What you call rights, is simply part of life

The court case of S v Gongqose and the story told by the attorney, Wilmien Wicomb ( here), is a case that continues to fascinate me. I was reminded about it again today as I walked the beach at Bulungula, a lodge that is part of the Nqileni Village.

The story and the case make me ponder about the law in ways that give me a warm and fuzzy, sometimes dizzy and bewildering, feeling. What makes the law, law? And where does the law gets its legitimacy from? And what happens if the law of the indigenous people is asserted in a country that for so long disregarded it, but now has a Constitution that gives it full recognition? How does one reconcile laws with normative basis, that seem just not to be compatible? But see, I am getting all excited about the big questions when what I wanted to do was tell the story of three fishers who were caught doing what has been done for centuries.

In 2012, an attorney (and for full disclosure, a friend), Wilmien Wicomb, took on a case (for the LRC) of three fishers from Hobeni attempting to fish in a Marine Protected Area next to the Dwesa-Cwebe reserve.

In terms of the Marine Living Resources Act 18 of 1998, the Minister responsible may declare an area a “marine protected area” to protect fauna and flora to preserve fish stocks. The Minister may also permit certain activities inside of the Marine Protected Area. There are two “not take” areas, where no fishing is allowed at all, and the Dwesa-Cwebe is one such area.

The issue was not whether they were attempting to fish – they were. And the grand law lies not in the fact that they were found guilty of the contravening the Act – they were by the magistrate and the High Court. But as Wilmien states – even though they were found guilty in the Magistrate’s court, they were not ignored. The Magistrate. The State prosecutor. The rangers. The park managers. The scientists. And the government. They were all forced to hear their story, a story that was eventually endorsed by the Supreme Court of Appeal, where the lawfulness element of the crime fell away.

But I am getting ahead of myself; this is just a summary of it.

Before I start the summary I must perhaps warn that this is not a story about the people’s land rights – and trust me, there IS a story to be told – as with most nature reserves in South Africa. This, instead, is a story about their fishing rights and their relationship with the ocean.

The three accused

The three accused, David, Nkosipendule and Windase, were members of a community adjacent to the Dwesa-Cwebe reserve. The community has customary law rights in the marine resources, that was never extinguished.

Customary law is formally recognised in section 39(3) and 211 of the Constitution, and the Constitutional Court recognises as an independent source of law (Bhe v Khayelitsha Magistrate). The validity of customary law depends on the Constitution, not the common law.

So how would a community assert its customary law rights in court? The community must prove that they have a customary system (including rules regarding the regulation of resources). This system must recognise rights, most notably right to access and use of the resources.

And this was present in this case: despite the authorities trying to curb the exercise of the rights, the community has been insistent on practising it. The three were spotted carrying fishing rods inside the reserve on night. They planned to fish, but were waiting on the beach for the tide to come in around a small fire, when suddenly they were surrounded by rangers pointing rifles at them.

These are men who were fishing in terms of customary law rules, where “rocks had names that belonged to families”, fishing was done by men, harvesting of muscles done by women. You can only go to the sea if you know the ocean. And you only take what you can carry. Ancestors live in the sea. Twins perform rituals in the ocean. Traditional healers must go the sea before qualifying. Seawater makes women fertile.

My favourite part of the story, as told by Wilmien, is the part where the lawyers were all lawyery – pushing the clients to speak in a language that can go in affidavits, to speak the language of rights. She recounts that at one stage, an elder looked at her and said:

You are using the wrong words. We didn’t have a right to fish. Fishing was simply life. What you call rights, for us was simply a part of life. It is you who use this language of rights. We don’t know that. We want our life, but if we can’t have that, then maybe at a minimum we can have these rights to fish that you are talking about.

These rights don’t translate in a law that is foreign to it. This was perhaps most notable in the way that the prosecutor, and the expert witness, handled the case. The expert witness, a marine scientist rather than a social scientist, opined about the custom of the community. Apparently, there is a taboo on eating fish by the coastal people. After spoken to a Jim Feely, he was assured that Nguni males do not eat fish.

The Nguni males in the courtroom, and the social scientist who completed her PhD on the subject, differed. Still, the expert witness felt, even if it is a custom, it is something that can change.

The High Court and the Supreme Court of Appeal

Perhaps as a welcome sign that the judiciary can facilitate change, and that the law can play a role in bringing social change, sometimes splendidly, mostly incrementally and in often messy, the High Court recognised these rights:

They understood that nature had a way of protecting itself and this is what regulated their harvesting; the tides and the weather did not allow them to go fishing every day; they also had their own way of making sure that there would be enough fish for the generations to come, having been taught by their fathers and elders not to take juveniles and to put the small fish back. These rights were never unregulated, and were always subject to some form of regulation either under customary and traditional practices.

Likewise, the Supreme Court of Appeal stated

From the age of 10 he had been taught the skills and traditions of fishing by his father, who in turn had been taught those by his father. Part of the legacy that passed from generation to generation was an appreciation of the natural environment. Mr Gongqose spoke of customs and traditions relating to the allocation of fishing spots and reliance on the sea for many traditional customs practised by the men and women of his community. There were rules that small fish and fish with eggs should not be caught but left in the sea so that there could be more fish in later years. Disputes about fishing spots were settled by headmen or subheadmen in the community. He said that he had a right to fish on the coastline at Hobeni, because he grew up there and his great grandfathers used to fish there. He went into the reserve to fish because his culture allowed him to do so. He said that he and his fellow fishermen were dependent on the sea as the fish caught provided food for their families and any surplus was sold to maintain and educate their children.

The High Court judgment can be found here, and the appeal here.

Law nerds like me, wandering on an open beach in the Eastern Cape when on leave, and seeing women harvesting muscles, might wonder what the legal outcome of the case was. You might be happy to know that the Supreme Court of Appeal found the expert witnesses (for the accused) credible in terms of custom, found the practice sustainable, and thus found that there was a customary law right to fish. And, more importantly, this right was not extinguished by the law, because it was not explicitly done so.

Wandering law nerd minds on beaches

I was happily reminded about this case today when I saw mama Nowathile picking food from the ocean, and I was transported back to the magical land in the Zakes Mda novel “The heart of redness”. Not only because of his master skills of describing this incredible place, but also because the solution to the recognition of customary law is not as binary as being traditional (that should be preserved at all costs), or something outdated (that should be rejected).

It is not “state law vs customary law”, but it is a world where customary law can take its rightful position, layered and intertwined with other sources of law in a way that renders no-one invisible.