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Justice delayed is justice denied: The toll on Western...

Defend Truth


Justice delayed is justice denied: The toll on Western Cape’s small-scale fishing communities


Sibongiseni Gwebani is the media and communications officer at the Masifundise Development Trust.

The lack of recognition of customary rights has contributed to the challenges faced by artisanal fishers, particularly in the Western Cape. Small-scale fishers are prohibited from entering their traditional fishing grounds and securing their livelihoods.

On 20 February 2021, Minister of Environment, Forestry and Fisheries Barbara Creecy announced that she would approach the Western Cape High Court to scrap the process of awarding small-scale fishing rights in the Western Cape and to review and set aside the verification process that was undertaken to identify fishers who qualify for those rights.

She wants the entire application and appeals process redone. This decision is based on the outcomes of an audit of the implementation process that was commissioned by the minister in 2019. This audit concluded that the verification process was “wholly inadequate and that the results of the assessments cannot and should not be relied on for any decision-making purposes in terms of the regulations”.

Although many fishers welcome the decision, it will cause even more delays in a process that has dragged on for years and has denied fishers the basic human rights which are their birthright.

Small-scale fishing communities have spent nearly two decades fighting for their human right to food, livelihoods and recognition. In 2005, small-scale fishers and Masifundise Development Trust — an organisation working with small-scale fishing communities — took the department responsible for fisheries to court and argued that the Marine Living Resources Act regulating fisheries was not aligned with the Constitution as it failed to include small-scale fishers and denied them their human rights.

As a result, in 2007 government agreed to develop a Small-Scale Fisheries Policy, gazetted in 2012, that would recognise the injustices of the past and the rights of fishing communities to exercise their traditional and customary fishing practices. It would also enable them to promote their development on the principles of equitable access, gender equality, participatory governance and the promotion of local indigenous knowledge.

In 2016, the Department of Agriculture, Forestry and Fisheries began implementing the Small-Scale Fisheries Policy through the process of registering cooperatives along the coastline.

From the beginning of the process, coastal small-scale fishing communities expressed their dissatisfaction with the department’s approach to policy implementation as the verification process put in place failed to include many bona fide fishers, even some of the applicants in the 2005 equality court case.

Other issues were raised with the top-down approach of the department in how the cooperatives were being registered and in drafting their constitution, as well as the limited training offered by the department for the successful management of their cooperatives.

Masifundise and Coastal Links, the national community-based organisation representing inland and coastal small-scale fishers, have constantly highlighted the deeply flawed implementation of the Small-Scale Fisheries Policy and pleaded with the department to correct its approach.

It was only in 2019 that the newly appointed Creecy decided to commission an independent audit. It took more than a year for the audit to be completed. It will take another year for the verification process to be redone. Delay after delay. Many fishers have died waiting for the fruition of this policy to dignify their livelihoods.

While it is important to note that although the redoing of the verification process will only occur in the Western Cape, the audit findings clearly point to fundamental flaws in the department’s undertaking of the implementation of the Small-Scale Fisheries Policy in the rest of the country as well.

Small-scale fishers suffered many challenges as a result of the way the Department of Agriculture, Forestry and Fisheries chose to conduct the Small-Scale Fisheries Policy implementation. Communities are excluded from fishing rights. Cooperatives are failing due to inadequate training and support. There is no co-management and there is a lack of consultation when it comes to customary rights and other fisher issues.

The lack of recognition of customary rights has contributed to the challenges faced by fishers. Small-scale fishers are prohibited from entering their traditional fishing grounds and securing their livelihoods.

The implementation of the Small-Scale Fisheries Policy has threatened the inalienable human rights and livelihoods of small-scale fishers and has created a fertile ground for the erasure of traditional and cultural practices that inform fishing communities.

Marketers in the sector have begun to infiltrate and exploit the challenges faced by small-scale fishers and their cooperatives. They masquerade as middlemen in small-scale fishing communities, enticing fishers with upfront cash deals and contractual agreements that leave fishers in cycles of debt in the long run. With no regulatory body to hold them accountable, marketers continue to scam and swindle fishers out of their rights and livelihoods.

Large-scale fisheries businesses are also trying to profit from the rights allocated to small-scale fisheries cooperatives, proposing deals that would take away the opportunity to develop localised value-chains and desperately needed jobs for women and youth in fish processing and marketing.

Small-scale fishers form part of the social fabric of many coastal and inland fishing communities. Their existence is embedded in a wealth of indigenous knowledge and customary governance of marine resources. They play a vital role as food producers providing crucial animal protein and are essential for nutrition and food security. Small-scale fishers rely on fishing as both a source of income and to put food on the table.

We ask: How long will fishers continue to wait for their human rights to be realised? Justice delayed is justice denied, and the crisis in the small-scale fisheries sector must be addressed nationally with urgency. DM


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All Comments 2

  • Fishing is exploitation of the commons. If everyone fished, hardly anyone will succeed. To protect a commons, a government is needed for adjudication. It follows that fishing is not a birthright.

  • Masifundise is doing important work to support coastal small-scale fishing communities in order to find long term sustainable solutions. Thanks for raising this issue in human rights month, Sibongiseni.

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