Page 83 - Litigating Land and Housing in South Africa: Lessons and Reflections

7 3 Judgment
In In a a a a a a a a a ground-breaking judgment for for the the the the the protection of customary customary property rights the the the the the SCA held that our clients were
were
exercising their customary customary right right to to to fish and were
were
therefore acting lawfully when caught inside the the the the the the the the the the MPA In In overturning the the the the the the the the the convictions the the the the the the the the the SCA held that the the the the the the the the the lawfulness of of of of the the the the the the the the the conduct of of of of the the the the the the the the the appellants could not be determined in in in in in in in in terms terms of of of of the the the the the the the the MLRA MLRA or or common law law law but in in in in in in terms terms of of of of customary customary customary law law law If parliament wants to to to to extinguish those customary customary customary rights rights they must do so in in in in in in in a a a a a a a a a a a a a a a a a clear and justifiable manner through legislation Simply ignoring customary customary customary rights rights rights like the the the the MLRA MLRA did before its amendment in in in in in 2014 cannot amount to to to extinguishing those those rights rights rights Indeed the the the the Constitution provides those customary rights “special protection” the Court found Schippers AJ writing for a a a unanimous Court held that:
“These rights and practices [of customary fishing] were
extant long before the MLRA came into force in in September 1998 and are subject to to to to significant regulation by customary law Customary rights and and conservation conservation co-exist And it is is important to to to remember that as regards conservation conservation and and long- term sustainable utilisation of marine resources in in in in in in the the MPA the the Dwesa-Cwebe communities have a a a a a a a a a a a greater interest in in in in marine resources associated with their traditions and customs than any other people [ ] It is is is true that the the the the right right to to culture cannot be ex- ercised in in a a a a manner inconsistent with other rights 7 4 Working with clients and and and that environmental protection and and and conservation mandated by s24 self-evidently is is is a a a a a a a a a a a valid legislative concern But that is is is not the the end of of the the Constitution’s protection of of customary rights It also protects them from interference other than through specific legislation contemplated in in [the Constitution] ” The judgment set an an important precedent not only for communities accessing accessing marine resources in in in in terms of customary customary law law but also those accessing accessing land and and other natural resources in in in in terms of of of the the the the customary customary law law of of of their communities It brings in in in the the the words of of of Schippers AJ “customary law which has not occupied its rightful place in this country directly to to the fore” For a a a a a a a a a a a a a a community to to to to assert its rights rights rights arising from customary customary law it it it it must prove that that that it it it it has a a a a a a a a a a a a a a customary customary system system (e (e g g g g g g g g g one that that that that includes rules relating to to to to to to the the the governance of of of resources) resources) and and that that that that the the the system system recognises rights rights rights (e (e g g g g g g g g g rights rights rights to to to to access and and and use of of of of of natural resources) resources) It is is is is is not an an an an an easy case case to to to to make However it it it is is is is is the the the the the kind kind of of of of of case case that that that depends almost entirely on on the the the the history and and and knowledge of of of of of the the the the community community itself As such we we have learnt building building this kind kind of of of of of case and and presenting it it it it it it in in in in in court provides a a a a a a a a a a a a a unique opportunity for building building community community organisation as as part of of of the the the litigation strategy Proving the the existence of of a a a a a a customary system of of gov- ernance and and shared property rights also exposes the the artificial and and problematic nature of of statutory definitions of of ‘community’ that that are insensitive to to to to realities on on the ground and that that aim to to to lock rural people into a a a a a a a a single
community community identity The Dwesa-Cwebe community community defined fin in terms of the the the Restitution Act did did not share a a a a a customary governance system neither did did the the the the commu- nities nities recognised in in the the the the area as ‘traditional communities’ in in terms of traditional traditional governance legislation Rather LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
83