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Coastal Management: The Protection of Marine Resources

https://lawfulliving.co.za/book/text/environment–coastal-management.html

 If you have ever been surfing and watched excrement float past, it can be a bit disheartening.1 If you have seen penguins strangled by plastic bags, it is worse. If you know of beaches destroyed by over-zealous development of the land, interrupting and interfering with natural tidal flow and siltage, you might wonder if it is worth it – if you were a fish you might think WTH! If you eat that fish, on the other hand, you might want to be careful.

 

The National Environmental Management: Integrated Coastal Management Act 2008 is designed to promote the conservation of our coastal environment; to ensure that development of those natural resources is economically justifiable as well as ecologically sustainable; to control dumping at sea, and many other activities affecting this precious resource.

 

The Act falls under the authority of the Minister of Environmental Affairs, and there is some synergy between this Act and the other Environment Management statutes, the Marine Living Resources Act, the National Water Act, and the Protected Areas Act. There is a general provision which makes it an offence to contravene any provision of the Act, even if not specifically criminalised.2 So Government is taking the environment seriously, and so should we.

  1. Effluent

Effluent is any liquid discharged into the coastal environment as waste. It includes any substance dissolved or suspended in the liquid.3 4

The Minister can give authorisation, generally, or to a specific person, to discharge effluent – whether into coastal waters5 or into an estuary.6  7

  1. It is a crime to discharge effluent that originates from a source on land into coastal waters, or an estuary, without a permit issued on behalf of the Minister.8
  2. It is also an offence to discharge effluent into coastal waters, if you do any of the following:
    • waste water;9
    • fail to comply with any condition of the authorising permit; and10
    • fail to comply with applicable waste standards, or water management practices.11
  3. It is an offence to discharge effluent into coastal waters when it is reasonably practicable to return any freshwater in that effluent to the water source from which it was taken.12
  4. You must register any discharge of effluent with the Department of Water Affairs and commit an offence if you fail to do so.13
  5.  
  6. Dumping and incinerating at sea
  7. It is a criminal offence to incinerate any waste, or other material, on any marine waters – including aboard a South African vessel, air craft, platform or other structure.14
  8. If you import into the Republic any waste, or other material, to be dumped or incinerated at sea (i.e. on any marine waters) you are guilty of an offence.15
  9. If you export from the Republic any waste or other material to be dumped or incinerated, either on the high seas or in an area of the sea under the jurisdiction of another state you are also guilty of an offence.16
  10. Of course, it is illegal to:
    • dump at sea any waste, or other material; or
    • dump from a South African vessel, aircraft, platform or other structure at sea, any waste or other material,

without a ‘dumping permit’ issued under the Act.17

  1. You may dump at sea waste, or other material if it has been authorised by a specific permit, and the master of the vessel, aircraft, platform or other structure can produce written proof. If you do not have such a permit, it is an offence even to load any waste or other material to be dumped or incinerated at sea onto any vessel, aircraft, platform or other structure at any place in the Republic (including the exclusive economic zone).18
  2. If you dump at sea any waste or other material from a South African vessel, aircraft, platform or other man-made structure, in any area of the sea under the jurisdiction of another state, except with the written permission of that state, you are guilty of an offence.19
  3.  
  4. Authorisations

All reclaiming, discharge and dumping activities require authorising permits, which are issued on behalf of the Minister. The following are all offences in regard to these permits.

  1. To contravene or fail to comply with a condition attached to the authorisation.20
  2. To perform an activity otherwise than in accordance with any conditions attached to the authorisation.21
  3. To hinder, or interfere with any person exercising a power, or performing a duty in terms of the Act.22
  4. To make any false statement or report, for the purpose of obtaining (or objecting to) an authorisation.23
  5. To use, pass off, or alter (or even have in your possession) any altered or false document purporting to be a coastal authorisation.24
  6. To fabricate or forge any document for the purpose of passing it off as an authorisation.25
  7. To alter any authorisation.26
  8.  
  9. Notices and directives
  10. If the Minister has reason to believe that a person has carried out, or is carrying out (or intends to carry out) an activity that is having, or is likely to have, an adverse effect on the coastal environment then he may issue a so-called ‘coastal protection notice’, instructing that person to do various things. It is a criminal offence to fail to comply with such a notice.27
  11. If the Minister has reason to believe that a person has carried out, or is carrying out (or intends to carry out) an activity that is likely to have an adverse effect on the rights of people to gain access to, use and enjoy coastal public property, the Minister may issue a ‘coastal access notice’, instructing that person to take appropriate steps. It is an offence not to comply with such a notice.28
  12. The Minister may issue a ‘repair or removal notice’ to any person responsible for a structure on or within the coastal zone, if that structure:
    • is likely to have an adverse effect on the coastal environment;29or
    • has been erected, constructed or upgraded in contravention of the Act, or any other law.30

It is an offence not to comply with such a notice,31 and it is also an offence to allow someone not to comply with the notice.32

  1. The Minister (or MEC) can even issue a verbal directive to any responsible person to stop an activity which poses an immediate risk of serious danger, damage or detriment. It is a crime not to comply with such a directive.33
  2.  
  3. Persons in authority
  4. It is illegal to hinder, or interfere with a person duly authorised to exercise powers in terms of the Act.34
  5. It is an offence to pretend (falsely) to be a person with such powers,35and it is also criminal to allow someone to do this.36
  6.  
  7. Coastal public property
  8. Any natural person in the Republic has a right to reasonable access to coastal public property and is entitled to use and enjoy coastal public property.37It is a crime to prevent someone’s reasonable access to the coastal public property.38 39
  9. It is an offence to charge any fee for access to coastal public property without the approval of the Minister.4041
  10. No person may construct, maintain or extend any structure, or take other measures on coastal public property to prevent, or to promote erosion or accretion (which is the opposite of erosion) of the seashore.42It is an offence, if you do so without the necessary authorisation in terms of the Act.43
  11. It is an offence to claim an exclusive right to use, or exploit any part of the environment (including the cultural heritage such as shell middens, or traditional fish traps) that is derived from coastal public property unless you are empowered to do so by other legislation or by specific authorisation from the Minister.44
  12. The Minister can proclaim activities to be prohibited within coastal public property. It is an offence to conduct any such prohibited activity.45
  13.  
  14. Reclaimed land
  15. It is an offence to reclaim land from coastal waters without authorisation from the Minister.46
  16. Reclaiming of land by private enterprise (i.e. when not for the development of state infrastructure) is only approved in exceptional circumstances.47If any person uses reclaimed land contrary to the conditions or permit as granted by the Minister, he commits an offence.48

 

 

 

  1. Photo on canvas, by Western Cape photographer and artist Hermien Botha. It represents her collection of shore-fisherman’s trash from Bettys’ Bay main beach, on one day in 2014. Reproduced with permission. ↩
  2. Section 79(2)(k). ↩
  3. Effluent can also be liquid which is a different temperature from the water into which it is discharged. ↩
  4. Section 1. ↩
  5. ‘Coastal waters’ are all internal waters, and the sea within 12 nautical miles from the shore. ↩
  6. That is, a body of water open to, or affected by the sea. ↩
  7. Section 69(2). ↩
  8. Section 69(1) read with section 79(1)(a). ↩
  9. Section 69(6)(a) read with section 79(1)(d). ↩
  10. Section 69(6)(c) read with section 79(1)(a). ↩
  11. Section 69(6)(d) read with section 79(1)(a). ↩
  12. Section 69(6)(a) read with section 79(1)(a). ↩
  13. Section 69(6)(e) read with section 79(1)(a). ↩
  14. 70(1)(a) read with section 79(1)(b). ↩
  15. 70(1)(b) read with section 79(1)(b). ↩
  16. See Section 70(1)(c) read with section 79(1)(c). ↩
  17. 70(1)(e) read with section 79(1)(e). ↩
  18. Section 70(1)(d) read with Section 71 and section 79(1)(c). ↩
  19. Section 70(1)(f) read with section 79(1)(d). ↩
  20. Section 79(2)(g) (Amended Act). ↩
  21. Section 79(2)(e). ↩
  22. Section 79(2)(b). ↩
  23. Section 79(1)(i). ↩
  24. Section 79(1)(h). ↩
  25. Section 79(1)(g). ↩
  26. Section 79(1)(f). ↩
  27. Section 79(2)(e) read with section 59(1). ↩
  28. Section 79(2)(e) read with section 59(5). ↩
  29. Section 60(1)(a) read with section 79(2)(a). ↩
  30. Section 60(1)(b). ↩
  31. Section 79(2)(a). ↩
  32. Section 79(2)(i) read with section 79(2)(a). ↩
  33. Section 79(1)(n). ↩
  34. Section 79(2)(b). ↩
  35. Section 79(2)(c). ↩
  36. Section 79(2)(i) read with section 79(2)(c). ↩
  37. Provided such use: does not adversely affect the rights of members of the public to use and enjoy the coastal public property; does not hinder the State in the performance of its duty to protect the environment; and does not cause an adverse effect. ↩
  38. The section does not prevent prohibitions or restrictions on access to, or the use of, any part of coastal public property: which is or forms part of a protected area; to protect the environment, including biodiversity; in the interests of the whole community; in the interests of national security; or in the national interest. ↩
  39. Section 79(2)(j) read with section 13(1)(a). ↩
  40. This does not apply to coastal public property that has been leased out, or forms part of a protected area or harbour. ↩
  41. Section 79(1)(1) read with section 13(3)(a). ↩
  42. The occupiers of certain buildings and other structures which were unlawfully erected prior to 5 February 2016 must apply for a permit, or demolish the building and restore the site, depending on the activity involved and the nature of a notice to this effect published by the Minister in the Government Gazette. see Section 96 of the Act, reawith Section 65. No such notice has yet been promulgated. ↩
  43. Section 15(2) read with section 79(2)(k). ↩
  44. Section 65(2) read with section 79(2)(k). ↩
  45. Section 79(1)(m). ↩
  46. Section 79(1)(j). ↩
  47. See Section 7B and 7C of the Act. ↩
  48. Section 79(1)(k). ↩