The fishing community of Mazambane wrote this week to the Minister of the Environment, Minister Molewa and Minister of Agriculture, Forestry and Fisheries and the Acting CEO of Isimangaliso to request that their customary fishing rights be recognised. At a meeting of 72 fishers, including their Induna and ward councillor, the community took the decision to address a letter in the hope that the two Ministers and Isimangaliso will reach agreement on the way in which the SSF policy will be implemented and that it will be in accordance with the MLRA and the Policy, both of which refer to the need to respect any rights arising in terms of customary law.
23 October 2017
Dear Honourable Minister Zokwana and Minister Molewa
Re: Recognition of KwaMazambane customary small-scale fishing community’s customary rights in terms of Section 39 of the Constitution.
We, the undersigned leaders and men and women fishers from KwaMazambane, Kosi Bay wish to bring to your attention our customary fishing rights in terms of both the Constitution and the amended MLRA and request your urgent attention to the manner in which our rights are currently not being respected.
Our ancestors settled this land hundreds of years ago and have been utilizing marine resources and resources from our lakes and rivers since time immemorial. The coastal land and lakes, the sea and the rivers here provide our food security and are the basis of our livelihoods. Our use of these resources is part of our culture and our customary systems of law. We have had our own system of governance over these resources that existed before KZN Wildlife and other authorities came here. This was even recognized by the apartheid government.
The fishing communities of Kosi Bay have faced decades of discrimination by the fisheries, environmental and Isimangaliso Wetlands Authorities. The only policy mechanism for the recognition of our fishing rights since the introduction of the South African Constitution in 1996 has been a subsistence permit exemption with tight restrictions on the sale of marine resources. In fact only a few persons received this. Not withstanding this, we have been tightly restricted by ISimangaliso and KZN Ezemvelo. Despite the fact that they boast that Kosi Bay traditional fishing traps are a culture artefact and evidence of living culture and heritage that attract tourists from all over the world, they have failed to respect these cultural and customary rights and to engage with us in accordance with the constitutional recognition of these rights, in particular Section 39.
On 18 February 2016, two judges of the Mthatha High Court delivered judgement in the Gongqose and Others vs Minister of Agriculture, Forestry and Fisheries and Others (CA&R26/13). The judgement in this case is clear. Where a community has a customary fishing right it is understood that this right is not extinguished by any prior permitting system. The judgement indicates that a Minister must consider this when planning policy implementation or developing any regulations that restrict fishing and might impact the customary rights of a customary fishing community. The implication of the judgement is that where a community has a pre-existing customary right based on a customary system of law it is presumed that this right continues. Despite this judgement the DEA and its contracted partner, the Isimangaliso Wetlands Authority, have failed to recognize our customary rights. We believe that this is against the World Heritage Authority guidelines and it contradicts sections 8j and 10c of the UN Convention on Biodiversity. This has implications for a range of policy documents that you have accepted despite us commenting on these. For example, the Isimangaliso IMP, the Kosi Estuary Plan and the draft regulations for new MPAs.
DAFF has failed to engage with us on this and has failed to recognize our customary fishing rights despite the fact that the amended MLRA states explicitly that where a community has rights arising from customary law these must recognized. In addition, the Policy on Small-scale recognizes customary rights arising in terms of customary law. We request that these be acknowledged in the planning of the SSF policy implementation and taken into consideration at all stages, including verification and confirmation of our rights as a small-scale fishing community in terms of the SSF Regulations.
We request that both Ministries engage with us on this process as a matter of urgency. We ask that you recognize our customary community and acknowledge our customary rights whilst you plan, with us, how these customary rights will be regulated in future. Secondly, we request that all bone fide fishers in our community, whom we are able to identify, be granted an interim permit exemption to fish, and to sell their fish, pending the roll out of the SSF policy.
We request your urgent consideration of this matter.
Mr A Makhasi, Chairperson of KwaMazambane Coastal Links and (attached) undersigned Nduna, councillors and persons all present at meeting KwaMazambane, KwaNgwanase, Monday 23rd of October 2017.