Landmark MPA case in Eastern Cape
A landmark case that could influence the zoning and management of Marine Protected Areas in the country is scheduled for 28 November in the Mthatha High Court.
The Legal Resources Centre, representing small-scale fishers in the Dwesa and Cwebe areas in the Eastern Cape, will ask the Fisheries Minister to set aside the decision taken in terms of the MLRA to make Dwesa-Cwebe a no-take MPA.
The fishers want partial access to the MPA in terms of their customary rights and based on the understanding that environmental protection and sustainable use of marine resources are vital for livelihoods
The case has been launched on the grounds that there was no consultation with the communities when the MPA was declared and that to date the departments have failed to respond to the communities’ repeated request for access to marine resources in terms of the Settlement Agreement which they signed in 200o. They have also failed to set up co-management arrangements and this was also part of the Settlement Agreement. The fishers argue that they have customary rights to marine resources.
LRC launched the review in 2013 on behalf of various parties including David Gongqose, his co -accused and the Hobeni Fishing community.
MPAs are now declared in terms of the National Environmental Management Protected Areas Act (NEMPAA). An application can be made to the Minister to zone an MPA to accommodate various activities, including fishing, in different zones.
Dwesa Cwebe: Restore Customary Right to People
The communities of Dwesa Cwebe in the Eastern Cape have been struggling for years to gain access to their land, forestry and marine resources.
Access to these resources have become increasingly difficult since the forest was fenced off in the early 1980s, following the designation of the forest as the Dwesa-Cwebe Nature Reserve by the Transkei government in 1978. In 2000, the communities signed a settlement agreement with the government which was to ensure that the land would be returned to them in terms of the South African Restitution Act. Soon after, however, the Reserve’s marine area was declared a Marine Protected Area and a no-take zone.
While the MLRA thus prohibited fishing in the Reserve, the local communities continued to fish in terms of their customary law as they have done for generations. In 2009, three of the community members including a CLSA member, Mr. Malibongwe Gongose were arrested for attempting to fish in the Cwebe Reserve. Although they were subsequently convicted in terms of s43 of the MLRA, the local Magistrate completely suspended their sentences, saying that the constitutionality of the MLRA in denying the customary rights of the communities was ‘doubtful’. The three fishers are appealing the sentence to the High Court where they will challenge the constitutionality of the prohibition on fishing for the local communities.
Concurrent to the appeal, the Legal Resources Centre is representing the communities in launching a review of the decision of the Minister to make Dwesa-Cwebe a no-take MPA without any consultation with these communities.
Wilmien Wicomb is the instructing attorney and Jason Brickhill is counsel. The review is to be launched this week.
MDT will create a media campaign around this issue and will post details via the media and our social network sites.