On the 31st October 2016, the Western Cape High Court ruled that the restrictive permit conditions that stopped the Langebaan traditional net fishers, including both the commercial and interim relief net fishers, from accessing their traditional fishing grounds in Zone B of the Langebaan Lagoon were irrational and discriminated unfairly against the fishers on the grounds of race. He declared that they were therefore unconstitutional and must be set aside.
Catching harder with net-fishing is an age-old tradition of the fishers of Langebaan, and when the previous apartheid government decided to make Langebaan a tourist destination, the Lagoon was divided into Zones A, B and C, with the latter being then declared a marine protected area (MPA).
The Coastal Links branch in Langebaan lodged a court case against the Department of Agriculture, Forestry and Fisheries, the Department of Environmental Affairs, South African National Parks and the West Coast National Park in defence of their livelihoods as the traditional net-fishers had been restricted to only catch fish in Zone A, while a few white fishers, due to an agreement they signed with the Parks Board during the last years of apartheid, were allowed to fish in Zone B.
This historical judgement was very significant not only for the Langebaan net fishers but for all small-scale fishing communities because it emphasised the obligation on DAFF and DEA and all conservation management authorities like SANParks, East Cape Parks and Tourism, KZN WildLife and Isimangaliso Wetlands Authority to always take into consideration SSF fishers historical and traditional fishing rights, the need for transformation and the need to promote sustainable use of resources when making decisions about zonation and permit conditions.
In the judgement, Judge Sher pointed out that the Marine Living Resources Act gives the Minister and the Department powers to manage fisheries and therefore to regulate fishing. However, he pointed out that although the Minister and the Department have an obligation in terms of the Act to protect the marine environment and marine living resources, they also have an obligation to make sure that these resources are sustainably used in an equitable manner that benefits all citizes of South Africa. They have an obligation to ensure that they address the historical inequities created by Apartheid. This responsibility to ensure transformation has also been stressed in other important court judgements such as Bato Star.
Significantly the Langebaan judgement is one of the first court judgements to quote the Policy on Small-scale Fisheries. Judge Sher noted that the SSF Policy emphasised that one of its purposes was to maximise the benefit of marine living resources for small-scale fishing communities in such a way as to ensure that they were the “main beneficiaries” of such resources. The vision outlined in the SSF Policy is of a sustainable, equitable, small-scale fishing sector in which the “wellbeing and livelihood of fishing and coastal communities is secured and the health of the marine eco-system is maintained”. It also recognises that in order to achieve effective transformation, small-scale fishers need to regain their lost access to their traditional areas.
Judge Sher felt that it was not for the Courts to interfere in the actual discussions about what rules and regulations in a specific place like Langebaan would be sustainable and fair. Rather, the various Departments, experts and organisations, including the small-scale fishers, must sit together and discuss these issues and reach agreement on what would be the best regulations for the sustainable and equitable utilisation and management of a particular area and the species therein. His judgement reminded them that these discussions must not only look at ecological conservation but must look at the fishers’ traditional fishing rights.
“A year after the court ruling, we must say thank you to all the people involved in the case” said Solene Smith, Coastal Links Chairperson in Langebaan. “We are currently able to fish in Zone B, but are worried as we are hearing rumours about not being able to fish there anymore”.
It is disappointing to note that the various departments concerned have disregarded the High Court Judgement. Despite repeated requests and several letters from the Legal Resources Centre to DAFF, DEA and SANParks to meet with the fishers in order to discuss what would be fair, sustainable and appropriate permit conditions, the DEA and DAFF have refused to meet with the fishers. The Langebaan fishers continue to be harassed by the local conservation officials from SANParks, who have warned them verbally on several occasions that they will be banned from Zone B however currently they continue to fish in Zone B.
Another challenges fishers in Langebaan face is the effect of climate change on the Lagoon: “In the past two weeks fishers didn’t get much fish, in few days they only got hundreds, when they used to get thousands of fish”.
Solene said she is also concerned about DAFF deferring the announcement about the future TAC. “We are afraid we will have a black Christmas. The season starts on the 15 of November and we still don’t know what is happening”.
When asked how she sees the future of the fishing community of Langebaan, Solene said that she wishes that the SSF policy will be implemented soon: “We know what is in the policy, we were part of the process of putting it together. With the policy, we know we have the right to have a say on what happens with the fishing in Zone B, we have the right to participate in the decisions that are about livelihood”.
The failure of the DEA and DAFF to respect the rule of law in the Langebaan case is very worrying. It raises th e question: If DEA and DAFF are not willing to practice co-management and sit down with one tiny group of 27 small-scale net fishers to discuss and develop permit conditions in a consultative manner when ordered by a High Court judge to do so, will they engage in co-management with the other much larger 350 small-scale fishing communities around the country?