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Current enviro news!
Updated July 2003
BAKKIES ON BEACHES PROHIBITED!
The Minister of Environmental Affairs
and Tourism, Valli Moosa, is quoted in the Business Day as saying,
"We want to protect our environment, and those ruffians who
insist on driving their bakkies on the beaches have no place in
this country".
In accordance with new regulations,
if you use a vehicle on the beach, adjacent dunes or within the
coastal estuaries you may be guilty of an offence and liable on
conviction to a maximum fine of R10 000 or to imprisonment. These
regulations which impose a general prohibition on driving on beaches
came under attack by an angling association recently. What follows
are the findings of the South Eastern Cape Local Division in the
case of South African Shore Angling Association v Minister of
Environmental Affairs 2002 (5) SA 511.
On 21 December 2001 the Minister of Environmental Affairs and
Tourism ("the Minister") gave notice of regulations
to provide for the general prohibition on the recreational use
of vehicles in the coastal zone. The members of the South African
Shore Angling Association ("SASAA") brought an urgent
application for an order that the regulations be declared null
and void on the basis that they were ultra vires the powers vested
in the Minister under the National Environmental Management Act,
107 of 1998 ("NEMA").
The SASAA argued, inter alia that:
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the Minister, in making the regulations, had
usurped authority exclusive to the Minister of Transport under
the Seashore Act, 21 of 1935 (the "Seashore Act").
It appeared that the Seashore Act and NEMA each empowered a
different Minister to make regulations with regard to the use
of motorised vehicles on the seashore. The SASAA argued that
the powers of the Minister of Transport trumped those of the
Minister in regard to the use of the seashore and that the Seashore
Act prevailed over NEMA;
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under the common law beaches were part of the
res publicae and for the general use and for the enjoyment of
the community; and
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whilst Parliament could limit the public's
rights by authorising the executive authority to make regulations
limiting the relevant rights, the making of the regulations
involved an administrative act, which, according to the common
law, had to be reasonable otherwise the regulations would be
null and void for being ultra vires the empowering provisions
of NEMA.
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The Minister responded by stating that the recreational
use of off-road vehicles on the South African coast had become
widespread, resulting in damage to ecologically sensitive coastal
areas. The purpose of the regulations had therefore been to
provide national legislation in the interests of protecting
the environment, human safety and the enjoyment derived from
coastal recreation.
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While the empowering provisions of the Seashore
Act and NEMA did appear to authorise the respective ministers
to make regulations concerning the same subject-matter, this
did not render the regulations invalid. In addition, the Seashore
Act did not explicitly exclude the power of other ministers
to make regulations regarding the use of the seashore by members
of the public. Furthermore, NEMA did not subordinate itself
to the Seashore Act. The Court held that to the extent that
the Acts might overlap or even conflict, this was an unavoidable
consequence of achieving the differing objectives of the two
Acts. Accordingly should a conflict arise, it would have to
be resolved on an ad hoc basis. The regulations were not rendered
invalid by any provision of the Seashore Act;
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The reasonableness of the regulations had to
be judged in the context of NEMA, which itself had to be interpreted
in the light of the constitutional principles. The regulations
had a clear structure. Instead of addressing particular problems
in a specific area, a general prohibition was imposed. It was
however, not an absolute ban. Regular access to the coastal
zone would still be possible in certain areas and permits could
be obtained for access in particular circumstances; and
- SASAA had failed to establish that the Minister in making the
regulations had acted unreasonably. The regulations were held
to be constitutional and lawful.
The effect of the legislation read with the court's
decision is that you may currently not use your vehicle in the
coastal zone unless it is permissible in terms of the regulations
or in terms of a permit. The regulations provide that the following
uses of vehicles within the coastal zone are permissible without
a permit or an exemption:
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on a public road; on private land with the
permission of the owner or lawful occupier of that land; on
a road within a coastal protected area with permission from
the manger of that area; for mining purposes; within a proclaimed
harbour that has already been physically modified to the extent
that it is no longer in a natural or semi-natural state; or
in an emergency situation;
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within a boat-launching site in accordance
with the licence issued in terms of the regulations for that
boat-launching
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by a physically disabled person of an electrically
propelled vehicle that is specifically designed for that use;
and
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an employee of any organ of state of any vehicle
for the purposes of performing public duties of that organ of
state.
You may apply to the Minister for an exemption from
the requirement to obtain a permit in respect of specified uses
of your vehicle or a licence for boat -launching. The Minister
will however, not grant an exemption unless he is satisfied that
the use of your vehicle will not result in result harm to the
environment and will not significantly affect the rights of the
general public to enjoy the coastal zone. The granting of an exemption
will also have to be within the public interest and your application
for an exemption will have to contain sufficient motivation to
justify your request.
Since the regulations aim to protect the environment,
bear in mind that should you have permission to use your vehicle
within the coastal zone you must take all reasonable measures
to avoid causing harm to the environment.
Please feel free to contact either
Fiona Ayerst on 0 11 782-0564 or Nathalie Oberink on 012 6634725
or e-mail us on info@ayerst.co.za
for assistance.
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