Unfortunately, in South Africa right now, this romantic ‘Old Man Of the Sea’ would be a criminal.
The Marine Living Resources Act, 1998 (MLRA), which regulates fishing rights, has a grey area when it comes to residents who have been fishing for themselves for generations. In the past they were classified as ‘subsistence fishers’ (people who fish purely to feed themselves). But when the MLRA was amended in 2016, this definition fell away. So this old fisherman, his family, and the community that has lived off the sea for generations, may have no protection under the law.
This is something that Anthea Christoffels-Du Plessis, a researcher with the Nelson Mandela University Faculty of Law, is determined to help change.
“There was a class action in 2006/2007 challenging the previous provisions in the Marine Living Resources Act of 1998,” she says, “which also highlighted the shortcomings of the Act when it comes to customary fishers. As a result, the South African government was compelled to adopt a more human-rights-based approach and they drafted the Small-Scale Fishing Policy. It’s an improvement, but still inadequate. The Small-Scale Fishing Regulations of 2015 and the amended MLRA do not speak to each other.”
“For instance, in 2012 fishers from the Dwesa-Cwebe community were arrested and charged for contravening the MLRA, because they were fishing in a marine protected area without a permit. After years of litigation, the SCA finally decided in 2018 that the MLRA neither extinguished nor preserved customary rights, that subsistence and customary fishers were similar but not the same, and that the customary right renders fishing without a permit lawful.”
“So the effective implementation of the law is problematic and the role of customary fishing rights remains fragmented. There is no criteria for classifying customary fishers and what resources are available for their use.”
Anthea has no connection with fishing or fishing communities, but like any good human-rights public lawyer she saw a gap in legislation that needed to be filled. Her research is therefore aimed at proposing a clear and unambiguous definition for a customary fishing right to identify this sector as a distinct class of rights-holders worthy of legal recognition and protection.
This lack of definition also makes it impossible to count just how many people fall between these legalistic cracks. The Department of Fisheries reported in 2017 that there were more than 300 fishing communities in South Africa, comprising perhaps 60 000 households. But there are no figures to determine how many customary fishers there are. That is one of the core reasons why Anthea is doing this project.
“My research is purely legalistic,” Anthea says. “I have been perusing case studies and legal precedents and literature both domestic and international to learn what laws and policies are in place in other countries. I chose Canada and Kenya as case studies... Canada because it is a first-world country with indigenous minorities that practice customary fishing for subsistence, culture and spiritual reasons, and Kenya because of the large populations of fisherfolk that depend on the sea for their livelihoods and ways of life.”
Commercial fishing has gobbled up many fishing opportunities, and one of the complaints from commercial fishers is that small-scale fishers infringe on their territories and quotas. However, in Anthea’s opinion, the opposite should be the case: large factory-fish operations should rather be compelled to make way for the small scale fishers, who have grassroots community involvement and play a role in food security in poor and marginalised communities.
For the thousands of young people who want to earn a living the way their fathers and grandfathers did; for the families and communities whose way of life is built around the wash of the sea tides and the regular return of the fishing boats, Anthea’s work offers a lifeline. It gives these communities rights and dignity. It allows them to cement their relationship with the sea - that gives them hope, a livelihood, and a sense of place.