CAN YOU OWN A PART OF THE SEASHORE?

PRESCRIPTION & ENVIRONMENTAL LAW IN SOUTH AFRICA

Photo by Thomas Vogel on Unsplash

Oh, how I wish I owned a part of the seashore ! Just to have the morning sunrise, sea-shells and sea-sand, all to myself…

A person who has been in possession of property for an uninterrupted period of 30 years and who has possessed the property openly as if he or she were the owner thereof, shall become the owner of the property by prescription.

The same applies to a person who has openly, and as though he or she were entitled to do so, exercised the rights and powers of a person who is entitled to a servitude.

This is what South Africa’s Law of Prescription is all about. ¹

However, the Prescription Act also contains an exclusionary clause, which holds that the provisions of the Prescription Act shall not affect the provisions of any law prohibiting the acquisition of land or any right in land by prescription. ²

Can a person acquire land which forms part of the seashore by prescription?

In terms of the ICMA, coastal public property consists inter alia of coastal waters and the seashore. ³

Section 11 of the ICMA clarifies the issue of ownership of the seashore, by stating that :

1. The ownership of coastal public property vests in the citizens of the Republic and coastal public property must be held in trust by the State on behalf of the citizens of the Republic.

2. Coastal public property is inalienable and cannot be sold, attached or acquired by prescription and rights over it cannot be acquired by prescription.

Section 11 of the ICMA compels the state to :

• ensure that coastal public property is used, managed, protected, conserved and enhanced in the interests of the whole community; and

• take whatever reasonable legislative and other measures it considers necessary to conserve and protect coastal public property for the benefit of present and future generations.

Historical possession and development of the seashore

With respect to persons who have historically taken possession of the seashore and built structures and or access routes through the seashore, even those going back 50 or 100 years ago, there are a number of remedies in the ICMA to ensure that the seashore remains in public hands.

In terms of s59 and s60 of the ICMA, the Minister or MEC for environmental affairs may take enforcement action in the form of coastal protection or coastal access notices, or repair and removal notices, in order to ensure that such historical structures built illegally and/or causing environmental damage, are removed.

With the new changes brought about by NEMLAA, the environmental authorities now have the power to issue notices to persons, even for structures erected before the ICMA came into existence.

The Act now has retrospective application and persons who were previously exempted from the Act can now be instructed to remove and repair the structures to the satisfaction of the authorities.

Failure to comply with a removal and repair notice is a criminal offence and the penalties on conviction include imprisonment for a period up to 5 years, R2 million, community service, or both a fine and imprisonment or community service.

Sale and transfer of coastal public property

Coastal public property, such as parts of the seashore, which has been sold surreptitiously by the state and/or local government would obviously fall foul of the ICMA.

Such alienation of coastal public property, in terms of the ICMA, may be declared unlawful and structures built thereon, may be ordered to be removed.

1. PRESCRIPTION ACT 68 OF 1969

2. Section 18 of the Prescription Act

3. NATIONAL ENVIRONMENTAL MANAGEMENT: INTEGRATED COASTAL MANAGEMENT ACT 24 OF 2008 (ICMA)