Buffeljagsbaai is a small community of 250 residents – a disadvantaged community and fairly isolated from the nearest big town. The community relies on harvesting kelp and fishing rights for a living.
During the past 23 years BMC Pty Ltd, an entirely black-owned company being owned by the local community trust, has been harvesting kelp [seaweed = bamboes] and employed around 85 residents of the community, supporting their families. Each year BMC has also made 2 payments annually to each household in the community. In addition, it supported the creche and subsidized the teachers’ salaries at the local school. The company made more financial contributions to ensure that the community and its residents could invest in a better future.
In 2023 the Department of Forestry, Fisheries and the Environment, on behalf of the government, terminated BMC’s rights to harvesting Kelp, leaving the majority of the community destitute. In implementing its so-called ‘small scale fishing’ policy, it helped 52 members of the community to form the Buffeljasbaai Sea Whale Primary Co-Operative. Shortly after that the right to harvest Kelp and other species from the sea, was awarded to this newly registered entity, supposedly to help transformation and empowering the community. Soon the majority [65%] of the Co-op members turned against its own Board of Directors, accusing the Chair of nepotism and other irregularities.
The group of members issued a letter of demand [as is their right in terms of the Co-op constitution] to the Chair, which she refused to accept until the sheriff served it on her. She refused to hold the meeting as demanded and the group then gave notice of a special general meeting [as is their right in terms of the Co-op constitution] where they terminated the services of the existing Board and elected a new Board, which the ‘Chair’ refused to acknowledge.
BMC filed an urgent Application in the Cape High Court to protect its rights by demanding that an earlier Review Application that was filed and another Appeal that was filed are heard by the government and that its rights, from which the community has made a living for 23 years be re-instated in the interim. This relief was granted by an Order of the High Court in Cape Town on 23 August 22024.
BMC argued in its Application that South Africa has a values based constitution and that if there is a breach of a constitutional value, which is a right, then there are constitutional imperatives that gives the court the right to order relief which will honour the rights of citizens and not allow the government or any other entity to use technicalities to prevent this from happening.
In the Modderklip case President of the Republic of South Africa & Another v Modderklip Boerdery (Pty) Ltd (Agri SA & Others, Amici Curiae) 2005 (5) SA 3 (CC)] the Constitutional Court ruled:
‘If a constitutional breach is established, [courts are] mandated to grant appropriate relief. A claimant in such circumstances should not necessarily be bound to the formulation of the relief originally sought or the manner in which it was presented or argued.’
This shows the powerful impact the Constitution and the values embedded in it has in the Democratic South Africa. Hopefully the parties will be able to find long-term solutions and work together to ensure that the good intentions of government policy are implemented in ways that actually benefits the citizens, and in this case the residents of a marginalised and previously disadvantaged community.
