1 00:00:15,120 --> 00:00:17,880 Welcome back to the after lunch session, everybody. 2 00:00:17,880 --> 00:00:26,550 I trust that we have stretched our legs, had a comfort break and are feeling energised to continue with what's been some really great engagement. 3 00:00:26,550 --> 00:00:33,480 This panel is going to be engaging with issues of mining resources within customer communities and in particular, 4 00:00:33,480 --> 00:00:37,020 it's going to explore issues that have arisen from recent litigation. 5 00:00:37,020 --> 00:00:41,310 So all three of our speakers are going to be anchoring their presentations around particular case 6 00:00:41,310 --> 00:00:47,040 studies of particular cases that they worked on in various capacities to introduce the speakers. 7 00:00:47,040 --> 00:00:51,690 First to speak is William Beinart. He is an emeritus professor here at Oxford. 8 00:00:51,690 --> 00:00:59,550 He will be followed by Johann Lorenzen. Johan is an associate at Richard Spurr Inc. and the last speaker will be Michael Bishop, 9 00:00:59,550 --> 00:01:04,440 who serves as in-house counsel for the Constitutional Litigation Unit at the LHC and runs a private 10 00:01:04,440 --> 00:01:10,980 practise after which I'll open up some questions so you'll each have 20 minutes just to please flag. 11 00:01:10,980 --> 00:01:16,770 So in order to allow enough time for us to engage with each other, we've decided to push back by 15 minutes. 12 00:01:16,770 --> 00:01:20,640 So don't be surprised when we keep going past the quarter to quarter past three. 13 00:01:20,640 --> 00:01:24,570 Mark, you will be at 3:30 right over to William. 14 00:01:24,570 --> 00:01:34,170 Thank you very much. I'm going to talk about four cases and especially about the ongoing lawsuit Wild Coast Sun, 15 00:01:34,170 --> 00:01:44,780 a case for which the papers went to the Land Commission in 1995 and the judgement was finally made in 2014. 16 00:01:44,780 --> 00:01:49,830 And the lawsuit is the Wild Coast Sun area. 17 00:01:49,830 --> 00:01:56,070 So what do I do? So it's just a little remote control on the table. Yes, it's on. 18 00:01:56,070 --> 00:02:07,230 They got. On the coast with KZN coming up to that dinner at the end, if you can see it very well. 19 00:02:07,230 --> 00:02:15,660 But the area immediately adjacent to a casino that was built in roughly 1980, 20 00:02:15,660 --> 00:02:28,170 the early 1980s and 40 homestead sites were forcibly removed from the area in order to make way for the casinos. 21 00:02:28,170 --> 00:02:38,580 The other facilities and a golf course. A restitution claim was put in and it was contested. 22 00:02:38,580 --> 00:02:46,620 It's a complex history which won't tell in detail in the end there hundred and six claimants because the families had fragmented somewhat. 23 00:02:46,620 --> 00:02:54,180 And in 2014 they won their case and they won their case against Sun International, 24 00:02:54,180 --> 00:02:59,520 who are just cool Sutton, various companies involved and the government. 25 00:02:59,520 --> 00:03:10,350 So the government actually also initially or for a sustained period, opposed this restitution case, at least in the form that it took. 26 00:03:10,350 --> 00:03:18,930 Towards the end, they got a generous payment. They won ownership of the land through a communal property association. 27 00:03:18,930 --> 00:03:32,480 However, the settlement didn't allow for the families who had originally been forcibly removed from land to move back to that land. 28 00:03:32,480 --> 00:03:45,230 The case that many different legal aspects to it, but one set of questions for which I was largely in, which I was largely involved in concerned, 29 00:03:45,230 --> 00:03:55,910 this key question that we started to talk about is what are the nature of customary rights to land in the former homeland areas here? 30 00:03:55,910 --> 00:04:07,430 I'll talk specifically about the former Transkei. And two of the holders of those rights are chiefs, the holders of those rights is the states, 31 00:04:07,430 --> 00:04:19,160 because in many respects it is the state which sort of assumed to be from the 20th century, assumed itself to be the owner of that land. 32 00:04:19,160 --> 00:04:27,020 Is it families as a family heads? Or do we need to think about it in a different way and how it sees? 33 00:04:27,020 --> 00:04:34,970 How is this landholding been affected by proclamations by government involvement, by court cases? 34 00:04:34,970 --> 00:04:43,460 I initially got involved in the earlier case clearly because my book, Political Economy of Puntland, 35 00:04:43,460 --> 00:04:53,840 made some statements about the nature of land holding in form and Puntland in the in the chiefdom kingdom, which proved useful to the lawyers. 36 00:04:53,840 --> 00:05:00,710 And the fact that it should be published before any of these court cases started made it particularly useful. 37 00:05:00,710 --> 00:05:07,490 So that was used, and then I got absorbed and did more research. 38 00:05:07,490 --> 00:05:13,790 But I have to say that I was not a neutral researcher getting involved. 39 00:05:13,790 --> 00:05:24,110 I've been involved earlier in land reform issues and particularly as it became involved in Florine from about 2005 six onwards. 40 00:05:24,110 --> 00:05:29,030 It seemed to me as the debates around Star was going on and others were beginning 41 00:05:29,030 --> 00:05:35,360 to publish around these issues that the issue should not just be who owned, 42 00:05:35,360 --> 00:05:43,130 who had the rights to this land, but also who should have the rights to the slams. 43 00:05:43,130 --> 00:05:50,390 Then the historiography, the material that was being published around that time, 44 00:05:50,390 --> 00:05:56,210 increasingly was moving to the idea that rights should be based at the level of the 45 00:05:56,210 --> 00:06:01,820 family and that you could find this material in the ethnography is significant evidence. 46 00:06:01,820 --> 00:06:11,780 I could see quite a bit of it in my reading of the old documentary evidence from earlier research that I've done and in court, 47 00:06:11,780 --> 00:06:17,680 and particularly promoted and developed the ideas that were in court. 48 00:06:17,680 --> 00:06:26,030 And it could just arguing very strongly, firstly, that families with a lot of land hoarding. 49 00:06:26,030 --> 00:06:33,470 And secondly, that this amounted to assistant coach akin to ownership. 50 00:06:33,470 --> 00:06:44,000 And so it seemed to me important that in both in the evidence that I was asked to give and in the writing and research that I did, 51 00:06:44,000 --> 00:06:48,860 that we should concentrate particularly on this because it came at a moment 52 00:06:48,860 --> 00:06:54,420 when the vulnerability of landholding rights for people without formal tenure, 53 00:06:54,420 --> 00:07:03,380 without it, we call it private tenure or title tenure, which was particularly vulnerable, especially so in mining areas, 54 00:07:03,380 --> 00:07:11,960 but also in other areas where outsiders and local accumulators and corporate bodies chiefs 55 00:07:11,960 --> 00:07:19,010 all began to compete increasingly for land within former homelands and on the peripheries. 56 00:07:19,010 --> 00:07:26,030 So my arguments were influenced both by analysis of who does it in the land and who should own the land. 57 00:07:26,030 --> 00:07:34,640 Now, I'm not going to go into the historical detail of what the various ethnography is and so on might tell us. 58 00:07:34,640 --> 00:07:43,880 But it did seem to me that the the understanding of landholding customary law was in fact very thin in many respects. 59 00:07:43,880 --> 00:07:53,750 Many of the surprisingly in a way, given how central land was it was wasn't often very detailed anthropological treatment of it. 60 00:07:53,750 --> 00:08:04,490 And secondly, the legislation that had been introduced since 1994, particularly a pillar very important as a protective device. 61 00:08:04,490 --> 00:08:08,930 But it didn't specify in many respects the nature of rights. 62 00:08:08,930 --> 00:08:18,980 So it might have implied what the nature of rights were in some ways, but it it didn't specify what the nature of rights may be. 63 00:08:18,980 --> 00:08:23,630 And also, it wasn't really effectively backed, as others have said, 64 00:08:23,630 --> 00:08:32,510 either by an administrative apparatus which could enforce it or strong legal entrenchment. 65 00:08:32,510 --> 00:08:39,650 So let me start briefly with the full well before when any claim that's a bit further inland than this. 66 00:08:39,650 --> 00:08:49,500 This map also in Besonders District. About 880 families were forcibly removed for sugar estates in smallholding scheme. 67 00:08:49,500 --> 00:08:55,050 And there was again, it was 1995. 68 00:08:55,050 --> 00:09:04,200 Papers were initially put in. In 2010, a judgement was eventually made was contested, contested by some of the sugar smallholders. 69 00:09:04,200 --> 00:09:09,500 In fact, against the WHO, African people against the African community, 70 00:09:09,500 --> 00:09:16,800 it was eventually awarded back their land and Judge Ban gave a particularly interesting judgement. 71 00:09:16,800 --> 00:09:19,200 He thought the drifters felt set. 72 00:09:19,200 --> 00:09:31,410 The precedent for this, and Richards felt made fairly strong gate, fairly strong legal backing to the idea that despite annexation, 73 00:09:31,410 --> 00:09:37,950 land rights had survived over the long chain in that part of the north Western Cape. 74 00:09:37,950 --> 00:09:43,440 And we could make a similar parallel argument in relation to important event. 75 00:09:43,440 --> 00:09:54,000 The 1894 Annexation Act didn't in any way see that land rights had been extinguished and think going through the historical evidence, 76 00:09:54,000 --> 00:10:02,760 it seemed fairly clear that land rights customary land rights you could call them survived the proclamations. 77 00:10:02,760 --> 00:10:12,240 All of the proclamations. One of the most interesting features of them start off by saying We recognise all of the existing allocations that have 78 00:10:12,240 --> 00:10:19,920 been made and often in the modification that they say pending the institution of a land registry or something like that, 79 00:10:19,920 --> 00:10:23,190 then this and this will happen. That computer will be. 80 00:10:23,190 --> 00:10:30,240 And in fact, land registers were never effectively set up in those and districts and certainly not in design. 81 00:10:30,240 --> 00:10:33,450 So that a strong set of arguments around that we won, 82 00:10:33,450 --> 00:10:44,280 we convinced judge them as well that this wasn't simply a black government removing land from black people in that sense. 83 00:10:44,280 --> 00:10:52,110 It may have not fallen under the Restitution Act. We made a convincing case that the nature of the act that had been used to 84 00:10:52,110 --> 00:10:58,320 remove people was such that it was racially discriminatory and won that case. 85 00:10:58,320 --> 00:11:02,310 But that made an extremely interesting amendment development. 86 00:11:02,310 --> 00:11:13,680 The richness felt idea richness felt had in a sense awarded customary land to the whole of the Nama coloured community in the Northern Cape. 87 00:11:13,680 --> 00:11:16,440 Only a section of land had been removed, 88 00:11:16,440 --> 00:11:26,700 but it wasn't specified that those people who prior to 1927 had lived in that particular area had the rights to that land. 89 00:11:26,700 --> 00:11:37,740 The whole of the community, as it was defined largely in simple terms, which is another issue had the rights in the Wild Coast Sun case, 90 00:11:37,740 --> 00:11:41,490 the award was not made to the whole of the chieftaincy, 91 00:11:41,490 --> 00:11:50,220 which was the broader traditional council traditional authority from which the land had been appropriated. 92 00:11:50,220 --> 00:11:57,300 It was made only to the claimants, so the notion of community differed and this seemed to me particularly important. 93 00:11:57,300 --> 00:12:01,680 On the other hand, he didn't go much further than that. 94 00:12:01,680 --> 00:12:09,840 The individual landholders holders, the families who had held land did not get rights to go back to their land. 95 00:12:09,840 --> 00:12:18,750 And to this day, they haven't gone back to their land. And in fact, another set dispute between chiefs and CPA, 96 00:12:18,750 --> 00:12:27,060 at least until when I close heard the issue of whether this land should go back under the control of the local chieftaincy, 97 00:12:27,060 --> 00:12:33,660 or whether they would accept that a CPA should control the land a big area of over 10000 hectares. 98 00:12:33,660 --> 00:12:40,140 It wasn't resolved, so we tried to take these permits, which to some extent the same. 99 00:12:40,140 --> 00:12:53,700 That was Adam Dodgson was the lead advocate in both cases, and Dodson took the same arguments into the groove of trophies the wild coast sun case. 100 00:12:53,700 --> 00:13:03,420 And here in particular, we thought it was going to be very important to show that it was not a chieftaincy which had the rights to this land. 101 00:13:03,420 --> 00:13:13,020 In this case, the middle of a diva chieftaincy longer baloney, the current incumbent or the incumbent at the time, 102 00:13:13,020 --> 00:13:19,860 was very keen to get hold control over this over this area of the world. 103 00:13:19,860 --> 00:13:32,400 Coson and. A key element of how the case was constructed was that it should be the claimants only the 106 families in the area who'd been forcibly, 104 00:13:32,400 --> 00:13:38,390 forcibly removed to whom any rights should be returned. 105 00:13:38,390 --> 00:13:46,520 And within that, we tried to emphasise very strongly developed the idea that it was families who had the right, 106 00:13:46,520 --> 00:13:58,810 it wasn't even it was not only not the chieftaincy nor the state, but in many senses try to take the idea of indigenous ownership. 107 00:13:58,810 --> 00:14:06,880 Further, in two ways, the first is to cement the idea of ownership akin to ownership kind of parallel strength of concept, 108 00:14:06,880 --> 00:14:14,020 which had been developed by the Cape Town LLC, originally in the badminton article. 109 00:14:14,020 --> 00:14:21,670 That's better than the Let's Ski articles of 1992 tried to promote that idea, but also critically for me. 110 00:14:21,670 --> 00:14:30,610 In any case was the notion we wanted to get a judgement which said that in customary law, families owned the land, 111 00:14:30,610 --> 00:14:37,240 they owned the residential allocations and they own the arable allocations that did not. 112 00:14:37,240 --> 00:14:46,330 As far as we could see, B being said enriched is felt when Judge Burns judgement involved many, and it seemed to me in a way, 113 00:14:46,330 --> 00:14:53,710 the crux because it also then governed future concepts of how consent to removal might be be judged. 114 00:14:53,710 --> 00:15:01,120 It's not only communities that could give consent, and APRA has a strange wording and set of clauses around this as well, 115 00:15:01,120 --> 00:15:05,170 which we can discuss, and that the date had to be. 116 00:15:05,170 --> 00:15:09,670 The individual owners, and in many respects, for me, this is the Hawks. 117 00:15:09,670 --> 00:15:14,590 This is the crux of many of the things we've been discussing about, 118 00:15:14,590 --> 00:15:21,730 even potentially some of the issues of power relations in the former homeland areas and within the space. 119 00:15:21,730 --> 00:15:32,200 How to establish this in law? Well, to cut a very long story short, and that was involved in the case as well. 120 00:15:32,200 --> 00:15:37,840 There were two days of such inspections which were very fascinating and exciting, 121 00:15:37,840 --> 00:15:46,870 and we managed to take the judge and others round to sites where people have been removed and there were old bits of homesteads and field sites. 122 00:15:46,870 --> 00:15:47,920 But in a sense, 123 00:15:47,920 --> 00:15:58,810 the very the moment at which we think the judge in his mind resolved the case was when one of our star witnesses went to his homestead site 124 00:15:58,810 --> 00:16:07,180 with six cores full of people following him and getting out of the court and telling us about how they used to farm and how they used to live, 125 00:16:07,180 --> 00:16:12,850 decide to look like down in the in the summer, which I must say is a very beautiful area. 126 00:16:12,850 --> 00:16:25,480 And if you've been there and. And out of the bushes, he plucked a three legged pot and sort of held it up. 127 00:16:25,480 --> 00:16:34,900 You could just see the judge's heart. In fact, there were many factors in deciding the case. 128 00:16:34,900 --> 00:16:43,270 It might be that the central factor was that sudden decided pretty much at the last minute that they were weak on various things. 129 00:16:43,270 --> 00:16:56,650 But a critical element was that the documentary evidence around the corruption involved in the fist allocation of the cyclone about 1980, 130 00:16:56,650 --> 00:17:03,370 which quite clearly showed that the Matanzas and others and politicians have been bribed, 131 00:17:03,370 --> 00:17:11,050 was in hand, and some probably thought that it may not be such a good idea from the point of view of their 132 00:17:11,050 --> 00:17:20,260 image there to have this school rehearsed again in a public context and much be a factor. 133 00:17:20,260 --> 00:17:27,790 But anyway, they decided the legal case was not strong enough to contest the major settlement of the two days of such inspection, 134 00:17:27,790 --> 00:17:32,200 and these issues were never heard in court, 135 00:17:32,200 --> 00:17:43,390 which in many respects was said it would have been better to have had the Land Claims Court, at least at that level, decided implicitly. 136 00:17:43,390 --> 00:17:47,320 I think many of the ideas that were developed to the case were accepted, 137 00:17:47,320 --> 00:17:54,100 but explicitly they were not, and they were taken into court any witch hunt was involved in. 138 00:17:54,100 --> 00:18:04,960 And in that case, there was a judgement that there was a judgement, but it was a judgement on other issues, 139 00:18:04,960 --> 00:18:08,590 fundamentally a very important judgement around the strength of the purer. 140 00:18:08,590 --> 00:18:12,180 And in my reading was. 141 00:18:12,180 --> 00:18:23,190 At least in the jurisprudence so far, the moment at which appeal rule was interpreted to have most strength compared to the initial jurisdiction, 142 00:18:23,190 --> 00:18:28,230 certainly the the limited litigation there had been before around that act. 143 00:18:28,230 --> 00:18:40,440 So it too hasn't specified clearly, at least by a significant court, what the nature of rights or to customary land. 144 00:18:40,440 --> 00:18:54,420 It is emphasised that the states with the courts will protect customary land against external agents, but not what the nature of the rights saw. 145 00:18:54,420 --> 00:18:59,190 And this seems to me a fundamental issue and is the route to go through the 146 00:18:59,190 --> 00:19:04,410 courts where you can see that it's problematic because lawyers don't litigate. 147 00:19:04,410 --> 00:19:11,880 In a sense, what lawyers litigate for different motives and the LC 50 guests for a range of motives. 148 00:19:11,880 --> 00:19:20,040 But and some of these might be to try to get the entrenched entrenchment of certain ideas into the law. 149 00:19:20,040 --> 00:19:25,530 But of course, if your clients are offered a settlement, that's got to take precedence. 150 00:19:25,530 --> 00:19:33,930 In other words, you can't litigate simply to get those to get those principles entrenched. 151 00:19:33,930 --> 00:19:40,300 So the legislative route has proved particularly problematic. 152 00:19:40,300 --> 00:19:51,520 Correspondence constitutional. It took a very long time for 2017 to the definitive Alternative Communal Rights Land Act was published. 153 00:19:51,520 --> 00:19:56,980 It's so complicated that I think that most people agreed it was an implementable. 154 00:19:56,980 --> 00:19:59,890 There were a significant number of responses, 155 00:19:59,890 --> 00:20:09,130 including one that Peter Delius and I put in where we went into some detail about where we thought it was not really going to work. 156 00:20:09,130 --> 00:20:11,740 You know, it may be an improvement on what there is. 157 00:20:11,740 --> 00:20:20,860 No, it does define certain things, and it opens the route to the kinds of definitions of family rights that I've articulated. 158 00:20:20,860 --> 00:20:29,710 But it's such a complex route may not, and to my knowledge, the bill has pretty much died. 159 00:20:29,710 --> 00:20:36,490 I don't know if anybody else has information about it, but there was a long consultative process, 160 00:20:36,490 --> 00:20:43,180 so I wouldn't say things are things remain very undefined. 161 00:20:43,180 --> 00:20:54,070 This seems to be a central area and needs of the courts thus far, nor the Legislature have been able to tackle it. 162 00:20:54,070 --> 00:21:03,610 And it is so controversial, of course, because it cuts directly into all of the issues we were talking in the earlier sessions 163 00:21:03,610 --> 00:21:11,320 as to which level as to who controls land and what the notion of ownership should be. 164 00:21:11,320 --> 00:21:20,050 Should we find some authentic notion of ownership? Or should, as we argue in the book rights to that and move towards a single, 165 00:21:20,050 --> 00:21:28,150 unified notion of ownership within the country as a whole, and this will give people the strongest rights to land. 166 00:21:28,150 --> 00:21:44,980 Thank you. As annulling the changes that Pope and I just want everyone to just get this in their minds. 167 00:21:44,980 --> 00:21:51,010 William's presentation was on the right. The next case comes immediately to that to the South. 168 00:21:51,010 --> 00:21:58,180 The Left. I think so. 169 00:21:58,180 --> 00:22:08,110 And I think picking up from where William left off for maybe going to the start is where I'll also jump in and try to be brief. 170 00:22:08,110 --> 00:22:17,060 And as pots were being excavated seeking redress for the loss of land to the wild because some seno. 171 00:22:17,060 --> 00:22:23,330 Our clients to the south of the Zambo River in the core of any community were 172 00:22:23,330 --> 00:22:29,360 gearing up to resist against another form of multinational extractive ism, 173 00:22:29,360 --> 00:22:33,830 open cast dune mining of their coastal dunes. 174 00:22:33,830 --> 00:22:42,410 And so that helps frame quickly my topic, which, as I understand it, is discussing two recent judgements one of the Constitutional Court. 175 00:22:42,410 --> 00:22:49,520 One of the High Court looking at the Interim Protection of Informal Land Rights Act Pilbara. 176 00:22:49,520 --> 00:23:00,190 It's against mining in Democratic South Africa and considering citizenship and accountability under customary law in that framework. 177 00:23:00,190 --> 00:23:03,230 And of course, before I start a few disclaimers, 178 00:23:03,230 --> 00:23:09,960 the first is it's always difficult presenting to an audience with varying degrees of background knowledge. 179 00:23:09,960 --> 00:23:16,060 So today I'm here presenting to people who are learning by cultivating for the first time. 180 00:23:16,060 --> 00:23:23,380 We also have three out of the four advocates, barristers who argued the case in the audience. 181 00:23:23,380 --> 00:23:32,020 Fellow attorney on the case, two of our expert witnesses. So it's almost like a reconvening of the bench. 182 00:23:32,020 --> 00:23:40,480 So I'm going to try try to go down the middle without sort of leaving people behind or boring people. 183 00:23:40,480 --> 00:23:50,740 But I only actually realise that particular difficulty yesterday and I've been more preoccupied with with other anxieties. 184 00:23:50,740 --> 00:23:57,520 And that's the intense anxiety of trying to prepare a presentation fitting for this occasion. 185 00:23:57,520 --> 00:24:05,440 I'm very much a practitioner in the work of being entirely absorbed with my clients day to day 186 00:24:05,440 --> 00:24:13,330 challenges and with no time or really capacity to reflect meaningfully in an academic sense. 187 00:24:13,330 --> 00:24:22,300 So presenting and trying to have meaningful reflections for the brilliant and rigorous minds who are here today, I have to say, 188 00:24:22,300 --> 00:24:30,520 has been a spectre for weeks and it's not a challenge I've been able to overcome at all and said I've latched on to a 189 00:24:30,520 --> 00:24:37,390 sort of faint line in the conference's abstract that we're partly here to discuss the manner in which these things, 190 00:24:37,390 --> 00:24:41,390 these issues are being litigated in South Africa's courts. 191 00:24:41,390 --> 00:24:45,590 And from Kate's statement today that we're here to draw scholars and practitioners together, 192 00:24:45,590 --> 00:24:52,170 so discussing the day to day practicalities of litigation, 193 00:24:52,170 --> 00:24:57,230 this is definitely my day job so that I can do and whatever, 194 00:24:57,230 --> 00:25:03,470 whether I offer anything useful for the scholars, it is up for them to decide for better or for worse. 195 00:25:03,470 --> 00:25:11,360 And from the morning's discussions, Tamika, I think, made a really vital point about the need to, even in these spaces, 196 00:25:11,360 --> 00:25:18,830 democratise customary law by taking people ordinary people seriously and allowing their voices to penetrate the space. 197 00:25:18,830 --> 00:25:27,680 And it's not as hard of a burden as an attorney because taking ordinary people's statements seriously, 198 00:25:27,680 --> 00:25:32,000 taking client statements seriously is really a day job. 199 00:25:32,000 --> 00:25:38,420 We don't do anything else, and it's it's a relief almost to be a mere creature of instruction, 200 00:25:38,420 --> 00:25:47,660 jotting down a client's account of their living customary law and doing our best to try to persuade very distant judges of its correctness. 201 00:25:47,660 --> 00:25:50,180 And the that is, in essence, 202 00:25:50,180 --> 00:25:57,620 the story of the baloney judgement of a remarkable community insisting on a clear articulation of their own customary law, 203 00:25:57,620 --> 00:26:04,280 and it's merely our job as a legal team to stumble around until we could give effect to it and bring it to the court, 204 00:26:04,280 --> 00:26:07,940 giving with that crystal clear, crystal clear mandate. 205 00:26:07,940 --> 00:26:21,230 And so before getting specifically to the case, a little bit of background, but a lot of it luckily has been traversed by an Inc and Peter. 206 00:26:21,230 --> 00:26:25,330 Any discussion of land rights and the intersection of land and mining in South Africa, 207 00:26:25,330 --> 00:26:30,430 of course, needs to start with the colonial and apartheid history. 208 00:26:30,430 --> 00:26:37,190 A story of plunder. A story of dispossession. So that's generally was wide scale. 209 00:26:37,190 --> 00:26:42,050 They often wide scale dispossession to make way for extraction, 210 00:26:42,050 --> 00:26:52,700 and with the alternative mode of extraction being selecting traditional leaders amenable to the state and ruling through them decentralised despotism, 211 00:26:52,700 --> 00:27:03,500 as Mamdani said. And with that framework, thirteen percent of land was left, 87 percent reserved only for white people, 212 00:27:03,500 --> 00:27:08,840 13 percent at most for black people and specifically in the context of mining. 213 00:27:08,840 --> 00:27:13,100 There was at least the opportunity for right to say no to multinational, 214 00:27:13,100 --> 00:27:21,980 to large local capital and to multinational capital to negotiate deals on very favourable terms as a landowner. 215 00:27:21,980 --> 00:27:25,940 And, of course, either dispossession or nepotism for black people. 216 00:27:25,940 --> 00:27:31,760 So in that context, we move then to what's what we hope to be a strong disjunction. 217 00:27:31,760 --> 00:27:37,850 I think the a strong break from the past and I think the example that Williams is 218 00:27:37,850 --> 00:27:43,310 walked us through the wild sun really encapsulates the aspirations of what we had, 219 00:27:43,310 --> 00:27:53,600 see what we had hoped for in the Constitution and looking at what property looks like addressing the wrongs of the past through equitable land access, 220 00:27:53,600 --> 00:28:02,630 which Section 25 speaks very strongly to both in terms of restitution, restoring people's rights that they lost between 1913, 221 00:28:02,630 --> 00:28:06,470 restoring their rights to that land redistribution, 222 00:28:06,470 --> 00:28:13,850 having equal access to land outside of the scope of restitution and then very importantly for this case, tenuous security. 223 00:28:13,850 --> 00:28:19,850 So people who didn't have secure tenure because of this racist history were then supposed to be brought 224 00:28:19,850 --> 00:28:26,180 brought tenuous security and that specifically mandated by Section 25 six of the Constitution, 225 00:28:26,180 --> 00:28:36,860 which which stated that if you do have legally insecure tenure due to discrimination, you are entitled to secure tenure or some other form of redress. 226 00:28:36,860 --> 00:28:42,350 And in this context, we're talking about the interim protection of Informal Land Rights Act, 227 00:28:42,350 --> 00:28:49,380 a period which is a mouthful, and it's a very simple, very, very short, but very powerful act. 228 00:28:49,380 --> 00:28:54,740 It's five sections long, and I've really pulled out the crux of the section you can just take. 229 00:28:54,740 --> 00:29:02,180 It applies to different forms of informal tenure, but specifically in this context, you can take that it covers customary law, 230 00:29:02,180 --> 00:29:09,530 and it says no person with informal land rights may be deprived without their consent. 231 00:29:09,530 --> 00:29:15,710 And Section two to then says consent on communal land must be in terms of the custom and 232 00:29:15,710 --> 00:29:23,000 usage in terms of the customary law with subsection two for says this is the minimum floor, 233 00:29:23,000 --> 00:29:27,500 it's a majority vote of people of the specific rightful this court for that purpose. 234 00:29:27,500 --> 00:29:28,730 And in looking into this, 235 00:29:28,730 --> 00:29:39,230 it was really striking 20 years later when we started putting together the case a complete absence of case law on this vitally powerful act. 236 00:29:39,230 --> 00:29:45,050 It's sort of constant litigation around title deeds just within one city or one municipality, 237 00:29:45,050 --> 00:29:53,310 whereas millions upon millions of people are covered by this act and there is no case law, which is clearly a gap in terms of access to justice. 238 00:29:53,310 --> 00:29:57,120 Also, in terms of the transformative aspirations of the Constitution, 239 00:29:57,120 --> 00:30:04,380 we have a because statements aside, we won't get into what it might have specifically been intended to, 240 00:30:04,380 --> 00:30:11,610 but we'll take what it says for granted, for granted, for this, for the purposes of this presentation, at least for now. 241 00:30:11,610 --> 00:30:19,080 The new idea was passed specifically to make provision for equitable access to minerals for all of South Africans, 242 00:30:19,080 --> 00:30:26,880 benefit from minerals and in a sense, mining, having been South Africa's original sin for the racism that we're not trying to address. 243 00:30:26,880 --> 00:30:34,750 Addressing that by changing fundamentally transforming the seeking transformation and empowerment, according to the Constitutional Court. 244 00:30:34,750 --> 00:30:42,200 Ben Glenarm and one of the key changes under the act was making the state the custodian of all minerals, 245 00:30:42,200 --> 00:30:48,540 so ending private ownership of minerals and allowing the state to manage minerals for the benefit of the nation. 246 00:30:48,540 --> 00:30:56,520 And Section 23 as the major idea, which provides the requirements to get a right to extract the minerals and profit from them, 247 00:30:56,520 --> 00:31:03,420 required expanding opportunities for historically disadvantaged persons, regardless of the company. 248 00:31:03,420 --> 00:31:14,490 Section then provided for charters to provide for equal access to minerals and as part of addressing injustices, 249 00:31:14,490 --> 00:31:18,600 the right to say no for communal landowners was taken away to make sure that people who 250 00:31:18,600 --> 00:31:23,970 benefited from apartheid dispossession don't then again benefit by being able to rent, 251 00:31:23,970 --> 00:31:28,020 seek from the land, from the mineral on the minerals that they sit over. 252 00:31:28,020 --> 00:31:32,200 So not only did they lose private ownership, they also lost the right to say no. 253 00:31:32,200 --> 00:31:34,230 So once the mining rights granted, 254 00:31:34,230 --> 00:31:41,130 there's a limited real right to real right and property to access the land to the extent you need to to start mining. 255 00:31:41,130 --> 00:31:50,370 And so in that that was a transformational goal, stated goal to say people who have been privileged by our past should not doubly benefit. 256 00:31:50,370 --> 00:31:55,110 They can get compensation for the value of the land that losing that they're not supposed to be 257 00:31:55,110 --> 00:32:01,080 profiting at the expense of the nation at the expense of historically disadvantaged persons. 258 00:32:01,080 --> 00:32:07,470 But according to some numbers, 90 percent of the new mining has happened on communal land, on land that was legally insecure, 259 00:32:07,470 --> 00:32:15,390 secure before for so, not only had communities moved into democracy and just finally had the possibility of mineral ownership. 260 00:32:15,390 --> 00:32:25,020 Not only was that Tom moved even the right to say, No, I'm going to make decisions about my own land and you must make it worth my while was also. 261 00:32:25,020 --> 00:32:30,450 So through that the fundamental principle that companies then asserted, 262 00:32:30,450 --> 00:32:35,760 backed entirely by the report by government, was that no consent was necessary. 263 00:32:35,760 --> 00:32:40,080 But layered onto that, as we've discussed with the Framework Act, 264 00:32:40,080 --> 00:32:45,660 was that a government was pushing people to then then sign deals with traditional leaders. 265 00:32:45,660 --> 00:32:54,570 So you don't need consent. But anyway, consents already been granted because these are the, according to colonial authorities, the owners of the land. 266 00:32:54,570 --> 00:33:01,380 They've made the decisions and and that was also powerfully back, importantly backed by the problem of land reform. 267 00:33:01,380 --> 00:33:09,420 And what do you then see is mining starting? And very rarely were there formal eviction applications to remove people's needs? 268 00:33:09,420 --> 00:33:16,080 And what actually happens is mining starts in areas that aren't aren't being used, 269 00:33:16,080 --> 00:33:21,090 and as mining operations begin, they start striking once off household deals. 270 00:33:21,090 --> 00:33:28,500 People who are eager to move and with the hope of getting jobs and the people who hold out gradually blasting what's happening. 271 00:33:28,500 --> 00:33:35,250 This cracking in their homes and their entire social fabric has been destroyed. 272 00:33:35,250 --> 00:33:41,130 So you have issues of crime issues of stock theft and you lose your ploughing fields to sustain yourself. 273 00:33:41,130 --> 00:33:46,670 So people are forced, then evicted through constructive eviction. 274 00:33:46,670 --> 00:33:51,210 That wasn't what was intended, but that is the effect. 275 00:33:51,210 --> 00:33:57,840 And so in that context, we move swiftly onto the Valetini case and I'll come to at the end. 276 00:33:57,840 --> 00:34:03,900 But I just want to open with a quote from the judgement, which may or may not have come from the sterling heads of argument. 277 00:34:03,900 --> 00:34:10,500 Are advocates prepared that on the wild coast, there's an area called in England. 278 00:34:10,500 --> 00:34:14,910 It is a coastline area of immense natural natural beauty, 279 00:34:14,910 --> 00:34:20,490 and the sands of this beautiful coastline are also rich in titanium and you can sort of see the pictures behind it. 280 00:34:20,490 --> 00:34:27,810 And so in terms of getting to the nitty gritty of litigation, the main the main task even for addressing the legal question, 281 00:34:27,810 --> 00:34:33,690 was setting the scene and trying to paint a picture for the court addressing what is your yes, 282 00:34:33,690 --> 00:34:40,530 thousands of kilometres away in a unwelcoming space of the Pretoria High Court? 283 00:34:40,530 --> 00:34:45,540 And how are you going to have your eyes to understand the context that our clients are facing? 284 00:34:45,540 --> 00:34:51,660 So that very much led off with affidavits from our clients attempting to give effect 285 00:34:51,660 --> 00:34:58,020 to our very clear instructions that we have from then on how land is being used. 286 00:34:58,020 --> 00:35:08,160 That's when people moved in. The significance of land to their livelihoods and the central history that the community had, as in the 1950s and 1960s, 287 00:35:08,160 --> 00:35:14,460 fighting under the Pondo revolt to defend their land against apartheid oppression and thus 288 00:35:14,460 --> 00:35:19,290 the shock of having to again defend their land against the government that they had voted, 289 00:35:19,290 --> 00:35:28,170 voted for. And in that our clients were really the lawyers and we were really the scribes 290 00:35:28,170 --> 00:35:32,550 that that they gave evidence about their customary law and very detailed, 291 00:35:32,550 --> 00:35:37,980 rigorous set of rules and practises around how decisions are made about land. 292 00:35:37,980 --> 00:35:42,120 And I won't have a chance to go into those details. 293 00:35:42,120 --> 00:35:50,760 We can send the papers. But what was very clear is multinationals being granted their land without their consent was not contemplated. 294 00:35:50,760 --> 00:35:55,600 So out of that, we took their individual stories. 295 00:35:55,600 --> 00:36:01,870 We had an in-depth focus groups expert affidavits, including Thank you by Professor Beinart. 296 00:36:01,870 --> 00:36:04,560 We've put together to give a picture, 297 00:36:04,560 --> 00:36:10,590 and then we had separate from what the land was being used for in the important economy that came out of the use of the land, 298 00:36:10,590 --> 00:36:15,000 including tourism, agriculture, we and the potential for a green economy. 299 00:36:15,000 --> 00:36:22,950 We then had an affidavit about experiences of mining stories from some of our clients who have been swept off their own land. 300 00:36:22,950 --> 00:36:31,200 LED by an affidavit from the Benchmarks Foundation to say You can't, you can no longer accept mining as this uniform. 301 00:36:31,200 --> 00:36:36,180 Acceptable good. You need to interrogate that and allow communities to make their own decisions 302 00:36:36,180 --> 00:36:39,420 about what is good and what is bad in terms of what they currently have, 303 00:36:39,420 --> 00:36:44,160 what they might be able to do with alternatives, and what what they can achieve through mining. 304 00:36:44,160 --> 00:36:49,700 So out of that, we then sort of move a bit into the legal argument, 305 00:36:49,700 --> 00:36:59,580 and the starting point was just the plain text and that what is the meaning of no person can be deprived of an informal right to land. 306 00:36:59,580 --> 00:37:03,720 And we we said that that's it is what it says. 307 00:37:03,720 --> 00:37:11,010 Consent a right to consent means a right to say no. And so the counterargument to that is the FDA must trump. 308 00:37:11,010 --> 00:37:15,720 It meant to take away the right to say no. And but but in looking at that, 309 00:37:15,720 --> 00:37:24,580 there's no provision for that in the text as it's sort of a gut feel from a sort of mining obsessed economy that we've had historically. 310 00:37:24,580 --> 00:37:30,010 And the goal to transform by removing historically advantaged people's rights. 311 00:37:30,010 --> 00:37:36,370 The only plain text is that section four of the media says common law rights are specifically exempt. 312 00:37:36,370 --> 00:37:40,480 Absolutely signed silent on statutory rights pillar. 313 00:37:40,480 --> 00:37:50,290 And significantly on customary law rights. And that's what we just went to the basics of textual statutory interpretation, where Section 2-1-1, 314 00:37:50,290 --> 00:37:59,560 three of the Constitution says at customary law applies subject only to the Constitution or statutes are specifically regulated. 315 00:37:59,560 --> 00:38:03,940 So if Hillary specifically regulates and defends customary law rights, 316 00:38:03,940 --> 00:38:09,940 the media is silent and just based on that simple text that that that was our argument, 317 00:38:09,940 --> 00:38:13,330 of course, bolstered by international law, which I won't get into, 318 00:38:13,330 --> 00:38:18,190 but also bolstered that most significantly by the powerful arguments that our clients made. 319 00:38:18,190 --> 00:38:21,700 And, of course, by our brilliant team of counsel. 320 00:38:21,700 --> 00:38:31,240 But after we had argued the case, we were alerted to an eviction order granted in the Northwest High Court, moving its way throughout. 321 00:38:31,240 --> 00:38:38,620 We had been tracking it, but we saw it was set down for argument in the Constitutional Court only a month after we had argued in the High Court. 322 00:38:38,620 --> 00:38:47,080 And that's the melody's case, and I'm sure some of it is going to touch on it a bit or at least some of the background context of the farm. 323 00:38:47,080 --> 00:38:50,950 So I won't go into detail. There's not I won't go into detail, 324 00:38:50,950 --> 00:38:57,700 but essentially it's people who purchased land collectively and were not able to have it registered in their name under apartheid, 325 00:38:57,700 --> 00:39:00,370 under the members of the Bahala community, 326 00:39:00,370 --> 00:39:08,380 but with their own distinct identity as land buyers who asserted their right to make decisions over their own land against the traditional council, 327 00:39:08,380 --> 00:39:10,410 which had incorporated a company, 328 00:39:10,410 --> 00:39:18,820 sterling behind the mineral resources that that was granted mining rights over the land and signed a lease with itself. 329 00:39:18,820 --> 00:39:24,220 The company signed a lease with the traditional council with classified land on both sides. 330 00:39:24,220 --> 00:39:31,330 So the mining attempt was to start with the default practise of beginning to mine and sweep people off their lands by making life miserable, 331 00:39:31,330 --> 00:39:37,450 as the Lawyers for Human Rights obtained a spoliation order and order asserting that possession if they could only 332 00:39:37,450 --> 00:39:45,430 be removed through a court order stopping that and that that forced the company to bring an eviction application, 333 00:39:45,430 --> 00:39:51,910 which was granted by the High Court Supreme Court of Appeal in the constitutional argument. 334 00:39:51,910 --> 00:39:54,130 The the what the courts. 335 00:39:54,130 --> 00:40:03,250 The court ended up turning aside the eviction order considering a Pilbara not specifically on its own terms, the sale consent must always be granted, 336 00:40:03,250 --> 00:40:09,160 but saying that section fifty four of the order provides for compensation for the loss of land 337 00:40:09,160 --> 00:40:15,790 rights and provides for that via agreements or via adjudication by a court or arbitration. 338 00:40:15,790 --> 00:40:20,830 So failing agreement confined to the Pilbara. 339 00:40:20,830 --> 00:40:30,400 No mining to mention the eviction order was discharged, and so that was quite powerful for two reasons one being that a quorum must be complied 340 00:40:30,400 --> 00:40:35,420 with at least before mining stocks in less compensation is determined in advance. 341 00:40:35,420 --> 00:40:41,020 The second being that at a lease approved of the department had no objection to 342 00:40:41,020 --> 00:40:46,150 that signed by traditional counsel and not signed in terms of a thorough was, 343 00:40:46,150 --> 00:40:54,250 was not going to be good enough. So the appeal was held there and sort of exhilarating couple of months that first the going close, 344 00:40:54,250 --> 00:41:00,190 a case that Michael discussed came down, then the melody, judgement and then blame, 345 00:41:00,190 --> 00:41:05,470 which I just want to end quickly with a reflection for further discussion, 346 00:41:05,470 --> 00:41:12,370 which is very aligned with what William was saying, which is so we've now established a right to say no. 347 00:41:12,370 --> 00:41:17,650 What does yes look like? So what do custom-made legal rights provide for? 348 00:41:17,650 --> 00:41:19,720 And I think quite powerfully, 349 00:41:19,720 --> 00:41:29,440 our judgement also got a declaratory order on what the customary law rights of the decision making legal pull of any less. 350 00:41:29,440 --> 00:41:35,320 But now what does this look like in terms of the modalities of the customary law and also in the mining context? 351 00:41:35,320 --> 00:41:41,410 What does fair and just compensation that ensures communities in fact actually benefit from mining, 352 00:41:41,410 --> 00:41:46,450 which they have not over this disastrous 15 years under the MPR? 353 00:41:46,450 --> 00:41:50,920 So that's that's quickly my thoughts and and I'll sit down and make way. 354 00:41:50,920 --> 00:42:05,850 Thank you very much for your patience. Good afternoon, everybody, 355 00:42:05,850 --> 00:42:14,240 I'm going to talk about the closet case and like if I'm I think I'm the fifth most qualified person in the room to talk about the case, 356 00:42:14,240 --> 00:42:20,960 but attorney would come and actually started the case like, yeah, my own senior counsel argued the case this year. 357 00:42:20,960 --> 00:42:26,810 And one of our expert witnesses is also here. So I'm. 358 00:42:26,810 --> 00:42:35,450 So the heart of the case is about whether when the government creates a marine protected area and prohibits all fishing in the area, 359 00:42:35,450 --> 00:42:41,840 whether it's a criminal offence for a person with a customary right to fish, to fish in that area. 360 00:42:41,840 --> 00:42:48,380 And I'm going to talk a little bit about the case of how it arose, what the Supreme Court of Appeals said about this case, 361 00:42:48,380 --> 00:42:53,480 particularly to issues around extinguishment of customary rights and relationship between customary rights and the environment. 362 00:42:53,480 --> 00:42:57,780 And then lastly, about the impact the case. 363 00:42:57,780 --> 00:43:06,270 So this case called the concern that to the community, which is also in the Wild Coast and the Trans Scotland Basheer River, 364 00:43:06,270 --> 00:43:14,980 about 300 kilometres south of them, confront global community seven and a half hours by road, according to Google's Maps. 365 00:43:14,980 --> 00:43:16,380 Be much quicker if they were just building. 366 00:43:16,380 --> 00:43:25,590 You know, you told us that some pesky lawyers are getting in the way, and it's a community that for hundreds of years had been fishing in this area. 367 00:43:25,590 --> 00:43:28,800 And this is the way that the High Court described the practise of fishing. 368 00:43:28,800 --> 00:43:33,460 They understood the nature had a way of protecting itself and that this is what regulated their harvesting, 369 00:43:33,460 --> 00:43:36,360 the tides and the weather to not allow them to go fishing every day. 370 00:43:36,360 --> 00:43:40,110 They will said their own way of making sure that there would be enough fish for the generations to come. 371 00:43:40,110 --> 00:43:45,270 Having been taught by their fathers and elders not to take juveniles and to put the small fish back, 372 00:43:45,270 --> 00:43:52,170 these rights were never unregulated and were always subject to some form of regulation, either under customary law and traditional practises. 373 00:43:52,170 --> 00:43:58,500 And so this community was evicted from this land in the 1950s and then in the 1970s under the veterans. 374 00:43:58,500 --> 00:44:02,820 And they lodge the and the area was made into a nature reserve. 375 00:44:02,820 --> 00:44:05,520 They then launched a successful restitution claim, 376 00:44:05,520 --> 00:44:10,860 but they became the owners of the land through a communal property association and part of the settlement agreement they concluded with 377 00:44:10,860 --> 00:44:19,200 the government in the restitution process included a clause that they would have access to the forest and sea resources in the reserve. 378 00:44:19,200 --> 00:44:28,260 But so this all happened in the late 1990s and 2001. The Minister of Environmental Affairs declared the area a marine protected area under the 379 00:44:28,260 --> 00:44:33,570 Marine Living Resources Act and the only no take marine protected area in the country, 380 00:44:33,570 --> 00:44:42,320 so no fishing would be allowed at all are many other marine protected areas, but some fishing was allowed normally by recreational fishers. 381 00:44:42,320 --> 00:44:49,040 And when this decision was made in 2001, there was zero consultation with the community and zero scientific basis for it. 382 00:44:49,040 --> 00:44:56,210 No scientific research had been done on the dress of the marine protected area to support this decision to make it a no take zone. 383 00:44:56,210 --> 00:45:01,070 And the intention at the time was to make it criminal for the community to fish there. 384 00:45:01,070 --> 00:45:07,070 But nonetheless, the community continued to fish for several years because the law was not enforced until around 2005, 385 00:45:07,070 --> 00:45:13,700 when the law began to be enforced. And in fact, at some point Rangers shot and killed people who were trying to fish in the reserve. 386 00:45:13,700 --> 00:45:19,280 Then in 2010, three people David Concus, a swimmer live in Dorset and coastal undulate user, 387 00:45:19,280 --> 00:45:27,110 were arrested for fishing or attempting to fish in the reserve. And they were tried in the magistrates court for a variety of offences. 388 00:45:27,110 --> 00:45:31,880 But the main one was for contravening Section 43 to a of the Marine Living Resources Act, 389 00:45:31,880 --> 00:45:36,140 which is no person shall in any marine protected area without permission. 390 00:45:36,140 --> 00:45:38,300 Fish or attempted to fish. 391 00:45:38,300 --> 00:45:46,000 Now that these people were represented by the Legal Resources Centre and there's a loyal, deployed cadre of legal resources, 392 00:45:46,000 --> 00:45:52,580 they need to point out that unless analysis has played a role in a lot of the cases that we're talking about today, 393 00:45:52,580 --> 00:46:01,320 going back a long way and many of the cases all LLC cases, and I think this is one of the the best cases that we've done, 394 00:46:01,320 --> 00:46:04,010 so that the first issue that had to be dealt with the magistrate's court before I get 395 00:46:04,010 --> 00:46:08,120 to the interesting legal stuff is whether they were actually customary rights or not. 396 00:46:08,120 --> 00:46:16,910 And we proved this by expert evidence and by evidence of the first accused they can across it and a traditional healer from the community, 397 00:46:16,910 --> 00:46:21,860 I think, must be one of the most unusual cases ever heard in the Elliott Vale Magistrates Court. 398 00:46:21,860 --> 00:46:28,010 I wasn't actually there, but we had there, was learnt counsel from Johannesburg who came down to grace the court. 399 00:46:28,010 --> 00:46:34,790 American experts, you speak to Mr. Also another expert from Cape Town, Mr. Yelwa Zelikow, 400 00:46:34,790 --> 00:46:43,460 who was the traditional healer from the community and the first accused will testify as well as an expert from the government. 401 00:46:43,460 --> 00:46:51,020 And I just want to give a sense of how this went down. So this is a quote from the transcript of the Magistrate's Court hearing. 402 00:46:51,020 --> 00:46:56,300 I think Jason knows which, but I'm going to quote so this is the prosecutor cross-examining the first accused and 403 00:46:56,300 --> 00:46:59,900 so that the key issue that he was trying to ram home again in the game the game is. 404 00:46:59,900 --> 00:47:03,140 But you know what the law is and you're violating the law. 405 00:47:03,140 --> 00:47:09,950 How can you do this? So he says, now I want to leave you with this little story, sir, and maybe you will understand if I tell this to you. 406 00:47:09,950 --> 00:47:15,140 There's a man that came from England. You know where England is, Mr Prickle, your worship. 407 00:47:15,140 --> 00:47:22,820 I must object entirely this line of questioning sarcastic question whether the accused knows what England is is really not necessary. 408 00:47:22,820 --> 00:47:27,470 Prosecutor, it is not a sarcastic tone at all your worship. It is indeed a question put to him. 409 00:47:27,470 --> 00:47:31,340 I know that he hasn't been schooled, so I'm asking the question whether he knows what England is. 410 00:47:31,340 --> 00:47:36,170 It's a basic question. Court Yes, proceed. I want to hear your answer. 411 00:47:36,170 --> 00:47:40,550 I don't know. England prosecutor. 412 00:47:40,550 --> 00:47:46,070 It doesn't matter, but it was a vital question, but it doesn't matter this man's customs. 413 00:47:46,070 --> 00:47:49,910 This man that comes from overseas is customers to drive on the right hand side of the road. 414 00:47:49,910 --> 00:47:56,450 That's his custom. But he comes to South Africa because remember in custom, his grandfather told him his father told him, We drive right. 415 00:47:56,450 --> 00:48:01,160 You come to South Africa. The losses drive left. What does the man do? 416 00:48:01,160 --> 00:48:15,050 What does the man do? Answer, get injured? So we had great plans anyway. 417 00:48:15,050 --> 00:48:20,210 So the magistrate concluded that we did have customary rights to fish in the reserve, 418 00:48:20,210 --> 00:48:24,560 but nonetheless that the conduct was criminal because it was criminalised by the statute. 419 00:48:24,560 --> 00:48:30,080 So we appeal to the High Court on three grounds that it was lawful because we had a customary right that hadn't been extinguished, 420 00:48:30,080 --> 00:48:35,810 that if it wasn't then that the act was unconstitutional or that the declaration of the 421 00:48:35,810 --> 00:48:40,430 marine protected area was unlawful because there's no consultation and no rational basis. 422 00:48:40,430 --> 00:48:48,260 And. There was some important changes by the time we got a lot of the issues have sort of become moot because there'd been amendments to that act. 423 00:48:48,260 --> 00:48:55,460 A new small scale fishing policy to deal with customs officials had come into place, and it was a new declaration under a new act of the MPA. 424 00:48:55,460 --> 00:48:59,930 So the case had lost a much broader impact within that particular area. 425 00:48:59,930 --> 00:49:04,130 But it was really just about these three people who had been accused, 426 00:49:04,130 --> 00:49:10,850 and we almost didn't make it to court because Jason and I managed to both get the time of our flight wrong from Johannesburg. 427 00:49:10,850 --> 00:49:15,590 So we had to take a late flight to East London and arrived in Qatar about two o'clock in the morning. 428 00:49:15,590 --> 00:49:20,390 I think still managed to argue the case, but we lost in the High Court. 429 00:49:20,390 --> 00:49:23,240 The High Court agree that there were customary fishing rights, 430 00:49:23,240 --> 00:49:29,900 but said that it was still unlawful to fish because the act provided for a possibility for exemption and we hadn't applied for the exemption. 431 00:49:29,900 --> 00:49:36,350 So it was unlawful and that the our customer rights was subject to the right to a healthy environment. 432 00:49:36,350 --> 00:49:49,160 So we appeal to the Supreme Court of Appeal eventually get an appeal. Advocate Brickell abandon us to go to Oxford, so we got a Toby as a super sub. 433 00:49:49,160 --> 00:49:57,380 Interestingly, again, we had we got the bomb container at about 2:00 in the morning. I want explain why, 434 00:49:57,380 --> 00:50:04,070 but the SCA accepted all accepted the existence of the customer right for the same reasons and then 435 00:50:04,070 --> 00:50:08,810 accepted our core argument and the core argument based on section two one one three of the Constitution, 436 00:50:08,810 --> 00:50:12,410 which is the courts must apply customary law when the when that law is applicable, 437 00:50:12,410 --> 00:50:17,600 subject to the Constitution and any legislation that specifically deals with customary law. 438 00:50:17,600 --> 00:50:24,410 So our argument was customary rights can only be extinguished by legislation that complies with Section two one one three. 439 00:50:24,410 --> 00:50:29,180 Marine Living Resources Act is not such legislation because it doesn't mention customary law. 440 00:50:29,180 --> 00:50:31,370 Therefore, the rights continue to exist. 441 00:50:31,370 --> 00:50:36,560 Therefore, fishing in accordance with those rights was lawful and therefore our clients should have been acquitted. 442 00:50:36,560 --> 00:50:44,130 And so the court referred to various Canadian and Australian cases that deal with this issue and were quoted in kids and then said, 443 00:50:44,130 --> 00:50:48,200 But this is all irrelevant because we can just read to one on three and that means what it says. 444 00:50:48,200 --> 00:50:51,710 And so it says this is the test for extinguishment of customary law rights. 445 00:50:51,710 --> 00:50:56,510 First, a custom right can only be extinguished by legislation, specifically dealing with customary law. 446 00:50:56,510 --> 00:51:02,960 And secondly, that such legislation must do so either expressly or by necessary implication. 447 00:51:02,960 --> 00:51:07,130 So if it doesn't, the law doesn't specifically deal with it. The rights continue to exist, 448 00:51:07,130 --> 00:51:15,750 even if it does specifically deal with customary law continues to exist unless it is expressly or by necessary implication, extinguished. 449 00:51:15,750 --> 00:51:20,010 And it rejected the exemption argument that had been raised by the states, which was effectively. 450 00:51:20,010 --> 00:51:23,910 Well, you could have got to ask the minister for an exemption and then you would have been allowed to fish. 451 00:51:23,910 --> 00:51:31,200 So your right wasn't really extinguished and said, Well, that is a quote non sequitur, because if you have to ask the minister for permission to fish, 452 00:51:31,200 --> 00:51:35,100 then you have no right to in the same position with any other person who's asking for an exemption. 453 00:51:35,100 --> 00:51:38,380 So the right thing would in fact, have been extinguished. 454 00:51:38,380 --> 00:51:45,820 And so this is this is a different and stronger case than was applied in Alex call for the pre constitutional extinguishment 455 00:51:45,820 --> 00:51:52,750 of customary law rights where a right can be extinguished if the government had rendered the exercise of the right unlawful. 456 00:51:52,750 --> 00:51:57,520 So that's no longer the case, but post constitutional rights. And what does this mean? 457 00:51:57,520 --> 00:52:03,310 So writing? Lehman wrote an article about the magistrate's court case, and he said, it's very interesting. 458 00:52:03,310 --> 00:52:04,390 She said it's very interesting. 459 00:52:04,390 --> 00:52:10,510 But if this argument had been accepted, it would have far reaching implications for the validity of all general legislation, 460 00:52:10,510 --> 00:52:13,930 which regulates rights that exist under both common and customary law. 461 00:52:13,930 --> 00:52:18,610 Environmental legislation would be particularly affected to mean that whatever legislation is passed, 462 00:52:18,610 --> 00:52:25,750 the Legislature would need first ascertain the existence of any applicable customary law and reflect that awareness in the text of the legislation. 463 00:52:25,750 --> 00:52:30,700 Well, yes, exactly. That's exactly what the consequences. 464 00:52:30,700 --> 00:52:35,710 So I think that it has consequences both for existing legislation that didn't consider the law, 465 00:52:35,710 --> 00:52:41,800 didn't consider customary law and which therefore has to be taken together with the custom people without extinguishing those rights. 466 00:52:41,800 --> 00:52:47,110 And I think, perhaps more importantly, has consequences for legislation going forward because it compels the Legislature 467 00:52:47,110 --> 00:52:52,160 to consider customary law directly in the legislation making process. 468 00:52:52,160 --> 00:52:58,310 But it's still in the judgement, still use a lot of unanswered questions, so what does specifically deal with me? 469 00:52:58,310 --> 00:53:06,110 So one of the arguments we made in the ACA to sweeten the pot for the ACA was that after the imagery was amended, 470 00:53:06,110 --> 00:53:11,990 it created rights for quite small scale fishers who were defined in part with regard to customary law. 471 00:53:11,990 --> 00:53:17,240 As we said, well, not the new law is two one one three legislation. So your judgement won't have any effect. 472 00:53:17,240 --> 00:53:22,610 We won't have suddenly all these people going off and fishing in marine protected areas. 473 00:53:22,610 --> 00:53:28,940 I mean, which is a very good, very clever tactical move by the advocates, but I'm not sure it's right in law. 474 00:53:28,940 --> 00:53:33,230 I'm not sure that the legislation does actually specifically deal with it. 475 00:53:33,230 --> 00:53:40,130 And lots of question about it. Maybe I shouldn't say this on video, but whether the idea is section two and one three legislation. 476 00:53:40,130 --> 00:53:44,140 So in Blaney, the court said it's not, but it does actually deal with customary law, 477 00:53:44,140 --> 00:53:49,550 and it deals with communities that are defined with reference to customary law give them particular types of rights. 478 00:53:49,550 --> 00:53:56,070 So how specific does it have to be before we say it specifically deals with it? 479 00:53:56,070 --> 00:54:03,030 And another just two other issues that come up is obviously we know that customary law varies from community to community to community. 480 00:54:03,030 --> 00:54:06,780 So when we say more specifically deal with customary law, what does that mean? 481 00:54:06,780 --> 00:54:13,890 Does it mean that we expect the Legislature when it's now enacting legislation to consider the different practises in each and every area, 482 00:54:13,890 --> 00:54:15,030 whether it is, for example, 483 00:54:15,030 --> 00:54:22,710 customary fishing or candidates that you just consider customary law generally and then extinguish all customary rights without considered. 484 00:54:22,710 --> 00:54:29,430 Considering the differences and the nuances between those different rights and having the latter one seems the only practical way to do it. 485 00:54:29,430 --> 00:54:32,370 But that really undermines what the court has said and what the Constitution says 486 00:54:32,370 --> 00:54:37,110 about living customary law and customary law that varies from community to community. 487 00:54:37,110 --> 00:54:46,590 Another question is what happens if the customer develops so that legislation is passed purporting to regulate a customary right committee says, 488 00:54:46,590 --> 00:54:50,670 Oh, that's interesting what we're going to develop our customary law. And so now we've developed it. 489 00:54:50,670 --> 00:54:56,580 And so now you have to pass new legislation if you want to regulate that because the unregulated that customary law, it's going this back and forth. 490 00:54:56,580 --> 00:55:02,310 I mean, I'm not. And you can think about situations where that would make sense. 491 00:55:02,310 --> 00:55:07,200 Otherwise you'd be preventing the rights of communities to develop their law, to adapt to legislation. 492 00:55:07,200 --> 00:55:13,760 But it could also be easily abused to get around the legislative intent to deal with casting law. 493 00:55:13,760 --> 00:55:20,030 So turning to the second issue about how the court dealt with customary law and the environment so often, 494 00:55:20,030 --> 00:55:25,190 particularly in the fishing context, this is treated as a zero sum game that it's the right of. 495 00:55:25,190 --> 00:55:34,190 Custom officials are pitted against conservation imperatives and often relying on the precautionary principle that, you know, 496 00:55:34,190 --> 00:55:42,560 when we're not sure about what the science is, we must just outlaw any fishing just in case, even if that has an impact on customary rights. 497 00:55:42,560 --> 00:55:49,430 So, I mean, in this case, there was zero scientific evidence about the need to make this no takes on, literally nothing. 498 00:55:49,430 --> 00:55:56,300 The government didn't. We ask them for a Rule 50 lawyers in the room. We ask them for Rule fifty three record and they couldn't produce people. 499 00:55:56,300 --> 00:56:03,620 But this High Court still found that it that the customary rights could be limited because of the risk to the environment. 500 00:56:03,620 --> 00:56:12,680 And the SCA rejected that argument and two reasons. The first was to reject the false dichotomy between customary law and environmental protection. 501 00:56:12,680 --> 00:56:18,200 So said the customary rights and conservation can coexist, and it's important to remember that as regards conservation and long term, 502 00:56:18,200 --> 00:56:23,210 sustainable utilisation of marine resources to prohibit communities have a greater interest 503 00:56:23,210 --> 00:56:27,950 in marine resources associated with their traditions and customs than any other people. 504 00:56:27,950 --> 00:56:33,320 These customs recognise the need to sustain the resources that the SEA provides. 505 00:56:33,320 --> 00:56:36,290 So sort of breaking down this false dichotomy. 506 00:56:36,290 --> 00:56:43,670 The second one, which which comes to something Lindsay said earlier was, I think it effectively creates a hierarchy of custom customary rights. 507 00:56:43,670 --> 00:56:51,350 So one of the arguments is that in the Constitution sections 30 and 31, which give you the right to practise your culture, 508 00:56:51,350 --> 00:56:54,680 you have to exercise that consistently with other rights in the Bill of Rights. 509 00:56:54,680 --> 00:56:58,160 So the argument in the High Court was, well, that's subject to section twenty four. 510 00:56:58,160 --> 00:57:04,490 So Section 24, the right to a healthy environment effectively trumps your right to custom under Sections three and three one. 511 00:57:04,490 --> 00:57:11,510 And the ACA rejected that and said it is true that the right to culture cannot be exercised in a manner inconsistent with other rights, 512 00:57:11,510 --> 00:57:19,070 and an environmental protection and conservation mandated by Section twenty four self-evidently is a valid, legitimate concern. 513 00:57:19,070 --> 00:57:23,330 And then but that is not the end of the Constitution's protection of customary rights. 514 00:57:23,330 --> 00:57:29,600 It also protects them from interference other than through specific legislation contemplated in section two and one three. 515 00:57:29,600 --> 00:57:34,580 The MRA was not such legislation. So it's as if it's a customary rights. 516 00:57:34,580 --> 00:57:36,860 Then you get additional protection under two and one three, 517 00:57:36,860 --> 00:57:43,840 which doesn't apply to customary practises that don't rise to the level of customary law customary rights. 518 00:57:43,840 --> 00:57:49,420 So I think that I mean, I agree with you that I don't think that's a good theoretical distinction to make that it's 519 00:57:49,420 --> 00:57:54,700 a it's more of a spectrum of anything that drawing a hard line is probably not a good idea, 520 00:57:54,700 --> 00:58:01,260 but I think that is a hard line in the judgement. Also on the show, it's a proper reading of two or three, 521 00:58:01,260 --> 00:58:08,340 because two one one three says it's subject to the Constitution and legislation that specifically deals with customary law. 522 00:58:08,340 --> 00:58:16,590 So I'm not sure they really thought through whether that means that you can get out of the proviso in Sections 30 and 31. 523 00:58:16,590 --> 00:58:25,410 That's what they said. So I'm going to continue now with a few thoughts about the impact of the judgement and quickly, because I'm almost out of time. 524 00:58:25,410 --> 00:58:31,620 So people ask me questions about that, then I can say the rest of what I wanted to say. 525 00:58:31,620 --> 00:58:37,140 But the first thing is just a few thoughts about the strategy in the way that the case was litigated. 526 00:58:37,140 --> 00:58:42,660 So as I've mentioned already, I think it became an easy case because by the time we got to the Constitutional Court, 527 00:58:42,660 --> 00:58:46,200 there wasn't that much at stake except the conviction of these three people. 528 00:58:46,200 --> 00:58:54,050 So obviously there's a precedent, but it wasn't going to immediately have any consequences for fishing in Libya or anywhere else. 529 00:58:54,050 --> 00:58:59,570 The second thing is it was and this is not entirely true because they haven't mentioned there 530 00:58:59,570 --> 00:59:04,010 was a whole parallel review case that we brought in reviewing the decision of the MPAA. 531 00:59:04,010 --> 00:59:08,150 But this case in particular was somewhat eased and a lot of this litigation, 532 00:59:08,150 --> 00:59:12,230 because there were just three clients who we were representing and whose interest we had to advance. 533 00:59:12,230 --> 00:59:16,790 So often when you're doing this type of litigation, you're representing large communities, taking instructions. 534 00:59:16,790 --> 00:59:21,290 It's difficult. Getting the community to agree on a particular course of action is difficult. 535 00:59:21,290 --> 00:59:28,400 So that made this case quite easy. And it was also easy because it couldn't be settled because once you got an appeal, they'd been convicted. 536 00:59:28,400 --> 00:59:39,100 So the only way out was was to win. Let's talk briefly, just impacting three areas of customary fishing in South Africa, generally, 537 00:59:39,100 --> 00:59:42,640 it hasn't had much of an impact because the impact was achieved not through litigation, 538 00:59:42,640 --> 00:59:50,950 but through other work that the mine was doing at the LLC to get the partner to adopt a small scale fishing policy and to amend the legislation. 539 00:59:50,950 --> 00:59:55,000 And so that has really opened up a customary fishing in South Africa. 540 00:59:55,000 --> 01:00:00,130 Now it's a whole bunch of problems, but the small-scale fishing policy and with the way that it's being implemented, 541 01:00:00,130 --> 01:00:05,080 and I think the judgement may have some impact on that to force the government in implementing the policy, 542 01:00:05,080 --> 01:00:10,330 to take customary rights and customary law seriously when it's trying to create these new bodies 543 01:00:10,330 --> 01:00:16,360 through which the communities will exercise their rights but didn't have direct consequences. 544 01:00:16,360 --> 01:00:22,330 Interesting, and there's a legal opinion that the government prepared on this asking about what are the consequences, 545 01:00:22,330 --> 01:00:26,320 but they say, well, because the act has been amended, this new policy doesn't really matter. 546 01:00:26,320 --> 01:00:32,290 And then this was presented in a PowerPoint presentation by the department to its officials, 547 01:00:32,290 --> 01:00:35,800 explaining what you know, they didn't really have much of an impact in the last slide. 548 01:00:35,800 --> 01:00:43,630 Thanks to Becca myself, Derek Bass and Jackie Sunday, he with other experts. 549 01:00:43,630 --> 01:00:50,020 I'm not sure why I'm for for itself so new. 550 01:00:50,020 --> 01:00:54,550 During litigation, new regulations were passed to regulate fishing in the reserve, 551 01:00:54,550 --> 01:00:57,400 and those regulations are extremely problematic because the way that they do it, 552 01:00:57,400 --> 01:01:00,790 that they have limits on the number of people who can fish, where you can fish, 553 01:01:00,790 --> 01:01:06,610 what times you can fish that are unrealistic, impractical and inconsistent with customary law. 554 01:01:06,610 --> 01:01:09,910 So there was a separate review of those regulations that was launched. 555 01:01:09,910 --> 01:01:15,910 While the appeal was still pending, that review has sort of stalled because they've been very well for a number of reasons. 556 01:01:15,910 --> 01:01:22,160 But one of the reasons is because it means problems in the community about getting agreement, about the correct way to go forward. 557 01:01:22,160 --> 01:01:27,220 So as is in many of these communities, there's the divisions between, in this case, 558 01:01:27,220 --> 01:01:34,570 a working group who is challenging traditional authority and those in the community who support the headmen and the chief in the area. 559 01:01:34,570 --> 01:01:43,250 That's a horribly oversimplified the situation. And so, for example, I mean, some of these changes mean that the main the main applicant, David, 560 01:01:43,250 --> 01:01:51,040 to his house has been taken because of these tensions and perceptions about who he supported or didn't support. 561 01:01:51,040 --> 01:01:55,030 So and it's unclear what's going to happen in the future with the community, 562 01:01:55,030 --> 01:02:00,340 whether they're going to be able to organise in a way that they're able to assert their rights. 563 01:02:00,340 --> 01:02:08,590 And lastly, just the consequences for other areas, I think the judgement has really important consequences outside of fishing. 564 01:02:08,590 --> 01:02:19,180 So it was raised in the any judgement for for the principle that, you know, the idea is not section two one one three legislation. 565 01:02:19,180 --> 01:02:23,260 The pillar is therefore you must comply with the bill. 566 01:02:23,260 --> 01:02:29,140 The custody rights haven't left. But I think it's also got the consequence that even if it was repealed tomorrow, 567 01:02:29,140 --> 01:02:33,850 it wouldn't make a difference to the legal position because those customary rights, 568 01:02:33,850 --> 01:02:37,570 which it fully recognises, don't rely on each other for their existence. 569 01:02:37,570 --> 01:02:39,740 They're there, they haven't been extinguished. So pure. 570 01:02:39,740 --> 01:02:48,700 It's good, it's nice, but it's actually not necessary for the bill any argument that you can't grant mining rights contrary to customary law. 571 01:02:48,700 --> 01:02:59,470 And I think that's a necessary consequence of the current policy judgement and I think might also have consequences for questions around a land. 572 01:02:59,470 --> 01:03:00,100 So, for example, 573 01:03:00,100 --> 01:03:08,080 we relied on the judgement in a case in Namibia where we represent the hichem community that's claiming the return of the Apache National Park, 574 01:03:08,080 --> 01:03:15,220 where they traditionally lived and were evicted from again for the principle around whether there was an extinguishment of their rights. 575 01:03:15,220 --> 01:03:21,610 So they were evicted and there were various regulations of how people could hunt or use access to the reserve. 576 01:03:21,610 --> 01:03:26,650 But the argument as well was never actually extinguished, so they still have an Aboriginal title claim. 577 01:03:26,650 --> 01:03:32,950 And I also think lastly of nation now it might have consequences for cases around traditional governance. 578 01:03:32,950 --> 01:03:40,300 So if you if legislation is regulating customary law but isn't expressly of unnecessary implication extinguishing customary rights, 579 01:03:40,300 --> 01:03:47,800 you have to demand accountability from traditional leaders, those rights that exist and they must be read together with the legislation. 580 01:03:47,800 --> 01:03:53,536 I think.