Maintaining the Ecological Flows of Estuaries: A Critical Reflection on the Application and Interpretation of the Relevant Legal Framework through the Lens of the Klein River Estuary

  • Alexander Ross Paterson Institute of Marine and Environmental Law Faculty of Law University of Cape Town
Keywords: Estuaries, ecological flows, coastal management, estuarine management, legal frameworks, constitutional executive authority, local environmental governance

Abstract

South Africa has 291 functional estuaries of which 43 per cent are threatened. These estuaries provide numerous environmental goods and services to the species situated within and adjacent to them. In an effort to improve the protection of the country’s estuaries and the environmental goods and services they provide, many laws of direct and indirect relevance to estuaries have been introduced over the past two decades. The provision of these environmental goods and services is however contingent upon maintaining the natural ecological flows inherent in estuaries. One significant threat to maintaining these natural ecological flows is the artificial opening of the mouth of an estuary, an action often triggered by the desire to protect private property against flooding when estuarine water levels rise. Decisions to artificially open the mouth of an estuary often therefore need to achieve a difficult balance between ecological (generally public) interests and proprietary (generally private) interests, a balance which should ideally be informed by the numerous laws, and their associated plans and policies, of direct relevance to protecting and managing estuaries. The courts have recently been called upon to resolve disputes regarding decisions about whether or not to artificially open the mouth of an estuary, and what one recent decision of the Supreme Court of Appeal in Abbott v Overstrand Municipality (2016) clearly illustrates is that there are not only significant challenges in the implementation of the legal framework of direct relevance to estuaries, but also in the judiciary’s understanding and application thereof. It furthermore illustrates distinct anomalies in the interpretation of the original, assigned and incidental executive authority of local government in relation to environmental matters, and that notwithstanding a swathe of recent relevant jurisprudence in this regard, confusion still abounds in this environmental governance quagmire.

Author Biography

Alexander Ross Paterson, Institute of Marine and Environmental Law Faculty of Law University of Cape Town
Professor, Public Law

References

Literature

Anchor Environmental Determination of the Ecological Water Requirements for the Klein Estuary (Report prepared for the Breede-Gouritz Catchment Management Agency 2015)

Bronstein V “Mapping Legislative and Executive Powers over ‘Municipal Planning’: Exploring the Boundaries of Local, Provincial and National Control” 2015 3 SALJ 639-663

CapeNature and iRAP Consulting Development of an Estuarine Management Plan for the Klein River, Overberg Region, Western Cape (Draft Situation Assessment Report 2007)

Driver A, Sink KJ, Nel JL, Holness SH, Van Niekerk L, Daniels F, Jonas Z, Majiedt PA, Harris L and Maze K National Biodiversity Assessment 2011: An Assessment of South Africa’s Biodiversity and Ecosystems. Synthesis Report (South African National Biodiversity Institute & Department of Environmental Affairs Pretoria 2012)

Du Plessis A (ed) Environmental Law and Local Government in South Africa (Juta Cape Town 2015)

European Commission Ecological Flows in the Implementation of the Water Framework Directive (Guidance Document No. 31 2015)

Freedman W “The Legislative Authority of the Local Sphere of Government to Conserve and Protected the Environment: A Critical Analysis of Le Sueur v eThekwiwni Municipality [2013] ZAKZPHC (30 January 2013)” 2014 17(1) PELJ 567-594

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Turpie J and Clark B Development of a Conservation Plan for Temperate South African Estuaries on the Basis of Biodiversity Importance, Ecosystem Health and Economic Costs and Benefits - Final Report (C.A.P.E. Regional Estuarine Management Programme 2007)

Case Law

Abbott v Overstrand Municipality 2015 JOL 33188 (WCC)

Abbott v Overstrand Municipality 2016 JOL 35969 (SCA)

City of Cape Town v Robertson 2005 2 SA 323 (CC)

Doctors for Life International v Speaker of the National Assembly 2006 6 SA 416 (CC)

Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 1996 4 SA 744 (CC)

Ex Parte President of the RSA: In re Constitutionality of the Liquor Bill 2000 1 SA 732 (CC)

Habitat Council and Another v Minister of Local Government, Environmental Affairs & Development Planning, Western Cape 2013 6 SA 113 (WCC)

Joh-Air (Pty) Ltd v Rudman 1980 2 SA 420 (T)

Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 2 SA 554 (SCA)

Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 6 SA 182 (CC)

Kenton on Sea Ratepayers Association vs Ndlambe Local Municipality (ECD) (unreported) case number 4341/2014 of 15 June 2016.

Le Sueur v Ethekwini Municipality 2013 ZAKZPHC 6
Maccsand (Pty) Ltd & Another v City of Cape Town & Others 2011 4 All SA 601 (SCA)

Maccsand (Pty) Ltd v City of Cape Town 2012 4 SA 181 (CC)

Mazibuko c City of Johannesburg 2010 4 SA 1 (CC)

Minister of Mineral Resources v Swartland Municipality 2012 7 BCLR 712 (CC)

Minister for Local Government Environmental Affairs and Development Planning, Western Cape v Clairison’s CC 2013 (6) SA 235 (SCA)

Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v Habitat Council 2014 5 BCLR 591 (CC)

Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v Lagoon Bay Lifestyle (Pty) Ltd 2013 ZACC 39

Nel v Hessequa Local Municipality (WCC) (unreported) case number 12576/2013 of 14 December 2015

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 3 SA 623 (AD)

Shelfplett 47 (Pty) Ltd v MEC for Environmental Affairs and Development Planning, Western Cape 2012 (3) SA 441 (WCC)

Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2009 1 SA 337 (CC)

Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 3 SA 371 (SCA)

Legislation

Constitution of the Republic of South Africa, 1996

Environment Conservation Act 73 of 1989

Local Government Transitions Act 209 of 1993

Development Facilitation Act 67 of 1995

Marine Living Resources Act 18 of 1998

National Environmental Management Act 108 of 1998

National Environmental Management: Biodiversity Act 10 of 2004

National Environmental Management: Integrated Coastal Management Act 24 of 2008

National Environmental Management: Protected Areas Act 57 of 2003

Nature Conservation Ordinance (Cape) 19 of 1974

National Water Act 36 of 1998

Promotion of Administrative Justice Act 3 of 2000

Sea-Shore Act 21 of 1935

Spatial Planning and Land Use Management Act 16 of 2013

Western Cape Land Use Planning Act 3 of 2014

Government Publications

GN R796 GG 22605 of 24 August 2001 (Local Government, Municipal Planning and Performance Management Regulations)

GN 813 GG 32474 of 3 August 2009 (National Biodiversity Framework)

GN R547 GG 33306 of 18 June 2010 (Environmental Management Framework Regulations)

GN 546 GG 35517 of 20 July 2012 (Draft Catchment Management Strategy of the Breede-Overberg Catchment Management Agency)

GN 341 GG 36432 of 10 May 2013 (National Estuarine Management Protocol)

PN 83 PG 3150 of 26 March 2014 (Eastern Cape Costal Management Programme)

GN 412 GG 37677 of 23 May 2014 (Establishment of Breede-Gouritz Catchment Management Agency)

PN 212 PG 7620 of 27 May 2016 (Western Cape Coastal Management Programme)

GN 1056 GG 40279 of 16 September 2016 (Rationalisation of South Africa’s Water Management Areas)

GN 1034 GG 39347 of 30 October 2015 (Draft Durban Bay and Orange River Mouth Estuarine Management Plans)

PN 288 PG No. 7653 of 20 July 2016 (Draft Breede River Estuarine Management Plan)

PN 41 PG 3777 of 19 December 2016 (Nahoon Estuarine Management Plan)

PN 43 PG 3777 of 19 December 2016 (Nelson Mandela Bay Municipality Coastal Management Lines)

PN 41 PG No. 2094 of 15 May 2017 (Draft Buffels and Swartlintjies Estuarine Management Plan)
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Published
2018-01-26
Section
Case Notes