Please note that this article is an extract from the Legal Resource Centre’s Annual Report 2012
On 22 May 2012, crowds of people from villages near Dwesa-Cwebe Nature Reserve in the Eastern Cape gathered outside the Elliotdale Magistrate’s Court to hear the court’s verdict on whether three men from the village of Hobeni were guilty of trespassing and of ‘intention to fish’ within a marine reserve. The intense community interest reflected the fact that the people of Dwesa-Cwebe had witnessed the erosion of their rights over the previous decades and sensed that the tide was about to turn.
In the 1970s and 1980s, these communities were systematically removed without compensation from their ancestral lands next to the Mbashe River and the coastline; in part to create the Dwesa-Cwebe Nature Reserve. Their claim for restitution, launched in 1998, was successful and a settlement agreement was signed in 2001. This promised to restore ownership of the reserve to the seven communities who were removed and also promised to make them co-managers of the reserve. However, as was noted in Magistrate’s judgment, “this court cannot shy away from the conclusion that little but lip service has been paid to the terms of the Dwesa-Cwebe Settlement Agreement and even less to the Community Management Agreement of the reserve by government agencies”. For a short time, however, the communities were allowed to continue utilising the resources in the reserve, through fishing and the small-scale harvesting of the forestry resources, as they had done for generations.
This changed when the coast line adjacent to the reserve was declared a Marine Protected Area (MPA) and began to be enforced as a ‘no-take zone’ in 2005, making fishing absolutely prohibited. Had the communities been consulted about these decisions, they would have indicated that fishing inside the reserve is a major source of their livelihood, as well as an inextricable part of their cultural identity. On both accounts, the absolute closure of the reserve had disastrous consequences for these communities. No effort had been made by the government to address this problem, despite endless calls from the community to the relevant authorities. As a result, they continued to enter the reserve at great risk to themselves. The clash between the environmental authorities and the local communities came to a violent head in 2011 and 2012, when two fishermen were killed on separate occasions when caught with fish inside the reserve.
The three fishermen charged in the Elliotdale Magistrates Court argued that they were not guilty of the charges against them as they were acting lawfully in terms of their customary law system, which regulates their access to the ocean resources. Although this is a system recognised and protected by the Constitution, it was ignored by the Minister when declaring the area protected. Dr Derick Fay from Stanford University, and an expert on the Dwesa-Cwebe community’s history and livelihoods, and Jacqueline Sunde from the University of Cape Town, an expert on customary small-scale fishing in South Africa, gave evidence testifying to the community’s customary system of law.
The Magistrate found that the community indeed had a customary system of law. The Magistrate added that the constitutionality of the Marine Living Resources Act, 18 of 1998, in denying these customary rights, was ‘doubtful to say the least’, but that he had no powers to strike the provision down. This judgment has opened the door for the community at large to review the decision to declare a Marine Protected Area without consultation with the affected communities and to test the constitutionality of the legislation. Significantly, the decade of silence from the relevant government authorities has come to an end, as they are finally forced to take the interests of the local communities into account in their efforts to preserve the coastline.