The Systematic Exclusion Of KZN Subsistance Fishers: An Ill-Suited Regulatory Framework That Poses A Threat To Their Food Security

A collaborative effort by Nokuthula Mbele and Sipesihle Mguga –
Legal Resources Centre Land Programme.

For many generations in South Africa subsistence fishers existed on the periphery, unrecognised and unseen by the State. They were formally recognised after South Africa’s rights-based Constitution ultimately guided the formulation of legislation on the use of the country’s marine resources. The Marine Living Resources Act 18 of 1998 (hereafter the Act) recognized and defined a subsistence fisher as “a natural person who regularly catches fish for personal consumption or for the consumption of his or her dependants, including one who engages from time to time in the local sale or barter of excess catch, but does not include a person who engages on a substantial scale in the sale of fish on a commercial basis”. For the first time in South African legislation, subsistence fishers were recognized as a distinct group whose rights needed protection.^[1] Subsistence fishing is a sub-category of small-scale fishing, but the regulatory framework for small scale fishing fails to protect and support subsistence fishers’ efforts to fish for subsistence. In the absence of the required and long-awaited regulations to the Act, the harassment and intimidation of subsistence fisher folk, the spectre of colonial and apartheid-era practices of inequitable access to ocean resources by poor communities is being perpetuated.[2]

In 2012 the Minister of the Department of Forestry, Fisheries and the Environment (the Department) published the Policy for Small-Scale Fisheries Sector in South Africa to provide  redress and recognition of  the rights of small-scale fisher communities that were previously marginalised due to  racially exclusionary laws, policies, individualised permit-based systems of resource allocation and insensitive interpretations of conservation-centred regulation.[3] The Policy acknowledged the constitutional promise of substantive equality and the right to access the means to sufficient food and water. Despite its constitutional obligation, the Department has to date not accommodated the plight of the subsistence fishers in the publication of the Small-Scale Fishing Regulations in 2016.

The Regulations place all the sub-categories of small-scale fishers together as if they constituted one uniform, homogeneous group without appreciating that each sub-category has its own unique needs and challenges. Treating all small-scale fishers as one group may be convenient, but the needs of each sub-category are distinct. Providing for each sub-category (subsistence, artisanal and traditional/customary) may be onerous but the failure to provide accordingly for equitable implementation and protection of the individual sub-categories fails to recognise the customary, cultural and socio-economic circumstances that attract different and diverse causes of hardship, intimidation, and loss of livelihoods for the sub-category of “subsistence fishers”.

The Act requires that the Minister make regulations that are appropriate to the distinctive needs and challenges of the various categories of fishers. That has been done to a large extent for the commercial and recreational sectors. Whilst the state has committed to “the need to recognise approaches to fisheries management which contribute to food security, socio-economic development and the alleviation of poverty”[4]  this commitment to protect or support this objective is contradicted by its failure to amend or read into its regulation to recognise and enable subsistence fishing. Our constitution provides that everyone has the right to have access to food security and that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The state’s neglect of this duty is demonstrated by the gap in the regulatory framework with respect to subsistence fishers.  Consequentially, the KZN subsistence fishers bear the brunt of this failure daily in a manner that amounts to discrimination.

The discrimination was starkly exposed when the South African government declared a national state of disaster in March 2020 to manage the Covid-19 pandemic. To illustrate how the regulation’s failure to recognise and provide for their means to feed their families affects them, subsistence fishers currently must use recreational fishing licences as there is no subsistence fishing permit provided for in the regulations. This is their only option. One of the measures implemented by the Minister to limit the spread of Covid-19 was to prohibit recreational fishing. The subsistence fisherfolk could not engage in fishing as they are deemed to fish for enjoyment per the recreational licence. Although the regulations relevant to the state of disaster were amended in June 2020 to permit recreational fishing, the Covid 19 regulations visited great hardship on subsistence fishers by virtue of their classification as recreational fishers.  In terms of the Act, recreational fishing is defined as “any fishing done for leisure or sport and not for sale, barter, earnings or gain”.[5] These are features that do not define subsistence fishers. Subsistence fishers have far more compelling reasons to engage in fishing activities and deserve certainty by unambiguous regulations that regulate their livelihoods.  

The expectation in the current Regulations for a subsistence fisher to ‘derive a major part of his or her livelihood from traditional fishing operations and be able to show historical dependence on fish to meet food and basic livelihood needs”[6] is an impractical requirement. Although most fishers can ably demonstrate a historical dependence on fishing, not all can and should not be expected to. In practice one can become a subsistence fisher overnight out of necessity as fishing is often one of the few avenues available to the unemployed and poor in the affected communities. This requirement does not advance any legitimate government purpose but instead widens the gap between the ‘haves and the have nots.’

The Regulations requires the verification of subsistence fisher folk that consider themselves small-scale fishers. The verification process determines whether each person of a small-scale fishing community meets the criteria of a small-scale fisher in accordance with specified time periods. The verification needs to be completed before a permit may be issued. To suggest that a verification process be conducted before the permit is issued condemns the subsistence fisher and his or her family to hunger pending the completion of the approval process, which, according to the Regulations takes 60 days after the expression of interest process has closed. Subsistence fishers do not have the luxury of waiting for more than two months to fish as they rely solely on fishing for food. This demonstrates how the Department has either forgotten or disregarded the needs of the most vulnerable fishers when the regulations were drafted.

Subsistence fishers do not necessarily engage in fishing as a community activity by sharing resources and efforts to catch their yields but rather as individuals who fish to feed their families.  Regulation 4(3) also requires that a co-operative must be the legal entity that may represent the community and their interests. Co-operatives are set up as forms of business entities established to market the fishers’ catch.^[7] This does not accommodate individual fisher folk. Furthermore, co-operatives should not be mandatory but rather optional as individual fisher folk who fish to put food on the table and support households do not find a co-operative the appropriate mechanism for the regulation of their fishing activities.

The small-scale fishing regulatory framework does not align with the contribution of small-scale fishers to poverty alleviation using marine living resources for food security.[8] Whilst the Policy anticipated the creation of a framework that accommodates the rights and interests of subsistence fishers, the regulations place obstacles to the realisation of food security and socio-economic development of subsistence fishers, thereby creating a disconnect between the Policy and the regulations. Subsistence fishers like all small-scale fishers have a legitimate claim to fish, but the absence of a supporting governance and rights framework for their activities has marginalised them whilst preference is afforded to other ocean resource users with unambiguous legally defined rights.[9] This renders them invisible and voiceless in the face of better supported and resourced interest groups.

Millions of South Africans struggle with the intersecting challenges of poverty, unemployment, food insecurity and inequality. These intersecting challenges are the democratic government’s greatest test to date with an unemployment rate reaching an all-time high of 34.9%^[10] and nearly half of the adult population living in poverty. The subsistence fisherfolk are no strangers to poverty, unemployment, food insecurity and inequality. With a dense history of respect for the marine living resources for food security, the racial, cultural, social, and economic exclusion of subsistence fishers infringe their rights to human dignity, equality, and the means to access adequate food.

The persistent distorted implementation of laws governing the small-scale fishing industry by contradictory definitions, and implementation are not only confusing, but undermines their fundamental rights as envisaged by our Constitution. The Act’s recognition of subsistence fishers was arguably intended to demonstrate proof of the government’s transformative intent, but progress towards providing the regulatory framework for subsistence fishers has been difficult and slow. This is apparent from the regulations that effectively bar and criminalise their efforts to access adequate food.

In times of the ever-increasing pressure on the marine environment induced by commercial overfishing, foreign trade agreements, tourist-oriented fishing, pollution, and global warming, comprehensive and sustainable approaches in fisheries management that demonstrate a shift to address the pressing needs of food security in our country whilst balancing the sustainable use of marine resources is not an insurmountable task. According to Sunde and Erwin, subsistence fishing has  low catch rates and should not be interpreted as a threat to conservation when compared to the larger  recreational and tourist fishing sector that are ironically afforded far better protection by the law.[11] There is little to no evidence that subsistence fishing contributes to over-fishing which begs the question, why is the most vulnerable fishing sector, that  fishes to meet basic food needs and not for recreation or to make a profit, overlooked? Considering the discriminatory nature of our past, it is hoped the Regulations will move to prioritise the previously disadvantaged, and not enable and protect the wealthy who fish for sport or the foreign fishing trawlers that deliver little or no beneficiation to poor communities. The effect is that currently the subsistence fishers are harassed by law enforcement agencies.

The discrimination against subsistence fishers has a long history in this country. The effect of the post Constitution Regulations appear to entrench the racially discriminatory policies of the colonial and Apartheid eras in that harassment, detention, and treatment of subsistence fishers as “poachers”. Even with the promise made by the African National Congress post 1994 to uplift impoverished coastal communities through improved access to marine resources,[12] the failure to correctly recognise, regulate and provide for subsistence fishers in the legal framework criminalises their fishing activities aimed at meeting basic livelihood needs. Without prioritizing subsistence fisher’s calls for recognition, they risk falling deeper into poverty, marginalised invisible and voiceless.

[1] GM Branch, Hauck, Siqwana Ndulo and A.H Dye “Defining fishers in the South African Context: Subsistence, Artisanal and Small-Scale Commercial Sectors” 2002 South African Journal of Marine Sciences 475 475.

[2] Britz, “The History of South African Inland Fisheries Policy with Governance Recommendations for the Democratic Era” 2015 Water SA 624 624.

[3] Para 1 of the Policy.

[4] The Policy for Small Scale Fisheries Sector in South Africa 2012.

[5] S1 of the Marine Living Resources Act 18 of 1998

[6] Small Scale Fishing Regulations GN 229 in GG 39790 (2016) sub-reg 4 (1)(d)

[7] J Sunde and K Erwin, Cast Out – The Systematic Exclusion of the KwaZulu Natal Subsistence Fishers from the Fishing Rights Regime in South Africa (2020).

[8] See (n 3)

[9] See (n 2) above.

[10] Statistics South Africa http://www.statssa.gov.za/?p=14957 accessed (02 February 2022).

[11] J Sunde and K Erwin, Cast Out – The Systematic Exclusion of the KwaZulu Natal Subsistence Fishers from the Fishing Rights Regime in South Africa (2020).

[12] The Reconstruction and Development Programme (RDP), a policy framework. Johannesburg: Umanyamo Publications; 1994.