Gongqose & others v Minister of Agriculture, Forestry & Fisheries and others; Gongqose & others v State & others

The appellants were members of the Hobeni, Cwebe and Mendwane communities (the Dwesa-Cwebe communities) living adjacent to the Dwesa-Cwebe Marine Protected Area (MPA) in the former Transkei. These communities had historically relied on forest and marine resources for their livelihood for some 300 years. The MPA was declared by the Minister on 29 December 2000 under s 43 of the Marine Living Resources Act 18 of 1998 (MLRA) on a strict 'no take' basis. The communities had been dispossessed of their land and subjected to forced removals in the 1930s and 1970s, and had their access to marine resources progressively restricted by various laws. In 1996, the communities lodged a successful land claim which was settled in 2001, though the Settlement Agreement expressly excluded the MPA. On 22 September 2010, the appellants were arrested for attempting to fish in the MPA without a permit. They pleaded not guilty, raising as a defence that they were exercising their customary right to fish. The Magistrate found they had exercised a customary right but convicted them anyway. They were sentenced to fines (wholly suspended) or caution and discharge. The appellants appealed their convictions and also launched a review of the Minister's decision to declare the MPA.

• Whether the appellants proved the existence of customary rights of access to and use of marine resources
• Whether the MLRA extinguished those customary rights
• Whether the exercise of customary fishing rights constituted a defence to unlawfulness in criminal proceedings under the MLRA
• Whether s 211(3) of the Constitution protects customary rights from extinguishment except by legislation that specifically deals with customary law
• Whether unlawfulness is an element of the offence under s 43(2)(a) of the MLRA

1. The application for special leave to appeal in case number 287/17 is granted. 2. Paragraph 1 of the order of the High Court is set aside and replaced with: 'The appeal is upheld and the appellants' convictions and sentences are set aside.'

1. Customary law is recognised by the Constitution as an independent and original source of law (s 211). 2. Under s 211(3), customary rights can only be extinguished by 'legislation that specifically deals with customary law', either expressly or by necessary implication. 3. General legislation regulating fishing and marine resources (such as the unamended MLRA) does not specifically deal with customary law and therefore does not extinguish pre-existing customary rights of access to and use of marine resources. 4. Where a statute creating a criminal offence does not expressly exclude unlawfulness as an element, there is a presumption that unlawfulness remains an element and that defences excluding unlawfulness (such as possession of necessary authority under s 250 of the Criminal Procedure Act) are available. 5. The exercise of a proven customary right constitutes 'necessary authority' that renders conduct lawful and provides a defence to criminal charges for activities that would otherwise require a statutory permit or licence. 6. Statutes must be interpreted consistently with s 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights, including the protection of customary rights.

The Court made several important observations: It noted the unhelpful approach of the NDPP in abiding by the decision of the Court without filing written submissions or presenting oral argument on novel and complex issues of customary law and criminal law. The Court drew on persuasive foreign authority from Canada (R v Sparrow) and Australia (Yanner v Eaton) concerning the protection of aboriginal and native title fishing rights, while cautioning that foreign approaches cannot be readily transplanted. The Court observed that customary rights and conservation can co-exist, as the Dwesa-Cwebe communities have a greater interest in sustainable marine resources than any other people given their traditional connection to the land and sea. The Court noted that an interpretation protecting customary rights accords with international law, including the African Charter on Human and People's Rights and the UN Declaration on Indigenous People's Rights (UNDRIP). The Court emphasised the historical injustice of dispossession and forced removals suffered by the Dwesa-Cwebe communities, and that customary law has not occupied its rightful place in South Africa. The Court also noted that by the time of the appeal, the MLRA had been amended by Act 5 of 2014 to introduce 'small-scale fishing communities' which did specifically deal with customary law, and new regulations had been published allowing limited community access to the MPA.

This is a landmark judgment on the constitutional status and protection of customary law in South Africa. It establishes that customary law is an independent and original source of law entitled to constitutional protection under s 211(3). It clarifies that customary rights can only be extinguished by legislation that specifically deals with customary law, either expressly or by necessary implication. General legislation regulating an area (such as fisheries) does not extinguish pre-existing customary rights unless it specifically addresses customary law. The judgment affirms that customary rights can constitute the 'necessary authority' that excludes unlawfulness in criminal proceedings. It recognises the importance of customary fishing rights for indigenous communities and their co-existence with environmental conservation. The case demonstrates the courts' obligation to interpret legislation consistently with the Bill of Rights and to give customary law its rightful place in South African law, moving away from the historical marginalisation of customary law. It has significant implications for marine resource management and the rights of coastal communities throughout South Africa.