IN THE HIGH COURT OF SOUTH AFRICA
(SOUTH EASTERN CAPE LOCAL DIVISION)
CASE NO: 63/02
In the matter between:
SOUTH AFRICAN SHORE ANGLING
ASSOCIATION First Applicant
DIE OESTERBAAI SE BELASTING-
BETALERSVERENINGING Second Applicant
THE MINISTER OF ENVIRONMENTAL
AFFAIRS AND TOURISM Respondent
Government Notice no. 1399 published in Government Gazette no 22960 of 21 December 2001 gives notice of regulations (“the Regulations”) made by the Minister of Environmental Affairs and Tourism (“the Minister” or where necessary for clarity “the Minister of E A and T”) under s 44 of the National Environmental Management Act 107 of 1998 (“the Act” or where convenient “NEMA”). The object of the Regulations are set out in the preamble thereto:
“To provide for a general prohibition on the recreational use of vehicles in the coastal zone, to provide procedures for approving the use of vehicles in the coastal zone under specific circumstances, to provide measures for the enforcement of these regulations and to prescribe penalties in respect of contraventions.”
The Regulations not only adversely affect the leisure activities of the members of the applicant associations but put into immediate jeopardy certain angling competitions already organised by the first applicant. The applicants therefore brought an urgent application for appropriate relief from the operation of the Regulations: prayer 2 is a broadside attack in the following terms:
“That the Regulations … is declared null and void as being ultra vires and/or unconstitutional;”
prayers 3 and 4 were for temporary exemption in regard to the projected competitions; prayer 5 was for an order interdicting the respondent from enforcing the Regulations until finalisation of the application; prayer 6 relates to costs.
At the hearing, the applicant did not pursue prayer 5; the court dismissed prayers 3 and 4 for certain reasons which are not relevant here; and reserved judgment on prayer 2. This then is that judgment.
As is adumbrated in prayer 2 supra, the basis for the application is twofold, viz (A) that the Regulations are ultra vires the powers vested in the Minister under the Act; and/or (B) that they are unconstitutional in that they are unreasonable. I deal with the two issues separately.
A. THE ULTRA VIRES ASPECT
The applicants proceed on the narrow basis that the Minister in making the Regulations usurped authority exclusive to the Minister of Transport under the Sea-shore Act 21 of 1935.
Mr. Pretorius, who appears on behalf of both applicants, points out to start with that the Sea-shore Act and the Regulations have application in the same physical area: the Sea-shore Act regulates the sea, the sea-shore, tidal lagoons, and tidal rivers, as defined in s 1 of that Act; the ban promulgated in the Regulations applies to the “coastal zone” , which i.t.o. reg 1 -
“means the area adjacent to the sea characterised by coastal land-forms, and includes beaches, dunes, estuaries, coastal lakes, coastal wetlands, land submerged by the waters of the sea, or of any estuary, coastal lake or coastal wetland, boat-launching sites, proclaimed harbours and recreational use areas;”
and “beach” -
“means unconsolidated sediment forming the unvegetated edge of the shoreline of the sea or an estuary that extends from the low-water mark landwards to higher features of the coast such as dunes, cliffs or vegetated soil”.
Counsel then submits the fact that the empowering provisions of the two Acts relate to the same subject matter: s 10 of the Sea-shore Act empowers the Minister (of Transport) to make regulations, or to authorise any local authority to make regulations, “concerning the use of the sea-shore”; while s 44 of NEMA authorises the Minister (of E T and A) to make regulations, “generally, to carry out the purposes and the provisions of this Act”, which I assume includes practical measures relating to the conservation and therefore the use of the sea-shore. (It is not contended before me that NEMA is concerned solely with co-operative environmental governance, as its preamble might suggest).
It appears therefore that the Sea-shore Act and NEMA each empowers a different Minister to make regulations in regard to the use (or non-use) of motorised vehicles on the sea-shore. Counsel contends that this circumstance, seen in the light of all relevant considerations, means that the legislative powers of the Minister of Transport excludes those of the Minister of E T and A in regard to the use of the sea-shore.
Mr. Pretorius relies firstly on the wording of the two Acts. He submits that the Sea-shore Act recognises that it conflicts in some specific instances with the provisions of other Acts of Parliament. It therefore provides that in those cases, the other Acts shall prevail (s 13 (b), (d) and (e)). There is however no mention of NEMA, and – so counsel submits - inclusio unius est exclusio alterius. NEMA, on the other hand, does not refer to the Sea-shore Act, thereby leaving its provisions intact. In counsel’s submission, the authority of the Minister under the specific earlier Act prevails over that provided for under the general later Act.
Mr. Pretorius submits that two Ministers of State cannot in circumstances such as the present have legislative power in regard to the same subject matter in the same area, as that could lead to conflict and confusion. In illustration of the point, first applicant refers to regulations by the Jeffreys Bay municipality issued in terms of ministerial authority under the Sea-shore Act, which authority furthermore “conferred upon the said municipality and officers in its full-time employment the powers to administer the said regulations”. Similar promulgations under the Sea-shore Act have been published by various other local authorities. Those regulations prohibit the entry of vehicles in specified areas under the control of the local authority, except on permits issued by that authority. The Jeffreys Bay regulations, for example, read as follows:
“(1) Except on such portion of the bathing area as is indicated by a notice on the spot, no person shall introduce ride on or drive any motor vehicle, animal-drawn vehicle or bicycle into the bathing area.
(2) Subregulation (1) shall not apply to any ambulance while lawfully in use as such, or any vehicle used by any employee or person in the employ of the local authority in the discharge of his duties or any vehicle, the driver of which has obtained the written permission of the local authority to introduce such vehicle into the bathing area.”
This prohibition coincides with, but the same time differs materially from, the ban under the Regulations (I deal with the relevant terms of the Regulations later in the judgment).
Mr. Pretorius refers the court to reg 23 of the Regulations. It provides:
“These regulations will prevail if there is a conflict between any of the
provisions in them and either –
(a) …; or
(b) any other regulations, by-laws or other subordinate legislation relating to the use of vehicles in the coastal zone made under any Act, prior to these regulations coming into force.”
He submits, that this provision is in itself ultra vires in that the Minister cannot presume by regulation to override other subordinate legislation. The Act does not give him the power to do so. Counsel contends that the first respondent realised that the Regulations came into conflict with other subordinate legislation, hence the futile attempt in reg 23 to rescue them from the nullity arising from that conflict.
First applicant contends finally that NEMA cannot apply to the sea-shore in that the rights of members of the public to the use and enjoyment thereof are entrenched by s 13 of the Sea-shore Act where it provides:
“Nothing contained in this Act shall affect –
(c) any rights of any member of the public to use the sea shore or the sea, except insofar as such rights are inconsistent with the rights conferred by any title validated by this Act, or by any title, lease, permit, authority, delegation or regulation lawfully issued, entered into , granted or made by virtue of this Act by virtue of any such title, lease, permit, authority, delegation or regulation; or
I deal first with this last point raised by applicant. It is to be noted that s 13 is specifically confined to the operation of “this Act” (the Sea-shore Act). The provision simply makes it clear that the Sea-shore Act shall not affect the rights of the public to the use of the sea-shore unless the particular provision in the Act is clearly inconsistent with the exercise of those rights.
I deal next with the alleged conflict between the two Acts. The empowering provisions of the Sea-shore Act and NEMA do indeed appear to authorise the respective Ministers to make regulations concerning the same subject matter in the same area, i.e. the use of motor vehicles on the sea-shore. This circumstance however does not in itself render invalid regulations promulgated under NEMA, or under the Sea-shore Act for that matter. Counsel’s argument overdoes the fact that the different Ministers have overlapping powers. They are not separate and autonomous legislative authorities that exercise exclusive sovereign authority, as counsel would have it. When Parliament, in the exercise of its national legislative authority, empowers a Minister to make regulations, it thereby confers legislative power on a member of the national executive. A Minister of State is designated in virtue of his or her status as member of the Cabinet derived from s 85 and s 91 of the Constitution of South Africa Act 108 of 1996 (“the Constitution”); the particular Minister is selected incidentally for reasons of administrative efficacy and convenience relating to the functions of the governmental department headed by him or her. The President may thereafter by proclamation transfer the powers and functions entrusted to that Minister to any other member of the Cabinet (s 93 of the Constitution).
Parliament has the power to enact overlapping authority for different Ministers. The position there is no different from that where a Minister derives overlapping powers from different Acts of Parliament; or where different Acts of Parliament designate overlapping powers to different Ministers, but the President thereafter vests those powers in a single Minister. Conceivably, a Minister may make different regulations under the same section of a particular Act involving the same subject. The potential for conflict exists in all these situations. The possibility of conflicting regulations by different Ministers does not in itself negate the authority of either of them to make regulations under the empowering statutory provisions.
It is of course within the competence of Parliament to vest subordinate legislative powers exclusively in a particular Minister. However, in the absence of explicit or clear implicit provision to that effect, powers conferred under different statutes, even though they overlap, are not mutually exclusive. The Sea-shore Act does not explicitly exclude the powers of other Ministers to make regulations regarding the use of the sea-shore by members of the public; nor does NEMA subordinate itself to the Sea-shore Act. Therefore, for counsel’s argument to succeed, such exclusion must be implicit in the legislation. On this question, counsel for respondent point out that legislation is, generally, thematic (s 44 of the Constitution). The Sea-shore Act declares the Head of State to be the owner of the sea-shore and the sea, and provides for the grant of the rights in respect of the sea-shore and the sea, as well as the alienation of portions thereof; NEMA, on the other hand, deals with the topic of environmental management. The two Acts have different objectives, which fact is counter-indicative of either of them vesting the particular Minister with exclusive powers to make regulations. The fact that the regulations may overlap, even conflict, is an unavoidable consequence of achieving the differing objectives of the two Acts.
It is the scope of the two Acts and the Ministers’ powers thereunder which give rise to the potential for conflict. On applicants’ logic, therefore, it is really s 44 of NEMA which is null and void. However, the constitutionality of the Act is not in issue in these proceedings, applicants base their case on their interpretation of the two Acts.
To interpret the Sea-shore Act and NEMA in such a way so as to exclude from the latter the vast area of the sea-shore, would render that legislation largely ineffectual. It would lead to the absurdity of excising from the legislative authority of the Minister the vast and environmentally vital area that is the sea-shore. The constituant parts of the “environment”, as defined in the Act, are clearly indivisible:
“(i) the land, water and atmosphere of the earth;
(ii) micro-organisms, plant and animal life;
(iii) any part or combination of (i) and (ii) and the interrelationships among and between them; and
(iv) the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and well-being.”
Conservation issues affect many aspects of human activity. It is therefore to be expected that legislation dealing with the environment will overlap even conflict with a number of other Acts of Parliament. It was precisely this circumstance that gave rise to NEMA, as appears from the preamble to the Act:
“To provide for co-operative environmental governance by establishing principles for decision-making on matters affecting the environment, institutions that will promote co-operative governance and procedures for co-ordinating environmental functions exercised by organs of state; and to provide for matters connected therewith”.
NEMA goes to great lengths to achieve that objective. Should a conflict in subordinate legislation nevertheless arise, it will have to be resolved ad hoc on general principles in the light of all the relevant circumstances. The answer to the problem is certainly not the crude solution of invalidation of regulations.
The applicants do not in fact refer the court to any other subordinate legislation - either national or provincial, or by local government - which conflicts with the Regulations. The ban under the Regulations and the prohibition in the regulations of the Jeffreys Bay municipality supra are not irreconcilable; after all, many acts are prohibited under different statutes. There is also no real conflict between the general ban on OVR use under the Regulations and permits issued by the local authority in terms of its regulations. Those permits allow the holders thereof to enter areas otherwise closed to traffic under the particular regulations in terms whereof the permits are issued. They do not confer on the permit-holders unassailable rights of access to the areas in question.
Finally, on this aspect, reg 23 might be ultra vires in that it purports to override other regulations, by-laws or subordinate legislation relating to the use of vehicles in the coastal zone (I make no finding on the question). However, such circumstance would not render the whole of the Regulations null and void, for – to my mind – reg 23 is clearly severable from the rest of the regulations.
For these reasons, I find that the Regulations are not rendered invalid by any provision of the Sea-shore Act or regulations made thereunder.
B. THE CONSTITUTIONAL ASPECT: THE RIGHTS OF THE PUBLIC AND CONSIDERATIONS OF REASONABLENESS AND FAIRNESS
The applicants initially approached the court by way of rule 6(12) of the Uniform Rules of Court for review under rule 53 of the respondent’s administrative action in promulgating the Regulations. They based their case on common law principles fortified by certain provisions of the Constitution. Their counsel argued that under the common law, beaches are part of the res publicae, as such they are the property of the State. In terms of the Sea-shore Act, the sea-shore is the property of the President; the government however does not own the sea-shore in the civil law sense of the concept in that such things are for the general use and enjoyment of the whole community (C.G. Van der Merwe Sakereg 2nd ed 31; Butgereit and another vs Transvaal Canoe Union and another 1988(1) SA 759 (a), 767B – 768A). It must be accepted, he submitted, that the members of the applicant associations have such rights in regard to the coastal zone. Parliament however has the power to limit those rights. It can do so by authorising the executive authority to make regulations qualifying, limiting or even abolishing such rights altogether. The making of such regulations involves an administrative act. The common law dictates that such acts must be reasonable, otherwise they are null and void being ultra vires the empowering provisions of the particular Act of Parliament (R vs Carelse 1943 CPD 242; M. Wiechers Administrative Law 1985 252-3.) It is not necessary here to set out the arguments advanced by counsel regarding the common law as to reasonableness. The rights of the public in such regard are now enshrined in the Bill of Rights (Chapter 2 of the Constitution). Section 33 provides:
(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(3) National legislation must be enacted to give effect to these rights, and must –
(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration.”
At the hearing, I was not referred to the provisions of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), which commenced on 20 November 2000. It gives effect to subsection (3) of s 33 of the Constitution supra. The crux of PAJA, for purposes of this application, is to be found in subsections (1) and (2) of s 6 thereof. I set out those important provisions in full:
“6. Judicial review of administrative action
(1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.
(2) A court or tribunal has the power to judicially review an administrative action if –
(a) the administrator who took it –
(i) was not authorised to do so by the empowering provision;
(ii) acted under a delegation of power which was not authorised by the empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law;
(e) the action was taken –
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;
(iv) because of the unauthorised or unwarranted dictate of another person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself –
(i) contravenes a law or is not authorised by the empowering provision; or
(ii) is not rationally connected to –
(aa) the purpose for which it was taken;
(bb) the purpose for the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;
(g) the action concerned consists of a failure to take a decision;
(h) the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function; or
(i) the action is otherwise unconstitutional or unlawful”.
Subsequent to the hearing of the matter, counsel for both parties favoured me with helpful written submissions on the effect of PAJA. I thank them for their assistance. Counsel for applicant submits that in s 6, PAJA simply re-enacts the common law. He suggests that for an administrative action to be regarded as lawful, reasonable and procedurally fair, it must now comply with the provisions of s 6(2) of PAJA supra. He submits that, in particular, paragraphs (h) and (i) are of the utmost importance insofar as it is there provided that the action must be reasonable and must not be unconstitutional or unlawful. Counsel for respondent have a somewhat different view of the legislation.
They submit that s 6 of PAJA was intended as an exhaustive codification of the law relating to the judicial review of the exercise of public power. They submit that this understanding of the intended scope of the Act is fortified by the decision of the Constitutional Court in Pharmaceutical Manufactures of South Africa: in re ex parte President of the RSA 2000(2) SA 674 (CC) para. , where Chackelson P says that judicial review of the exercise of public power is a constitutional matter that takes place under the Constitution and in accordance with its provisions.
Whatever the precise status of common law principles in proceedings for judicial review of administrative action may be, clearly those proceedings are now conducted under s 6 of PAJA. The basic approach however is the same as before: the court considers the administrative action in the light of the evidence.
The affidavits submitted by the applicants deal with the manner in which the members of the two associations exercised their rights to the use and enjoyment of the coastal zone prior to the Regulations coming into force. The founding affidavit on behalf of first applicant is that of Mr. H de V. Melville, the chairman of the first applicant. He sets out the history of organised recreational shore fishing in S.A. In brief: the applicant was constituted in 1947 and has since then on a regular basis held angling competitions at local, national as well as international levels; this occurred on various beaches stretching along the several hundred kilometers of the South African shore. Some of these beaches have extremely limited access from public roads and are therefore accessible to shore angling by means only of vehicles. He gives examples. He states that it would become impossible to fish in a competition at certain beaches if members of the first applicant were barred from using vehicles along the beach.
Melville declares that the first applicant is the national association regulating all organised fishing as a sport in the R.S.A. Thousands of shore angling sportmen are members of clubs affiliated to various associations resorting under first applicant. First applicant therefore is in effective control of all shore anglers who participate in angling as a sport. First applicant, as fully set out in its constitution, has strict rules applying to its members in respect of the use of vehicles on the sea-shore. The first applicant has, as far as possible, always enforced the rules laid down by it in such regard. First applicant thereby demonstrated its concern for the preservation of the sea-shore and beaches, and the conservation of the vegetation and all wild life. First applicant has in the past made valuable contribution to the research efforts of the South African Association for Marine Biological Research.
Melville says that a large number of citizens of this country are physically handicapped and cannot gain access to large portions of the beach. He submits that the Regulations discriminate against the elderly and physically disabled persons.
Second respondent comes to court on the affidavit of Mr. H. E. Franzsen, its chairman. He states that Oyster Bay is a village inhabited for the most part by pensioners or other persons who are not in permanent employment. There are a number of elderly persons in the village who because of their physical frailty are unable to walk the distance to the beach. Their only access to the beach is by means of motorised vehicles. He further states that the only safe bathing area in Oyster Bay is situated about six kilometers along the beach from the village. It is not possible for the elderly or the very young to reach this village other than by vehicular transportation. He submits that the Regulations discriminate against those persons who are not able to walk, crawl or roll to the bathing place (his choice of words). He claims that the Regulations have impacted negatively on the value of property in the area.
Mr.S.M Schneier is the Principal Environmental Officer in the Subdirectorate Coastal Zone Management of the Marine and Coastal Management Branch of the Department of Environmental Affairs and Tourism. He was responsible for the drafting of the Regulations. He has, he says, particular knowledge of coastal ecosystems relevant to the Regulations and the environmental considerations that underlie the need for them. He states that the recreational use on South Africa’s coast of off-road vehicles (he abbreviates “ORVs”, I do the same) has became wide-spread, increasing dramatically during the course of the last three decades. The absence of regulations which control ORV use uniformly to the entire coast is resulting in damage to ecologically sensitive coastal areas. ORV use also poses a threat to the safety of people engaged in various recreational activities and generally diminishes the enjoyment derived from such activities. The purpose of the Regulations is to provide national legislation in the interest of protecting the environment, human safety and the enjoyment derived from coastal recreation. All three factors are important in promoting coastal tourism, which contributes significantly to the South African economy.
Mr. Schneier deals with the public consultation undertaken prior to promulgation of the Regulations. I do not find it necessary to set out in detail this aspect of his affidavit, as it is not contended before me that any action of respondent in the drafting and promulgation of the Regulations was procedurally unfair or unlawful. The applicants also do not challenge the respondent’s authority to make the Regulations, that is apart from the contentions based on the Sea-shore Act which I have already dealt with. As I understand their case, they point to the effect of the ban on their use and enjoyment of the coastal zone, and contend that it operates unreasonably to the extent that it calls into question the validity of the whole of the Regulations. They proceed on the basis of paras (h) and (i) of s 6(2) of PAJA.
To succeed under para (h), the applicants must show that the effect of the Regulations is so unreasonable that no reasonable person could have so exercised his or her authority in terms of the empowering provisions contained in s 44 of NEMA. That then is the question for this court to determine.
The nub of the Regulations is the ban on vehicles found in reg 3. It is as follows:
“No person may use any vehicle in the coastal zone unless that use -
(a) is a permissible use under regulation 4; or
(b) is authorised in terms of a permit granted under regulation 6; or
(c) is authorised in terms of an exemption granted by the Minister under regulation 22; or
(d) is lawful in terms of regulation 24”.
The key words used in the regulation are defined in reg 1. In terms thereof –
“vehicle” means any motorised conveyance which is designed to transport one or more persons on land and includes a trailer;
“coastal zone” means the area adjacent to the sea characterised by coastal land-forms, and includes beaches, dunes, estuaries, coastal lakes, coastal wetlands, land submerged by the waters of the sea, or any estuary, coastal lake or coastal wetland, boat-launching sites, proclaimed harbours and recreational use areas.
The areas mentioned in the definition of “coastal zone” are themselves defined. They are however largely self explanatory, I therefore do not here repeat those definitions.
The applicants do not deny that some form of control of ORV use is necessary in the coastal zone. Mr. Pretorius contends on their behalf that the
basic format of a total ban of vehicular traffic is inappropriate. He contends that the ban is wrongly directed in that the provision hits only motorised vehicles, which means that a person on horseback may with impunity destroy “birds’ nests and eggs or any relevant vegetation”; or that an ox wagon or a wagon pulled by horses driven above the high-water mark across the beach may freely destroy bird and animal life, as well as bird eggs and vegetation. Counsel submits that had the protection of the environment - in particular bird life, animal life and vegetation - been the real consideration for the promulgation of the Regulations, one would have expected rather specific prohibition of environmentally harmful acts.
On the evidence before me, I can find no fault with the method whereby the Regulations regulate ORV use. A general ban with provision for exemptions and licencing in fact seems preferable to ad hoc regulation of particular acts in specified areas.
The applicants contend that on the evidence the ban operates unreasonably to the extent that it renders the whole Regulations null and void. A complete and absolute ban of all ORV use in the coastal zone could be unreasonable (I make no finding). However the effect of the general ban imposed in reg 3 is ameliorated by paras (a), (b), (c) and (d) thereof supra. It is necessary to consider the provisions of these paragraphs.
(a) Permissible use under regulation 4
This important regulation provides that the following uses of vehicles within the coastal zone are permissible without a permit granted under reg 6 –
“(a) the use by any person of any vehicle –
(i) on a public road;
(ii) on private land with the permission of the owner or lawful occupier of that land;
(iii) on a road within a coastal protected area with the permission of the manager of that coastal protected area;
(iv) for mining or associated purposes within a mining area as defined in section 1 of the Minerals Act, 1991 (Act no. 50 of 1991);
(v) within any part of a proclaimed harbour that has already been physically modified to the extent that it is no longer in a natural semi-natural state;
(vii) in an emergency situation in order to safeguard human life or health, property or any aspect of the environment;
(b) the use of any vehicle within a boat-launching site in accordance with the licence issued in terms of regulation 7 for that boat-launching site;
(c) the use by a physically disabled person of an electrically propelled vehicle that is specifically designed and manufactured for use by a physically disabled person; and
(d) the use by an employee of any organ of state of any vehicle for the purposes of performing the public duties of that organ of state.”
Paragraph (b) ties up with reg 7(1) which provides that certain authorities may issue a licence for a boat-launching site. In terms of reg 7(2),no person may operate a boat-launching site or use a vehicle at a boat-launching site, unless the operator of that site has a valid boat-launching licence for that site issued under the Regulations. Such license must not be granted for a period of more than 36 months (reg 12(5)).
(b) Authorised use i.t.o. a permit granted under regulation 6
Certain governmental authorities, as well as the manager of “a coastal protected area”, may grant a permit for the use of vehicles in the coastal zone for the purpose of -
“ (a) scientific research;
(b) non-recreational activity approved in terms of the Marine Living Resources Act 1998 (Act no. 18 of 1998);
(c) recreational use within a recreation use area;
(d) any tourism business conducted by a tour operator; and
(e) gaining access to properties provided that there is no reasonable road access to those properties and the rights to occupy or use them have been lawfully acquired.”
In regard to (c), a local authority or a manager of a coastal protected area may in terms of reg 5 apply to the Director-General to designate an area as “a recreational use area”. The Director-General may by notice the gazette designate areas of the coastal zone as such areas, in which then vehicles may be used for recreational purposes in terms of a permit granted under reg 6. Such permit may not be granted for a period of more than 12 months (reg 12 (5)).
(c) Authorisation i.t.o an. exemption granted by the Minister under regulation 22
Regulation 22(1) provides that the Minister may grant exemption from the requirements to obtain a permit under reg 6 or a licence under reg 7 in respect of specified uses of vehicles in the coastal zone.
It is a requirement that the application must be published in a newspaper circulating in the area to which the application applies; presumably, to allow interested parties to object to the exemption.
(d) Lawful use i.t.o. regulation 24
This is a transitional measure which does not concern us here.
The reasonableness of regulations must be judged in the context of the enabling Act, which is itself to be interpreted in the light of constitutional principles. Section 24 of the Constitution states that everyone has the right –
“(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measure that –
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development”.
NEMA gives effect to this constitutional dictate, as well as to the “national environmental management principles” enunciated in s 2 the Act. Paragraph (o) of s 2 states that the environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interests and the environment must be protected as the people’s common heritage. Paragraph (r) dictates that sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores and similar systems require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure.
The Regulations have a clear structure: instead of addressing particular problems in a specific area (as Mr. Pretorius suggests they should), reg 3 thereof imposes a general prohibition. It is however not an absolute ban, as the impact is softened by various and wide-ranging automatic exemptions. Provision is made for recreational use areas where regular access can take place under permit from the appropriate local authority; access on a regular basis in the interest of tourism is permitted; there is provision for access on a regular basis to licenced boat-launching sites; the Regulations cater for specialised access for the purposes of scientific research, also by employees of the State for purposes of performing their public duties; there is provision for emergency access, as well as necessary access; importantly, there is provision for ad hoc exemption by the Minister. Regular access will still be possible in certain areas; other areas will be progressively less accessible depending on the distances to be travelled thereto by means other than motorised vehicles; certain areas will no doubt become completely inaccessible to the public. I can see nothing wrong in principle in such gradated accessibility under the Regulations.
Mr. Pretorius contends that in the real world, the exemptions and licences provided for in the Regulations will have minimal alleviating effect. He points to the requirement for environmental impact studies provided for in s 24(7) of NEMA. In terms of reg 8, these studies are mandatory prerequisites for the granting of a permit under reg 6 and for a licence under reg 7. Counsel submits that such studies are prohibitively expensive for the ordinary person. Local authorities too will balk at these costs when it comes to making application for the creation of recreational use areas. Furthermore, the fact that such applications are to be made by a local authority takes the establishment of recreational use areas out of the hands of citizens. He complains that members of the public will be at the mercy of public servants in the instances where the Regulations allow for permits and exemptions (regs 5,6,7 and 22).
Second respondent raises financial considerations. It is not disputed by respondent that the ban on ORV use will have a negative effect on property values in Oyster Bay, and no doubt in many other areas. It must be accepted further that the ban could have a devastating effect on certain ORV related business.
These valid points of criticism must be viewed in the context of the objectives of NEMA. The impact study in terms of s 24(7) is an important component of the Act. It establishes an objective and sound basis for decisions relating to the competing needs of economic development and environmental conservation. The respondent cannot be faulted for incorporating this measure into the Regulations. It is to be noted that applicants for a permit to use a vehicle in a designated recreational use area need not first comply with s 24(7) (see: reg 5(4)). In terms of reg 22(1)(a), any person may apply to the Minister for exemption from the requirement to undertake an environmental assessment in terms of reg 8 which ties in with s 24(7) of the Act.
The fact that the Regulations could have a negative effect on property values and business, does not mean that the legislation is necessarily null and void. I am not referred to any authority to the contrary.
There is nothing wrong in principle in the requirement that the public must obtain permits and licences from governmental bodies. This may cause delay and inconvenience, but that is inevitable in the system. The court cannot however assume that bureaucratic obstruction or indifference will effectively render the ban total. The citizenry is not without protection or recourse. Section 4 of PAJA gives content to the right of everyone to reasonable and procedurally fair administrative action entrenched in s 33 of the Constitution. Furthermore, in terms of reg 11(b), an authority referred to in regs 6(1) or 7(1) must “ensure that the evaluation and decisions required in terms of the Regulations are made efficiently and within a reasonable time, subject to the applicant being informed in writing of any undue delays which may incur”. The Minister’s discretion to grant an exemption under reg 22 is not arbitrary. He must be satisfied that the use of vehicles in the coastal zone -
“(a) will not result in significant harm to the environment;
(b) will not seriously affect any rights of the general public to enjoy the coastal zone; and
(c) is in the public interest, in the interest of providing equitable access by any physically disabled person to any part of the coastal zone, or in the interest of protecting the environment.”
Presumably, should these requirements be met, the Minister will grant the exemption.
Mr. Pretorius submits that the Regulations discriminate against the residents of Oyster Bay who cannot walk the distance of 12 kilometers to the bathing area and back. He submits that it is unfair to expect them to purchase “electrically propelled vehicles” which they may use in terms of reg 4. Respondent’s counsel, submit that applicants’ case in this regard is based on the equality clause (of the Constitution s 9(3)) and does not really relate to the reasonableness of the Regulations. First applicant has not shown that any of its members is either aged or handicapped. It is not alleged that any of the members of second applicant is disabled. The allegations by Franzen in regard to the effect of the Regulations on elderly and disabled persons are vague and unsubstantiated.
The applicants go further, they take up the cause of the aged and physically handicapped generally. Melville claims that the Regulations discriminate against those persons by denying them access to beaches by means of ORV use. Counsel takes this aspect further in argument. Counsel for respondent counter that neither applicant has established its locus standi to act on behalf of aged persons or persons with disabilities; this, despite the wide provisions of the Constitution (s 38) and generous construction thereof (Ferreira vs Levin NO and Others 1996(1) SA 984 (CC); Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and Another vs Ngxuza and Others 2001 (10) BCLR 1039 (SCA). They further point out that neither applicant is an organisation for the aged or disabled persons. Those groups have their own organisations, and are generally able to fight their own battles, as appears from the submission by the South African Federal Council on Disability referred to by Scheiner in his affidavit. There is clear merit in counsels’ submissions. Furthermore, the impact of the Regulations on disabled persons is not fully canvassed in the papers. Their position is far more complex than the broad averments in the applicants’ affidavits and by their counsel. In the circumstances I deem it unwise to make a decision in this judgment based on the position of the aged and disabled generally. Such a decision could be an obstacle in the path of a proper and full application on behalf of such persons. I therefore confine myself to the position of those persons who are before court through their associations.
Finally, Mr. Pretorius points to the presumption created in reg 20, which in his submission is an indication of the generally unreasonable operation of the Regulations. Regulation 20(b) provides that if in the course of proceedings in connection with an offence under the Regulations it is proved that a person was sitting behind the wheel of a vehicle, that person is presumed, unless the contrary is proved, to have been using that vehicle in that place. There is a further such presumption in para (b). Mr. Pretorius contends that this “reverse onus” is unconstitutional. He may be correct, however I am not called upon to strike down the provision. For present purposes, it is sufficient to hold - as I do - that reg 20 is severable from the rest of the Regulations.
For these reasons I find that the applicants fail to show that the respondent in making the Regulations acted so unreasonably that no reasonable person could so have exercised the power vested in him by s 44 of NEMA. I find that the Regulations are constitutional and lawful.
In the result, the application is dismissed with costs.
JUDGE OF THE HIGH COURT
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