Case Note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

2020 ◽  
Vol 26 ◽  
pp. 134-160
Author(s):  
Alexander Paterson
Keyword(s):  
South Africa ◽  
Natural Resources ◽  
Protected Area ◽  
Marine Protected Area ◽  
Customary Law ◽  
Constitutional Court ◽  
Eastern Cape ◽  
Customary Rights ◽  
The Republic ◽  
Law And Legislation

The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate’s Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA’s judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

scholarly journals Muslim personal law and the meaning of "law" in the South African and Indian constitutions

2017 ◽  
Vol 2 (2) ◽  
pp. 50
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Bill Of Rights ◽  
Muslim Population ◽  
The Common ◽  
The Republic ◽  
Law And Legislation ◽  
Personal Law

The Muslim population of South Africa follows a practice which may be referred to asMuslim personal law. Although section 15 of the Constitution of the Republic of South Africa 108 of 1996 recognises religious freedom and makes provision for the future recognition of other personal law systems, Muslim personal law is, at this stage, not formally recognised in terms of South African law. Since Muslim personal law receives no constitutional recognition the question may be asked whether the 1996 Constitution, and in particular the Bill of Rights as contained in chapter 2 of the 1996 Constitution, is applicable to "non-recognised" Muslim personal law. The answer to this question depends to a large extent on the meaning of "law" as contained in the 1996 Constitution.When the viewpoint of academic writers and the courts are evaluated it seems as if the meaning of law in South Africa is restricted to the common law, customary law and legislation. If such a viewpoint is to be followed, Muslim personal law is excluded from the scrutiny of the Bill of Rights. It is, however, inconceivable that there might be certain areas of "law" that are not subject to the scrutiny of the Bill of Rights. In this note it will be argued that Muslim personal law should be regarded as law in terms of the 1996 Constitution, or in the alternative, that Muslim personal law (or at least Muslim marriages) should be recognised in terms of section 15 of the 1996 Constitution.Due to the historical resemblance between South Africa and India the meaning of"law" as contained in the 1996 Constitution will be compared with the meaning of "law" as contained in the Constitution of India. Although the Constitution of India indirectly gives recognition to various personal laws in India, these personal laws are not subject to the provisions of the Constitution of India. Therefore, it would be argued that one should approach the Constitution of India with caution when its provisions are compared to those of the 1996 Constitution of South Africa.

scholarly journals Editorial

2016 ◽  
Vol 18 (3) ◽  
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
Black People ◽  
Outer Space ◽  
Rapid Development ◽  
Customary Law ◽  
Constitutional Court ◽  
Western Cape ◽  
Space Technology ◽  
Persons With Disabilities ◽  
The Republic

This edition of PER consists of eight contributions; six articles and two notes. In the first article, Angelo Dubeanalyses the interaction amongst African States that eventually led to the development of universal jurisdiction regulations within their individual legal systems to determine if one can say that there is indeed an African signature in those legal rules. Anél Ferreira-Snyman deals with the rapid development of space technology and space flight which has rendered article IV of the Outer Space Treaty dealing with the military use of outer space outdated and in dire need of change. Moses Phooko's article investigates whether the Southern African Development Community (SADC) Tribunal has jurisdiction to deal with cases involving allegations of human rights violations. Analogous to the situation of Chinese people in South Africa who chose to be defined as "Black People" in terms of the Employment Equity Act 55 of 1998 as well as the Broad Based Economic Empowerment Act 53 of 2003, Enyinna Nwauche examines the possibility that people living under a system of customary law may change their legal system by choosing another one. The last two articles, written in two parts by Andre Louw, deals with theEmployment Equity Act 55 of 1998. In the first part, he critically examines the organising principle of the affirmative provisions of this Act and assesses if it is in line with the constitutional requirements for a legitimate affirmative action programme or measure. In the second part, he critically evaluates the Constitutional Court judgment inSouth African Police Service v Solidarity obo Barnard 2014 6 SA 123 (CC), and highlights what he thinks the biggest areas of disappointment of this judgment are within the context of South Africa’s equality jurisprudence.In the first of two notes, Zsa-Zsa Boggenpoel analyses the Constitutional Court's use of the common law remedy ofmandament van spolie in Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC). In the second note and last contribution of this edition, Petronell Kruger discusses the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC), which dealt with the challenges faced by persons with disabilities relating to access to education in South Africa.

HUMAN RIGHTS, CULTURAL DIVERSITY AND CUSTOMARY LAW IN SOUTH AFRICA

2006 ◽  
Vol 50 (1) ◽  
pp. 2-23 ◽  
Author(s):  
EVADNÉ GRANT
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Customary Law ◽  
Constitutional Court ◽  
The South ◽  
The Republic ◽  
Human Rights Norms ◽  
The Right ◽  
Human Rights Standards

In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

scholarly journals The Application of Section 8(3) of the Constitution in the Development of Customary Law Values in South Africa's New Constitutional Dispensation

2017 ◽  
Vol 15 (1) ◽  
pp. 23
Author(s):  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
Common Law ◽  
Customary Law ◽  
Constitutional Court ◽  
Section 8 ◽  
The Republic

                                     The constitutional recognition of customary law alongside common law in the Constitution of the Republic of South Africa, 1996 is highly commendable. It also raises the question of whether or not the recognition was undertaken out of genuine respect for customary law or merely forgotten in section 8(3) of the Constitution. It is argued that the exclusion of customary law from the provision of the section is nothing more than the advancement of the dominant status enjoyed by common law, as was the case before the dawn of democracy. This argument is limited to the application of section 8(3) and the jurisprudence of the Constitutional Court, without focusing on the shortcomings of the latter in relation to the remedies provided in the resolution of disputes arising from customary law.

scholarly journals Gongqose v Minister of Agriculture, Forestry and Fisheries – A Tale of Customary Rituals and Practices in Marine Protected Areas

2019 ◽  
Vol 22 ◽  
pp. 1-17
Author(s):  
Lesetja Monyamane ◽  
Mpho Paulos Bapela
Keyword(s):  
South Africa ◽  
Protected Areas ◽  
Marine Protected Areas ◽  
Cultural Practices ◽  
Environmental Law ◽  
Customary Law ◽  
Customary Rights ◽  
The Subject ◽  
The Republic ◽  
Correct Application

The correct application of customary law post constitutionalism continues to be the subject of much judicial and academic deliberation. This is especially true where the existence and/or scope of customary rights and cultural practices are not well defined in a specific case. Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA) presents a perfect example of the dissonance between the recognition of customary law by the Constitution of the Republic of South Africa, 1996 and the regulation of rights and cultural practices emanating from customary law. The case grapples with the meeting point of customary rights and customs and the need to preserve the environment. This intersection is considered in view of earth jurisprudence as an emerging legal thought topic in environmental law. On the whole, the decision of the SCA demonstrates encouraging signs of an appreciation of customary law as deserving of an equal place on the legal podium.

scholarly journals Editorial

2016 ◽  
Vol 18 (3) ◽  
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
Black People ◽  
Outer Space ◽  
Rapid Development ◽  
Customary Law ◽  
Constitutional Court ◽  
Western Cape ◽  
Space Technology ◽  
Persons With Disabilities ◽  
The Republic

This edition of PER consists of eight contributions; six articles and two notes. In the first article, Angelo Dubeanalyses the interaction amongst African States that eventually led to the development of universal jurisdiction regulations within their individual legal systems to determine if one can say that there is indeed an African signature in those legal rules. Anél Ferreira-Snyman deals with the rapid development of space technology and space flight which has rendered article IV of the Outer Space Treaty dealing with the military use of outer space outdated and in dire need of change. Moses Phooko's article investigates whether the Southern African Development Community (SADC) Tribunal has jurisdiction to deal with cases involving allegations of human rights violations. Analogous to the situation of Chinese people in South Africa who chose to be defined as "Black People" in terms of the Employment Equity Act 55 of 1998 as well as the Broad Based Economic Empowerment Act 53 of 2003, Enyinna Nwauche examines the possibility that people living under a system of customary law may change their legal system by choosing another one. The last two articles, written in two parts by Andre Louw, deals with theEmployment Equity Act 55 of 1998. In the first part, he critically examines the organising principle of the affirmative provisions of this Act and assesses if it is in line with the constitutional requirements for a legitimate affirmative action programme or measure. In the second part, he critically evaluates the Constitutional Court judgment inSouth African Police Service v Solidarity obo Barnard 2014 6 SA 123 (CC), and highlights what he thinks the biggest areas of disappointment of this judgment are within the context of South Africa’s equality jurisprudence.In the first of two notes, Zsa-Zsa Boggenpoel analyses the Constitutional Court's use of the common law remedy ofmandament van spolie in Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC). In the second note and last contribution of this edition, Petronell Kruger discusses the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC), which dealt with the challenges faced by persons with disabilities relating to access to education in South Africa.

scholarly journals Preliminary assessment of surf-zone and estuarine line-fish species of the Dwesa-Cwebe Marine Protected Area, Eastern Cape, South Africa

Koedoe ◽  
2012 ◽  
Vol 54 (1) ◽  
Author(s):  
Jan A. Venter ◽  
Bruce Q. Mann
Keyword(s):  
South Africa ◽  
Law Enforcement ◽  
Fish Species ◽  
Protected Area ◽  
Surf Zone ◽  
Marine Protected Area ◽  
Fish Populations ◽  
Estuarine Fish ◽  
Catch Per Unit Effort ◽  
Preliminary Assessment

A preliminary assessment of surf-zone and estuarine line fish was carried out in the DwesaCwebe Marine Protected Area (MPA), on the Wild Coast, South Africa. The purpose was to provide baseline data on inshore line-fish stocks in the MPA. A total of 28 species was recorded, of which 53% have a conservation status reflecting some concern and 43% are endemic to southern Africa. This highlights the value of the MPA for protection of important line-fish species. Within the MPA, localised differences were detected in species diversity, size frequency and catch per unit effort between unexploited and illegally exploited areas. These differences were more prominent in slow growing, long-lived species. It thus appears that illegal exploitation is negatively affecting fish populations within the MPA, which counteract and potentially could eliminate the benefits of fish protection typically associated with no-take MPAs. These results highlight the need for improved law enforcement and better communication with neighbouring communities to increase awareness. It is further recommended that the current no-take status of the MPA should be maintained. In addition, baseline fisheries information was collected on certain fish species that could be used to inform future conservation management of the MPA.Conservation implications: The Dwesa-Cwebe Marine Protected Area is unique and important for the conservation of key surf zone and estuarine fish species. However there is a significant risk to the fish populations due to illegal exploitation. Key interventions should include enhanced law enforcement but, more important, the creation of alternative livelihoods and long term sustainable benefits to local communities.

scholarly journals The Position of Constitutional Complaint in the Constitutional Court of the Republic of Indonesia

2021 ◽  
Vol 2 (1) ◽  
pp. 61-78
Author(s):  
Agsel Awanisa ◽  
Yusdianto Yusdianto ◽  
Siti Khoiriah
Keyword(s):  
South Africa ◽  
South Korea ◽  
Judicial Review ◽  
Research Method ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Case Number

The purpose of this research is to determine the constitutional complaint mechanism based on comparisons in other countries, practices, and adaptation of constitutional complaints under the authority of the Constitutional Court of the Republic of Indonesia. Many cases with constitutional complaint substance have been submitted to the Constitutional Court of the Republic of Indonesia even though they don’t have this authority. This research uses a normative legal research method using a statutory approach, a conceptual approach, a comparative approach, and a case approach. This research indicates that the constitutional complaint mechanism in Germany, South Korea, and South Africa has been well implemented. In practice, cases with constitutional complaint substance are filed to the Constitutional Court of the Republic of Indonesia by changing the form by using the legal means of a judicial review, such as case number 16/PUU-VI/ 2008, case number 140/PUU-XIII/2015 and case number 102/PUU-VII/2009. Due to the consideration of the structure, substance, and culture of law, adaptation of constitutional complaint within the authority of the Constitutional Court of the Republic of Indonesia needs to be carried out by amending Law Number 24 of 2003 jo. Law Number 7 of 2020 concerning the Constitutional Court.

scholarly journals OF SEMI-COLONS AND THE INTERPRETATION OF THE HATE SPEECH DEFINITION IN THE EQUALITY ACT South African Human Rights Commission v Qwelane (Freedom of Expression Institute as Amici curiae) and a related matter [2017] 4 All SA 234 (GJ)

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Joanna Botha
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Eastern Cape ◽  
Threshold Test ◽  
Related Matter ◽  
The Republic

In South African Human Rights Commission v Qwelane (hereinafter “Qwelane”) the constitutionality of the threshold test for the hate speech prohibition in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter the “Equality Act”) was challenged. Although the court had no difficulty in finding that the publication in question fell squarely within the parameters of hate speech, the judgment is both incoherent and flawed. The court’s conjunctive interpretation of the section 10(1) requirements for hate speech also differs from the disjunctive interpretation given to the same provision in Herselman v Geleba (ECD (unreported) 2011-09-01 Case No 231/09 hereinafter “Herselman”) by the Eastern Cape High Court. The consequence is a “fragmented jurisprudence” which impacts on legal certainty, and which is especially dangerous when the legislation in question is critical to the achievement of the constitutional mandate (Daniels v Campbell NO 2004 (5) SA 331 (CC) par 104 hereinafter “Daniels”).This note demonstrates that the Qwelane court misapplied a number of key principles. These include: the court’s mandate in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (hereinafter the “Constitution”); the need to strike an appropriate balance between competing rights in the constitutional framework; the importance of definitional certainty for a hate speech threshold test; the meaning to be ascribed to the terms “hate”, “hurt” and “harm” in the context of hate speech legislation; and the role of international law when interpreting legislation intended to give effect to international obligations.The consequence of these errors for hate speech regulation in South Africa is profound.

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