David Gongqose is hardened to poverty, but five years ago, things got particularly rough after his father passed away. Tangled up in debt, there was no money to put food on the table or to pay for mourning clothes for his mother.
“After the funeral, we had no food, nothing,” Gongqose recalled last week. So he took his fishing rod and headed to the sea, where his ancestors have fished for centuries and where his father had taught him to fish as a child.
Before Gongqose had even cast his line in front of The Haven Hotel next to the Mbhashe River on the Wild Coast of the Eastern Cape, four park rangers pointed rifles at him.
He and two friends were arrested, accused of trespassing, handcuffed and jailed over the weekend.
Gongqose’s crime was that he had gone fishing in the Dwesa-Cwebe Nature Reserve. This was land that had been returned to Gongqose and the impoverished Dwesa-Cwebe community in Hobeni in a restitution deal in 2001. At about the same time, the land was declared a marine protected area and a “no-take” fishing zone.
In court papers, Gongqose recounted what had happened on the evening of September 22 2010.
He said he had a customary right to fish on a sustainable, regulated basis.
Convicting Gongqose on only one of four charges under the Marine Living Resources Act, Elliotdale magistrate Greg Nel imposed a suspended sentence. Taking a sympathetic view in what was hailed as a first for South Africa, Nel said the fishing ban amounted to a “complete extinguishment” of customary rights and he indicated it would be unlikely to pass a test of constitutional validity.
Gongqose’s battle to access the sea has now become a test case for customary rights. His appeal will finally be heard in the Eastern Cape High Court in Mthatha on November 13. It has merged with a broader challenge by the Legal Resources Centre – which has taken the decision to declare the area a marine protected area – on review, arguing that there was no consultation and the decision was, therefore, unconstitutional.
Even the government acknowledged the need to review the no-take policy as far back as 2005. Negotiations have been ongoing, with draft regulations drawn up. Yet after more than a decade, the ban is still in place.
And impatience is growing. Gongqose is among the signatories to a petition calling on the government to give the community immediate interim access to marine resources. Saying they are “poor and hungry”, members are dissatisfied that despite the restitution deal being signed 14 years ago, “there is still no change”. The fishermen and mussel harvesters warn that if their ultimatum is not heeded by Thursday, they will stage protests in the protected area.
A University of Cape Town researcher and an expert witness in Gongqose’s trial, Jackie Sunde, has documented the consequences of the no-take policy, which has been aggravated by a ban on recreational fishing that The Haven Hotel had depended on to draw tourists to the area. Locals have been chased off or had their rods confiscated.
“If they are arrested, they often can’t afford to pay their bail or fine, so they can sit in jail without seeing their family for six months,” said Sunde.
A dossier by the Transkei Land Service Organisation in 2011 called on the Human Rights Commission to investigate allegations of abuse against park rangers. Tensions have escalated. At least two locals have been shot dead by rangers for trespassing and a ranger was killed.
For Gongqose (53) the extended wait is taking its toll. Speaking by cellphone after walking at least 45 minutes to charge it overnight at The Haven Hotel, he said: “People have nothing here where I live. There are no jobs, there is no electricity.”
Sunde said the Mbhashe Local Municipality had the highest rate of poverty in the district, coupled with a 78% unemployment rate.
“My culture is the sea,” said Gongqose, adding that the fishermen and female mussel harvesters continue to take their chances, “because we have nothing”.
“If we get permits to catch four or five fish a day, that is better than nothing,” said the father of four.
Zolile Nqayi, spokesperson for the department of environmental affairs, said it had taken note of the memorandum from the community and was considering the request.
On the court challenge, he said it was unfair to expect the department to find the document that had led to the protected area being declared as this had happened a long time ago. There had also been a split in departments, and some officials and ministers had left over the past few years.
“However, the department is in the process of finalising regulations, which will give access to the communities to continue fishing in certain zones of the protect area,” said Nqayi