesa-Cwebe Nature Reserve but without any access to
the coast line at present.
[4]
Dwesa-Cwebe
status final report and scientific recommendations dated April 2010
prepared by “
FieldWork
“.
[5]
For instance, tourists spending
one night in the Reserve could access a portion of the MPA
[6]
Ntubeni,
Mpume, Ngoma, Nhlangano, Mendwane, Hobeni and Cwebe Communites.
[7]
Section
42D(1) in relevant part provides:
“
(1)
If the Minister is satisfied that a claimant is entitled to
restitution of a right in land in
terms of section 2, and that the
claim for such restitution was lodged not later than 30 June 2019,
he or she may enter into
an agreement with the parties who are
interested in the claim providing for one or more of the following:
(a)
The
award to the claimant of land, a portion of land or any other right
in land dispossessed from another claimant or the latter’s
ascendant”.
[8]
The
sanctions available to the community are to discipline members who
are not compliant with the rules of the community’s
governance
system including the imposition of fines by traditional authorities,
damage to reputation and, significantly, social
exclusion.
[9]
Per James JP
in
Ismail
v Durban Corporation
1971 (3) All SA 222
, at 224;
S
v Mnisi
1997 (1) All SA 248
(T);
1996 (1) SACR 469
(T) at 251
[10]
Burchell,
South
African Criminal Law and Procedure Volume 1
;
General Principles of Criminal Law (4 ed), JUTA Cape Town at 116.
[11]
On the
contrary, the decision of the Minister of Agriculture, Fisheries and
Forestry not to grant the exemption in terms of section
81 is under
attack in the review section of these proceedings.
[12]
CR Snyman,
Criminal
Law
(5 ed) LexisNexis Durban at 98;
S
v Engelbrecht
2005 (2) SACR 41
(W) at 54b and 106a;
S
v I
1976
(1) SA 781
(RA) at 788;
S
v Robson
1991
(3) SA 322
(W) at 333E;
Clarke
v Hurst
1992
(4) SA 630
(D) at 653B-659B-C; and
S
v Fourie
2001
(2) SACR 674
(C) at 681a-b.
[13]
Bhe and
Others v Magistrate, Khayelitsha, and Others (Commission for Gender
Equality as
Amicus
Curiae
)
2005 (1) SA 580 (CC).
[14]
1921 AD 330.
[15]
Shilubana
and Others v Nwamitwa
2009
(2) SA 66
(CC) at para 55.
[16]
Section 30
provides:
“
Everyone
has the right to use the language and to participate in the cultural
life of their choice, but no one exercising these
rights may do so
in a manner inconsistent with any provision of the Bill of Rights.”
[17]
Section 31
provides:
“
(1)
Persons belonging to a cultural, religious or linguistic community
may not be denied the right, with other members
of that community –
(a)
to enjoy their culture, practise their religion and use their
language; and
(b)
to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
(2)
The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the
Bill of Rights.”
[18]
The section
provides:
“
(1)
The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the
Constitution.
(2) A
traditional authority that observes a system of customary law may
function subject to any applicable
legislation and customs, which
includes amendments to, or repeal of, that legislation or those
customs.
(3)
The courts must apply customary law when that law is applicable,
subject to the Constitution and any
legislation that specifically
deals with customary law.”
[19]
2004 (5) SA
460 (CC).
[20]
Id
at para [51]. (Footnotes omitted.).
[21]
Introductory
remarks by Van der Westhuisen in
Khohliso
v The State and Another
2015 (2) BCLR 164
(CC);
2015 (1) SACR 319
(CC) at para [1].
[22]
2010 (1) SA
333
(SCA) at 353 E-I.
[23]
MLRA Long
Title.
[24]
As amended by
the National Environmental Management: Protected Areas Amendment Act
21 of 2014 (NEMPAA), which came into operation
on 2 June 2014.
[25]
Supra
.
[26]
Ibid
at
para [42] see also para [32]
supra
.
[27]
See
supra
Bhe,
at
para [44], where it was held:
“
It
should however not be inferred from the above that customary law can
never change and that it cannot be amended or adjusted
by
legislation. In the first place, customary law is subject to
the Constitution. Adjustments and development to
bring its
provisions in line with the Constitution or to accord with the
“spirit, purport and objects of the Bill of Rights”
are
mandated. Secondly, the legislative authority of the Republic
vests in Parliament. Thirdly, the Constitution
envisages a
role for national legislation in the operation, implementation
and/or changes effected to customary law.”
[28]
Supra
Alexkor Ltd
at
para [81].
[29]
The section
reads:
“
Declaration
of marine protected areas.—(1) The Minister may, by
notice in the Gazette—
(a)
declare
an area specified in the notice—
(i)
as
a marine protected area; or
(ii)
as
part of an existing marine protected area; and
(b)
assign
a name to the marine protected area.
(2)
A declaration under subsection (1) (a) may only be issued—
(a)
to conserve and protect marine and coastal ecosystems;
(b)
to conserve and protect marine and coastal biodiversity;
(c)
to conserve and protect a particular marine or coastal species,
or
specific population and its habitat;
(d)
if the area contains scenic areas or to protect cultural heritage;
(e)
to facilitate marine and coastal species management by protecting
migratory routes and breeding, nursery or feeding areas, thus
allowing species recovery and to enhance species abundance in
adjacent areas;
(f)
to protect and provide an appropriate environment for research
and
monitoring in order to achieve the objectives of this Act; or
(g)
to restrict or prohibit activities which is likely to have an
adverse effect on the environment.
(3)
A notice under subsection (1) (a) may only be issued after
consultation
with the Cabinet member responsible for fisheries.”
[30]
Section 48A
reads:
“
Restriction
of activities in marine protected areas.—(1) Despite any
other legislation, no person may in a marine
protected area—
(a)
fish
or attempt to fish;
(b)
take
or destroy any fauna or flora;
(c)
undertake
any dredging or extraction of sand, rock, gravel or minerals
unrelated to any activities referred to in section 48 (1);
(d)
discharge
or deposit waste or any other polluting matter;
(e)
in
any manner which results in an adverse effect on the marine
environment, disturb, alter or destroy the natural environment
or
disturb or alter the water quality or abstract sea water;
(f)
carry
on any activity which may have an adverse effect on the ecosystem of
the area;
(g)
construct
or erect any building or other structure on or over any land or
water within such a marine protected area;
(h)
carry
on marine aquaculture activities;
(i)
engage
in bio-prospecting activities;
(j)
sink
or scuttle any platform, vessel or other structure; or
(k)
undertake
mineral exploration, and production of petroleum and other fossil
fuels.
(2)
Notwithstanding subsection (1) but subject to section 48 (1), the
Minister may, in relation to a marine protected area, prescribe—
(a)
different zones to regulate different activities within that marine
protected area; and
(b)
activities which require a permit.
(3)
Before exercising the power referred to in subsection (2), the
Minister must—
(a)
consult with the Minister responsible for fisheries and the
management
authority that is responsible for managing the relevant
marine protected area; and
(b)
ensure that the zoning achieves the objectives referred to in
section 2.
(4)
Any zone declared in terms of section 43 of the Marine Living
Resources Act, 1998 (Act No. 18 of 1998), or created by regulation
in terms of section 77 of that Act which exists when the National
Environmental Management: Protected Areas Amendment Act, 2014, takes
effect, must be regarded as a zone prescribed in terms of
subsection
(2).”
[31]
This
contention is predicated on section 7(1)(b) of the PAJA which makes
it a requirement that judicial review proceedings be
“
instituted
… not later than 180 days after the date … on which
the person concerned … might reasonably have
been expected to
have become aware of the action and the reasons
”
for it.
[32]
City of
Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
2010
(3) SA 589
(SCA) at para [13].
[33]
2004 (6) SA
222
(SCA) (
Oudekraal
).
[34]
Ibid
at
para [32]. (Footnotes omitted.)
[35]
Ibid
at
para [36]. (Footnotes omitted.)
[36]
Ibid.
[37]
Ibid
at
para [36].
[38]
Ibid
at
para [35]. See also
Metal
and Electrical Workers Union of SA v National Panasonic CC (Parow
Factory)
1991
(2) SA 527
(C) at 530C.
[39]
Ibid.
[40]
2012 (2) SA
95 (SCA).
[41]
Ibid
at
para [12].
[42]
Ibid
at
para [19].
[43]
South
African Broadcasting Cooperation v National Director of Public
Prosecution and Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC) at paras [36] – [37].
[44]
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005 (2) SA 302
(SCA) at para [46].
[45]
Khumalo v
MEC for Education
2014
(5) SA 579
(CC) at para [44].
[46]
Setsokasane
Busdiens (Edms) Bpk v Voorsetel, Nasionale Verwoer Kommissisie en ‘n
Ander
1986 (2) SA 57
(A) at 86.
[47]
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) (
Wolgreiers
).
[48]
Ibid
at
41.
[49]
Nugent JA’s
translation of paragraph 41E-F of
Wolgroeiers
Afslaers (Edms) Bpk
in
Gqwetha
v Transkei Development Corporation Ltd and Others
2006 (2) SA 603
(SCA)
at
para [22].
[50]
1993 (2) SA
245
(C) at 251J.
[51]
Supra.
[52]
Supra
Wolgroeirs Afslaers (Edms) Bpk
at
41;
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n
Ander
1986
(2) SA 57
(A);
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005
(2) SA 302
(SCA) at 321B;
Supra
Gqwetha
at
paras 4 - 5;
Khumalo
and Another v Member of the Executive Council for Education: KwaZulu
Natal
2014 (5) SA 579
(CC) at paras 49 – 50.
[53]
In terms of
section 9(1)(b) of the PAJA the period of 180 days referred to in
section 7 may be extended for a fixed period by
a court on
application by the person concerned.
[54]
In
considering the issue of what a reasonable time is in any given case
in
Radebe
v Government of the Republic of South Africa
1995
(3) SA 787
(N) at 799B-F Booysen J (in a passage, the first two
paragraphs of which were referred to with approval in
Liberty
Life Association of Africa v Kachelhoffer NO and Others
2001
(3) SA 1094
at 1112G-I) held:
“
[w]hen
considering what a reasonable time is to launch proceedings, one has
to have regard to the reasonable time required to
take all
reasonable steps prior to and in order initiate those review
proceedings. Such steps include steps taken to ascertain
the
terms and effect of the decision sought to be reviewed; to ascertain
the reasons for the decision; to consider and take advice
from
lawyers and other experts where it is reasonable to do so; to make
representations where it is reasonable to do so; to attempt
to
negotiate an acceptable compromise before resorting to litigation;
to obtain copies of relevant documents; to consult with
possible
deponents and to obtain affidavits from them; to obtain real
evidence where applicable; to obtain and place the attorney
in
funds; to prepare the necessary papers and to lodge and serve those
papers.
When
considering whether the time taken to prepare the necessary papers
was reasonable or unreasonable, allowances have to be
made for the
differences in skill and ability between various attorneys and
advocates.
It
must furthermore be borne in mind that no time has in fact been laid
down for the institution of such proceedings and it cannot
be
expected of a litigant or his legal representatives that they should
act in an overhasty manner, particularly where the opposing
party or
parties have been notified timeously of the fact that review
proceedings were in the offing.”
(Case
citations omitted.)
[55]
Biowatch
Trust v Registrar Genetic Resources and Others
2009 (6) SA 232
(CC).