From the Advocates: "In our view this is not permissible. "

EX PARTE:                             SAVE VETCH’S ASSOCIATION

 

RE PROPOSED:                          LEASE OF SEABED AND SEASHORE BY MINISTER OF

                                                TRANSPORT TO eTHEKWINI MUNICIPALITY

 

 

OPINION

 

 

 

D J Shaw QC

P A C Rowan SC

A A Gabriel SC

A Coutsoudis

 

 

Instructed by:

M Jackson

Cox Yeats

21 Richefond Circle

RidgesideOffice Park

Umhlanga Ridge,Durban

 

 

We are asked to advise on a proposal to lease portion of the seashore and the seabed between Vetch’s Pier and the North Pier of Durban Harbour to theeThekwiniMunicipality. The proposal was advertised in April this year.  The advertisement states that the intention is to enter into a lease in terms of section 4 of the Seashore Act 1935.

 

The area in question falls within the area ofDurbanHarbouras set out in the First Schedule to the South African Transport Services Act No.65 of 1981. That area is defined as being the area of sea bounded by lines set out in the description together with the foreshore wharfs, docks, basins, jetties, piers and harbour works and all harbour and docklands vested in the Government of theRepublicofSouth Africa.  The area fell within the South African Transport Services jurisdiction as defined in Act 65 of 1981 which is referred to in section 3(3) of the Legal Succession to the South African Transport Services Act No. 9 of 1989.

 

The power to enter into the lease which is referred to in the notice which we have mentioned is section 4 of the Seashore Act.  That enables the Minister subject to the conditions in section 4(2) and such other conditions as he may deem expedient to let any portion of the seashore and the sea of which the State President is by section 2 declared to be the owner to any local authority. Section 2 declares the State President to be the owner of the seashore and the sea except any portion lawfully alienated before the commencement of the Seashore Act.  As the area in question falls withinDurbanHarbourwe mention that section 13(b) provides that the Seashore Act is not to affect rights or powers conferred upon the Administration as previously defined in the Seashore Act

“by or under any law relating to ports and harbours in respect of any portion of the seashore or the sea”.

 

If there is a conflict between the Seashore Act and the other law referred to then the rights and powers of the Administration

 

“shall be determined by the provisions of such law and not by the provisions of this Act”.

 

 

By virtue of section 36(2) of Act 9 of 1989 the reference to Administration in section 13 of the Seashore Act is to be construed as a reference to the company which became the successor to the South African Transport Services.

 

We feel that it is desirable to mention section 13 and the provisions relating to the Transport Services although they are not relied on in the notice with regard to the proposed lease. Their existence is however we think possibly relevant with regard to the interpretation of the Act which in our view is crucially relevant namely the National Environmental Management Integrated Coastal Management Act No. 24 of 2008.  In general that Act was brought into force on 1 December 2009.  There are however some sections which have to be considered which have not been brought into force. The first is section 11 providing that the ownership of coastal public property vests in the citizens of the Republic.  The others are sections 95 and 96, and section 98 which repeals two Acts one of them being the Seashore Act 1935 and the other Dumping at Sea Control Act 1980.

 

In view of some suggestions in correspondence from the eThekwini Municipality to the Minister of Transport dated 20 August 2009 we should mention that in our view it is clear that it cannot seriously be suggested that the Municipality had any existing right to the property proposed to be leased which might qualify as being preserved either by section 95 of the 2008 Act or otherwise.  The question in our view is what effect the 2008 Act has on the powers under the Seashore Act.

 

As we have mentioned section 4 of the Seashore Act enables the Minister to let any portion of the seashore and the sea to any local authority.  Section 4(3) by incorporating section 3(5) and (6) requires notice to be given and an opportunity for objection to the proposal.

 

Although as we have said section 11 of the 2008 Act is not yet in force, most of the provisions are. These provisions include section 12 which provides that the State must ensure that coastal public property is used, managed protected, conserved and enhanced in the interest of the whole community. Coastal public property means coastal property referred to in section 7 and therefore includes the seashore. Any activity on or in coastal waters must be in the interests of the whole community.

 

Coastal waters includes marine waters forming part of the internal waters or territorial waters of the Republic referred to in section 3 and 4 of the Maritime Zones Act 1994.  The phrase “internal waters” is referred to in section 3 of the Maritime Zones Act and includes all harbours.  Territorial waters means the sea within a distance of 12 nautical miles from the base lines referred to in that Act. It is therefore clear beyond any doubt that the property proposed to be leased constitutes coastal waters and coastal public property in terms of the 2008 Act.

 

Generally speaking the 2008 Act proceeds on the basis set out in section 13 that every natural person has a right of reasonable access to coastal public property.  There are certain exceptions to this right in section 13(2) but none of those is suggested to apply here.  Generally speaking therefore if it is desired to grant any rights with regard to property forming part of coastal public property then the property concerned must be excluded from coastal public property in terms of section 27. Possible exclusions are under section 27(2) for government purposes and under section 27(4) for any other purpose “with the ratification of parliament”. Section 27(7) defines “government purposes” as meaning the exercise of functions by an organ of state that are in the national interest or in the interest of national security. Donation, leases of more than 20 years or alienation by the organ of State concerned are expressly excluded from the definition of government purposes.

 

It follows that if the Minister were to wish to lease the land to the eThekwini Municipality in terms of section 27 the lease would either have to be for a period of less than 20 years and for the exercise of functions by the Municipality that are in the national interest or in the interest of national security. Obviously none of these considerations apply to the proposal by theeThekwiniMunicipality.  Any exclusion would therefore have to be under section 27(4) with the ratification of Parliament.

 

It is therefore in our view quite clear that the proposed lease cannot be entered into under the 2008 Act and in fact it is not proposed that it should be. What is proposed is that it should be entered into under powers under the Seashore Act of 1935 in a manner entirely inconsistent with the 2008 Act.

 

In our view this is not permissible. The 2008 Act makes it clear that from the date of the commencement of the Act the provisions of the Act govern the topics dealt with in the Act including dealing with coastal public property.  Those provisions are not consistent with the preservation of section 4 of the Seashore Act and the provision which might conceivably be relied on by virtue of section 13 of the Seashore Act.  The two sets of provisions in our view cannot stand together and it is inconceivable in our view that it was intended that they should do so.  Section 6(1) in fact provides that if there is a conflict relating to coastal management between the 2008 Act and any other legislation, the 2008 Act prevails.  Coastal management is defined as including among other things the development of the coastal zone which includes coastal public property and development expressly includes the construction and erection of any structure.

 

We have dealt to some extent with the provisions of the 2008 Act in order to indicate that in our view the 2008 Act shows a clear intention to govern all aspects of the matter.  In particular in our view it cannot be said that because section 4 of the Seashore Act deals with the specific subject of letting or transfer to a local authority that particular aspect must not be regarded as inconsistent with the 2008 Act on the basis of a suggestion that the 2008 Act deals with the matter generally and not specifically.  This suggestion in our view is insupportable in view of the specific mention to which we have drawn attention of, in particular, letting to organs of State.

 

_______________

D J SHAW QC

 

_______________

P A C ROWAN SC

 

_______________

A A GABRIEL SC

 

_______________

A COUTSOUDIS

 

Chambers,Durban

30 June 2011

 

 

MESSRS COX YEATS

21 Richefond Circle

RidgesideOffice Park

UMHLANGA RIDGE