Customary fishing rights in South African fisheries law

du Plessis, Anthea Christoffels

Title: Customary fishing rights in South African fisheries law
Creator: du Plessis, Anthea Christoffels
Subject: Indigenous people -- Fishing -- Law and legislation
Subject: Small-scale fisheries
Subject: Customary law -- South Africa
Date Issued: 2025-04
Date: 2025-04
Type: D theses
Type: text
Identifier: http://hdl.handle.net/10948/72044
Identifier: vital:79180
Description: Indigenous communities in South Africa have harvested marine resources and relied on the ocean for generations to sustain their traditional livelihoods and culture. In light thereof, it is imperative for the law to specially recognise the rights of indigenous communities. The current legal framework governing fishing rights in South Africa purports to include customary fishing rights as part of small-scale fishing rights. This must be achieved in accordance with the Constitution of the Republic of South Africa, 1996 (Constitution), which confers distinct recognition on customary law, and therefore customary rights of indigenous communities. Access to marine resources under the prevailing legal frameworks has been regulated to ensure commercial exploitation of (and recreational access to) marine living resources. In terms of the previous statutory provisions, the relevant minister was empowered to issue fishing rights by granting quotas. Further provision was made for licensing of fishing vessels such as boats and fish factories. The advancement of conservation imperatives further restricted access to marine resources, ensuring that access to marine resources remained strictly regulated by the State for commercial exploitation. Fishing rights became a business commodity taking precedence over other access rights. To achieve these objectives, the Commissions of Inquiry (Du Plessis, Diemont, Treurnicht) were tasked with proposing sustainable-use strategies for the declining marine resources and to resolve challenges in the commercial fisheries industry. While the governments of years past were busy organising and strategising how best to exploit marine resources and to maximise the industry, the legislation itself did not proscribe or expressly prohibit fishing activities or marine-resource use by indigenous coastal communities. However, the communities’ access to marine and coastal resources was nevertheless restricted owing to the cumulative discriminatory impact of apartheid-order legislation. The fishing industry was no exception to the democratic overhauling of many institutions and industries in South Africa, and was earmarked for transformation. In light of its pre-constitutional isolated and sanctioned status, South Africa was eager to restore its place as a sovereign state and as a member of the international community, by embracing the human-rights-focused norms and standards observed by the international community at large. In 2017, the erstwhile Department of Agriculture, Forestry and Fisheries reported that there were more than 300 fishing communities in South Africa. Although harvesting marine resources remains a longstanding custom and expression of culture, it is trite that indigenous communities along the coast have suffered marginalisation and exclusion from legal recognition of their customary right to access marine resources. Therefore, this thesis first explores the legal obligations to recognise customary fishing rights of indigenous communities in light of international and African regional law. Secondly, it considers the recognition and protection of customary fishing rights in three foreign domestic legal systems from which South Africa can extract valuable insight. The thesis then examines the development of customary law in South Africa generally, as well as the recognition and protection of customary fishing rights under the current legal framework. Finally, the thesis proposes that a definition of customary fishing rights be included in the Marine Living Resources Act 18 of 1998 to properly recognise and protect customary fishing rights as a distinct and sui generis category of fishing rights for customary fishing communities.
Description: Thesis (PhD) -- Faculty of Law, School of Public Law, 2025
Format: computer
Format: online resource
Format: application/pdf
Format: 1 online resource (438 pages)
Format: pdf
Publisher: Nelson Mandela University
Publisher: Faculty of Law
Language: English
Rights: Nelson Mandela University
Rights: All Rights Reserved
Rights: Open Access

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