Land Tenure Journal, No 1 (2013)

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Emerging proposals for tenure governance in small-scale fisheries in South Africa

Jackie Sunde, Merle Sowman, Henk Smith, Wilmien Wicomb


The advent of democracy in 1994 catalysed a radical law reform process resulting in new forms of governance that sought to address past injustices. However, despite a progressive Constitution that requires the recognition of a range of socio-economic and environmental rights, and the recognition of living customary law, the small-scale fisheries sector continues to be marginalized; meanwhile decisions regarding rights of access to resources, and the use of these, remain centralized. A new policy was gazetted in June 2012 but has yet to be given effect through implementation. During recent policy deliberation processes, small-scale fishers have referred to customary practices and taken inspiration from international policy instruments in articulating their vision for a new system of fisheries governance. This paper outlines the processes that have shaped tenure relations in the past and assesses the debates on ‘good governance' that are influencing the emerging policy framework in South Africa. The authors argue that, if the twin objectives of social equity and environmental sustainability are to be achieved, constitutional recognition of ‘living customary law' is central to fisheries governance. Drawing on insights from local case studies, the authors suggest that an understanding and utilization of the ‘emancipatory potential' of living customary law can guide and enhance the interpretation of new governance proposals outlined in the small-scale fisheries policy. It is suggested that this could be used to facilitate forms of tenure governance that are locally appropriate, legitimate and sustainable.

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