On the beach – A critical analysis of the ownership and public trust provisions of the national environmental management: integrated coastal management Act 24 of 2008.

Abstract

Section 2 of the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (the “NEM: ICMA”) provides that one of the objects of the Act is to “preserve, protect, extend and enhance the status of coastal public property as being held in trust by the State on behalf of all South Africans, including future generations”. In order to give effect to this object, section 11(1) of the NEM: ICMA vests ownership of coastal public property in the “citizens of the Republic” and declares that “coastal public property must be held in trust by the state on behalf of the citizens of the Republic”. Section 11(2) goes on to provide that coastal public property is “inalienable and cannot be sold, attached or acquired by prescription and rights over it cannot be acquired by prescription”. The state’s duties and responsibilities as the public trustee of coastal public property are set out in more detail in section 12 of the NEM: ICMA. This section declares that the state, in its capacity as the public trustee of all coastal public property, must: “(a) ensure that coastal public property is used, managed, protected, conserved and enhanced in the interests of the whole community; and (b) take whatever reasonable legislative and other measures it considers necessary to conserve and protect coastal public property for the benefit of present and future generations”. While sections 11 and 12 of the NEM: ICMA regulate the classification, legal status, management and administration of coastal public property, section 13 of the Act regulates public access to the coast. It provides, inter alia, that: “(1) Subject to this Act and any other applicable legislation, any natural person in the Republic: (a) has a right of reasonable access to coastal public property; and (b) is entitled to use and enjoy coastal public property, provided such use: (i) does not adversely affect the rights of members of the public to use and enjoy coastal public property; (ii) does not hinder the state in the performance of its duty to protect the environment; and (iii) does not cause an adverse effect. (1A) Subject to subsections (2) and (3), no person may prevent access to coastal public property”. When these provisions are compared with the equivalent provisions in the NEM: ICMA’s predecessor, namely the Seashore Act 21 of 1935, the following points may be made: vi First, unlike the Seashore Act, which regulated the classification and legal status, the right to access and use, and the power to manage and administer, the “sea” and the “seashore”, the NEM: ICMA regulates a new public thing (res), namely “coastal public property”, which encompasses a much broader area than the sea and the seashore and a much wider variety of natural resources. Second, also unlike the Seashore Act, which vested ownership of the sea and the seashore in the State President, section 11(1) of the NEM: ICMA vests ownership of coastal public property in the citizens of the Republic of South Africa. It thus brings to an end what Professor Johan van der Vyver has eloquently referred to as the étatisation of public property. Third, while section 11(1) of the NEM: ICMA vests ownership of coastal public property in the citizens of South Africa, it does not vest the right to access, use and enjoy this space in the citizenry. Instead, section 13 of the Act separates these rights from the ownership of coastal public property and vests them in “any natural person in the Republic”. Fourth, apart from separating the right to access and use coastal public property from the ownership of this space, sections 11 and 12 of the NEM: ICMA also separate the right to manage and administer, as well as to conserve, protect and enhance, coastal public property from the right of ownership of this space and vests it in the state as the coastal public trustee. As these points indicate, a distinction may be drawn between those provisions of sections 11, 12 and 13 that regulate the classification and legal status of coastal public property, those provisions that regulate the management, administration, conservation and protection of coastal public property and those provisions that regulate public access to coastal public property. The first set of provisions may be referred to as the “ownership provisions”, the second set as the “public trust provisions”, and the third set as the “public access provisions”. These three sets of provisions give rise to a number of complex and difficult questions. Among them are the following: (1) Have the ownership provisions of section 11(1) of the NEM: ICMA simply codified the common law principles governing the classification and legal status of the sea and the seashore as res publicae, or have they introduced an entirely new form of statutory public ownership into South African coastal law? (2) Given that the entitlements to access, use, manage and administer coastal public property have been separated from the ownership of coastal public property and vested in other entities, does the right of ownership confer any meaningful entitlements on the citizenry, or is it simply a bare or nude form of ownership? vii (3) If the ownership of coastal public property does not confer any meaningful entitlements on the citizenry, as appears to be the case, what purpose do the ownership provisions of section 11 of the NEM: ICMA serve, other than to confirm the public nature of coastal public property? Do the ownership provisions have any jurisprudential significance? (4) Have the public trust provisions of sections 11 and 12 of the NEM: ICMA simply incorporated the renowned United States (US) Public Trust Doctrine into South African coastal law, or have they established a uniquely South African public trust concept for managing, administering, conserving, protecting and enhancing coastal public property? (5) Apart from the environmental management principles set out in section 2 of National Environmental Management Act 107 of 1998 (NEMA) and the specific provisions of the NEM: ICMA itself, do the public trust provisions of sections 11 and 12 confer any additional powers and rights or impose any additional duties and obligations on the state as the public trustee? (6) If the public trust provisions of sections 11 and 12 of the NEM: ICMA do impose additional powers and rights, or duties and responsibilities, on the state as the public trustee, what is the nature, scope and content of those powers, rights, duties and responsibilities? The goal of this thesis, therefore, is to investigate and address these questions through a critical analysis of the ownership and public trust provisions of sections 11 and 12 of the NEM: ICMA. More particularly, the goal of this thesis is to investigate the classification and legal status of coastal public property; the legal nature and purpose underlying the right of ownership of coastal public property vested in the citizens of the Republic; the legal nature and purpose underlying the coastal public trust concept; and the powers, rights, duties and responsibilities this concept imposes on the state as the public trustee.