Gongqose and Others v Minister of Agriculture, Forestry and Fisheries and Others; Gongqose and Others v State and Others

The appellants were members of the Hobeni community living adjacent to the Dwesa-Cwebe Nature Reserve in the Eastern Cape. In 2010 they were convicted in the Magistrate’s Court, Elliotdale, of attempting to fish in the Dwesa-Cwebe Marine Protected Area without a permit, contrary to section 43(2)(a) of the Marine Living Resources Act 18 of 1998. They were fined or given suspended imprisonment. Evidence showed that the appellants were exercising long‑standing customary fishing rights regulated by customary law in their community. Although the Mthatha High Court accepted that they were exercising customary rights, it dismissed their appeal on the basis that they should have applied for an exemption under the Act. The appellants then appealed to the Supreme Court of Appeal.

The appeal was upheld. The convictions and sentences imposed on the appellants were set aside.

This is a landmark decision affirming the constitutional recognition of customary law and customary resource-use rights in South Africa. It establishes that customary rights can operate as a substantive defence in criminal law and clarifies the relationship between environmental legislation and customary law, strengthening the protection of living customary law under the Constitution.