When customary rights and environmental rights clash: how the South African legal system sometimes fail to recognise the complexities of customary law systems

The Dwesa-Cwebe communities in the Eastern Cape of South Africa enjoyed customary rights of access to marine resources in a nature reserve over a long period of time, which access was taken away during Apartheid with the... [ view full abstract ]

The Dwesa-Cwebe communities in the Eastern Cape of South Africa enjoyed customary rights of access to marine resources in a nature reserve over a long period of time, which access was taken away during Apartheid with the forced removals from the reserve land. Over the years various legislation governed the reserve, and in 2000 it finally declared the area a no take zone, making it an offence to fish without a permit. Various community members continued their customary practice, unaware of the new legislation, and was subsequently arrested. Parallel to this, the community successfully claimed their land back. Charged in terms of National Environmental legislation for illegally fishing, the community members entered a plea of not guilty, stating that their community and the land is governed in according to customary law which does permit the sustainable use of marine resources in the particular area, and that the statutory regulation did not extinguish their customary right of access to marine resources. This paper, using this case study as an example, want to explore the complexities of legal plurality, where regulations clash with customary law, with specific focus on common pool resources like marine resources. The methodology will be a desktop study of legal material pertaining to how the courts deal with the issue of customary law when it comes to common pool resources. This is valuable, as customary law is a source of law in South Africa, but our courts are ill equipped with incorporating customary law and the underlying normative system into the formal legal arena.  

Keywords: 

Commons, property law, customary law, South Africa, marine resources