THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1340/17

In the matter between:

MALIBONGWE DAVID GONGQOSE

FIRST APPELLANT

SIPHUMILE WINDASE

SECOND APPELLANT

NKOSIPHELA JUZA

THIRD APPELLANT

VUYELWA SIYALEKO

FOURTH APPELLANT

TATANA MXABANI

FIFTH APPELLANT

BENJAMIN VON MEYER

SIXTH APPELLANT

THE HOBENI COMMUNITY

SEVENTH APPELLANT

THE MENDWANE COMMUNITY

EIGHTH APPELLANT

THE CWEBE COMMUNITY

NINTH APPELLANT

and

MINISTER OF AGRICULTURE,

FORESTRY AND FISHERIES

FIRST RESPONDENT

DEPUTY DIRECTOR: FISHERIES,
DEPARTMENT OF AGRICULTURE,
FORESTRY AND FISHERIES

SECOND RESPONDENT

MINISTER OF ENVIRONMENTAL AFFAIRS
THIRD RESPONDENT

DEPUTY DIRECTOR: OCEANS AND
COASTAL MANAGEMENT, DEPARTMENT
OF ENVIRONMENTAL AFFAIRS

FOURTH RESPONDENT

And in the matter between:

Case No: 287/17

MALIBONGWE DAVID GONGQOSE

FIRST APPELLANT

SIPHUMILE WINDASE

SECOND APPELLANT

NKOSIPHENDULE JUZA

THIRD APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Gongqose & others v Minister of Agriculture, Forestry &
Fisheries and others; Gongqose & others v State & others
(1340/16 & 287/17) [2018] ZASCA 87 (01 June 2018)

Coram:
Maya P, Majiedt and Dambuza JJA and Plasket and Schippers
AJJA

Heard:
04 May 2018

Delivered: 01 June 2018

Summary: Section 211(3) of the Constitution – customary law – fishing in
marine protected area in contravention of Marine Living Resources Act 18 of
1998 (MLRA) – exercise of a customary right of access to and use of marine
resources – a defence to unlawfulness – MLRA not legislation dealing
specifically with customary law – customary right not extinguished – appeal
upheld.

ORDER

On appeal from: Eastern Cape Division of the High Court, Mthatha
(Mbenenge JP and Griffiths J sitting as court of first instance):
The application for special leave to appeal in case number 287/17 is
granted.
Paragraph 1 of the order of the High Court is set aside and replaced with
the following order:

‘The appeal is upheld and the appellants’ convictions and sentences are set
aside.’

JUDGMENT

Schippers AJA (Maya P, Majiedt, Dambuza JJA and Plasket AJA
concurring):
[1] This appeal brings customary law, which has not occupied its rightful
place in this country, directly to the fore. The central issue is whether the
appellants could successfully raise the exercise of a customary right as a
defence in criminal proceedings against them, more specifically, whether the
exercise of a customary right of access to marine resources rendered their
conduct in attempting to fish in the Dwesa-Cwebe Marine Protected Area (the
MPA) in the district of Elliotdale, without a permit, lawful.

Factual background
[2] The MPA was declared by the former Minister of Environmental Affairs
(the Minister) on 29 December 2000 under the now repealed s 43 of the
Marine Living Resources Act 18 of 1998 (the MLRA), on a strictly ‘no take’
basis, ie no fishing nor harvesting of resources in the MPA was permitted.1 It is
located in the former Transkei, on the east coast of South Africa, north-east of
East London. It incorporates approximately 19 km of mainly rocky shore
coastline and extends 6 nautical miles (10.8 km) out to sea. The MPA is
adjacent to the Dwesa-Cwebe Nature Reserve (the Reserve) which was the
subject of a successful land claim by communities of the area, as appears more
fully below.

[3] The appellants are members of the Hobeni community, situated directly
adjacent to the Reserve. The Cwebe community is located north of Hobeni
adjacent to the border of the MPA and the coastline. The Mendwane community
is also located adjacent to the Reserve, but it has no access to the coastline.
These communities, hereafter referred to as ‘the Dwesa-Cwebe communities’,
have shared rules of access to land and marine resources and as such, constitute
communities in terms of customary law.

[4] It is common ground that the Dwesa-Cwebe communities were
dispossessed of their land and that they historically relied on forest and marine
resources for their livelihood. Prior to the declaration of the MPA in 2000, their
access to marine resources was restricted by various laws, referred to hereafter.
The Transkei Nature Conservation Act 6 of 1971 (the Transkei Nature
Conservation Act) prohibited persons from fishing, save in accordance with its
provisions, and regulated the areas in which certain fish could be caught.

1 The declaration was published under Notice No R 1429 in Government Gazette No 21848 of 29 December
2000.

[5] In terms of the Sea Fisheries Act 58 of 1973 (the Sea Fisheries Act) the
Minister was entitled to take measures to protect fish, which prohibited fishing
in a specified area. The Minister was also entitled to place restrictions on the
quantity of fish that could be caught or processed.

[6] In 1975 the Reserve was proclaimed in terms of the Transkei Nature
Conservation Act, which extended the conservation area from the forests to
include the shoreline, rivers and estuaries. Measures that accompanied the
‘independence’ or sovereignty of Transkei,2 brought about the end of the
communities’ access not only to the forests, but the grasslands and seashore as
well.

[7] In 1991 the shoreline abutting the Reserve, the tidal waters and the inland
waters up to 6 nautical miles were incorporated as a marine reserve in terms of
special regulations made under the Sea Fisheries Act. This further exacerbated
exclusion of communities from marine resources. No collection of any marine
organism was permitted under the rules of the marine reserve and anyone found
contravening that rule was liable for a fine of up to R50 000 or six years’
imprisonment. The Sea Fisheries Act authorised the Minister to take measures
to protect fish, including the prohibition of fishing in a specified area; and to
place restrictions on the quantity of fish that could be caught.

[8] The Transkei Nature Conservation Act was repealed by the Transkei
Environmental Conservation Decree No 9 of 1992 (the Conservation Decree),3
which authorised the Minister, inter alia, to designate a closed season during

2 Transkei, in the Eastern Cape, was a so-called independent homeland. As part of the implementation of
apartheid, it ceased to be part of the Republic of South Africa and became an ‘independent country’ in 1976.
However, this ‘independence’ was not recognised by any country apart from South Africa.’
3 Published in Special Gazette No 51 of 24 July 1992.

which fish of any defined species could not be caught; to prohibit the catching
or wilful disturbing of fish; and to authorise the catching of fish.4

[9] In 1996 the Dwesa-Cwebe communities lodged a claim with the Eastern
Cape Regional Land Claims Commission for restitution of their land known as
the Dwesa-Cwebe Nature Reserves, in terms of the Restitution of Land Rights
Act 22 of 1994 (the Restitution Act). On 19 April 1996 the land claims were
gazetted.

[10] The history of the dispossession of the Dwesa-Cwebe communities was
described by the Regional Land Claims Commissioner: Eastern Cape (the Land
Claims Commissioner) in a memorandum as follows.5 The communities have
been living within the reserves for some 300 years. In 1885 the Cape
government annexed the area within which the Dwesa Reserve is situated in
terms of Proclamation 140 of 26 August 1885 and annexed the area within
which the Cwebe Reserve is situated under the Tembuland Annexation Act 3 of
1885. In 1890 Dwesa was declared a state forest but local people continued to
use the land and its resources for residential and agricultural activities until well
after 1913. Between 1900 and 1950 local villages, including Cwebe, were
destroyed and residents moved out of the reserves.

[11] In the 1930s the Dwesa community was removed from the area and
relocated to land adjacent to the fenced reserves of Dwesa and Cwebe. The
removal was effected to give white traders and farmers priority access to prime
land. Black families were not allowed to live in the reserves but the
communities continued to use the land and its resources. In the 1970s further
forced removal took place as part of ‘betterment’ planning in respect of black
communities as a means of concentrating them within easily controllable areas,

4 Section 46 of Decree No 9.
5 The memorandum is dated 21 May 2001, with recommendations signed on 28 and 29 May 2001.

in line with government policy at the time. The Transkei Conservation Act
established the Dwesa-Cwebe Nature Reserves in 1975, and fencing of the
reserves commenced with the resultant denial of access to the local villagers.
During that period white families were allowed to maintain residential areas
within the reserves and use the forest and sea resources whilst the local black
communities were denied access to the reserve and its resources.

[12] The Land Claims Commissioner recommended that the claim by the
Dwesa-Cwebe communities be settled in terms of s 42D of the Restitution Act.6
He also recommended compensation for the claimant communities pursuant to
their agreement that the land remain a protected conservation area in perpetuity,
and payment of restitution and settlement planning grants to a trust to be formed
on behalf of the claimants. These recommendations were accepted. On 17 June
2001 the Dwesa-Cwebe Settlement Agreement was concluded. The agreement
stated that ‘the communities should have access to sea and forest resources,
based upon the principle of sustainable utilisation as permitted by law’ and that
they would ‘enjoy favoured status in terms of benefits from eco-tourism,
employment opportunities, resource rights, input to management policies etc in
accordance with the management plan’. However, the Settlement Agreement
expressly excluded the MPA from its ambit.

[13] Enforcement of the prohibition on fishing in the MPA only began around
2005 and the Dwesa-Cwebe communities continued to fish according to their
customary practices. From 2006 to 2008 correspondence passed and numerous
meetings were held between representatives of the communities and the
Department of Environmental Affairs and Tourism concerning access by the

6 Section 42D of the Restitution Act authorised the former Minister of Land Affairs to enter into an agreement
with parties interested in a land claim, inter alia, for the award of land, a portion of land or a right in land; the
payment of compensation; or both an award and compensation.

communities to, and sustainable utilisation and benefit of, marine resources in
the MPA, but without success.

[14] On 22 September 2010 the appellants were arrested and charged with
attempting to fish in a marine protected area without permission, in
contravention of s 43(2)(a) of the MLRA (count 1); entering a national wildlife
reserve area without a permit in contravention of s 29(1)(a) of the Conservation
Decree (count 2); entering a national wildlife reserve while being in possession
of a weapon or trap, to wit, fishing rods, lines and hooks, in contravention of
s 29(1)(b) of the Conservation Decree (count 3); and 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 Conservation Decree, in
contravention of s 29(1)(c)(count 4).

[15] The appellants were tried in the Magistrate’s Court, Elliotdale. They
pleaded not guilty to the charges. Their defence was that their conduct was not
unlawful because they were exercising their customary right to fish. Despite
finding that the appellants indeed exercised that right at the material times, the
Magistrate convicted them of contravening s 43(2)(a) of the MLRA (count 1)
and acquitted them on the remaining charges. The first and second appellants
were sentenced to a fine of R500 or 30 days’ imprisonment, wholly suspended
for one year on condition that they were not convicted of contravening
s 43(2)(a) of the MLRA, during the period of suspension. The third appellant (a
minor) was cautioned and discharged.

[16] The appellants were granted leave to appeal against their convictions.
One of the grounds of appeal was that the declaration of the MPA by the
Minister on 29 December 2000 (the impugned decision) was reviewable and fell
to be set aside, inter alia, on the ground that in declaring the MPA, the Minister

failed to recognise the appellants’ customary rights. Consequently, on 12
December 2013 the appellants and the Dwesa-Cwebe communities launched an
application to review and set aside the impugned decision on that and other
grounds. The appeal and review were heard together by the High Court.

[17] Before the appeal and review were heard, there were two important
developments. First, on 16 May 2014 the Marine Living Resources Amendment
Act 5 of 2014, which repealed s 43 of the MLRA with effect from 2 June 2014,
was signed into law. That amendment established a new structure in the MLRA
for the recognition of small-scale customary fishing rights, in accordance with
the Small-Scale Fishing Policy published by the Minister on 20 June 2012.
Second, on 6 November 2015 the Minister published new regulations for the
management of the MPA which introduced limited access to the MPA for
community members.

[18] On 18 February 2016 the high court upheld the convictions. It held that
when the MLRA was passed, the lawgiver contemplated that there were persons
such as the appellants exercising customary rights in respect of marine
resources. The court however held that their conduct was unlawful because they
had not applied for an exemption as contemplated in the MLRA, granting them
a permit to fish.7 It dismissed the review application on the grounds that the
review was not properly raised as a collateral challenge as it had been brought
after the appellants’ conviction; and that they had delayed unreasonably in
launching the review proceedings.

[19] The high court granted the appellants leave to appeal only against its
order dismissing the review. An application for special leave to appeal to this

7 Section 81(1) of the MLRA reads:
‘If in the opinion of the Minister 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 group of persons or organ of state from a
provision of this Act.’

Court against the appellants’ convictions was referred for oral argument in
terms of s 17(2)(d) of the Superior Courts Act 10 of 2013 (the application for
special leave to appeal). Counsel for the appellants informed the Court that in
the event of special leave being granted and the criminal appeal succeeding,
they do not persist with the appeal against the dismissal of their application to
review and set aside the impugned decision. It is therefore unnecessary to
consider the appeal against the dismissal of the review if the appellants’
convictions are set aside. In any event, s 43 of the MLRA, in terms of which the
Minister made the impugned decision, has been repealed. And there can be no
prejudice to the third and fourth respondents in the appeal against the dismissal
of the review application because they did not seek costs on appeal, or in the
court below.

[20] Before dealing with the application for leave to appeal, I should say
something about the approach of the National Director of Public Prosecutions
(the NDPP) in this case. The parties were notified as early as 22 May 2017 that
the application for special leave to appeal had been referred for oral argument.
When the matter was heard on 4 May 2018, counsel for the NDPP simply
informed the Court that the NDPP elected to abide by the decision of the Court.
That was most unhelpful. The appeal raises novel and complex issues of law
that require careful consideration. The NDPP’s failure to file written
submissions and present oral argument deprived this Court of the benefit of
being able to canvass issues relating to unlawfulness and customary rights in
criminal law, with the authority constitutionally responsible for the institution of
criminal proceedings on behalf of the State.8 The approach of the NDPP is
regrettable.

8 In terms of section 179(2) of the Constitution, the National Prosecuting Authority has the power to institute
criminal proceedings on behalf of the State and to carry out any necessary functions incidental thereto.

[21] The application for special leave to appeal raises four issues: (1) the
status of customary law; (2) whether the appellants proved that they were
exercising customary rights of access to and use of marine resources when the
offence was committed; (3) whether the MLRA extinguished those rights; and
(4) whether the appellants’ conduct was unlawful.

The status of customary law
[22] The Constitution recognises customary law as an independent and
original source of law. In terms of s 211(1) of the Constitution, the status and
role of traditional leadership according to customary law are recognised, subject
to the Constitution. Section 211(2) provides that a traditional authority
observing a system of customary law may function subject to any applicable
legislation and customs. Section 211(3) reads:
‘The courts must apply customary law when that law is applicable, subject to the Constitution
and any legislation that specifically deals with customary law.’

[23] These provisions make three things clear. First, customary law ‘is
protected by and subject to the Constitution in its own right.’9 Thus, the
adjustment and development of customary law may be necessary to align its
provisions with the Constitution, or to promote the ‘spirit, purport and objects of
the Bill of Rights’, as required by s 39(2). Second, the legislative authority of
Parliament to pass laws dealing with customary law has not been ousted.10 And
third, the injunction to apply customary law is not rendered subject to any
legislation generally, but only to ‘legislation that specifically deals with
customary law’.

[24] The recognition of customary law as an independent source of law is
further entrenched by ss 30, 31 and 39 of the Constitution. In terms of s 30,

9 Bhe & others v Khayelitsha Magistrate & others 2005 (1) SA 580 (CC); [2004] ZACC 17 para 41.
10 Bhe fn 8 para 44.

everyone has the right to use the language and participate in the cultural life of
their choice.11 Section 31 provides that persons belonging to a cultural
community may not be denied the right to enjoy their culture and form cultural
associations.12 Section 39(2) enjoins courts to promote the spirit, purport and
objects of the Bill of Rights when interpreting legislation and developing
customary law. Section 39(3) provides that the Bill of Rights does not deny the
existence of any other rights or freedoms recognised or conferred by, inter alia,
customary law, to the extent that they are consistent with the Bill.

[25] As an independent source of norms within the legal system, customary
law may give rise to rights, such as access and use rights to resources. Thus, in
Alexkor,13 the Constitutional Court found that the Richtersveld Community
possessed a right of communal ownership under customary law in the relevant
land, which included use and occupation of the land; and the rights to use its
water and exploit its natural resources above and beneath the surface. The
question is whether the appellants proved customary rights of that kind.

Did the appellants prove customary rights?
[26] In a written plea explanation the appellants admitted that they had been
arrested within the Reserve; that they intended to fish using fishing rods; and
that they did not have fishing permits to do so in terms of the MLRA or the
Conservation Decree. Those admissions were recorded as formal admissions in

11 Section 30 of the Constitution reads:
‘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.’
12 Section 31 of the Constitution 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.’
13 Alexkor Ltd & another v The Richtersveld Community & others 2004 (6) SA 460 (CC); [2003] ZACC 18 para
62.

terms of s 220 of the Criminal Procedure Act 51 of 1977.14 The appellants
however denied that their conduct was unlawful. Their defence, in summary,
was this. They are members of the Hobeni community, governed according to a
system of customary law which regulated their access to marine resources. The
statutory regulation of marine resources did not extinguish their customary
rights of access to these resources; consequently their conduct was lawful.
Alternatively, if the MLRA or the Conservation Decree were interpreted so as
to prevent them from exercising their customary rights, then those laws are
inconsistent with the Constitution and invalid.

[27] The first appellant, Mr Gongqose, a fisherman, testified in his defence.
He stated that his co-accused were members of the Hobeni community, and that
he is illiterate but schooled in the customs and culture of his community. From
the age of 10 he had been taught the skills and traditions of fishing by his father,
who in turn had been taught those by his father. Part of the legacy that passed
from generation to generation was an appreciation of the natural environment.
Mr Gongqose spoke of customs and traditions relating to the allocation of
fishing spots and reliance on the sea for many traditional customs practised by
the men and women of his community. 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. He said that he had a right to fish on the
coastline at Hobeni, because he grew up there and his great grandfathers used to
fish there. He went into the reserve to fish because his culture allowed him to do
so. He said that he and his fellow fishermen were dependent on the sea as the
fish caught provided food for their families and any surplus was sold to
maintain and educate their children.

14 Section 220 of the Criminal Procedure Act provides that an accused or his or her legal adviser or the
prosecutor may in criminal proceedings admit any fact placed in issue at such proceedings and any such
admission shall be sufficient proof of such fact.

[28] Mr Gongqose described the hardship experienced by the community
brought about by the enforcement of the ban on fishing in the Reserve. They
had to walk long distances (up to 6 km) to fish lawfully and had limited or no
funds for transport. Mr Gongqose said that traditional healers were also
suffering because they were denied access to marine resources required to
practise healing. The healers would go to the sea and sleep there for days to get
the herbs they needed from their ancestors. Their rights to fish and their
traditional rights were being infringed. State authorities had made empty
promises concerning access to marine resources and numerous meetings with
the authorities produced no results.

[29] Ms Vuyelwa Siyaleko, a trainee medicinal healer born and raised in
Hobeni, testified for the defence. She said that she was taught the ways of
marine harvesters by her mother and started going to the sea when she was
about 10 years old. Ms Siyaleko described customary rituals relating to the sea
and the intrinsic value of that part of the coast to her ancestral ceremonies.

[30] The appellants presented expert evidence by Dr Derick Fay, an Associate
Professor at the University of California. His field of expertise is the land usage,
customs and impact of proclaimed areas on the residents of coastal areas and the
Hobeni community in particular. Dr Fay speaks IsiXhosa and lived in the
Dwesa-Cwebe communities between 1996 and 1998, during which time he did
extensive research on the communities and their reliance on natural resources.
He lived in the area again for brief periods in 2009, 2010 and 2011.

[31] Dr Fay’s evidence can be summarised as follows. A system of customary
regulation governs the use of natural resources in the communities around
Dwesa and Cwebe. There is historical evidence of fishing and collection of
shellfish since at least the 18th century. Members of the communities gained

access to these resources by birth, marriage or affiliation to a headman. Access
was dependent upon knowledge and skills transmitted from generation to
generation as young people accompanied elders on fishing trips. These rules
were part of a larger body of customary regulation governing access to local
resources including residential, agricultural and grazing land, firewood and
building wood, thatching grass and mud for brickmaking. Access to natural
resources promotes socio-economic rights and substantive equality. The Dwesa-
Cwebe communities are among the poorest in South Africa and the loss of
access to marine resources has caused them substantial hardship. The closure of
marine resources took place without consulting the communities.

[32] The appellants also called Ms Jacqueline Sunde, a social researcher and
Ph.D student, as an expert witness. Ms Sunde conducted research in Dwesa-
Cwebe relating to customary law systems governing marine resources. She
stated that the community in Dwesa-Cwebe has a long-standing and well-
developed system of customary law that includes a system of rules regarding
access to and use of marine resources for subsistence, ritual and other purposes.
Archaeological and historical evidence indicated that these communities
practised shore-based harvesting and fishing for a range of marine resources
along the South African coast since time immemorial. The statutory regulation
of marine resources has impacted on the customary law and practices of the
communities.

[33] The State adduced evidence by Dr PJ Fielding, a marine and coastal
environmental consultant, who said that he was commissioned to present the
features of a marine protected environment. He testified concerning the benefits
of marine protected areas in sustaining resources and managing and rebuilding
fish stocks. He said that many of the marine protected areas in the country were

gazetted and implemented on an ad hoc basis. The MPA was proclaimed in
2000, but the first studies of line fish in the MPA were only conducted in 2009.

[34] In the evaluation of the evidence, it is necessary to reiterate that the
validity of a custom is no longer determined according to the common law.15 As
the Constitutional Court explained in Alexkor:16
‘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 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.’

[35] So, the nature and content of the appellants’ rights of access to and use of
marine resources in the MPA must be determined by reference to customary
law. That is the law which governed access by the Dwesa-Cwebe communities
to natural and marine resources.17 As was said in Shilubana:18
‘It is a body of law by which millions of South Africans regulate their lives and must be
treated accordingly.’

[36] And the caveat sounded in Alexkor19 bears repetition:
‘In applying indigenous law, it is important to bear in mind that, unlike common law,
indigenous law is not written. It is a system of law that was known to the community,
practised and passed on from generation to generation. It is a system of law that has its own
values and norms. Throughout its history it has evolved and developed to meet the changing
needs of the community. And it will continue to evolve within the context of its values and
norms consistently with the Constitution.’

15 See in this regard Van Breda & others v Jacobs & others 1921 AD 330.
16 Alexkor fn 12 para 51.
17 Alexkor fn 12 para 50.
18 Shilubana & others v Nwamitwa 2009 (2) SA 66 (CC); [2008] ZACC 9 para 43.
19 Alexkor fn 12 para 53.

[37] In this case there is extensive evidence concerning the nature of a
customary system governing all aspects of life in the Dwesa-Cwebe
communities, having regard to the study of the history of those communities
and their usages.20 These aspects range from 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.
There is historical evidence of fishing and collection of shellfish since at least
the 18th century.

[38] Knowledge of the customary system was transmitted from generation to
generation, typically from father to son as regards fishing and from mother to
daughter with regard to the harvesting of intertidal resources. Knowledge was
also conveyed through a range of rituals and practices within the larger
customary system within which fishing was located. All of this evidence was
not disputed by the State. Indeed, the prosecutor put it to Ms Sunde that the
State did not deny that the Dwesa-Cwebe communities had a right in terms of
customary law (of access to marine resources), and that customary law had to be
given equal recognition as legislation.

[39] The appellants accordingly proved that since time immemorial, the
Dwesa-Cwebe communities, of which they are part, have a tradition of utilising
marine and terrestrial natural resources. It is thus not surprising that the
Magistrate found that the evidence established the existence of a customary
right to fish within the relevant coastal waters by the Dwesa-Cwebe
communities. The high court described that right and its regulation as follows:

20 Alexkor fn 12 paras 56 and 60.

‘[T] hey 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.’

Did the MLRA extinguish the appellants’ customary rights?
[40] In Alexkor,21 the Constitutional Court explained that the Richtersveld
Community’s indigenous law ownership of land could have been extinguished
(in a pre-constitutional era) by the British Crown if: the laws of the Crown
expressly extinguished indigenous law ownership of the land; the laws of the
Crown applicable to the Richtersveld rendered the exercise of material incidents
of indigenous law ownership unlawful; the Crown granted the community
limited rights in respect of the land where the only reasonable inference to be
drawn was that the rights of indigenous law ownership were extinguished; or
the land was taken by force.

[41] The post-constitutional extinguishment of indigenous or customary rights
has not been considered in the South African context. But there is persuasive
foreign authority that only clear and justified extinguishment of customary
rights is permissible. Mindful of the warning that it should not be assumed that
the approach in a foreign court can readily be transplanted to South African
soil,22 the foreign cases are nonetheless instructive.

[42] Canada has a developed jurisprudence of aboriginal fishing rights. The
source of those rights is s 35(1) of the Constitution Act, 1982. It provides:

21 Alexkor fn 12 para 70.
22 Minister of Justice & others v Estate Stransham-Ford 2017 (3) SA 152 (SCA); [2016] ZASCA 197 para 58.

‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
recognised and affirmed’.
Lamer CJ explained in R Van der Peet23 why aboriginal rights are recognised:
‘In my view, the doctrine of aboriginal rights exists, and is recognised and affirmed by s.
35(1), because of one simple fact: when Europeans arrived in North America, aboriginal
peoples were already here, living in communities on the land, and participating in distinctive
cultures, as they had done for centuries. It is this fact, and this fact above all others, which
separates aboriginal peoples from all other minority groups in Canadian society and which
mandates their special legal, and now constitutional, status.’

[43] This dictum strikes remarkably close to home – the people of Dwesa-
Cwebe have been exploiting marine and natural resources in what is now the
Reserve for hundreds of years, according to a distinctive customary system.
That is why the Constitution affords their rights special protection.

[44] In R v Sparrow,24 the appellant, a member of the Masqueam Indian Band,
was charged and convicted under the Canadian Fisheries Act with possession of
a drift net longer than that permitted by the terms of his Band’s Indian food
fishing licence. He admitted that the facts alleged constituted the offence, but
defended the charge on the basis that he was exercising an existing aboriginal
right to fish and that the net length restriction was inconsistent with s 35(1) of
the Constitution Act. The Crown submitted that that the Masqueam Band’s
aboriginal right to fish had been extinguished by regulations under the Fisheries
Act.

[45] The Crown failed to discharge the burden of proving extinguishment. The
court held that the test of extinguishment was that the ‘Sovereign’s intention
must be clear and plain if it is to extinguish an aboriginal right’. Dickson CJ and
La Forest J went on to say that mere regulation did not meet that threshold:

23 [1996] 2 SCR 507 para 30.
24 [1990] 1 SCR 1075.

‘There is nothing in the Fisheries Act or its detailed regulations that demonstrate a clear and
plain intention to extinguish the Indian aboriginal right to fish. The fact that express provision
permitting the Indians to fish for food may have applied to all Indians and 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.’25

[46] The protection of customary rights in Australia is not constitutional, but
statutory. Under s 211 of the Native Title Act of 1993, if a law required a
licence or permit in order to exercise a native right, then:
‘the law does not prohibit or restrict the native title holders from carrying on the class of
activity, or from gaining access to the land or waters for the purpose of carrying on the class
of activity, where they do so:
(a)
for the purpose of satisfying their personal, domestic or non-commercial communal
need; and
(b)
in exercise or enjoyment of their native title rights and interests.’

[47] In Yanner v Eaton,26 the accused was charged with taking fauna contrary
to the Australian Fauna Conservation Act 1974, in that he used a harpoon to
catch two juvenile estuarine crocodiles without a permit. The relevant provision
provided:
‘A person shall not take, keep or attempt to take or keep fauna of any kind unless he is the
holder of a licence, permit, certificate or other authority granted and issued under this Act’.
The Magistrate found that it was a traditional custom of the appellant’s clan to
hunt juvenile crocodiles which had tribal totemic significance based on spiritual
belief; and that the Fauna Conservation Act did not prohibit native title holders
from carrying on activities in the exercise of their native title rights and
interests. The Magistrate dismissed the complaint. A majority of the Court of
Appeal of Queensland set aside the Magistrate’s order and remitted the

25 Sparrow fn 22 at 1099.
26 [1999] HCA 53; 201 CLR 351; 166 ALR 258.

proceedings to the Magistrate’s Court for the matter to proceed according to
law. On appeal to the High Court of Australia the respondent contended that any
native title right or interest to hunt crocodiles had been extinguished by the
enactment of the Fauna Act.

[48] The court held that the appellant’s native title had not been extinguished:
‘[R]egulating the way in which rights and interests may be exercised is not inconsistent with
their continued existence. Indeed, regulating the way in which a right may be exercised
presupposes that the right exists. . . . But in deciding whether an alleged inconsistency is
made out, it will usually be necessary to keep well in mind that native title rights and interests
not only find the origin in Aboriginal law and custom, they reflect connection with the land. .
. . And an important aspect of the socially constituted fact of native title rights and interests
that is recognised by the common law is the spiritual, cultural and social connection with the
land. Regulating particular aspects of the usufructuary relationship with traditional land does
not sever the connection of the Aboriginal peoples concerned with the land (whether or not
prohibiting the exercise of that relationship altogether might, or might to some extent). That
is, saying to a group of Aboriginal peoples, ‘You may not hunt or fish without a permit’ does
not sever their connection with the land concerned and does not deny the continued exercise
of the rights and interests that Aboriginal law and custom recognises them as possessing.’27

[49] Thus, the approach in Australia is that regulation of fauna or fishing in
terms of a licensing or permitting scheme does not extinguish or deny the
continued existence of native title rights and interests under the traditional laws
acknowledged and customs observed by Aboriginal peoples.28

[50] Counsel for the appellants submitted that the Canadian test – a clear and
plain intention to extinguish a customary right – fits perfectly with the text and
purpose of s 211(3) of the Constitution. It seems to me unnecessary to adopt
that approach or the Australian one that the regulation of a fishing right through

27 Yanner fn 25 para 64 (per Gummow J concurring).
28 Akiba on behalf of the Torres Strait Regional Sea Claim Group v Commonwealth of Australia [2013] HCA 33
para 75.

a permit does not sever the connection of Aboriginal peoples with their land, or
deny the continued exercise of their rights and interests under Aboriginal law.
Ultimately, the validity of customary law, and the rights under it in South
Africa, are protected by s 211 of the Constitution and are rendered subject only
to the Constitution and legislation that specifically deals with that law. It
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.

[51] So, in determining whether legislation such as the MLRA extinguished
the appellants’ customary right to fish, the rules of interpretation of statutes
apply, together with the injunction in s 39(2) of the Constitution that courts
must interpret statutes to ‘promote the spirit, purport and objects of the Bill of
Rights’. It is trite that that words in a statute must be given their ordinary
grammatical meaning and be construed in the light of their context. That context
is not limited to the language, but includes the subject matter of the statute, its
apparent scope and purpose and within limits, its background.29 Stated
differently, when interpreting legislation what must be considered is the
language used, the context in which the relevant provision appears, and the
apparent purpose to which it is directed.30 And s 39(2) of the Constitution
requires courts to ‘prefer a generous construction over a merely textual or
legalistic one in order to afford claimants the fullest possible protection of their

29 Jaga v Dönges, NO & another; Bhana v Donges NO & another 1950 (4) SA 653 (A) at 664E-H, affirmed in
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism & others 2004 (4) SA 490 (CC);
[2004] ZACC 15 para 89.
30 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA); 2012] ZASCA 13
para 18.

constitutional guarantees’,31 but does not authorise an interpretation that unduly
strains the text.32

[52] Applying these principles, there is nothing in the language of the MLRA
that specifically deals with customary rights. At most, it provided a right of
access to marine resources by ‘subsistence fishers’, defined as;
‘a natural person who regularly catches fish for personal consumption or for the consumption
of his or her dependants, including one who engages from time to time in the local sale or
barter of excess catch, but does not include a person who engages on a substantial scale in the
sale of fish on a commercial basis .’

[53] The recognition of the right of a subsistence fisher who catches fish for
personal or family consumption is not 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. Further, the appellants established in evidence that their
customary rights of access to and use of marine resources were not confined to
consumption, but were exercised for purposes of customary rituals, ancestral
ceremonies and adornment.

[54] By contrast, the amendment in terms of Act 5 of 2014, introduced ‘small-
scale fishing communities’, defined in the MLRA as a group of persons who:
‘have a history of shared small-scale fishing and who are, but for the impact of forced
removals, tied to particular waters or geographic area, and were or still are operating where
they previously enjoyed access to fish, or continue to exercise their rights in a communal
manner in terms of an agreement, custom or law’.33

31 Department of Land affairs & others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC); [2007]
ZACC 12 para 53.
32 Investigating Directorate: Serious Economic Offences & others v Hyundai Motor Distributors (Pty) Ltd &
others In re: Hyundai Motor Distributors (Pty) Ltd & others v Smit NO & Others; 2001 (1) SA 545 (CC);
[2000] ZACC 12 para 53.
33 Emphasis added.

The amended MLRA constitutes legislation that does – consistently with
s 211(3) of the Constitution – alter customary rights. The unamended MLRA
did not.

[55] The purposes of the MLRA, as is evident from its long title, include:
‘the conservation of the marine ecosystem . . . the long-term sustainable utilisation of marine
living resources . . . and the exercise of control over marine living resources in a fair and
equitable manner to the benefit of all the citizens of South Africa . . .’.

[56] These purposes are consistent with the continued existence of customary
rights of access to and use of marine resources, and their conservation, by the
Dwesa-Cwebe communities since time immemorial. These rights and practices
were extant long before the MLRA came into force in September 1998 and are
subject to significant regulation by customary law. Customary rights and
conservation can co-exist. And it is important to remember that as regards
conservation and long-term sustainable utilisation of marine resources in the
MPA, the Dwesa-Cwebe communities have a greater interest in marine
resources associated with their traditions and customs, than any other people.
These customs recognise the need to sustain the resources that the sea provides.
For these reasons, and more particularly, that the customary law of the Dwesa-
Cwebe communities provides for sustainable conservation and utilisation of
resources, the high court’s finding that by concluding the restoration agreement,
the communities had accepted ‘that they would access the sea in accordance
with the dictates of the law giving expression to the concept of sustainable
development’, is insupportable.

[57] An interpretation that the appellants’ customary rights survived the
enactment of the MLRA not only grants them the fullest protection of their
customary system guaranteed by s 211 of the Constitution, but also accords with
the position in international law – which a court is enjoined to consider when

interpreting the Bill of Rights34 – that indigenous peoples have the right to their
lands and resources traditionally owned.

[58] Thus, the African Charter on Human and People’s Rights, to which South
Africa is a party, recognises the rights of all peoples to ‘freely dispose of their
wealth and natural resources’ and to ‘economic, social and cultural development
with due regard to the freedom and identity in the equal enjoyment of the
common heritage of mankind’. The Charter must be interpreted in light of the
United Nations Declaration on Indigenous People’s Rights (UNDRIP). Article
26 of UNDRIP reads:
‘1.
Indigenous peoples have the right to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.
2.
Indigenous peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired.
3.
States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to customs, traditions
and land tenure systems of the indigenous peoples concerned.’

[59] On a proper construction of the MLRA, it did not extinguish the
appellants’ customary right of access to and use of marine resources. These
rights continued to exist subject to the limitations already imposed by
customary law. Indeed, the high court found that the MLRA did not have ‘the
effect of jettisoning (or not preserving) the customary rights’ of the Dwesa-
Cwebe communities; and that there was no scope for arguing that they had no
customary rights because the MLRA did not recognise those rights. These
findings undoubtedly are correct.

34 Section 39(1) of the Constitution.

Was the appellants’ conduct unlawful?
[60] The appellants were charged with a contravention of s 43(2)(a) of the
MLRA which provided:
‘No person shall in any marine protected area, without permission in terms of subsection (3)–
(a) fish or attempt to fish . . .’

[61] Section 43 was silent as to whether unlawfulness is an element of the
offence. When a statute is silent on the elements of an offence, courts must
interpret the legislation. The general approach is that the lawgiver does not
intend innocent violations of statutory prohibitions to be punishable, unless
there are clear and convincing indications to the contrary.35 Likewise, if a
statute does not specifically refer to the element of unlawfulness, there is a
general presumption that the defences excluding unlawfulness would be
available to a person charged with contravening a criminal prohibition in a
statute.36 In other words, it is generally presumed that unlawfulness is an
element of a statutory offence.

[62] A defence excluding unlawfulness in a statutory offence, is possession of
the ‘necessary authority’ by the accused person. This is recognised in terms of
s 250(1) of the Criminal Procedure Act, which creates the procedural
mechanism to deal with the defence. It provides:
‘If a person would commit an offence if he performed an act without being the holder of a
licence, permit, permission or other authority or qualification (in this section referred to as the
‘necessary authority’), an accused shall, at criminal proceedings upon a charge that he
committed such an offence, be deemed not to have been the holder of the necessary authority,
unless the contrary is proved.’

35 S v Arenstein 1964 (1) SA 361 (A) at 365C.
36 J Burchell South African Criminal Law and Procedure volume 1: General Principles of Criminal Law (4 ed
2011) 116.

[63] In this case the requirement of necessary authority is satisfied either by
adducing evidence that the requisite permit or licence has been granted in terms
of the MLRA, or by proving the existence of a customary right of access to and
use of marine resources that renders the conduct lawful, in light of the special
status of customary law in the Constitution.

[64] The appellants have proved that at the time of the commission of the
offence, they were exercising a customary right to fish. That right was not
extinguished by legislation specifically dealing with customary law. Therefore,
the appellants’ conduct was not unlawful.

[65] Consequently, the finding by the high court that the appellants’ conduct
was unlawful because they had not sought an exemption (under s 81 of the
MLRA) before setting out to fish, cannot be sustained, for the following
reasons. First, if the MLRA did not extinguish the appellants’ customary rights,
then logically their conduct was not unlawful. Second, the court’s finding that
the MLRA did not have the effect of jettisoning (and not preserving) the
customary rights exercised by the Dwesa-Cwebe communities, is directly at
odds with its finding that those rights may only be lawfully exercised in terms
of an exemption granted under the MLRA. The court could not at the same time
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 s 81 of the MLRA. Therefore, the finding that nothing ‘prevented the
appellants from seeking exemption even on the basis that in terms of customary
law such permit is not required’, is a non sequitur.

[66] The high court’s finding that to contend that a customary right negates
unlawfulness on a charge under the MLRA would elevate the rights to culture in
ss 30 and 31 at the expense of the right to a healthy environment and to have the

environment protected as envisaged in s 24 of the Constitution is likewise
unsustainable.37 It is true that the right to culture cannot be exercised in a
manner inconsistent with other rights, and that environmental protection and
conservation mandated by s 24, self-evidently is a valid legislative concern. But
that is not the end of the Constitution’s protection of customary rights. It also
protects them from interference, other than through specific legislation
contemplated in s 211(3). The MLRA, prior to its amendment by Act 5 of 2014,
was not such legislation. And the facts show that the exercise of the appellants’
customary rights was not inconsistent with s 24 of the Constitution.

[67] Finally, the requisites for special leave to appeal have been met. Apart
from reasonable prospects of success, there are special circumstances that merit
a further appeal to this Court. The appeal raises a substantial point of law; the
matter is of great importance to the parties, the public and in particular to the
Dwesa-Cwebe communities; and the prospects of success are so strong that the
refusal of leave would result in a manifest denial of justice.38

[68] By reason of the conclusion to which I have come it is unnecessary to
deal with the appellant’s contention that if the MLRA or the Conservation
Decree were interpreted so as to prevent them from exercising their customary
rights, then these laws are unconstitutional.

[69] In the result, the following order is made:

37 Section 24 of the Constitution reads:
‘Everyone has the right –
(a) to an environment that is not harmful to the health and well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable
legislative and other measures that –
(i)
prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecological a sustainable development and use of natural resources while promoting
justifiable economic and social development.’
38 Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering [1986] ZASCA 10; 1986 (2) SA 555 (A) at
564H-565D; Director of Public Prosecutions: Gauteng Division, Pretoria v Moabi [2017] ZASCA 85 para 21.

The application for special leave to appeal in case number 287/17 is
granted.
Paragraph 1 of the order of the High Court is set aside and replaced with
the following order:
‘The appeal is upheld and the appellants’ convictions and sentences are
set aside.’

_______________________

A Schippers
Acting Judge of Appeal

APPEARANCES

For Appellant:
T Ngcukaitobi and M Bishop

Instructed by:

Legal Resource Centre, Cape Town
Webbers Attorneys, Bloemfontein

For Third and
Fourth Respondents:
K Pillay

Instructed by:

State Attorney, Cape Town
State Attorney, Bloemfontein