Journal of Southern African Studies

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Asserting Customary Fishing Rights in South Africa

Michael Bishop

To cite this article: Michael Bishop (2021) Asserting Customary Fishing Rights in South Africa,
Journal of Southern African Studies, 47:2, 291-308, DOI: 10.1080/03057070.2021.1893989
To link to this article: https://doi.org/10.1080/03057070.2021.1893989

Published online: 24 Mar 2021.

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Journal of Southern African Studies, 2021
Vol. 47, No. 2, 291–308, https://doi.org/10.1080/03057070.2021.1893989

Asserting Customary Fishing Rights

in South Africa

MICHAEL BISHOP
(Cape Bar)

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.
Keywords: customary law; customary fishing; right to culture; environmental justice

Introduction
For centuries, the communities that live in and around the Dwesa–Cwebe nature reserve in
the Eastern Cape province of South Africa have harvested resources from the sea
‘sustainably and wisely’.1 The sea, the rocks and coastline around the reserve are sacred to
them and are the home of their ancestors. Fishing is vital to their food security and economic
livelihoods. As David Gongqose would explain at his trial2 in the Elliotdale magistrates’
court: ‘I learned that from my culture that [fishing] is helpful so that we could have put food

1 Final Report on Dwesa-Cwebe Social Study for the Rezoning of the MPA (Eastern Cape Parks and Tourism
Agency, East London, 2014).
2 Author's note: I am a member of the Cape Bar. I acted as counsel for the Appellants in Gongqose before
both the High Court and the Supreme Court of Appeal. I was also employed by the Legal Resources Centre
at the time. However, this paper is not primarily about how the case was litigated, but about the likely legal
consequences of the decision.

ß 2021 The Editorial Board of the Journal of Southern African Studies

292 Michael Bishop

on the table … so we could send our children to school and buy them clothes’. Those
communities not only inhabit the reserve, they own it.
In 2012, three members of that community – David Gongqose, Siphumile Windase and
Nkosipendule Juza – were convicted of fishing in the reserve. They were convicted because
in December 2000 the minister of environmental affairs issued a declaration in terms of
section 43 of the Marine Living Resources Act (MLRA) which made the whole of the
coastline of the Dwesa–Cwebe reserve a ‘no-take’ marine protected area (MPA).3 This made
fishing in the area without a permit a criminal offence. At the time, there was no scientific
evidence to support the declaration.
What followed was a six-year legal process to establish a fundamental proposition: it was
lawful for Gongqose, Windase and Juza to fish because they had a customary-law right to do
so. The process was not easy. They were convicted in the magistrates’ court of Elliotdale,
lost an appeal to the High Court, were refused a hearing by the Supreme Court of Appeal,
found a backdoor to have their application reconsidered, and, eventually, succeeded in
having their convictions set aside in Gongqose vs Minister of Agriculture, Forestry
and Fisheries.4
These fishers’ story reflects the tension in democratic South Africa about the place of
customary law. Despite express constitutional protection, customary law and customary
rights are often disregarded by policy makers, legislators and courts. For many communities
it is a constant struggle to ensure the recognition of the status of their customary law as law.
This plays out in multiple arenas – the assertion of land rights against mining companies, the
assertion of communal accountability for traditional leaders, and the assertion of rights to
natural resources against the state.
The Gongqose judgment entrenches the position of customary law in the constitutional
framework. It confirms, for the first time, what is said plainly in section 211(3) of the
Constitution: that customary-law rights cannot be overridden by legislation that does not
specifically deal with customary law. Gonqgose reveals that these rights continue to exist
despite legislative regulation, unless the statute expressly or by necessary implication alters
those rights. That is a tectonic shift from a pre-constitutional past that either treated
customary law with disdain or co-opted it as a tool for oppression. It is a shift even for some
constitutional understandings of customary law which had, at least implicitly, believed it
would be automatically trumped by any legislation.
Gongqose was, in hindsight at least, an easy case. There was no debate that the applicants
were exercising customary rights. There was no doubt that the MLRA did not ‘specifically
deal’ with customary law. There was no evidence that allowing customary fishing would be
detrimental to the environment. And, by the time the case was decided, the law had changed
so that the only direct effect would be to reverse the three fishers’ convictions.
While Gongqose realigns how lawyers and courts think about customary rights under the
Constitution, it leaves difficult questions unanswered. How do we know when someone is
exercising a customary-law right and not just a cultural practice? What must legislation say
in order to ‘specifically deal with customary law’? If legislation does deal with customary
law, when should it be interpreted to alter customary rights, and when only to regulate their
exercise? How should courts resolve tensions between conservation and custom when they
cannot be exercised in harmony? When and how should courts develop customary law?
This article begins to answer those questions. The goal is to create a framework for
analysing similar future claims for the exercise of customary rights (and cultural practices)
in the face of legislation that could be interpreted to prohibit it. While I use customary

3 The MLRA is Act 18 of 1998.

4 [2018] ZASCA 87; 2018 (5) SA 104 (SCA).
 Asserting Customary Fishing Rights in South Africa 293

fishing as a paradigmatic case, the same analysis would apply to the exercise of rights to
other resources (including land), and the recognition or regulation of customary
governance systems.
I argue that the protection Gongqose affords customary law is powerful, but primarily
procedural. Its most important contribution is to force the legislature to engage directly with
customary law when it legislates in an area that might affect that law. If it does not, the
legislation cannot extinguish the customary-law rights, which will continue to exist on an
equal footing with legislation, potentially frustrating the legislature’s aims. That procedural
shift to force lawmakers to consider the impact of legislation on customary rights is likely to
be Gongqose’s most lasting legacy.

Context
Constitutional Context
In the pre-constitutional era, custom was seen as ‘a useful accessory … filling in normative
gaps in the common law’.5
In terms of the Constitution, customary law is now recognised as an independent and
original source of law. Customary law, like all law, ‘depends for its ultimate force and
validity on the Constitution’, and ‘the Constitution acknowledges the originality
and distinctiveness of indigenous law as an independent source of norms within the legal
system’.6 As an independent source of law, a customary-law system may give rise to rights,
such as access and use rights to resources.
This recognition arises from several interlocking provisions of the Constitution. First, 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 common law, customary law or legislation, to the
extent that they are consistent with the Bill’. Second, section 211(3) reads: ‘[t]he courts must
apply customary law when that law is applicable, subject to the Constitution and any legislation
that specifically deals with customary law’.7 Third, sections 30 and 31 of the Constitution
protect the rights of all people to participate in the cultural life of their community.
Importantly, courts must not enforce written customary law that may distort actual
practice. Rather, the customary law that matters is the ‘living customary law’ – the law as
practised by the community.8 Where there is a dispute, parties must lead ‘evidence of the
present practice of that community’ in order to establish the law.9 Moreover, communities
can themselves develop their customary law to meet both the norms of the Constitution, and
changing societal needs.10

Factual Context
Over centuries, the Dwesa–Cwebe communities enjoyed customary-law rights of access to
the marine resources in the reserve. From 1900 to 1950, the communities were relocated to
land adjacent to the reserve. This excluded them from a significant portion of their ancestral
land and barred them from exercising their customary-law rights of access to the resources.

5 Shilubana vs Nwamitwa 2009 (2) SA 66 (CC), para. 54, referring to Van Breda vs Jacobs 1921 AD 330.
6 Alexkor Ltd vs The Richtersveld Community 2004 (5) SA 460 (CC), para. 51. See also Bhe vs Khayelitsha
Magistrate [2004] ZACC 17; 2005 (1) SA 580 (CC), para. 41; Shilubana, para. 44.
7 I do not address the proviso that customary law is ‘subject to the Constitution’ as rights of access to
resources are unlikely to violate the Constitution.
8 There are difficult questions about the boundaries of customary law – is it defined by geography or
relationship, for example. Those questions largely fall beyond the scope of this paper.
9 Shilubana, para. 46.
10 Ibid., para. 45.
294 Michael Bishop

In 1996, they lodged a land claim for the return of their land under the Restitution of
Land Rights Act.11 In December 2000 – despite ongoing negotiations about the land claim
and the communities’ right of access to marine resources – the minister declared the MPA a
complete no-take zone. He did so without consulting with the community, without informing
them, and without any scientific evidence that prohibiting customary fishing was necessary
for conservation.
Just over six months later, on 17 June 2001, a settlement agreement was signed between
the claimant communities and the minister of land affairs in terms of which the land would
be restored to them. The agreement excluded the MPA, but confirmed that ‘the communities
should have access to sea and forest resources, based upon the principle of sustainable
utilisation as permitted by law’.
For nearly five years, members of the community were unaware of the prohibition –
which was not enforced – and continued to fish. Enforcement began in 2005. This triggered
intense negotiations with various government agencies to grant the communities reasonable
access to fish in the MPA.
On 22 September 2010, while the negotiations were ongoing, Gongqose, Windase and
Juza were arrested for fishing in the MPA and charged with contravening the MLRA. The
fishers fortuitously secured legal representation from the Legal Resources Centre (LRC) –
one of South Africa’s most respected human rights law firms.12 Supported by the LRC, they
decided to admit they had been fishing, but assert that their customary-law rights meant their
conduct was lawful.
At the trial, they led detailed evidence on the nature and existence of their customary
rights, including the evidence of an anthropologist13 and a social scientist14 who had spent
years studying the community, David Gongqose, and a traditional healer. The magistrate
accepted that the three had a customary right to fish in the MPA subject to their own
traditional forms of regulation. The High Court described these rights as follows:
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, or through official state
regulation.15

Despite finding the existence of a customary right, the magistrate convicted the fishers of
contravening section (1) of the MLRA, because a customary right could not justify conduct
that was criminal under legislation. However, he expressed doubt about the constitutionality
of the provision – an issue which fell outside his jurisdiction. He acquitted them on the
remaining charges. The fishers appealed to the High Court.

11 Act 22 of 1994.
12 For a discussion the LRC’s involvement, see W. Wicomb, ‘The Limits of the Law: The Struggles of The
Traditional Fishers of Hobeni Village’, in C. Rodriguez-Garavito (ed.), Human Rights in Minefields:
Extractive Economies, Environmental Conflicts and Social Justice in the Global South (Bogota, Dejusticia,
2015), pp. 40–73.
13 See D. Fay, ‘Was “Living Customary Law” There All Along?’, in W. Beinart, R. Kingwill, and G. Capps,
Land, Law and Chiefs in Rural South Africa: Contested Histories and Current Struggles (Johannesburg,
Wits University Press, forthcoming 2021).
14 J. Sunde, ‘Customary Governance and Expressions of Living Customary Law at Dwesa-Cwebe:
Contributions to Small-Scale Fisheries Governance in South Africa’ (PhD thesis, University of Cape
Town, 2014).
15 Gongqose vs S; Gongqose vs Minister of Agriculture, Forestry and Fisheries [2016] ZAECMHC 1; [2016] 2
All SA 130 (ECM), para. 23.
 Asserting Customary Fishing Rights in South Africa 295

Before the matter could be heard, three important legal developments occurred.
First, on 20 June 2012, following an order of the Equality Court, the Department of
Agriculture, Forestry and Fisheries published the Small-Scale Fishing Policy to create a
policy platform for the proper recognition of customary fishing rights.16
Second, the MLRA was amended to give effect to that policy.17 With effect from 2 June
2014, section 43 of the MLRA was repealed. The new MLRA also established a new
structure for the recognition of small scale, customary fishing rights.
Third, on 6 November 2015, the minister of environmental affairs published new regulations
for the management of the Dwesa–Cwebe MPA.18 These regulations introduced limited access
to the MPA for community members. As explained below, the limits were unjustifiable, but at
least people would not be arrested for fishing, if they complied with the rules.
By the time the matter was heard in the High Court the only live issue was the conviction
of the three fishers under repealed legislation. Whatever they decided, it would not create a
direct precedent allowing customary fishing to be exercised under the new legal regime.
Nonetheless, the High Court dismissed the appeal. In short, it held that while the fishers had
customary-law rights and the MLRA had not extinguished those rights, it was still criminal for
them to fish. It held that they should have sought an exemption from the minister.
The fishers then applied for leave to appeal to the Supreme Court of Appeal (SCA). The
two judges assigned to consider the application refused to hear it. The Appellants had to
resort to the Hail Mary of appellate litigation – asking the president of the SCA to reconsider
that decision.19 Amazingly, she granted it, and the fishers had another day in court.

The Judgment
While the Constitutional Court considered how customary rights could be extinguished in
the pre-constitutional age in Alexkor,20 Gongqose is the first case to consider extinguishment
of customary-law rights under the Constitution. A common view prior to Gongqose was that
customary rights could not ‘trump’ legislation. If the exercise of a customary right was
contrary to statute, it was unlawful, and if legislation governed in an area, it replaced the
relevant customary law.21
In Gongqose the SCA dispelled that view. It referred to Canadian and Australian
authority that ‘only clear and justified extinguishment of customary rights is permissible’.22
While obviously influenced by those decisions, it did not adopt them. Instead, relying on
section 211(3) of the Constitution, the Court held that there were two requirements to
extinguish a customary right: ‘first, … a customary right can only be extinguished by
legislation specifically dealing with customary law; and secondly, that such legislation must
do so either expressly or by necessary implication’.23 Since there was ‘nothing in the
language of the MLRA that specifically deals with customary rights’,24 it could not be

16 The Small-Scale Fishing Policy was formally published as ‘Policy for the Small Scale Fisheries Sector in
South Africa’, Government Notice 474, Government Gazette 35455, 20 June 2012, but is generally referred
to as the ‘Small-Scale Fishing Policy’ and often abbreviated to SSFP (in Gongqose, for example).
17 Marine Living Resources Amendment Act 5 of 2014.
18 Government Gazette 39379 (6 November 2015).
19 Superior Courts Act 10 of 2013, section 17(2)(f).
20 Alexkor Ltd & Another vs The Richtersveld Community & Others [2003] ZACC 18; 2004 (6) SA 460 (CC)
para. 70.
21 See, for example, K. Lehmann, ‘Fishing in Protected Waters: Balancing Customary Rights and Conservation
Imperatives’, South African Journal of Environmental Law and Policy, 2 (2011), p. 77.
22 Gongqose, para. 41, referring to R vs Sparrow [1990] 1 SCR 1075; Yanner vs Eaton [1999] HCA 53; 166
ALR, p. 258ff.
23 Gongqose, para. 50.
24 Ibid., para. 52.
296 Michael Bishop

legislation that ‘specifically deals with customary law’. Gongqose, Windase and Juza
therefore had a right to fish in the reserve, and their conduct could not be criminal.
It rejected three arguments that sought to limit customary rights. First, that the MLRA
provided for subsistence fishing. But this was not the same as ‘the recognition of a customary
law right to fish. While the activities of some customary fishers may include subsistence fishing,
subsistence fishers are not necessarily persons who fish in terms of customary law’.25
Second, Acting Judge of Appeal (AJA) Schippers rejected an argument – which had
found favour in the High Court – that customary rights could only lawfully be exercised
through the grant of a ministerial exemption under section 81 of the MLRA. This was a ‘non
sequitur’ because it was impossible to hold ‘that customary rights were not extinguished by
the MLRA, but that those rights were nonetheless subject to the discretion of the minister,
created in terms of [section] 81 of the MLRA’. 26
Third, that the need to conserve scarce marine resources justified interpreting the MLRA
as proscribing the free exercise of customary fishing rights. Schippers AJA rejected the false
dichotomy between custom and the environment, holding that ‘[c]ustomary rights and
conservation can co-exist’ because ‘the Dwesa-Cwebe communities have a greater interest
in marine resources associated with their traditions and customs, than any other people’ and
their customs ‘recognise the need to sustain the resources that the sea provides’.27
He also accepted that the ‘consistent with other rights’ proviso in sections 30 and 31 of
the Constitution does not undermine the protection afforded to customary rights in section
211(3). Where the practice of culture is, in addition, the exercise of a customary right, then
sections 30 and 31 are ‘not the end of the Constitution’s protection of customary rights. It
also protects them from interference, other than through specific legislation contemplated in
[section] 211(3)’.28 As the MLRA was not a section 211(3) law, it could not alter the
customary rights, notwithstanding the imperative of section 24.
The SCA set aside the convictions.

Asserting Customary Rights after Gongqose

After Gongqose, how will customary rights be protected? If another community seeks to
assert customary fishing rights elsewhere in the country, what questions will a court ask to
assess its claim? If a community seeks to assert its customary rights in land to prevent
development or mining, what will it have to establish to succeed?
This section identifies the key elements of a customary rights claim. I set out the
proposed structure for analysing the issues in the form of six questions and then delve
deeper into each question.

Structure of Analysis
Gongqose establishes a six-step analysis to determine whether legislation has supplanted
customary rights.
The first question is whether the access to the resource is a cultural practice, or a right
under customary law. The nature of the protection diverges at this point. I first deal with the
protection afforded to customary rights before considering cultural practices.
Second, if it is a right, does the legislation ‘specifically deal’ with customary law as
required by section 211(3) of the Constitution? If it does not, the legislation cannot be a

25 Ibid., para. 53.

26 Ibid., para. 65.
27 Ibid., para. 56.
28 Ibid., para. 66.
 Asserting Customary Fishing Rights in South Africa 297

basis to interfere with customary rights. The customary rights continue to exist as if the
legislation did not exist.
Third, if the legislation does deal specifically with customary law, does it extinguish or
alter the customary-law right? It must do so expressly, or by necessary implication. If the
customary right is not extinguished, then its exercise cannot be unlawful – even though it
can be regulated.
Fourth, does the regulation of the customary right amount to a limitation of a right in the
Bill of Rights such as the rights to culture in sections 30 and 31, or other rights such as the
right not to be arbitrarily deprived of property, the right of access to food, or the right to
secure tenure (if people lose their rights to land)?
Fifth, if the legislation extinguishes, alters, or even limits the exercise of the customary-
law right, is the limitation justified in terms of section 36(1) of the Constitution? If not, the
limitation or alteration is unconstitutional.
Sixth, in light of any limitations placed on customary rights, is there any need to develop
the law in terms of section 39(2) of the Constitution? That leads to a core tension in the
Constitution’s regulation of customary law – how can civil courts interfere with the content
of customary law without distorting its character?
What if the thing being impinged on is not a customary right, but a cultural practice?
That can be limited by any law, not just a section 211(3) law. However, the Constitution still
affords important protections to the right to cultural practice: the legislation must be
interpreted to promote the ‘spirit, purport and objects of the Bill of Rights’ which requires
avoiding limiting29 – or at least unjustifiably limiting30 – the right if possible; in addition,
steps four to six above can apply to interference with customary practices.
These types of case are novel, and each step of this analysis remains heavily
undeveloped. In what follows I try to fill in the blanks.

Right or Practice
There was never any real dispute in Gongqose that the accused were exercising customary
rights. As a result, neither the SCA nor the High Court spelled out what would turn a
customary practice into a customary right. In my view there are three requirements.
First, the community must practise and be bound by a general system of customary law,
beyond the practice of fishing. Schippers AJA emphasised that the applicants had
established a ‘customary system governing all aspects of life in the Dwesa-Cwebe
communities’.31 This included
‘relations between parents and children, husbands and wives, household heads and
neighbours, headmen and sub-headmen. They include ceremonial events (weddings, payment
of bridal wealth and circumcision); access to and use of natural resources, more particularly
land, forest and marine resources; and the resolution of disputes’.32

Access to marine resources was only one of the matters that was regulated by customary
law. A community that develops a detailed system for governing access to marine resources
but otherwise entirely governs itself and arranges its relationships according to the ordinary
civil law cannot claim that fishing is a right under customary law.

29 Constitution section 39(2); Investigating Directorate: Serious Economic Offences vs Hyundai Motor
Distributors (Pty) Ltd, In Re: Hyundai Motor Distributors (Pty) Ltd vs Smit NO [2000] ZACC 12; 2001 (1)
SA 545 (CC), paras 21–4.
30 National Union of Metal Workers of South Africa vs Bader Bop (Pty) Ltd [2002] ZACC 30; 2003 (3) SA
513 (CC).
31 Gongqose, para. 37.
32 Ibid.
298 Michael Bishop

That is not a hypothetical example. There is a community of fishers who, for over a
hundred years, have been fishing harder (mullet) in the Langebaan Lagoon. Many of the
current fishers are fourth, fifth or sixth generation fishers. They have developed practices,
rituals, and place names around their practice of fishing. Their lives are bound to the lagoon
and the sea in ways comparable to the community of Dwesa–Cwebe. But when they put
down their fishing nets they are governed not by their unique system of customary law, but
by the common law.33 While they may have a claim to protection of cultural practices, they
are not exercising customary-law rights.
To be clear, a community may be governed by a mix of customary law, statute and
common law. But for a claim to customary rights, there must be a system of law that
extends beyond any particular activity.
Second, within that broader system of law, exercising the customary right (to fishing, in
our example) must be more than a pastime. It must be a resource to which members of the
community are entitled, and non-members are not. It should also be governed by rules or
principles of when, who, what and how fishing may occur.
This is a complicated matter, as Wilmien Wicomb – the attorney for the Gongqose fishers
– explains. When consulting with members of the community, she tried to get them to
express their custom of fishing in the language of rights.34 A member of the community
explained that she was ‘using the wrong words’. He continued:
We didn’t have a right to fish. Fishing was simply life. What you call rights, for us was
simply a part of life. It is you who use this language of rights. We don’t know that. We want
our life, but if we can’t have that, then maybe at a minimum we can have these rights to fish
that you are talking about.35

When Wicomb sought to determine what sanctions the community would impose for non-
compliance with rules about fishing, she reported the community’s response, and her ensuing
realisation: ‘“[i]t would not happen”. It was not possible for them to even imagine’.36
But to win the litigation, this understanding had to be converted into the language of
rights and rules about who could fish and how. The SCA held there ‘were rules that small
fish and fish with eggs should not be caught but left in the sea so that there could be more
fish in later years. Disputes about fishing spots were settled by headmen or subheadmen in
the community’.37 This is the language lawyers and courts use to fit customary law into their
idea of how law works.
Translating a customary practice into the language of rights will inevitably distort the
practice. South African legal practice – even the sympathetic practice of the Constitutional
Court – pressures those asserting customary rights to reduce the richness of practice to
barren but precise statements of law.
The third requirement is that the claimant must establish that they are a member of the
community, and a bearer of the right. Gongqose testified that he was allowed to fish
‘because he grew up there and his great grandfathers used to fish there’ and because ‘his
culture allowed him to do so’.38 If anyone qualified as a member entitled to access the
resource, he did. But there will be harder cases where there is no single answer; it will
depend on evidence of the customary law of that community.

33 See Coastal Links Langebaan vs Minister of Agriculture, Forestry and Fisheries [2016] ZAWCHC 150;
[2017] 2 All SA 46 (WCC).
34 Wicomb, ‘The Limits of the Law’, p. 52.
35 Ibid., p. 53.
36 Ibid., p. 53.
37 Gonqgose, para. 27.
38 Ibid.
 Asserting Customary Fishing Rights in South Africa 299

These three requirements will make it difficult to establish a customary right to fish. It
will demand evidence of the customary law in the specific community.39 The claimants in
Gongqose were fortunate to have both people within the community, and independent
experts who had studied the community and were able to testify. Not all customary
communities will be as fortunate.
There is a real tension between competing policy concerns in deciding how easy or
difficult it should be to establish a customary right. If the bar is set too low, it will trivialise
the protection of customary law, potentially pose real conservation concerns, and invite
stricter regulation. If the bar is set too high, the protection apparently afforded by Gongqose
may be illusory as few communities will be able to claim it.
It would be far easier to establish that fishing is a cultural practice rather than a customary
right. But identifying a constitutionally protected cultural practice remains troublesome. I have
written in detail elsewhere that this raises three key questions: is there a culture? Is the claimant
a member of the culture? Is the practice a cultural practice deserving constitutional protection?40
The answers are complex. Identifying a culture depends on an assessment of multiple factors.
Deciding membership demands a consideration of both whether the person sees themself as a
member of a culture, and whether the culture accepts them as a member. And defining a
practice as ‘cultural’ requires that the individual and a non-trivial portion of the broader culture
follow it, and that they do so because of its cultural significance.

‘Specifically Deals with Customary Law’

If a fisher can show that he is exercising a customary right to fish, the only legal instrument
that can strip him of that right is legislation that ‘specifically deals’ with customary law, or
the Constitution itself. In Gongqose, the legislation did not deal with customary law at all,
never mind specifically. The SCA did not have to worry about exactly what qualifies as
legislation that ‘specifically deals’ with customary law.
But at some point, courts will have to figure out where that line is. To do that, the
purpose of section 211(3) is vital. To appreciate the purpose, it helps to know how
legislation can alter the common law, and then consider why that language was included in
section 211(3). There is a canon of interpretation that a statute only alters the common law if
it explicitly says that is the intention of the legislature, or if a court ‘can come to no other
conclusion than that the legislature did have such an intention’.41 But there is no
requirement that the legislation be directed at the common law. The common law can be
altered by legislative neglect – legislation that does not mention common law, and that was
not intended to alter the common law, can nonetheless have that effect.
Not so for customary law. The legislation must ‘deal’ with customary law. Why?
Because while there is a common-law presumption of statutory interpretation that the
legislature knows the common-law position,42 that is not the case for customary law.
Instead, section 211(3) fulfils that role.

39 How small a ‘community’ is depends on the evidence and the issue. Some rule of customary law may be
common across a large area, or a large group of people – the VaTsonga, for example. Other rules may
differ between subgroups. At what ‘level’ the rule of customary law needs to be established is, itself, a
question for evidence.
40 A. Ampofo-Anti, and M. Bishop, ‘On the Limits of Cultural Accommodation’, in A. Price and M. Bishop
(eds), A Transformative Justice: Essays in Honour of Pius Langa (Cape Town, Juta, 2015), pp. 456–94.
41 See Litako vs S [2014] ZASCA 54; 2015 (3) SA 287 (SCA), para. 52, quoting with approval from Casserley
vs Stubbs 1916 TPD 310 at 312. Litako was recently cited with approval in Tshwane City vs Link Africa
2015 (6) SA 440 (CC), para. 153, n. 130.
42 Jordaan vs City of Tshwane Metropolitan Municipality [2017] ZACC 31; 2017 (6) SA 287 (CC), para. 28,
n. 62.
300 Michael Bishop

There are two related reasons for this special constitutional protection. One, customary
law has never been afforded appropriate respect and would be likely to be overlooked where
the common law would not. Two, even a good-faith legislature may not know that a new
statute will affect customary rights because it cannot simply open a book to determine what
the customary law is.
The Constitution wanted to ensure that customary law was not altered or abrogated by
legislative accident, but only after careful consideration. If the legislation ‘specifically deals with
customary law’, that means that the legislature understood that there were customary-law rights
at stake, engaged in a reasonable process of public participation about those rights43 and how
they would be affected, and made a conscious decision to extinguish or alter them.
That purpose leads to the appropriate test for section 211(3): does the legislation
demonstrate that parliament (a) knew the law could affect customary rights; and (b)
considered how the law should affect customary law? This must appear from the law itself,
not merely from information before the legislature.
In some instances, this is simple: statutes like the Recognition of Customary Marriages
Act and the Traditional and Khoisan Leadership Act are clearly intended to ‘deal with’
customary law.44
But a statute can be directed primarily at another goal and still deal with customary law
in that field. The two statutes that replaced the pre-2014 MLRA are good examples. The
National Environmental Management: Protected Areas Act (NEMPAA) which replaced the
provisions concerning MPAs fails to mention culture or custom.45 It is not legislation that
‘deals with’ customary law, and so the rationale in Gongqose holds – it is not a section
211(3) law and so it is not a crime for a customary fisher to fish in an MPA.
The post-2014 MLRA uses the language of ‘small-scale fishing communities’ and it defines
those communities (in part) with reference to ‘custom or law’.46 It provides that the minister’s
power to grant rights to small-scale fishing communities must be exercised ‘in order to achieve
the objectives contemplated in section [sic] 9(2) and 39(3) of the Constitution’47 – the sections
concerning affirmative action measures, and existing customary-law rights. Thus, the statute
‘specifically deals with customary law’.48 The legislature knew that there were customary
fishing rights, and decided to regulate the exercise of those rights. How it dealt with those rights
is a different question I return to below.
Section 211(3) does not only apply to fishing, so let us take a different issue – mining. In
Baleni, the Xolobeni community – a few hundred kilometres north of Dwesa–Cwebe –
objected to an Australian mining company’s application for a right to mine titanium from
their sands.49 The community argued that the right could only be granted with the
community’s consent under customary law. The case pitted two statutes against one another
– the Interim Protection of Informal Land Rights Act (IPILRA), and the Mineral and
Petroleum Resources Development Act (MPRDA).50 IPILRA expressly recognises
customary rights over land and provides a process for a community to consent to the use of
their land. The MPRDA provides that mineral rights vest in the custodianship of the state,
and allows the minister to grant mineral rights on application. Section 4(2) of the MPRDA

43 See sections 59 and 118 of the Constitution; and Doctors for Life International vs Speaker of the National
Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC).
44 Act 120 of 1998 and Act 3 of 2019 respectively.
45 NEMPAA is Act 57 of 2003.
46 MLRA section 19(1).
47 MLRA section 19.
48 Gongqose, para. 54.
49 Baleni and Others vs Minister of Mineral Resources [2018] ZAGPPHC 829; 2019 (2) SA 453 (GP).
50 Acts 31 of 1996 and 28 of 2002 respectively.
 Asserting Customary Fishing Rights in South Africa 301

expressly states that it prevails over the common law.51 However, the Act did not say the
same about customary law.
The High Court concluded that IPILRA was section 211(3) legislation, but the MPRDA
‘does not purport to regulate customary law at all’.52 Therefore, it held, the community’s
consent was required.
While that may appear to be a finding that the MPRDA is not section 211(3) legislation,
this is not so. The MPRDA does have provisions concerning customary law. It defines
‘community’ (in similar terms to the post-2014 MLRA definition of small-scale fishing
community) as ‘a group of historically disadvantaged persons with interest or rights in a
particular area of land on which the members have or exercise communal rights in terms of
an agreement, custom or law’. Section 23(2A) empowered the minister, when granting a
mining right, to ‘impose such conditions as are necessary to promote the rights and interests
of the community, including conditions requiring the participation of the community’.
In my view, the MPRDA is legislation that ‘specifically deals with customary law’. It
recognises that there are customary rights over land, and treats those rights differently from
common-law rights. It is apparent from the statute that the legislature was aware of
customary-law rights when it enacted the MPRDA, and decided how to deal with them.
The reason the community in Baleni could assert their customary-law right to consent to
mining on their land was not because the MPRDA was not section 211(3) legislation, but
because the MPRDA did not extinguish or alter those rights. The MPRDA is a section
211(3) law, but it confirms the constitutional and statutory protection for customary rights
and affords communities additional protections.
But let us imagine that the MPRDA did not include the definition of community linked to
custom and law, and did not include section 23(2A). And also imagine that the only mention
of customary law was in section 4(2) which read: ‘[i]n so far as the common law or
customary law is inconsistent with this Act, this Act prevails’. That is enough to override
common-law ownership rights. But it would still fail as a law that ‘specifically deals with
customary law’. It would not indicate how the law deals with customary law. If such a bald
statement was sufficient, it would defeat the purpose of section 211(3). It could be included
by rote in all legislation, and would not evince any actual engagement with the existence or
content of customary law.
A final wrinkle – customary law is not uniform across the country. While there are
commonalities, there are also significant differences. Not every customary community that
lives near the sea will recognise fishing rights. Those that do will differ on the details. Must
section 211(3) legislation deal individually with each, unique system of customary law?
That would better fulfil what I have argued is the purpose of section 211(3) – compelling
consideration of custom – but it would make it impractical for parliament and it would mean
that none of the laws discussed above would meet the ‘specifically deal with’ threshold for
varying customary systems.
In my view, it is enough for section 211(3) to deal with customary law as if it were
monolithic, even though it is not. While that may detract from the protection it affords, it is
the only practical reading. The next two steps ensure sufficient protection for individualised
forms of customary law.
To recap – a law complies with section 211(3) if it demonstrates that the legislature knew
that customary law existed, and decided how to deal with it. Merely using the words
‘customary law’ is not enough to comply with section 211(3), and the absence of those
words does not mean a statute does not comply.

51 Section 4(2) reads: ‘[i]n so far as the common law is inconsistent with this Act, this Act prevails’.
52 Baleni, para. 74.
302 Michael Bishop

But the fact that a statute specifically deals with customary law does not mean that it
automatically trumps customary rights. It means only that it is the type of law that can
constitutionally alter customary law. That is clear from the central passage in Gongqose: ‘[i]t
follows first, that a customary right can only be extinguished by legislation specifically
dealing with customary law; and secondly, that such legislation must do so either expressly
or by necessary implication’.53 How the law ‘deals’ with customary rights is the
next question.

Extinguishment, Alteration and Regulation

Express extinguishment is easy to identify. But to assess whether a statute ‘by necessary
implication’ alters customary law, it helps to appreciate what else a statute could do to
customary law. There are a range of options short of extinguishment, and alteration.
The law may recognise and confirm customary rights without altering them or limiting
them at all. It may provide a procedure for the determination or enforcement of those rights.
It may subject the exercise of the rights to regulation, without altering the content of the
rights themselves. Or it may alter or extinguish the rights.
A single statute may do all these things. The Recognition of Customary Marriages Act,
for example, recognises customary marriages and keeps in place the customary law
requirements for the conclusion of a valid marriage.54 It provides for optional registration of
customary marriages, not as a requirement for validity, but as a form of proof.55 While
recognising customary-law polygyny, it creates a mandatory judicial procedure to determine
the proprietary regime after an additional marriage that is alien to customary law.56 Lastly, it
alters the marital property regime under customary law in important ways to bring
customary law in line with the Constitution’s demand for gender equality.
Canadian and Australian law on customary fishing rights is useful in considering how
statutes that seem inconsistent with customary law can co-exist, or even affirm customary
rights. The key point is that regulation is not extinguishment. Saying that an activity can
only be conducted with a permit does not mean that underlying customary rights have been
destroyed. As the Canadian Supreme Court put it in Sparrow: ‘[t]he fact that … for an
extended period permits were discretionary and issued on an individual rather than a
communal basis in no way shows a clear intention to extinguish. These permits were simply
a manner of controlling the fisheries, not defining underlying rights’.57 Or, as the High
Court of Australia put it in even clearer terms: ‘regulating the way in which a right may be
exercised presupposes that the right exists’.58
Let us return to the MLRA to see how this plays out. The current MLRA is a section
211(3) law that recognises customary rights through the vehicle of small-scale fishing
communities. But that recognition seems subject to ministerial whim. Section 18(1) reads:
‘[n]o person shall undertake … small-scale fishing … unless a right to undertake or engage
in such an activity or to operate such an establishment has been granted to such a person by
the Minister’; and section 13(1) says: ‘[n]o person shall exercise any right granted in terms
of section 18 … unless a permit has been issued by the Minister to such person to exercise
that right’.

53 Gongqose, para. 50 (my emphasis).

54 RCMA sections 2(1) and 3(1)(b).
55 RCMA section 4, particularly 4(9).
56 RCMA section 7(6). Interestingly, in Mayelane vs Ngwenyama [2013] ZACC 14; 2013 (4) SA 415 (CC),
the Constitutional Court held that section 7(6) does not create a requirement for the validity of a second
customary marriage, but merely a process for determining the proprietary regime, paras 40–1.
57 R vs Sparrow, p. 1099.
58 Yanner vs Eaton, at n. 25, para. 64, from Gummow J concurring.
 Asserting Customary Fishing Rights in South Africa 303

The MLRA requires the minister to issue both a right, and a permit. That could be read to
mean that rights are granted by the minister, not recognised by the MLRA. The combination
of granting a right, and issuing a permit to exercise that right would, so the argument goes,
imply that pre-existing customary rights have been extinguished and replaced with ‘small
scale fishing rights’ dished out by the minister.
This is indeed the way that the MLRA works for commercial fishing permits. No person can
fish commercially without a right and a permit. Every few years the minister issues long-term
rights dividing the available catch in each fishery and permits are issued every year to give
effect to the right, updated according to the latest science about how much can be fished.
That model does not fit with the MLRA’s recognition of pre-existing customary rights.
The law defines small-scale fishing communities as including communities that ‘continue to
exercise their rights in a communal manner in terms of an agreement, custom or law’. In the
language of Yanner, the MLRA ‘presupposes’ that the community must already have a right
– a customary right – in order to qualify for the conferral of a right – an MLRA right – and
the subsequent issue of a permit.
There are two ways to harmonise the seemingly conflicting portions of the MLRA. Under
the first, customary-law rights continue to exist and can be lawfully exercised unless and until
the minister grants rights and issues permits to a small-scale fishing community. The MLRA
grants the minister the power to regulate the exercise of customary fishing rights through
granting rights, but it does not oblige her to do so. If she believes those rights can be exercised
without further regulation, she need simply do nothing. Once she regulates the exercise of
rights, customary fishers must comply both with the strictures of customary law, and any limits
imposed by the permits (provided they are reasonable – see the next part). But even when she
exercises the power to regulate, she does not extinguish or alter the right itself.
The second path accepts that a right and a permit under the MLRA are necessary
prerequisites to exercise a customary fishing right. Until they are issued, it is unlawful for a
customary fisher to exercise the customary right – not because the customary right does not
exist, but because a precondition for its lawful exercise has not been met. But where the
small-scale fishing community has a customary right to fish, the minister must recognise that
community and grant it a small-scale fishing right. The MLRA is not the source of the right,
but the means for giving formal recognition to it and providing for reasonable regulation.
On either approach, the minister cannot prohibit the exercise of the right; she can only
place reasonable restrictions on its exercise. The difference is only in whether fishing is
legal before the minister exercises that power.
The counter to these two attempts to harmonise the conflict in the MLRA is that either would
negate the conservation impetus behind the law. If the minister cannot prohibit the exercise of
customary rights, even if the science unambiguously requires prohibition to protect fish stocks,
then the purpose of the MLRA – regulating fishing – will not be achieved. But there is nothing
in the MLRA that compels that conclusion. And NEMPAA, which deals with the most sensitive
areas – MPAs – does not purport to regulate customary fishing at all. Additionally, the MLRA
does not unambiguously abolish, or permit the minister to abolish, customary rights. The only
plausible interpretation is that the legislature did not intend to confer on the minister an unguided
discretion to extinguish customary rights, only to regulate their exercise.
The minister’s regulating power is wide. She can place limits on when, where, how and by
whom customary rights can be exercised. The regulations published for Dwesa–Cwebe in 2014,
for example, placed strict limits on how many fishers could fish, when and where they could
fish, and what instruments they could use. Assuming restrictions are reasonable, the minister can
impose them. In short, the power to prohibit is not necessary to achieve the MLRA’s purpose.
Another example of a statute which does not trump customary law is in the field of
traditional governance. The Eastern Cape community of Cala has a customary practice of
304 Michael Bishop

electing its own headman. When Mr Fani retired as headman in 2013, the community
elected Mr Sitwayi to replace him. The relevant statute required the royal family, in this case
the amaGcina royal family, to ‘identify’ the person who qualified in terms of customary law
and forward that name to the premier for appointment.59 Instead of identifying Mr Sitwayi,
the royal family identified a relative – Mr Yolelo – who was duly appointed. The royal
family argued that, by giving them the power to decide who to identify, the statute, which
did not provide for an election, had supplanted the customary law.
The High Court, in Ntamo, rejected the argument.60 It held that the royal family could
only identify (and the premier could only appoint) a person who qualified in terms of the
customary law of the area. The role of the royal family ‘may differ across the province, from
place to place, according to the customary law that is applicable in each’.61 In Cala, it meant
only an elected headman could be appointed. Despite regulating how customary law would
be given effect to, the law did not abolish or alter that customary law.
What about cultural fishing practices that are not entrenched in customary law? Two
points seem important. First, section 39(2) of the Constitution mandates an interpretation of
the MLRA that avoids limiting constitutional rights. An interpretation that interferes with a
customary practice would generally limit sections 30 and 31 – an issue I engage with in the
next section.
Second, the difference between extinguishment and regulation is less important. A
cultural practice does not render what is otherwise unlawful lawful. All that matters is
whether the exercise of a practice is lawful or not.
The Langebaan fishers would meet the definition of a small-scale fishing community
with a right – the constitutional right to practice their culture. But section 39(2) does not
impose the same strong ‘necessarily implied’ bar to interpreting the MLRA to limit the right
to practise one’s culture. Section 39(2) requires a court to consider all the rights at play,
including the right to a healthy environment.62 At the stage of determining how a statute
affects cultural practices, a court should lean in favour of recognising regulation, including
the possibility of prohibition, if that can be substantially justified.
In short, a fisher asserting customary-law rights can argue that a statute should be
interpreted to permit the exercise of those rights, subject only to reasonable regulation. A
fisher asserting their right to culture will ordinarily have to accept that the statute imposes
limitations, which may include prohibition, but argue that those limit constitutional rights.

Limitation
If the legislation cannot be interpreted to avoid regulating a cultural practice, does that
automatically mean it limits the right to culture in sections 30 and 31?63

59 The Eastern Cape Traditional Leadership and Governance Act 4 of 2005.

60 Premier of the Eastern Cape vs Ntamo [2015] ZAECBHC 14; 2015 (6) SA 400 (ECB); [2015] 4 All SA
107 (ECB). The royal family then held a new ‘election’ which elected Mr Yolelo. The Premier then
recognised him. The community returned to court and, in 2019, also had that decision set aside. Ntamo vs
Premier of the Eastern Cape [2019] ZAECBHC 23.
61 Ibid., para. 81.
62 Phumelela Gaming and Leisure Limited vs Gr€ undlingh [2006] ZACC 6; 2006 (8) BCLR 883 (CC), para. 35.
63 There is also a strong argument that extinguishing or regulating customary rights is a deprivation of property
that, in terms of section 25(1) of the Constitution, cannot be arbitrary. That would require a three-stage
analysis: is a customary-law right to fish ‘property’? If so, is the regulation of that right a ‘deprivation’? If
so, is it ‘arbitrary’? While the answers to the first two questions are uncertain, in my view a customary right
(but not a customary practice) is property, and regulation will generally be a deprivation. The deprivation
will be arbitrary if there is no sufficient reason for it. This is a slightly lower test than the proportionality
test in section 36(1) of the Constitution. That means that an arbitrary deprivation will not be justifiable
under section 36(1), but also that it will generally be easier to show that the limitation of the right to culture
is unjustifiable than to establish an arbitrary deprivation of property.
 Asserting Customary Fishing Rights in South Africa 305

The exercise of a customary-law right will, inevitably, amount to the exercise of a

person’s right to ‘participate in the cultural life of their choice’ and to ‘enjoy their culture’.
That would still be true if fishing was a cultural practice, not a customary right.
Any regulation of the exercise of a customary-law right in terms of time, place or manner
would amount to limitations. Although a very different context, Pillay is a useful example.
Chief Justice Langa concluded that preventing a girl from wearing a nose stud at school limited
her right to practise her South Indian Tamil Hindu culture.64 It did not matter that she could
wear the stud outside school. Preventing her from wearing it at any time limited her culture.
These are the most likely forms of regulation of customary fishing rights. In Langebaan,
it was a place limitation – the fishers were confined to one zone of the lagoon. The
regulations in Dwesa–Cwebe address who, how, when and where people can fish.
But it is not only this type of direct regulation that can constitute limitation. Procedures
that create preconditions for exercising a right can also constitute a limitation. Granting a
minister discretion to decide whether fishing can occur limits that right.65 Even requiring
someone to obtain a permit may constitute a limitation if the permitting process makes it
practically onerous to exercise the right.
Showing a limit of the ability to ‘enjoy’ one’s culture is not, formally, enough. A
claimant would also need to show that the exercise of the right is not inconsistent with any
other right in the Bill of Rights, including the state’s duty to protect the constitutional right
to a healthy environment. I consider this problem in the next section.

Justification
If legislation does alter or extinguish customary rights, or even limits the exercise of those
rights, then it will constitute a limitation of the rights in sections 30 and 31 that must be
justified under section 36(1) of the Constitution. A limitations analysis entails a
proportionality analysis where the purpose of the limitation is weighed against the impact it
has on the complainant.66 A court must also consider whether there are less restrictive
means to achieve the law’s goals.
The most likely justification in the context of customary fishing rights is conservation.
Both history and current practice afford good reason to be sceptical when the government
relies on conservation to justify limiting cultural fishing rights.
Wicomb points out that ‘many apartheid atrocities happened in the name of
conservation’, including the removal of people from Dwesa–Cwebe.67 The government, in
the Small-Scale Fishing Policy, recognises the history of ‘insensitive impositions of
conservation-driven regulation’ on customary communities.68
This arose starkly in both Dwesa–Cwebe and Langebaan. In Dwesa–Cwebe, the local
hotel held an annual sport-fishing competition for almost exclusively white participants until
the mid 2000s, while the residents of the reserve were prohibited from fishing for food.69
Fishers from the local Langebaan Coloured community who had been fishing for
generations were prohibited from fishing in Zone B of the lagoon to protect the fish, while

64 MEC for Education: Kwazulu-Natal vs Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC). Technically, he
found that it constituted unfair discrimination, as the case was litigated in the Equality Court. But the
outcome would have been the same if the case had been litigated under section 30.
65 Dawood vs Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC); and R vs Adams [1996] 3
SCR 101.
66 See generally S. Woolman and H. Botha, ‘Limitations’, in S. Woolman and M. Bishop (eds), Constitutional
Law of South Africa (Cape Town, Juta, 2nd ed., 2006), ch. 34. Also see Mlungwana vs S [2018] ZACC 45;
2019 (1) SACR 429 (CC).
67 Wicomb, ‘The Limits of the Law’, p. 62.
68 Small-Scale Fishing Policy, para. 1.1 (see n. 15).
69 Wicomb, ‘The Limits of the Law’, p. 63.
306 Michael Bishop

white recreational fishers in Churchaven and Stofbergsfontein fished freely in those

protected waters.
Moreover, in both Dwesa–Cwebe and Langebaan, when pushed for scientific evidence to
justify their decisions, the authorities were unable to do so. In Gongqose, the government’s
own expert admitted before the magistrates’ court that there was no scientific research at the
time to justify declaring Dwesa–Cwebe a no-take zone. And in Coastal Links the High
Court held that the prohibition of fishing in Zone B of the Langebaan Lagoon was
unsupported by evidence and unfairly discriminated on the basis of race.70
But the fact that conservation concerns can be abused does not mean they are never validly
raised. Protecting the environment is a legitimate concern – section 24(1) entrenches a right to a
healthy environment and a right to government measures that ‘promote conservation’. There
will be occasions when customary fishing conflicts with conservation concerns.

Where That Happens, How Should a Court Evaluate it?

First, whether it is a customary-law right, or a cultural practice, the mechanism and standard
for justification at this stage is the same. While the Constitution affords the additional
protections of section 211(3), if legislation does in fact limit those rights the only
constitutional basis for challenge is in sections 30 and 31 (or other affected rights), and
compelling the state to justify the limitation under section 36(1).
Second, the onus is then on the government to justify the limitation.71 It is not for fishers
to show that allowing them to exercise their rights will not have negative environmental
impact, but for the state to put up evidence establishing that unlimited exercise will have
environmental harms. And the data must be up to date. In Coastal Links the Court rejected
an attempt to rely on 2001 studies to justify fishing restrictions in 2013.72
Third, the ‘consistent with’ proviso in sections 30 and 31 does not mean that
environmental rights trump cultural rights. Customary fishing is not antithetical to
conservation. To the contrary, as Schippers AJA wrote, ‘[c]ustomary rights and conservation
can co-exist’ and have at least as great an interest in protecting the environment.73
But the SCA should also have recognised that the right to a healthy environment
incorporates human usage. That recognition arises from two connected concepts: sustainable
development and environmental justice.
Sustainable development requires government action aimed at ‘ecologically sustainable
development whilst promoting justifiable social and economic development’.74 The Constitution
‘contemplates the integration of environmental protection and socio-economic development. It
envisages that environmental considerations will be balanced with socio-economic
considerations through the ideal of sustainable development’.75 Section 24 does not place the
environment above people’s needs; it recognises the necessary link between the two.
Section 24 also requires environmental justice that balances conservation against
legitimate human use of environmental resources, particularly for the marginalised and
historically disadvantaged. Melanie Murcott argues compellingly for the central role of

70 Coastal Links, para. 85.

71 Mlungwana, para. 57.
72 Coastal Links, para. 80.
73 Gongqose, para. 56.
74 NEMA defines it as ‘the integration of social, economic and environmental factors into planning,
implementation and decision-making so as to ensure that development serves present and future
generations’.
75 Fuel Retailers Association of Southern Africa vs Director-General: Environmental Management, Department
of Agriculture, Conservation and Environment, Mpumalanga Province [2007] ZACC 13; 2007 (6) SA 4
(CC), para. 45
 Asserting Customary Fishing Rights in South Africa 307

environmental justice in section 24.76 She defines environmental justice as ‘the just
distribution of environmental benefits and burdens, taking into account past systemic race
and class discrimination. … It is therefore an inherently transformative and
redistributive concept’.77
Environmental justice is not only part of section 24; the National Environmental
Management Act (NEMA) insists that ‘[e]nvironmental justice must be pursued so that
adverse environmental impacts shall not be distributed in such a manner as to unfairly
discriminate against any person, particularly vulnerable and disadvantaged persons’.78
NEMA also stresses the importance of ‘[e]quitable access to environmental resources,
benefits and services to meet basic human needs and ensure human well-being must be
pursued and special measures may be taken to ensure access thereto by categories of persons
disadvantaged by unfair discrimination’.79
Fourth and last: all this requires a case-by-case analysis, demanding a consideration of
the impact of the restriction on customary rights, and the cogency of scientific evidence
about possible harm to the environment.
Ultimately, it is likely to turn on questions of less restrictive means to balance the
competing interests. In almost all cases, customary fishers will have to accept some
restrictions on the exercise of their rights, or at least regulation so the government can
ensure they comply with existing customary restrictions. But those restrictions must be
connected to the science, must not render the exercise of the right practically impossible, and
must be developed through meaningful input from the community.
A case in point: the NEMPAA regulations enacted before the finalisation of the
Dwesa–Cwebe High Court case purported to regulate the exercise of customary fishing rights in
the reserve. Those limitations were patently unreasonable. They created a permitting system that
set random limits on the number of fishers, the number of fish, and the place and times when
people could fish. The Dwesa–Cwebe community returned to court arguing that the restrictions
were ‘unrealistic and unworkable’.80 While recognising ‘the need for regulation and the
protection of the marine and forest resources’ they argued ‘as fishing communities with
ancestral ties to the ocean and decades of developed knowledge on careful resource use and
preservation, [they] should be included in the process to develop an appropriate system of
regulation’.81 While there had been some nominal consultation, the regulations had largely been
imposed by the state on the advice of their experts.

Development
The final stage is the potential for courts to develop customary law. Section 39(2) not only
requires that legislation be interpreted in line with the ‘spirit, purport and objects of the Bill
of Rights’, but also that courts develop customary law to achieve the same end.82 Where
parliament has acted in terms of section 211(3) to regulate customary law, it is unlikely that
a court will also take on the mantle to develop customary law. It is more likely to leave it to
the legislature, and deal with attacks to that legislation. But where there is no section 211(3)
legislation, a court can still develop customary law to comply with the Bill of Rights.

76 M. Murcott, ‘The Role of Environmental Justice in Socio-Economic Rights Litigation’, South African Law
Journal 132 (2015), p. 875.
77 Ibid., p. 876.
78 The National Environmental Management Act (NEMA) was Act 107 of 1998; NEMA section 2(4)(c).
79 NEMA section 2(4)(d).
80 That challenge has stalled.
81 Founding Affidavit, Kopana & Others vs Minister of Environmental Affairs, para. 12, on file with
the author.
82 While section 8 of the Constitution allows direct challenges to rules of common law, that does not apply to
customary law which can only be indirectly challenged through section 39(2).
308 Michael Bishop

Requiring courts to develop customary law is problematic for the reasons noted earlier – they
tend to see customary law as a simple set of rules, rather than a complex set of sometimes
inconsistent practices. When they frame the development, they do so in absolute terms that do
not reflect the way people live. There is the inevitable risk that courts create a new ‘written law’
that diverges again from the living law. The only developments of customary law that are likely
to fit its particular character are those that come from the community itself.83

Conclusion
Gongqose recognised the potential to directly assert customary rights in the face of an
apparent legislative prohibition. It has opened the door to the assertion of customary rights
to other natural resources, such as land, and to accountability from traditional leaders.
Gongqose puts the legislature on notice that it cannot regulate without considering
customary law. That is a good thing – it is the very purpose of section 211(3). But it also
makes it likely the legislature will pass section 211(3) legislation in future.
That will raise the range of questions I have attempted to answer: what must someone
show to establish a customary right or a cultural practice? How do we identify section
211(3) legislation? When can legislation be interpreted to alter or regulate customary rights?
When will those alterations be justifiable? And what role do courts have to develop
customary law when parliament has left it be?
These questions force us to think deeply about the nature of customary law, its place in
the constitutional firmament, the difference between law and practice, and the relationship
between culture and conservation.

Acknowledgements
My heartfelt thanks to Kate O’Regan and Aninka Claassens for inviting me to write this
article, for their guidance, and for the moral support that enabled me to finish it. Thanks
also to all the participants at the conference for their insightful comments. Finally, my
deep appreciation to Wilmien Wicomb, who taught me all I know about customary law
and small-scale fishing and was an invaluable sounding board.

MICHAEL BISHOP
Member of the Cape Bar, 1st Floor, 50 Keerom Street, Cape Town, 8000, South Africa.
E-mail: bishop@capebar.co.za

83 Shilubana.