Gongqose and Others v S; Gongqose and Others v Minister of Agriculture, Forestry and Fisheries and Others (CA&R26/13) [2016] ZAECMHC 1; [2016] 2 All SA 130 (ECM); 2016 (1) SACR 556 (ECM) (18 February 2016)

Gongqose and Others v S; Gongqose and Others v Minister of Agriculture, Forestry and Fisheries and Others (CA&R26/13) [2016] ZAECMHC 1; [2016] 2 All SA 130 (ECM); 2016 (1) SACR 556 (ECM) (18 February 2016)

The court held that the appellants' customary law rights to access marine resources did not negate unlawfulness under section 43 of the MLRA, as the Act is a law of general application aimed at conservation and sustainable use for all citizens. The MLRA provides for exemption applications, which the appellants did not pursue prior to fishing. The rights under sections 30 and 31 of the Constitution must be exercised consistently with section 24, which protects the environment. The court found that section 43 of the MLRA was not unconstitutional, as it did not expressly extinguish customary law rights and was consistent with the Constitution. The review application challenging the...

Citation
[2016] ZAECMHC 1
Parties
Appellant: Siyabonga Gongqose; Appellant: Sephumile Windase; Appellant: Nkosiphendule Juza; Respondent: The State; Applicant: Malibongwe David Gongqose; Applicant: Siphumile Windase; Applicant: Nkosiphela Juza; Applicant: Vuyelwa Siyaleko; Applicant: Tatana Mxabani; Applicant: Benjamin von Meyer; Applicant: The Hobeni Community; Applicant: The Mendwane Community; Applicant: The Cwebe Community; Respondent: Minister of Agriculture, Forestry and Fisheries; Respondent: Deputy Director: Fisheries, Department of Agriculture, Forestry and Fisheries; Respondent: Minister of Environmental Affairs; Respondent: Deputy Director: Oceans and Coastal Management, Department of Environmental Affairs
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
18 February 2016
Case Number
CA&R26/13
Procedural Posture
Criminal Appeal / Appeal and Review of Conviction and Administrative Decisions
Outcome
Appeal dismissed; review application dismissed with no order as to costs.
Judges
S M Mbenenge, R Griffiths
Legal Topics
Customary Law Rights, Marine Living Resources Act, Review of Administrative Action, Bill of Rights Limitation, Environmental Protection, Unlawfulness in Criminal Offences
Criminal Law Administrative Law Constitutional Law Customary Law Rights Marine Living Resources Act Review of Administrative Action Bill of Rights Limitation Environmental Protection +1 more

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Parties

Siyabonga Gongqose

Appellant

Sephumile Windase

Appellant

Nkosiphendule Juza

Appellant

The State

Respondent

Malibongwe David Gongqose

Applicant

Siphumile Windase

Applicant

Nkosiphela Juza

Applicant

Vuyelwa Siyaleko

Applicant

Tatana Mxabani

Applicant

Benjamin von Meyer

Applicant

The Hobeni Community

Applicant

The Mendwane Community

Applicant

The Cwebe Community

Applicant

Minister of Agriculture, Forestry and Fisheries

Respondent

Deputy Director: Fisheries, Department of Agriculture, Forestry and Fisheries

Respondent

Minister of Environmental Affairs

Respondent

Deputy Director: Oceans and Coastal Management, Department of Environmental Affairs

Respondent

Procedural Posture

Criminal Appeal / Appeal and Review of Conviction and Administrative Decisions

Legal Issues

  1. 1 Whether proof of customary law rights to access marine resources negates unlawfulness under section 43 of the MLRA.
  2. 2 Whether section 43 of the MLRA is unconstitutional for failing to recognise customary law rights.
  3. 3 Whether the Minister's decision to declare the Dwesa-Cwebe Marine Protected Area as a 'no-take' zone was reviewable for procedural unfairness and lack of consultation.

Ratio Decidendi

The court held that the appellants' customary law rights to access marine resources did not negate unlawfulness under section 43 of the MLRA, as the Act is a law of general application aimed at conservation and sustainable use for all citizens. The MLRA provides for exemption applications, which the appellants did not pursue prior to fishing. The rights under sections 30 and 31 of the Constitution must be exercised consistently with section 24, which protects the environment. The court found that section 43 of the MLRA was not unconstitutional, as it did not expressly extinguish customary law rights and was consistent with the Constitution. The review application challenging the...

Court Disposition

Appeal dismissed; review application dismissed with no order as to costs.

Orders

  • The appeal is dismissed.
  • The review application is dismissed with no order of costs.