Welcome back to the after lunch session, everybody.
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.
This panel is going to be engaging with issues of mining resources within customer communities and in particular,
it's going to explore issues that have arisen from recent litigation.
So all three of our speakers are going to be anchoring their presentations around particular case
studies of particular cases that they worked on in various capacities to introduce the speakers.
First to speak is William Beinart. He is an emeritus professor here at Oxford.
He will be followed by Johann Lorenzen. Johan is an associate at Richard Spurr Inc. and the last speaker will be Michael Bishop,
who serves as in-house counsel for the Constitutional Litigation Unit at the LHC and runs a private
practise after which I'll open up some questions so you'll each have 20 minutes just to please flag.
So in order to allow enough time for us to engage with each other, we've decided to push back by 15 minutes.
So don't be surprised when we keep going past the quarter to quarter past three.
Mark, you will be at 3:30 right over to William.
Thank you very much. I'm going to talk about four cases and especially about the ongoing lawsuit Wild Coast Sun,
a case for which the papers went to the Land Commission in 1995 and the judgement was finally made in 2014.
And the lawsuit is the Wild Coast Sun area.
So what do I do? So it's just a little remote control on the table. Yes, it's on.
They got. On the coast with KZN coming up to that dinner at the end, if you can see it very well.
But the area immediately adjacent to a casino that was built in roughly 1980,
the early 1980s and 40 homestead sites were forcibly removed from the area in order to make way for the casinos.
The other facilities and a golf course. A restitution claim was put in and it was contested.
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.
And in 2014 they won their case and they won their case against Sun International,
who are just cool Sutton, various companies involved and the government.
So the government actually also initially or for a sustained period, opposed this restitution case, at least in the form that it took.
Towards the end, they got a generous payment. They won ownership of the land through a communal property association.
However, the settlement didn't allow for the families who had originally been forcibly removed from land to move back to that land.
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,
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?
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,
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.
Is it families as a family heads? Or do we need to think about it in a different way and how it sees?
How is this landholding been affected by proclamations by government involvement, by court cases?
I initially got involved in the earlier case clearly because my book, Political Economy of Puntland,
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.
And the fact that it should be published before any of these court cases started made it particularly useful.
So that was used, and then I got absorbed and did more research.
But I have to say that I was not a neutral researcher getting involved.
I've been involved earlier in land reform issues and particularly as it became involved in Florine from about 2005 six onwards.
It seemed to me as the debates around Star was going on and others were beginning
to publish around these issues that the issue should not just be who owned,
who had the rights to this land, but also who should have the rights to the slams.
Then the historiography, the material that was being published around that time,
increasingly was moving to the idea that rights should be based at the level of the
family and that you could find this material in the ethnography is significant evidence.
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,
and particularly promoted and developed the ideas that were in court.
And it could just arguing very strongly, firstly, that families with a lot of land hoarding.
And secondly, that this amounted to assistant coach akin to ownership.
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,
that we should concentrate particularly on this because it came at a moment
when the vulnerability of landholding rights for people without formal tenure,
without it, we call it private tenure or title tenure, which was particularly vulnerable, especially so in mining areas,
but also in other areas where outsiders and local accumulators and corporate bodies chiefs
all began to compete increasingly for land within former homelands and on the peripheries.
So my arguments were influenced both by analysis of who does it in the land and who should own the land.
Now, I'm not going to go into the historical detail of what the various ethnography is and so on might tell us.
But it did seem to me that the the understanding of landholding customary law was in fact very thin in many respects.
Many of the surprisingly in a way, given how central land was it was wasn't often very detailed anthropological treatment of it.
And secondly, the legislation that had been introduced since 1994, particularly a pillar very important as a protective device.
But it didn't specify in many respects the nature of rights.
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.
And also, it wasn't really effectively backed, as others have said,
either by an administrative apparatus which could enforce it or strong legal entrenchment.
So let me start briefly with the full well before when any claim that's a bit further inland than this.
This map also in Besonders District. About 880 families were forcibly removed for sugar estates in smallholding scheme.
And there was again, it was 1995.
Papers were initially put in. In 2010, a judgement was eventually made was contested, contested by some of the sugar smallholders.
In fact, against the WHO, African people against the African community,
it was eventually awarded back their land and Judge Ban gave a particularly interesting judgement.
He thought the drifters felt set.
The precedent for this, and Richards felt made fairly strong gate, fairly strong legal backing to the idea that despite annexation,
land rights had survived over the long chain in that part of the north Western Cape.
And we could make a similar parallel argument in relation to important event.
The 1894 Annexation Act didn't in any way see that land rights had been extinguished and think going through the historical evidence,
it seemed fairly clear that land rights customary land rights you could call them survived the proclamations.
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
been made and often in the modification that they say pending the institution of a land registry or something like that,
then this and this will happen. That computer will be.
And in fact, land registers were never effectively set up in those and districts and certainly not in design.
So that a strong set of arguments around that we won,
we convinced judge them as well that this wasn't simply a black government removing land from black people in that sense.
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
remove people was such that it was racially discriminatory and won that case.
But that made an extremely interesting amendment development.
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.
Only a section of land had been removed,
but it wasn't specified that those people who prior to 1927 had lived in that particular area had the rights to that land.
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,
the award was not made to the whole of the chieftaincy,
which was the broader traditional council traditional authority from which the land had been appropriated.
It was made only to the claimants, so the notion of community differed and this seemed to me particularly important.
On the other hand, he didn't go much further than that.
The individual landholders holders, the families who had held land did not get rights to go back to their land.
And to this day, they haven't gone back to their land. And in fact, another set dispute between chiefs and CPA,
at least until when I close heard the issue of whether this land should go back under the control of the local chieftaincy,
or whether they would accept that a CPA should control the land a big area of over 10000 hectares.
It wasn't resolved, so we tried to take these permits, which to some extent the same.
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.
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.
In this case, the middle of a diva chieftaincy longer baloney, the current incumbent or the incumbent at the time,
was very keen to get hold control over this over this area of the world.
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,
forcibly removed to whom any rights should be returned.
And within that, we tried to emphasise very strongly developed the idea that it was families who had the right,
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.
Further, in two ways, the first is to cement the idea of ownership akin to ownership kind of parallel strength of concept,
which had been developed by the Cape Town LLC, originally in the badminton article.
That's better than the Let's Ski articles of 1992 tried to promote that idea, but also critically for me.
In any case was the notion we wanted to get a judgement which said that in customary law, families owned the land,
they owned the residential allocations and they own the arable allocations that did not.
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,
the crux because it also then governed future concepts of how consent to removal might be be judged.
It's not only communities that could give consent, and APRA has a strange wording and set of clauses around this as well,
which we can discuss, and that the date had to be.
The individual owners, and in many respects, for me, this is the Hawks.
This is the crux of many of the things we've been discussing about,
even potentially some of the issues of power relations in the former homeland areas and within the space.
How to establish this in law? Well, to cut a very long story short, and that was involved in the case as well.
There were two days of such inspections which were very fascinating and exciting,
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.
But in a sense,
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
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,
decide to look like down in the in the summer, which I must say is a very beautiful area.
And if you've been there and. And out of the bushes, he plucked a three legged pot and sort of held it up.
You could just see the judge's heart. In fact, there were many factors in deciding the case.
It might be that the central factor was that sudden decided pretty much at the last minute that they were weak on various things.
But a critical element was that the documentary evidence around the corruption involved in the fist allocation of the cyclone about 1980,
which quite clearly showed that the Matanzas and others and politicians have been bribed,
was in hand, and some probably thought that it may not be such a good idea from the point of view of their
image there to have this school rehearsed again in a public context and much be a factor.
But anyway, they decided the legal case was not strong enough to contest the major settlement of the two days of such inspection,
and these issues were never heard in court,
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.
I think many of the ideas that were developed to the case were accepted,
but explicitly they were not, and they were taken into court any witch hunt was involved in.
And in that case, there was a judgement that there was a judgement, but it was a judgement on other issues,
fundamentally a very important judgement around the strength of the purer.
And in my reading was.
At least in the jurisprudence so far, the moment at which appeal rule was interpreted to have most strength compared to the initial jurisdiction,
certainly the the limited litigation there had been before around that act.
So it too hasn't specified clearly, at least by a significant court, what the nature of rights or to customary land.
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.
And this seems to me a fundamental issue and is the route to go through the
courts where you can see that it's problematic because lawyers don't litigate.
In a sense, what lawyers litigate for different motives and the LC 50 guests for a range of motives.
But and some of these might be to try to get the entrenched entrenchment of certain ideas into the law.
But of course, if your clients are offered a settlement, that's got to take precedence.
In other words, you can't litigate simply to get those to get those principles entrenched.
So the legislative route has proved particularly problematic.
Correspondence constitutional. It took a very long time for 2017 to the definitive Alternative Communal Rights Land Act was published.
It's so complicated that I think that most people agreed it was an implementable.
There were a significant number of responses,
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.
You know, it may be an improvement on what there is.
No, it does define certain things, and it opens the route to the kinds of definitions of family rights that I've articulated.
But it's such a complex route may not, and to my knowledge, the bill has pretty much died.
I don't know if anybody else has information about it, but there was a long consultative process,
so I wouldn't say things are things remain very undefined.
This seems to be a central area and needs of the courts thus far, nor the Legislature have been able to tackle it.
And it is so controversial, of course, because it cuts directly into all of the issues we were talking in the earlier sessions
as to which level as to who controls land and what the notion of ownership should be.
Should we find some authentic notion of ownership? Or should, as we argue in the book rights to that and move towards a single,
unified notion of ownership within the country as a whole, and this will give people the strongest rights to land.
Thank you. As annulling the changes that Pope and I just want everyone to just get this in their minds.
William's presentation was on the right. The next case comes immediately to that to the South.
The Left. I think so.
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.
And as pots were being excavated seeking redress for the loss of land to the wild because some seno.
Our clients to the south of the Zambo River in the core of any community were
gearing up to resist against another form of multinational extractive ism,
open cast dune mining of their coastal dunes.
And so that helps frame quickly my topic, which, as I understand it, is discussing two recent judgements one of the Constitutional Court.
One of the High Court looking at the Interim Protection of Informal Land Rights Act Pilbara.
It's against mining in Democratic South Africa and considering citizenship and accountability under customary law in that framework.
And of course, before I start a few disclaimers,
the first is it's always difficult presenting to an audience with varying degrees of background knowledge.
So today I'm here presenting to people who are learning by cultivating for the first time.
We also have three out of the four advocates, barristers who argued the case in the audience.
Fellow attorney on the case, two of our expert witnesses. So it's almost like a reconvening of the bench.
So I'm going to try try to go down the middle without sort of leaving people behind or boring people.
But I only actually realise that particular difficulty yesterday and I've been more preoccupied with with other anxieties.
And that's the intense anxiety of trying to prepare a presentation fitting for this occasion.
I'm very much a practitioner in the work of being entirely absorbed with my clients day to day
challenges and with no time or really capacity to reflect meaningfully in an academic sense.
So presenting and trying to have meaningful reflections for the brilliant and rigorous minds who are here today, I have to say,
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
sort of faint line in the conference's abstract that we're partly here to discuss the manner in which these things,
these issues are being litigated in South Africa's courts.
And from Kate's statement today that we're here to draw scholars and practitioners together,
so discussing the day to day practicalities of litigation,
this is definitely my day job so that I can do and whatever,
whether I offer anything useful for the scholars, it is up for them to decide for better or for worse.
And from the morning's discussions, Tamika, I think, made a really vital point about the need to, even in these spaces,
democratise customary law by taking people ordinary people seriously and allowing their voices to penetrate the space.
And it's not as hard of a burden as an attorney because taking ordinary people's statements seriously,
taking client statements seriously is really a day job.
We don't do anything else, and it's it's a relief almost to be a mere creature of instruction,
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.
And the that is, in essence,
the story of the baloney judgement of a remarkable community insisting on a clear articulation of their own customary law,
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,
giving with that crystal clear, crystal clear mandate.
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.
Any discussion of land rights and the intersection of land and mining in South Africa,
of course, needs to start with the colonial and apartheid history.
A story of plunder. A story of dispossession. So that's generally was wide scale.
They often wide scale dispossession to make way for extraction,
and with the alternative mode of extraction being selecting traditional leaders amenable to the state and ruling through them decentralised despotism,
as Mamdani said. And with that framework, thirteen percent of land was left, 87 percent reserved only for white people,
13 percent at most for black people and specifically in the context of mining.
There was at least the opportunity for right to say no to multinational,
to large local capital and to multinational capital to negotiate deals on very favourable terms as a landowner.
And, of course, either dispossession or nepotism for black people.
So in that context, we move then to what's what we hope to be a strong disjunction.
I think the a strong break from the past and I think the example that Williams is
walked us through the wild sun really encapsulates the aspirations of what we had,
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,
which Section 25 speaks very strongly to both in terms of restitution, restoring people's rights that they lost between 1913,
restoring their rights to that land redistribution,
having equal access to land outside of the scope of restitution and then very importantly for this case, tenuous security.
So people who didn't have secure tenure because of this racist history were then supposed to be brought
brought tenuous security and that specifically mandated by Section 25 six of the Constitution,
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.
And in this context, we're talking about the interim protection of Informal Land Rights Act,
a period which is a mouthful, and it's a very simple, very, very short, but very powerful act.
It's five sections long, and I've really pulled out the crux of the section you can just take.
It applies to different forms of informal tenure, but specifically in this context, you can take that it covers customary law,
and it says no person with informal land rights may be deprived without their consent.
And Section two to then says consent on communal land must be in terms of the custom and
usage in terms of the customary law with subsection two for says this is the minimum floor,
it's a majority vote of people of the specific rightful this court for that purpose.
And in looking into this,
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.
It's sort of constant litigation around title deeds just within one city or one municipality,
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.
Also, in terms of the transformative aspirations of the Constitution,
we have a because statements aside, we won't get into what it might have specifically been intended to,
but we'll take what it says for granted, for granted, for this, for the purposes of this presentation, at least for now.
The new idea was passed specifically to make provision for equitable access to minerals for all of South Africans,
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.
Addressing that by changing fundamentally transforming the seeking transformation and empowerment, according to the Constitutional Court.
Ben Glenarm and one of the key changes under the act was making the state the custodian of all minerals,
so ending private ownership of minerals and allowing the state to manage minerals for the benefit of the nation.
And Section 23 as the major idea, which provides the requirements to get a right to extract the minerals and profit from them,
required expanding opportunities for historically disadvantaged persons, regardless of the company.
Section then provided for charters to provide for equal access to minerals and as part of addressing injustices,
the right to say no for communal landowners was taken away to make sure that people who
benefited from apartheid dispossession don't then again benefit by being able to rent,
seek from the land, from the mineral on the minerals that they sit over.
So not only did they lose private ownership, they also lost the right to say no.
So once the mining rights granted,
there's a limited real right to real right and property to access the land to the extent you need to to start mining.
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.
They can get compensation for the value of the land that losing that they're not supposed to be
profiting at the expense of the nation at the expense of historically disadvantaged persons.
But according to some numbers, 90 percent of the new mining has happened on communal land, on land that was legally insecure,
secure before for so, not only had communities moved into democracy and just finally had the possibility of mineral ownership.
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.
So through that the fundamental principle that companies then asserted,
backed entirely by the report by government, was that no consent was necessary.
But layered onto that, as we've discussed with the Framework Act,
was that a government was pushing people to then then sign deals with traditional leaders.
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.
They've made the decisions and and that was also powerfully back, importantly backed by the problem of land reform.
And what do you then see is mining starting? And very rarely were there formal eviction applications to remove people's needs?
And what actually happens is mining starts in areas that aren't aren't being used,
and as mining operations begin, they start striking once off household deals.
People who are eager to move and with the hope of getting jobs and the people who hold out gradually blasting what's happening.
This cracking in their homes and their entire social fabric has been destroyed.
So you have issues of crime issues of stock theft and you lose your ploughing fields to sustain yourself.
So people are forced, then evicted through constructive eviction.
That wasn't what was intended, but that is the effect.
And so in that context, we move swiftly onto the Valetini case and I'll come to at the end.
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.
Are advocates prepared that on the wild coast, there's an area called in England.
It is a coastline area of immense natural natural beauty,
and the sands of this beautiful coastline are also rich in titanium and you can sort of see the pictures behind it.
And so in terms of getting to the nitty gritty of litigation, the main the main task even for addressing the legal question,
was setting the scene and trying to paint a picture for the court addressing what is your yes,
thousands of kilometres away in a unwelcoming space of the Pretoria High Court?
And how are you going to have your eyes to understand the context that our clients are facing?
So that very much led off with affidavits from our clients attempting to give effect
to our very clear instructions that we have from then on how land is being used.
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,
fighting under the Pondo revolt to defend their land against apartheid oppression and thus
the shock of having to again defend their land against the government that they had voted,
voted for. And in that our clients were really the lawyers and we were really the scribes
that that they gave evidence about their customary law and very detailed,
rigorous set of rules and practises around how decisions are made about land.
And I won't have a chance to go into those details.
We can send the papers. But what was very clear is multinationals being granted their land without their consent was not contemplated.
So out of that, we took their individual stories.
We had an in-depth focus groups expert affidavits, including Thank you by Professor Beinart.
We've put together to give a picture,
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,
including tourism, agriculture, we and the potential for a green economy.
We then had an affidavit about experiences of mining stories from some of our clients who have been swept off their own land.
LED by an affidavit from the Benchmarks Foundation to say You can't, you can no longer accept mining as this uniform.
Acceptable good. You need to interrogate that and allow communities to make their own decisions
about what is good and what is bad in terms of what they currently have,
what they might be able to do with alternatives, and what what they can achieve through mining.
So out of that, we then sort of move a bit into the legal argument,
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.
And we we said that that's it is what it says.
Consent a right to consent means a right to say no. And so the counterargument to that is the FDA must trump.
It meant to take away the right to say no. And but but in looking at that,
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.
And the goal to transform by removing historically advantaged people's rights.
The only plain text is that section four of the media says common law rights are specifically exempt.
Absolutely signed silent on statutory rights pillar.
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,
three of the Constitution says at customary law applies subject only to the Constitution or statutes are specifically regulated.
So if Hillary specifically regulates and defends customary law rights,
the media is silent and just based on that simple text that that that was our argument,
of course, bolstered by international law, which I won't get into,
but also bolstered that most significantly by the powerful arguments that our clients made.
And, of course, by our brilliant team of counsel.
But after we had argued the case, we were alerted to an eviction order granted in the Northwest High Court, moving its way throughout.
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.
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.
So I won't go into detail. There's not I won't go into detail,
but essentially it's people who purchased land collectively and were not able to have it registered in their name under apartheid,
under the members of the Bahala community,
but with their own distinct identity as land buyers who asserted their right to make decisions over their own land against the traditional council,
which had incorporated a company,
sterling behind the mineral resources that that was granted mining rights over the land and signed a lease with itself.
The company signed a lease with the traditional council with classified land on both sides.
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,
as the Lawyers for Human Rights obtained a spoliation order and order asserting that possession if they could only
be removed through a court order stopping that and that that forced the company to bring an eviction application,
which was granted by the High Court Supreme Court of Appeal in the constitutional argument.
The the what the courts.
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,
but saying that section fifty four of the order provides for compensation for the loss of land
rights and provides for that via agreements or via adjudication by a court or arbitration.
So failing agreement confined to the Pilbara.
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
with at least before mining stocks in less compensation is determined in advance.
The second being that at a lease approved of the department had no objection to
that signed by traditional counsel and not signed in terms of a thorough was,
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,
a case that Michael discussed came down, then the melody, judgement and then blame,
which I just want to end quickly with a reflection for further discussion,
which is very aligned with what William was saying, which is so we've now established a right to say no.
What does yes look like? So what do custom-made legal rights provide for?
And I think quite powerfully,
our judgement also got a declaratory order on what the customary law rights of the decision making legal pull of any less.
But now what does this look like in terms of the modalities of the customary law and also in the mining context?
What does fair and just compensation that ensures communities in fact actually benefit from mining,
which they have not over this disastrous 15 years under the MPR?
So that's that's quickly my thoughts and and I'll sit down and make way.
Thank you very much for your patience. Good afternoon, everybody,
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,
but attorney would come and actually started the case like, yeah, my own senior counsel argued the case this year.
And one of our expert witnesses is also here. So I'm.
So the heart of the case is about whether when the government creates a marine protected area and prohibits all fishing in the area,
whether it's a criminal offence for a person with a customary right to fish, to fish in that area.
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,
particularly to issues around extinguishment of customary rights and relationship between customary rights and the environment.
And then lastly, about the impact the case.
So this case called the concern that to the community, which is also in the Wild Coast and the Trans Scotland Basheer River,
about 300 kilometres south of them, confront global community seven and a half hours by road, according to Google's Maps.
Be much quicker if they were just building.
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.
And this is the way that the High Court described the practise of fishing.
They understood the nature had a way of protecting itself and that this is what regulated their harvesting,
the tides and the weather to not allow them to go fishing every day.
They will said their own way of making sure that there would be enough fish for the generations to come.
Having been taught by their fathers and elders not to take juveniles and to put the small fish back,
these rights were never unregulated and were always subject to some form of regulation, either under customary law and traditional practises.
And so this community was evicted from this land in the 1950s and then in the 1970s under the veterans.
And they lodge the and the area was made into a nature reserve.
They then launched a successful restitution claim,
but they became the owners of the land through a communal property association and part of the settlement agreement they concluded with
the government in the restitution process included a clause that they would have access to the forest and sea resources in the reserve.
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
Marine Living Resources Act and the only no take marine protected area in the country,
so no fishing would be allowed at all are many other marine protected areas, but some fishing was allowed normally by recreational fishers.
And when this decision was made in 2001, there was zero consultation with the community and zero scientific basis for it.
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.
And the intention at the time was to make it criminal for the community to fish there.
But nonetheless, the community continued to fish for several years because the law was not enforced until around 2005,
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.
Then in 2010, three people David Concus, a swimmer live in Dorset and coastal undulate user,
were arrested for fishing or attempting to fish in the reserve. And they were tried in the magistrates court for a variety of offences.
But the main one was for contravening Section 43 to a of the Marine Living Resources Act,
which is no person shall in any marine protected area without permission.
Fish or attempted to fish.
Now that these people were represented by the Legal Resources Centre and there's a loyal, deployed cadre of legal resources,
they need to point out that unless analysis has played a role in a lot of the cases that we're talking about today,
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,
so that the first issue that had to be dealt with the magistrate's court before I get
to the interesting legal stuff is whether they were actually customary rights or not.
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,
I think, must be one of the most unusual cases ever heard in the Elliott Vale Magistrates Court.
I wasn't actually there, but we had there, was learnt counsel from Johannesburg who came down to grace the court.
American experts, you speak to Mr. Also another expert from Cape Town, Mr. Yelwa Zelikow,
who was the traditional healer from the community and the first accused will testify as well as an expert from the government.
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.
I think Jason knows which, but I'm going to quote so this is the prosecutor cross-examining the first accused and
so that the key issue that he was trying to ram home again in the game the game is.
But you know what the law is and you're violating the law.
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.
There's a man that came from England. You know where England is, Mr Prickle, your worship.
I must object entirely this line of questioning sarcastic question whether the accused knows what England is is really not necessary.
Prosecutor, it is not a sarcastic tone at all your worship. It is indeed a question put to him.
I know that he hasn't been schooled, so I'm asking the question whether he knows what England is.
It's a basic question. Court Yes, proceed. I want to hear your answer.
I don't know. England prosecutor.
It doesn't matter, but it was a vital question, but it doesn't matter this man's customs.
This man that comes from overseas is customers to drive on the right hand side of the road.
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.
You come to South Africa. The losses drive left. What does the man do?
What does the man do? Answer, get injured? So we had great plans anyway.
So the magistrate concluded that we did have customary rights to fish in the reserve,
but nonetheless that the conduct was criminal because it was criminalised by the statute.
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,
that if it wasn't then that the act was unconstitutional or that the declaration of the
marine protected area was unlawful because there's no consultation and no rational basis.
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.
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.
So the case had lost a much broader impact within that particular area.
But it was really just about these three people who had been accused,
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.
So we had to take a late flight to East London and arrived in Qatar about two o'clock in the morning.
I think still managed to argue the case, but we lost in the High Court.
The High Court agree that there were customary fishing rights,
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.
So it was unlawful and that the our customer rights was subject to the right to a healthy environment.
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.
Interestingly, again, we had we got the bomb container at about 2:00 in the morning. I want explain why,
but the SCA accepted all accepted the existence of the customer right for the same reasons and then
accepted our core argument and the core argument based on section two one one three of the Constitution,
which is the courts must apply customary law when the when that law is applicable,
subject to the Constitution and any legislation that specifically deals with customary law.
So our argument was customary rights can only be extinguished by legislation that complies with Section two one one three.
Marine Living Resources Act is not such legislation because it doesn't mention customary law.
Therefore, the rights continue to exist.
Therefore, fishing in accordance with those rights was lawful and therefore our clients should have been acquitted.
And so the court referred to various Canadian and Australian cases that deal with this issue and were quoted in kids and then said,
But this is all irrelevant because we can just read to one on three and that means what it says.
And so it says this is the test for extinguishment of customary law rights.
First, a custom right can only be extinguished by legislation, specifically dealing with customary law.
And secondly, that such legislation must do so either expressly or by necessary implication.
So if it doesn't, the law doesn't specifically deal with it. The rights continue to exist,
even if it does specifically deal with customary law continues to exist unless it is expressly or by necessary implication, extinguished.
And it rejected the exemption argument that had been raised by the states, which was effectively.
Well, you could have got to ask the minister for an exemption and then you would have been allowed to fish.
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,
then you have no right to in the same position with any other person who's asking for an exemption.
So the right thing would in fact, have been extinguished.
And so this is this is a different and stronger case than was applied in Alex call for the pre constitutional extinguishment
of customary law rights where a right can be extinguished if the government had rendered the exercise of the right unlawful.
So that's no longer the case, but post constitutional rights. And what does this mean?
So writing? Lehman wrote an article about the magistrate's court case, and he said, it's very interesting.
She said it's very interesting.
But if this argument had been accepted, it would have far reaching implications for the validity of all general legislation,
which regulates rights that exist under both common and customary law.
Environmental legislation would be particularly affected to mean that whatever legislation is passed,
the Legislature would need first ascertain the existence of any applicable customary law and reflect that awareness in the text of the legislation.
Well, yes, exactly. That's exactly what the consequences.
So I think that it has consequences both for existing legislation that didn't consider the law,
didn't consider customary law and which therefore has to be taken together with the custom people without extinguishing those rights.
And I think, perhaps more importantly, has consequences for legislation going forward because it compels the Legislature
to consider customary law directly in the legislation making process.
But it's still in the judgement, still use a lot of unanswered questions, so what does specifically deal with me?
So one of the arguments we made in the ACA to sweeten the pot for the ACA was that after the imagery was amended,
it created rights for quite small scale fishers who were defined in part with regard to customary law.
As we said, well, not the new law is two one one three legislation. So your judgement won't have any effect.
We won't have suddenly all these people going off and fishing in marine protected areas.
I mean, which is a very good, very clever tactical move by the advocates, but I'm not sure it's right in law.
I'm not sure that the legislation does actually specifically deal with it.
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.
So in Blaney, the court said it's not, but it does actually deal with customary law,
and it deals with communities that are defined with reference to customary law give them particular types of rights.
So how specific does it have to be before we say it specifically deals with it?
And another just two other issues that come up is obviously we know that customary law varies from community to community to community.
So when we say more specifically deal with customary law, what does that mean?
Does it mean that we expect the Legislature when it's now enacting legislation to consider the different practises in each and every area,
whether it is, for example,
customary fishing or candidates that you just consider customary law generally and then extinguish all customary rights without considered.
Considering the differences and the nuances between those different rights and having the latter one seems the only practical way to do it.
But that really undermines what the court has said and what the Constitution says
about living customary law and customary law that varies from community to community.
Another question is what happens if the customer develops so that legislation is passed purporting to regulate a customary right committee says,
Oh, that's interesting what we're going to develop our customary law. And so now we've developed it.
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.
I mean, I'm not. And you can think about situations where that would make sense.
Otherwise you'd be preventing the rights of communities to develop their law, to adapt to legislation.
But it could also be easily abused to get around the legislative intent to deal with casting law.
So turning to the second issue about how the court dealt with customary law and the environment so often,
particularly in the fishing context, this is treated as a zero sum game that it's the right of.
Custom officials are pitted against conservation imperatives and often relying on the precautionary principle that, you know,
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.
So, I mean, in this case, there was zero scientific evidence about the need to make this no takes on, literally nothing.
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.
But this High Court still found that it that the customary rights could be limited because of the risk to the environment.
And the SCA rejected that argument and two reasons. The first was to reject the false dichotomy between customary law and environmental protection.
So said the customary rights and conservation can coexist, and it's important to remember that as regards conservation and long term,
sustainable utilisation of marine resources to prohibit communities have a greater interest
in marine resources associated with their traditions and customs than any other people.
These customs recognise the need to sustain the resources that the SEA provides.
So sort of breaking down this false dichotomy.
The second one, which which comes to something Lindsay said earlier was, I think it effectively creates a hierarchy of custom customary rights.
So one of the arguments is that in the Constitution sections 30 and 31, which give you the right to practise your culture,
you have to exercise that consistently with other rights in the Bill of Rights.
So the argument in the High Court was, well, that's subject to section twenty four.
So Section 24, the right to a healthy environment effectively trumps your right to custom under Sections three and three one.
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,
and an environmental protection and conservation mandated by Section twenty four self-evidently is a valid, legitimate concern.
And then but that is not the end of the Constitution's protection of customary rights.
It also protects them from interference other than through specific legislation contemplated in section two and one three.
The MRA was not such legislation. So it's as if it's a customary rights.
Then you get additional protection under two and one three,
which doesn't apply to customary practises that don't rise to the level of customary law customary rights.
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
a it's more of a spectrum of anything that drawing a hard line is probably not a good idea,
but I think that is a hard line in the judgement. Also on the show, it's a proper reading of two or three,
because two one one three says it's subject to the Constitution and legislation that specifically deals with customary law.
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.
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.
So people ask me questions about that, then I can say the rest of what I wanted to say.
But the first thing is just a few thoughts about the strategy in the way that the case was litigated.
So as I've mentioned already, I think it became an easy case because by the time we got to the Constitutional Court,
there wasn't that much at stake except the conviction of these three people.
So obviously there's a precedent, but it wasn't going to immediately have any consequences for fishing in Libya or anywhere else.
The second thing is it was and this is not entirely true because they haven't mentioned there
was a whole parallel review case that we brought in reviewing the decision of the MPAA.
But this case in particular was somewhat eased and a lot of this litigation,
because there were just three clients who we were representing and whose interest we had to advance.
So often when you're doing this type of litigation, you're representing large communities, taking instructions.
It's difficult. Getting the community to agree on a particular course of action is difficult.
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.
So the only way out was was to win. Let's talk briefly, just impacting three areas of customary fishing in South Africa, generally,
it hasn't had much of an impact because the impact was achieved not through litigation,
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.
And so that has really opened up a customary fishing in South Africa.
Now it's a whole bunch of problems, but the small-scale fishing policy and with the way that it's being implemented,
and I think the judgement may have some impact on that to force the government in implementing the policy,
to take customary rights and customary law seriously when it's trying to create these new bodies
through which the communities will exercise their rights but didn't have direct consequences.
Interesting, and there's a legal opinion that the government prepared on this asking about what are the consequences,
but they say, well, because the act has been amended, this new policy doesn't really matter.
And then this was presented in a PowerPoint presentation by the department to its officials,
explaining what you know, they didn't really have much of an impact in the last slide.
Thanks to Becca myself, Derek Bass and Jackie Sunday, he with other experts.
I'm not sure why I'm for for itself so new.
During litigation, new regulations were passed to regulate fishing in the reserve,
and those regulations are extremely problematic because the way that they do it,
that they have limits on the number of people who can fish, where you can fish,
what times you can fish that are unrealistic, impractical and inconsistent with customary law.
So there was a separate review of those regulations that was launched.
While the appeal was still pending, that review has sort of stalled because they've been very well for a number of reasons.
But one of the reasons is because it means problems in the community about getting agreement, about the correct way to go forward.
So as is in many of these communities, there's the divisions between, in this case,
a working group who is challenging traditional authority and those in the community who support the headmen and the chief in the area.
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,
to his house has been taken because of these tensions and perceptions about who he supported or didn't support.
So and it's unclear what's going to happen in the future with the community,
whether they're going to be able to organise in a way that they're able to assert their rights.
And lastly, just the consequences for other areas, I think the judgement has really important consequences outside of fishing.
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.
The pillar is therefore you must comply with the bill.
The custody rights haven't left. But I think it's also got the consequence that even if it was repealed tomorrow,
it wouldn't make a difference to the legal position because those customary rights,
which it fully recognises, don't rely on each other for their existence.
They're there, they haven't been extinguished. So pure.
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.
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.
So, for example,
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,
where they traditionally lived and were evicted from again for the principle around whether there was an extinguishment of their rights.
So they were evicted and there were various regulations of how people could hunt or use access to the reserve.
But the argument as well was never actually extinguished, so they still have an Aboriginal title claim.
And I also think lastly of nation now it might have consequences for cases around traditional governance.
So if you if legislation is regulating customary law but isn't expressly of unnecessary implication extinguishing customary rights,
you have to demand accountability from traditional leaders, those rights that exist and they must be read together with the legislation.
I think.