Picture source: Getty/iStock

The Marine Living Resources Act 18 of 1998 (the Act) regulates, as its name suggests, the exploitation of all types of organisms that occur in the sea and our rivers. This contribution is about the failure of the Department of Forestry, Fisheries and the Environment to regulate subsistence fishing. This failure gives rise to two difficulties for the poor who engage in this type of fishing to support their families:

• Compelling them to incur the expense of purchasing recreational fishing permits even though they are not engaging in recreation.
• Exposing those who cannot afford to purchase the recreational fishing permits to criminal sanctions including confiscation of catches.

The Act recognises three categories of fishers: commercial (ss 1 and 14); recreational (s 1); and small-scale (s 1).  Regulations have been made for all three. This contribution deals only with the deficiencies in small-scale fishing regulations (SSFR) published on 8 March 2016 (GN229 GG39790/8-3-2016).

Until the amendment of the Act in 2014 (effective from 8 March 2016), it contained a definition of ‘subsistence fisher’: ‘“subsistence fisher” means 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.’ This definition described the situation of a subsistence fisher perfectly.

After the deletion of this definition, the Act introduced the definition of small-scale fisher who was ‘a member of a small-scale fishing community engaged in fishing to meet food and basic livelihood needs, or directly involved in processing or marketing of fish, who –

(a) traditionally operate in near-shore fishing grounds;

(b) predominantly employ traditional low technology or passive fishing gear;

(c) undertake single day fishing trips; and

(d) is engaged in consumption, barter or sale of fish or otherwise involved in commercial activity, all within the small-scale fisheries sector, and “small-scale fishing” must be interpreted accordingly.’

Following international best practice, after 2016, three categories of small-scale fishers came into being in South Africa: subsistence, artisanal, and traditional/customary:

• Subsistence: Those who fish simply to access food and the necessities of life.
• Artisanal: Those who engage in it as a livelihood, typically in a community setting. Their catch is then usually passed on to commercial entities for sale or processing.
• Customary/traditional: Those who fish in terms of custom or tradition and who use the catch for consumption, customary rituals, ancestral ceremonies, and adornment. They may also sell a portion of the catch.

Even though the Act recognises subsistence fishing, the SSFR has failed to deal with their unique situation – thereby causing hardship, prejudice, and confusion due to stringent law enforcement for those who do not have the relevant permit. Space does not permit of an exhaustive analysis of the SSFR.  Suffice to say that subsistence fishers are being forced into a regulatory framework that is ill-suited and inappropriate to their situation.

It is critical that suitable regulations be made for the following reasons:

• The Minister has a duty to make regulations that recognise the distinctive needs and exigencies of each category of fisher (s 77(2)(e) and (h)).
• South Africa is presently facing a food security crisis as a result of our poor economy and high unemployment. Persons who never previously engaged in fishing are now turning to subsistence fishing in order to put food on the table.
• The state has a duty to reduce malnutrition and eliminating hunger having regard to s 27(1)(b) of the Constitution which provides that ‘everyone has the right to have access to – sufficient food and water.’
• Creating an enabling environment will reduce reliance on the state for hand-outs and encourage self-help.
• Neglect of subsistence fishers is inexplicable. Humankind has fished for subsistence for thousands of years and their rights have been established from time immemorial and found in the common law.
• Subsistence fishers are being compelled to purchase recreational fishing permits – even though the concept of recreation is meaningless to them.

To assist the Ministry, I have prepared a set of draft regulations that seek to regulate the subsistence fishing sector. I acknowledge having relied on the recreational fishing regulations. The draft regulations can be found here: www.derebus.org.za. Three other documents are part of this set: the draft application form (annexure 1); the draft list of prohibited and permitted species (annexure 2); and the draft permit itself (annexure 3).

Ranjit Purshotam BProc LLB (Unisa) is a legal practitioner at JP Purshotam Attorney in Durban.

This article was first published in De Rebus in 2025 (March) DR 25.