Brief Summary

Customary Law — Fishing Rights — Appellants charged with fishing in a marine protected area without a permit, asserting customary rights to access marine resources — Court to determine whether customary rights can serve as a defence against statutory prohibitions — Appellants’ convictions set aside as customary rights not extinguished by Marine Living Resources Act 18 of 1998.

Comprehensive Summary

Summary of Judgment

1. Introduction

The judgment concerns an application for special leave to appeal and a criminal appeal heard by the Supreme Court of Appeal. The appeal arose from criminal convictions for attempting to fish in a marine protected area without a permit, where the accused asserted that they were acting in the exercise of customary-law rights.

The appellants were Malibongwe David Gongqose and others (individual community members), together with three communities identified as the Hobeni Community, Mendwane Community, and Cwebe Community. The principal respondents in the combined matters included the Minister of Agriculture, Forestry and Fisheries, officials within that department, the Minister of Environmental Affairs, and officials responsible for oceans and coastal management. In the separate criminal matter (case no 287/17), the respondent was the State.

The procedural history was central to the posture of the case. The appellants were arrested in September 2010 and prosecuted in the Magistrate’s Court, Elliotdale. They raised a defence that their conduct lacked unlawfulness because they were exercising a customary right to fish. The magistrate accepted that they were exercising such a right but nonetheless convicted them on the Marine Living Resources Act charge. The appellants appealed, and they and the affected communities also launched a review application seeking to set aside the ministerial decision declaring the marine protected area. The High Court (Eastern Cape Division, Mthatha) heard the criminal appeal and the review together, dismissed the review, and upheld the convictions on the basis that the appellants should have applied for an exemption/permit. The Supreme Court of Appeal then dealt with the special leave application (in relation to the convictions) and, because counsel indicated the review appeal would not be persisted in if the convictions were set aside, the judgment ultimately focused on whether the convictions could stand.

The general subject matter was the interaction between customary law (constitutionally recognised) and a statutory prohibition on fishing in a proclaimed “no-take” marine protected area, specifically whether customary rights could operate as a defence to unlawfulness in a statutory criminal offence.

2. Material Facts

The Dwesa-Cwebe Marine Protected Area (the MPA) was declared on 29 December 2000 under section 43 of the Marine Living Resources Act 18 of 1998 (MLRA) on a strict “no take” basis, meaning that fishing and harvesting of marine resources in the MPA were prohibited without permission. The MPA is situated on the east coast in the former Transkei and is adjacent to the Dwesa-Cwebe Nature Reserve.

The appellants were members of communities living adjacent to the reserve and MPA area. It was common cause that the Dwesa-Cwebe communities were historically dispossessed of their land and had historically relied on forest and marine resources for livelihood and cultural practices. Prior to the declaration of the MPA, access to resources was restricted through various conservation and fisheries laws, including the Transkei Nature Conservation Act 6 of 1971, the Sea Fisheries Act 58 of 1973, and later measures establishing a marine reserve and imposing prohibitions on collection of marine organisms.

The communities lodged land restitution claims in 1996 under the Restitution of Land Rights Act 22 of 1994, culminating in a settlement agreement in June 2001. The settlement agreement recorded that communities should have access to sea and forest resources based on sustainable utilisation “as permitted by law,” and contemplated favoured status in benefits and management input, but expressly excluded the MPA from its scope.

Although the MPA had been declared in 2000, enforcement of the no-fishing prohibition began only around 2005, and the communities continued to fish in accordance with their customary practices. Attempts to engage state authorities between 2006 and 2008 regarding access and sustainable utilisation did not produce an outcome.

On 22 September 2010, the appellants were arrested and charged with multiple offences, including (most importantly for the appeal) attempting to fish in a marine protected area without permission, contrary to section 43(2)(a) of the MLRA. They admitted, as formal admissions under section 220 of the Criminal Procedure Act 51 of 1977, that they intended to fish using rods, lines and hooks, that they were within the relevant area, and that they did not hold permits under the MLRA or the Conservation Decree. They nonetheless disputed unlawfulness, contending that their actions were the exercise of a customary right to fish.

At trial, the existence of a customary system regulating access to marine resources in the Dwesa-Cwebe communities, including long-standing practices and internal rules (such as avoiding juvenile fish and fish with eggs), was supported by defence evidence and described in expert evidence. The judgment records that this evidence was not disputed by the State, and that the prosecutor put to one expert that the State did not deny the customary-law right of access to marine resources. Both the magistrate and the High Court accepted that such a customary right existed and was exercised at the time.

The magistrate acquitted the appellants on the remaining charges under the Conservation Decree but convicted them on the MLRA count and imposed (for some appellants) a suspended fine or imprisonment alternative; the minor appellant was cautioned and discharged. The High Court upheld the convictions, reasoning that the conduct was unlawful because the appellants had not applied for an exemption/permit under the MLRA.

Two later developments were recorded in the background: the MLRA was amended by Marine Living Resources Amendment Act 5 of 2014, creating a structure recognising small-scale customary fishing rights, and in 2015 new regulations introduced limited community access to the MPA. The Supreme Court of Appeal’s decision, however, focused on the law and facts applicable to the appellants’ conduct and convictions.

3. Legal Issues

The central legal questions the Supreme Court of Appeal was required to determine were whether the appellants could rely on the exercise of a customary right as a defence in criminal proceedings, and specifically whether exercising a customary right of access to and use of marine resources rendered their conduct lawful despite the statutory prohibition in the MLRA.

Within that inquiry, the court identified and addressed four interrelated issues: the constitutional status of customary law; whether the appellants proved that they were exercising customary rights of access to and use of marine resources at the time; whether the MLRA extinguished those customary rights; and whether the appellants’ conduct was unlawful for purposes of the statutory offence.

The dispute primarily concerned the application of law to fact. The existence and exercise of the customary right was treated, on the record, as established and essentially undisputed for purposes of the appeal. The decisive questions were legal and interpretive: how section 211(3) of the Constitution conditions the relationship between customary law and legislation, whether the MLRA constituted “legislation that specifically deals with customary law,” and how unlawfulness and defences excluding unlawfulness operate in statutory offences that do not expressly mention unlawfulness.

4. Court’s Reasoning

The Supreme Court of Appeal began by situating customary law as an independent and original source of law under the Constitution. Relying on section 211(3) of the Constitution, it emphasised that courts must apply customary law when applicable, subject to the Constitution and to legislation that specifically deals with customary law. The court highlighted that this constitutional formulation does not subordinate customary law to “any” legislation generally, but only to legislation specifically directed at customary law. It also pointed to related constitutional provisions recognising cultural participation and affirming that the Bill of Rights does not deny the existence of rights recognised by customary law, insofar as consistent with the Bill of Rights.

On the evidentiary question, the court treated the appellants’ admissions as establishing the statutory elements of being in the area, intending to fish, and lacking statutory permits. The remaining question was unlawfulness. It accepted that the appellants proved, on the evidence, the existence of a customary system governing access to natural and marine resources, transmitted across generations, and that the appellants were exercising a customary right to fish at the time. The court underscored that customary law must not be assessed through a “common-law lens,” and that its nature and content must be determined by reference to customary law itself as practiced and developed by the community, consistent with constitutional values. The judgment recorded that the State did not dispute the substance of this customary-law evidence, and that the magistrate and High Court had accepted the existence and regulated character of the customary right.

The critical interpretive step concerned extinguishment. The court held that, within the South African constitutional framework, a customary right can be extinguished only by legislation that specifically deals with customary law, and that extinguishment must occur expressly or by necessary implication. In reaching this conclusion, the court reasoned from the text of section 211(3), without adopting foreign tests as binding, although it regarded comparative approaches as instructive background in understanding the concept of extinguishment and the relationship between regulation and underlying customary rights.

Applying ordinary principles of statutory interpretation (read contextually and purposively, and in accordance with section 39(2) of the Constitution), the court found “nothing in the language of the MLRA that specifically deals with customary rights.” It noted that the unamended MLRA at most recognised “subsistence fishers,” but that this was not the same as recognising customary-law fishing rights. The appellants’ evidence also showed that their customary rights were not confined to subsistence consumption but included ritual and cultural uses. The court contrasted this with the later 2014 MLRA amendments, which introduced the concept of “small-scale fishing communities” with explicit reference to shared history, forced removals, and communal exercise of rights in terms of agreement, custom or law. That amendment, in the court’s view, constituted legislation that does specifically deal with customary rights and could alter them; the unamended MLRA did not.

The court further reasoned that the purposes of the MLRA—conservation and sustainable utilisation, and fair and equitable control for the benefit of all citizens—were not inherently inconsistent with the continued existence of customary rights, particularly where the customary system itself incorporated rules geared toward sustainability. It rejected the High Court’s approach insofar as it treated the restitution settlement agreement as justifying the conclusion that access would necessarily be only as dictated by the statutory permitting scheme, especially given the finding that customary rights continued and were regulated within the customary system.

On unlawfulness, the court addressed the structure of statutory offences. Because section 43(2)(a) was silent on whether unlawfulness is an element, the court applied the general presumption that the legislature does not intend to punish innocent violations absent clear indication, and that, where unlawfulness is not expressly excluded, the ordinary defences excluding unlawfulness remain available. It treated unlawfulness as generally presumed to be an element of statutory offences, and turned to section 250(1) of the Criminal Procedure Act 51 of 1977 as recognising a procedural mechanism in offences requiring “necessary authority.” The court reasoned that “necessary authority” may be shown either by a statutory permit or by proving a customary right that renders the conduct lawful in light of the Constitution’s special protection of customary law.

Having found that the appellants were exercising a customary right to fish, and that the MLRA did not extinguish that right because it was not legislation specifically dealing with customary law, the court concluded that the appellants’ conduct was not unlawful. It held that the High Court’s reasoning—that the conduct was unlawful because the appellants had not applied for an exemption under section 81 of the MLRA—could not be sustained. The Supreme Court of Appeal considered that it was inconsistent for the High Court to accept that customary rights were not extinguished, yet simultaneously to treat their lawful exercise as dependent on a discretionary ministerial exemption. On this reasoning, requiring an exemption was characterised as a non sequitur given the survival of the right.

The court also addressed, and rejected, the High Court’s suggestion that recognising customary rights as negating unlawfulness would improperly elevate cultural rights over environmental rights in section 24 of the Constitution. While acknowledging that cultural rights may not be exercised inconsistently with other constitutional rights and that environmental protection is a legitimate legislative concern, it held that the Constitution also protects customary rights from interference except through the mechanism envisaged by section 211(3). On the facts, the court found that the exercise of the appellants’ customary rights was not shown to be inconsistent with section 24.

Because these conclusions disposed of the convictions, the court found it unnecessary to decide the alternative constitutional invalidity arguments, and it considered that the requirements for special leave to appeal were satisfied given the importance and strength of the legal issues and the prospects of success.

5. Outcome and Relief

The Supreme Court of Appeal granted the application for special leave to appeal in case number 287/17.

It set aside paragraph 1 of the High Court’s order and substituted an order upholding the criminal appeal, with the result that the appellants’ convictions and sentences were set aside.

No costs order is recorded in the order as reproduced in the judgment.

Cases Cited

The judgment referred to the following authorities: Bhe and Others v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC); [2004] ZACC 17. Alexkor Ltd and Another v The Richtersveld Community and Others 2004 (6) SA 460 (CC); [2003] ZACC 18. Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC); [2008] ZACC 9. Van Breda and Others v Jacobs and Others 1921 AD 330. Minister of Justice and Others v Estate Stransham-Ford 2017 (3) SA 152 (SCA); [2016] ZASCA 197. R v Van der Peet [1996] 2 SCR 507. R v Sparrow [1990] 1 SCR 1075. Yanner v Eaton [1999] HCA 53; 201 CLR 351; 166 ALR 258. Akiba on behalf of the Torres Strait Regional Sea Claim Group v Commonwealth of Australia [2013] HCA 33. Jaga v Dönges, NO and Another; Bhana v Donges NO and Another 1950 (4) SA 653 (A). Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC); [2004] ZACC 15. Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA); [2012] ZASCA 13. Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC); [2007] ZACC 12. Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC); [2000] ZACC 12. S v Arenstein 1964 (1) SA 361 (A). Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering [1986] ZASCA 10; 1986 (2) SA 555 (A). Director of Public Prosecutions: Gauteng Division, Pretoria v Moabi [2017] ZASCA 85.

Legislation Cited

The judgment referenced the Constitution of the Republic of South Africa, 1996, including sections 24, 30, 31, 39, and 211. It referenced the Marine Living Resources Act 18 of 1998, including section 43 (since repealed) and section 81. It referenced the Marine Living Resources Amendment Act 5 of 2014. It referenced the Criminal Procedure Act 51 of 1977, including sections 220 and 250. It referenced the Superior Courts Act 10 of 2013, including section 17(2)(d). It referenced the Transkei Nature Conservation Act 6 of 1971, the Sea Fisheries Act 58 of 1973, the Transkei Environmental Conservation Decree No 9 of 1992, and the Restitution of Land Rights Act 22 of 1994.

For comparative and contextual purposes as they appeared in the judgment, it also referenced the Constitution Act, 1982 (Canada) (section 35(1)), the Native Title Act 1993 (Australia) (section 211), and the Fauna Conservation Act 1974 (Queensland, Australia), as well as the Canadian Fisheries Act as mentioned in the discussion of Canadian jurisprudence.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the appellants proved they were exercising a customary-law right of access to and use of marine resources when they attempted to fish in the Dwesa-Cwebe Marine Protected Area. It held that the Marine Living Resources Act 18 of 1998, in its unamended form applicable to the charge, was not legislation that specifically deals with customary law for purposes of section 211(3) of the Constitution, and therefore did not extinguish the appellants’ customary right to fish.

It further held that, in a statutory offence where unlawfulness is not expressly excluded, unlawfulness is presumed to be an element, and that a customary right may operate as a defence excluding unlawfulness where it constitutes “necessary authority” in the constitutional setting. On the facts, because the appellants’ customary right had not been extinguished by legislation specifically dealing with customary law, their conduct was not unlawful, and the convictions and sentences could not stand.

LEGAL PRINCIPLES

The judgment applied the principle that customary law is an independent source of South African law whose validity and force derive from the Constitution, and that courts must apply customary law when applicable in terms of section 211(3) of the Constitution, subject only to the Constitution and to legislation that specifically deals with customary law.

It applied the principle that a customary right can be extinguished only by legislation that specifically deals with customary law, and that such extinguishment must be effected expressly or by necessary implication, rather than by general regulatory legislation that does not specifically address customary law.

It applied orthodox principles of statutory interpretation in a constitutional setting, including contextual and purposive interpretation and the obligation under section 39(2) of the Constitution to interpret legislation to promote the spirit, purport and objects of the Bill of Rights, without unduly straining the statutory text.

In relation to criminal law, it applied the presumption that where a statute creating an offence is silent on the elements of the offence, courts generally presume that unlawfulness is an element, and that defences excluding unlawfulness remain available unless clearly excluded. It also applied the procedural framework in section 250(1) of the Criminal Procedure Act 51 of 1977 concerning offences requiring “necessary authority,” and treated proof of an applicable customary right as capable, in the constitutional context, of supplying authority that negates unlawfulness where the right has not been extinguished in the manner contemplated by section 211(3).

Gongqose and Others v Minister of Agriculture, Forestry and Others, Gongqose and S (1340/16, 287/17) [2018] ZASCA 87; [2018] 3 All SA 307 (SCA); 2018 (5) SA 104 (SCA); 2018 (2) SACR 367 (SCA) (1 June 2018)