Page 82 - Litigating Land and Housing in South Africa: Lessons and Reflections

Settlement Agreement by which the the the land was returned to the the the the the communities in in in terms of of the the the the the Restitution of of Land Rights Act was signed in in in 2001 Since then the the the the the title deed had had not been been transferred none of the the the the co-management principles had had been been implemented and and the the the community’s promised access to the the Reserve and and its resources were
7 2 Legal Principles
even even more violently curbed than in in 2001 In the the the the eventual judgment of of of the the the the the the Elliotdale Magistrate in in in the the the the the the case of of of the the the the the the three fishers he he he he he he he he he described the the the the the the the signing of of of the the the the the the the settlement agreement as the the the the point at at which “the goodwill towards [this community] appears to to terminate” The successful land land claimants were
trespassers on their own land land Looking for the the the the the the first time at at at the the the the the the history and facts of this community what struck us us as lawyers is is is that their rights to to to to access access to to to to to the the the the the the the the the resources resources inside the the the the the the the the the Reserve did not derive from the the the the the the the the the Settlement Agreement These were
customary rights rights to to to to access access the the the the the the the marine and and and and other resources resources In line with the the the the the the the recognition of of such rights rights on on behalf of of indigenous communities in in in in in in in in Canada Australia and and and and New Zealand and and and and given the the the the the the the exciting gains in in in in in in in in customary customary law jurisprudence in in in in in in in in South Africa under the the the the Constitution the the the the time appeared to to to to be ripe to to to to assert the the the the recognition of of customary customary property rights Using it it it it it it it as as as a a a a a a a a a a a a a a a a a a a a a a defence in in in in in in in a a a a a a a a a a a a a a a a a a a a a a criminal trial of of three fishers charged with contravening a a a a a a a a a a a a a a a a a a a a a a statue that that prohibited fishing fishing in in in in in in in in in in a a a a a a a a a a a a a a a a a a a Marine Reserve Reserve was bold: we would need the the the Court to to to to to to accept that that despite despite a a a a a a a a a a a a a a a a a a a statutory prohibition prohibition on on on on on fishing fishing the the the the the customary customary rights rights rights to to to to to to to access to to to to to to to resources in in in in in in in in the the the the the Reserve Reserve continued to to to to to to to exist despite despite such prohibitions Consistent with the the the the the the common law doctrine of of aboriginal title and rights rights rights rights we we would argue that if the the the the the the customary customary rights rights rights rights of of of this community were
were
not not explicitly extinguished – – by the the the the the the the legislature for for example first recognising these rights rights rights before regulating them out of of of existence – – then they did not not cease to to exist exist The fishers were
were
thus acting lawfully we we we would argue in in terms of of customary law The case had the potential to to have a a a a a a a a a a massive impact on property rights to to various resources: land minerals forestry and and and of course marine resources resources We went on record to defend defend the the the the three fishers and and defended them in in in fin in their criminal trial in in in fin in the the the the Elliotdale Magistrate’s Magistrate’s Court Court A Magistrate’s Magistrate’s Court Court cannot make findings on on on constitutional constitutional issues and therefore could not not entertain our our argument challenging the the the constitutionality of of the the the Marine Living Resources Act 18 of of 1998 (“MLRA”) for extinguishing our our clients’ customary rights The fishers were
thus found guilty We appealed this finding and simultaneously launched a a a a a a a a review to the Mthatha High
Court for the the declaration of the the Dwesa-Cwebe Marine Protected Area to to be be be set aside because it it ignored both our our client communities and their customary rights After the the the the the Mthatha High
Court dismissed both the the the the the appeal and the the the the review applications (finding that that the the the the MLRA did not extinguish our our clients’ customary rights to to to fish) we appealed the the matter to to to to to the the Supreme Court of Appeal At first leave to to to appeal appeal was rejected We decided to to to take the the the the unusual step of of of petitioning the the the the President of of of the the the the SCA for a a a a a a a a a a special reconsideration reconsideration of of of the the the the case In an an equally unusual outcome she granted reconsideration reconsideration 82
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS