Beach Access: Understanding Your Rights23 February 2017
In recent months, the issue of access to coastal public property – specifically beaches – has come to the fore, with high profile cases in Cape Town and Saldanha Bay attracting significant media attention. Restricting access to any public area in South Africa, given the history of Apartheid laws that significantly reduced access to public spaces for a majority of South Africans, is an emotive and controversial issue that must be handled with due care for the law and the rights of all people.
Understanding the laws surrounding public access to coastal lands and ensuring compliance with them can ensure that local governments and private individuals or organisations do not unlawfully restrict the environmental rights of South Africans to access natural resources, including beaches and coastal public property.
What is coastal public property?
Section 7 of the National Environment Management: Integrated Coastal Management Act, 2008 (NEM:ICMA) defines coastal public property as consisting of:
· coastal waters (and the land underneath them);
· any natural island within coastal waters;
· the seashore; and
· natural resources in or on the areas listed above.
The definition excludes the following from coastal public property:
· immovable structures, installations or infrastructure located in a port or harbour constructed by an organ of state.
· any portion of the seashore below the high-water mark, which was lawfully alienated before 1935 and which has not subsequently been re-incorporated into the seashore;
· any part of an island that was lawfully alienated; or
· any portion of a coastal cliff that was lawfully alienated before this Act took effect and is not owned by the State.
What are your rights to access coastal public property?
Every person in South Africa has a right of reasonable access to coastal public property. Every person is entitled to use and enjoy coastal public property, provided such use does not negatively affect the rights of others to use and enjoy coastal public property or does not negatively affect to the environment. No person may prevent access to coastal public property except where it forms part of a protected area or it is in the interests of the whole community or national security to restrict access.
Coastal public property belongs to all citizens and is held in trust by the State on behalf of the citizens of South Africa. It may not be sold. No access fee may be charged for access to beaches without the approval of the Minister of Environmental Affairs.
The State must ensure that it is used, managed, protected and conserved and enhanced in the interests of the whole community. One of the features of NEM:ICMA is that the “whole community” includes the interests of both humans and ecosystems: healthy and productive ecosystems and the interests of other living organisms that are dependent on the coastal environment must also be taken into account when the state exercises its duties in the public coastal zone.
Municipalities are obliged to designate coastal access land and when determining the boundaries they must take into account the kind of access required (eg for pedestrians, vehicles or vessels) and the need for parking, recreational and ablution facilities amongst others.
Cullinan & Associates is drafting model by-laws for the designation and regulation of coastal access land in the Western Cape, which municipalities may adapt and adopt for implementation within their jurisdiction. This model by-law will assist coastal municipalities to improve public access to the seashore and to facilitate the achievement of the aims of NEM:ICMA.
For more information on the Act, please view the Department of Environmental Affair’s guide here.