A critical analysis of South Africa’s coastal access laws in light of the principle of coastal environmental justice.

Abstract

The purpose of this dissertation is to critically analyse the right to perpendicular coastal access in section 13 of the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (NEM: ICMA), as well as the right to parallel coastal access in section 18 of the Act, to determine whether and to what extent these access rights are capable of achieving the NEM: ICMA’s overarching object of equitable access to the coastal zone and whether and to what extent they advance the goal of environmental justice in South Africa. An analysis of the approach taken by the eThekwini Municipality towards implementing the provisions of section 13 and especially section 18 of the NEM: ICMA reveals some of the difficulties the statutory framework gives rise to. One of these is the relative lack of detail in the statutory provisions themselves. Another is the heavy burden they place on the local government, namely municipalities. The third implementation challenge arises out of the requirement for each local municipality to adopt its own unique set of by-laws which has the potential to create an inconsistency in the approach taken across all municipalities in the implementation process since the legal provisions require each local municipality to develop its own local by-laws to give effect to the coastal access provisions. An alternative and potentially better approach may be found in the statutory provisions governing public access to the coast in England and Scotland. Whilst both these countries may not have had the same historical disadvantages experienced in South Africa, they however serve as good comparators given the geographical similarities to South Africa. Not only do both countries have long coastlines similar to South Africa they have also both relatively recently conferred statutory rights of access to the coast on the public. More importantly, both countries have adopted very different approaches to securing a right to coastal public access. While Part Nine of the English Marine and Coastal Access Act of 2009 makes provision for a dedicated coastal access route around the entire country, Part One of the Scottish Land Reform (Scotland) Act of 2003 goes much further and makes provision for a general “right to roam” on foot across the entire country. Being informed by the statutory provisions governing public access to the coast in England and Scotland , some novel ideas have been unpacked to provide a basis for rethinking the approach to coastal public access in South Africa; one which is much bolder and more far reaching and thus more consistent with the notion of equitable access and environmental justice. These include creating a dedicated access route along the entire South African coastline, forming an external body such as a Coastal Agency for South Africa to develop and monitor the implementation of an outdoor code of coastal conduct. These novel ideas have the potential to broaden the scope and extent of conferring equitable access rights in South Africa to the extent that it subscribes to the principles of coastal environmental justice.