Environmental Engineering Reference
In-Depth Information
coast, fisheries resources continued to be governed under African customary law and
conflicts were addressed internally. Thus a plural legal system emerged during the first
half of the 20th century characterised by fragmentation of governance systems across
the country and a move towards state centered decision-making. This trend has con-
tinued with South Africa's re-entry into the global arena, and the involvement of an
increasing number of actors and institutions in the development and management of
fisheries resources.
The shift to legal pluralism has also had implications for the nature and intensity of
conflict, which in terms of the concepts guiding this analysis (Rapoport, 1974) indicate
a shift from endogenous to exogenous conflict during the 20th century (Figure 9.1).
Furthermore, because of the very different epistemological bases of the two legal sys-
tems operating at this time, as well as the norms and rules governing these systems,
the relations between the conflicting parties - among fishers from different sectors and
between fishers and the state - became increasingly asymmetrical. The lack of legit-
imacy of the state system among local resource users and the failure of the state to
recognise customary systems meant that conflicts became increasingly asymmetrical
during the 1980s and 1990s as the state continued to support big industry and push
ahead with expansion of its conservation program and local fishers engaged in protest
fishing. However, the enactment of the new Constitution (1996), the increased aware-
ness among fishers of their rights and responsibilities, as well as the recent ruling of
the Equality Court in 2007, has resulted in a shift to less exogenous and asymmetrical
conflict. Different actors are now required to comply with the principles and provisions
of the Constitution as stipulated by the courts.
Although the Constitution requires the recognition and respect of customary law,
15
the application and interpretation of these provisions have only recently been tested
in court.
16
So while the fisheries sector in South Africa is still largely controlled at
the center and the power differentials between the fishery actors remains unequal,
the new fisheries policy (DAFF 2010) has embraced a set of human rights principles
that recognises and protects the rights and socio-economic needs of small-scale fishers.
Although the draft policy still requires Cabinet approval, it has been heralded as a
victory and suggests a significant shift in approach to fisheries governance in South
Africa (Jaffer and Cartsens 2011).
Despite the democratic elections in 1994, a radical law reform process, transfor-
mation of the industry and a restructuring within government and the fisheries agency
in particular, poor coastal fishers remained marginalised and were not adequately
recognised and provided for in the new fisheries dispensation following the end of
apartheid. However, through increased access to information, mobilisation of fishers
with support from NGOs and researchers, and legal action against the state, fishers
have been able to significantly influence this policy process and its outcomes. Although
it is too early to assess the impacts of this new policy, it embraces fundamental human
15
Section 211 (3) of the Constitution of South Africa states that the courts are obliged to apply
customary law when it is applicable, subject to the Constitution and any legislation that deals
with customary law.
16
Customary law has been recognized as a source of law in several cases by the Constitutional
Court of South Africa for example S v Makwanyane and Another 1995 (3) SA 391 (CC) and
Alexkor Ltd v The Richtersveld Community, 2004 (5) SA 460 (CC) (Wicomb and Smith, 2011).
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