PUBLIC TRUST AND RES PUBLICAE

IN SOUTH AFRICAN LAW Towards a unified regulatory system of water in light of the

National Water Act 36 of 1998

by

Cheri-Leigh Young (YNGCHE003)

Submitted to The University Of Cape Town

in fulfilment of the requirements for the degree LLB

Faculty of Law, University of Cape Town

Date of submission: 25 September 2009

Supervisor: Professor Hanri Mostert

Department of Private Law, University of Cape Town

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DECLARATION

1. I know that plagiarism is wrong. Plagiarism is to use another’s work and pretend that it is one’s own.

2. I have used the footnoting convention for citation and referencing. Each contribution to, and quotation in, this opinion from the work(s) of other people has been attributed, and has been cited and referenced.

3. This opinion is my own work.

4. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his or her own work.

Signature ______________________________

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Public Trust and Res Publicae in South African Law Towards a unified regulatory system of water in light of

the National Water Act 36 of 1998

by

Cheri-Leigh Young (YNGCHE003)

Word Count: 7735

This paper was written under the auspices of the LandLawWatch project. The views and opinions expressed here are the author's own and should not be attributed to the LandLawWatch project or the University of Cape Town.

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ABSTRACT

The Constitution together with the National Water Act 36 of 1998 introduced a new scheme of regulation of water in South Africa. This has brought into question the status of res publicae in modern law. This is particularly so in light of the importation of the American notion of the public trust doctrine. It is proposed that these schemes are complimentary, exist simultaneously, and fall within the parameters set by the National Water Act. Together, the two doctrines establish a construct within which water falls within the property regime as well as fulfil the constitutional objectives of social upliftment and environmental sustainability.

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Table of Contents

Table of Contents  1. Introduction .............................................................................................................................................................. 5 2. Historical analysis of ownership, things and property with reference to water ................................................. 7

2.1. Ownership .......................................................................................................................................................... 7 2.2 Things or res ....................................................................................................................................................... 7 2.3 Property ............................................................................................................................................................... 8 2.4 History of water law: From Roman jurisprudence to modern Constitutional constructs....................................... 9

3. Modern water law ................................................................................................................................................... 11 4. Notions of public ownership of water .................................................................................................................. 12

4.1 The public trust doctrine .................................................................................................................................... 12 4.1.1 Problems with the doctrine ........................................................................................................................ 14 4.1.2 Benefits of the doctrine .............................................................................................................................. 15 4.2.3 Has the public trust doctrine been imported into SA water law? ................................................................ 17

4.2 Res publicae...................................................................................................................................................... 18 5. Conclusion ............................................................................................................................................................. 21 Bibliography ............................................................................................................................................................... 23

Literature ................................................................................................................................................................. 23 Articles ................................................................................................................................................................ 23 Books ................................................................................................................................................................. 23 Theses ................................................................................................................................................................ 24 Electronic journals .............................................................................................................................................. 24

Primary sources ...................................................................................................................................................... 24 Cases ................................................................................................................................................................. 24 Legislation .......................................................................................................................................................... 24

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1. Introduction

“Water scarcity in South Africa is a condition imposed by nature, but exacerbated by human greed.”1

The situation with regard to South Africa’s water supply is grim. The predominant source of water is surface water, which is supplied by rivers, streams and ground water.2 However, the quality and quantity of this water source is by no means near sufficient to provide for the many needs and purposes that water sustains.3 Allan enumerates some of the challenges facing our water supply, including over-population, high rates of evaporation as well as alien invasive species that increase evapotranspiration rates.4 In addition to this, there is the conundrum posed by agriculture - on the one hand agriculture is essential for the survival and prosperity of our nation, but on the other, it is draining our water supplies whilst polluting it with fertilisers and other poisonous chemicals that find their way into streams and underground waters through run-off. Allan states that the ‘growth in population…[and] increased prosperity means that predicted levels of water consumption are expected to rise at almost double the rate of population increase’.5 It is clear from this summation that there is a definite need for intensive government regulation of water.

The founding principle of emerging environmental law is commonly referred to as ‘sustainable development’.6 This phrase has been coined to support the notion that the environment and its protection must be viewed from a multi-purpose perspective. In other words, governments cannot simply maintain the environment at all costs, specifically not at the cost of social and economic concerns.7 The three pillars of sustainable development thus require a balance to be struck between environmental, social and economic concerns and development.8 This is particularly relevant in South Africa, where finding motivation to protect the environment is difficult in comparison with the vast and diverse social needs that exist. In addition, the tension between economic growth and environmental concerns will always be a topical and controversial issue, one that at most times requires sensitivity. Nonetheless, it has been recognised that the protection of the environment is of paramount importance, both for our sake as well as future generations to come.9

The concept of environmental justice emphasises the right of equal access to natural resources.10 An additional principle provided for by the National Environmental Management Act 107 of 1998, (hereinafter referred to as NEMA), is the principle of intra-generational equity, which ensures that there is an equitable use of natural resources.11 This is further supported by the fact that section 2(4)(o) provides that ‘the environment is held in public trust for the people, the

1 Calfee 2001 U C Davis J Int’l L & Pol’y 58. 2 Allan 2003 Nat Resources J 426. 3 Allan 2003 Nat Resources J 426. 4 Allan 2003 Nat Resources J 426. 5 Allan 2003 Nat Resources J 426. 6 Glazewski Environmental Law in South Africa 13. 7 Glazewski Environmental Law in South Africa 13. 8 Glazewski Environmental Law in South Africa 13. 9 Glazewski Environmental Law in South Africa 16. 10 Glazewski Environmental Law in South Africa 16. 11 Glazewski Environmental Law in South Africa 13.

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beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage’.12 From this it seems reasonable to assert that the Constitutional provisions as expounded in NEMA, create an unambiguous obligation on the state to firstly, promote and ensure adequate protection of the environment in light of social and economic demands. Secondly, the state is obliged to redress discrimination and ensure equal access to natural resources. In order for the state to properly carry out its duties and be held accountable thereto by the public, a proper understanding of the legal framework must be ascertained.

When one looks at current legislation regarding ownership of water, particularly the National Water Act 36 of 1998, it is clear that these rights are no longer capable of private ownership.13 However, this begs the question – who owns these rights? In this paper I argue that the state owns these rights, but not in the private law sense. Consequently, I will deal with the relationship between the argument that water is a res publicae and the public trust doctrine. The public trust doctrine, which purportedly has been imported from foreign jurisprudence is problematic in that it still has unresolved issues within the comforts of its home country, the United States of America.14 It is difficult to accept that South African lawmakers would intentionally import this legal framework into our law, knowing full well that it is to a large degree unsettled and complex. It is therefore critical to investigate to what extent the concept of res publicae is still relevant and whether it can be developed to incorporate our modern conception of water rights.

This paper investigates how water as a natural resource is regulated in modern law, in light of the abovementioned environmental and social concerns, and how this affects the established notions of property in relation thereto. In order to address this issue, the notion of property generally will be investigated in order to contextualise and explain the res

publicae concept. This will focus on an historical analysis of the conception of ownership, things and property. It will also look at the history of water from Roman jurisprudence, through Roman-Dutch law and finally the modern pre-Constitutional constructs. Modern water law will then be discussed in light of the most recent and relevant legislation, namely the National Water Act 36 of 1998. The notions of public ownership of water will be addressed by focussing on this relative to the public trust doctrine as well as res publicae. If the public trust doctrine has been imported, it follows that it must also be ascertained whether the notion res publicae is still relevant and to what extent it may be useful and necessary. Finally, I will attempt to portray a tenable conclusion as to the current situation of our modern water law.

12 Glazewski Environmental Law in South Africa 18. 13 Badenhorst, et al The Law of Property 720. 14 Van der Schyff 2008 TSAR 761.

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2. Historical analysis of ownership, things and property with

reference to water

2.1. Ownership

Ownership in classical Roman law was defined as the ‘unrestricted right of control over a physical thing, and whosoever has this right can claim the thing he owns wherever it is and no matter who possesses it’.15 It was predominantly a system of absolute ownership.16 However, it is noted that there were some restrictions, for example, an owner was not permitted to ‘interfere with the natural flow of water from his neighbour’s land to his’.17 The Roman-Dutch law notion of ownership distinguished between relative and exclusive ownership.18 Exclusive ownership would only arise when a person had all three rights in the thing.19 There were three perspectives from which ownership was viewed, namely, a person’s right to possess, use and enjoy, and alienate a thing.20 Thus, all three had to be present in order for a person to have exclusive ownership. If one of the elements was missing, the nature of the ownership was relative.21

Similarly, ownership in the modern legal society means that an owner has an absolute real right in respect of his or her property, subject only to the restrictions imposed either by the law or agreement.22 Modern law has evolved to the extent that ownership does not entail owning all that is found above and below the land, a principle that was implicit to traditional understandings of ownership known as cuius est solum, eius est usque ad caelum et ad inferos.23 There are two further limitations on modern property law that are likely to shape its future content, namely, the societal requirements of property law as well as the need for consonance between private property and modern day practice.24

2.2 Things or res

Grotius considered things (commonly known as res) to mean ‘everything external to man, which can in any way be of use to man’, which can generally be said still to be the notion of things as we understand it today.25 Things were divided into three categories, and of specific interest to this paper is the category known as patrimonium bona.26 This, as per Kaser, ‘denoted property in general’, that is, ‘the total of objects of economic value’.27 This was not capable of ownership by individual persons. He contrasts this specifically with ‘things that are singular, defined, jurisdically

15 Jolowicz Historical Introduction to the Study of Roman Law 140. 16 Jolowicz Historical Introduction to the Study of Roman Law 140. 17 Jolowicz Historical Introduction to the Study of Roman Law 157. 18 Lee An Introduction to Roman Dutch Law 121. 19 Badenhorst, et al The Law of Property 91. 20 Badenhorst, et al The Law of Property 91. 21 Lee An Introduction to Roman Dutch Law 125. 22 Gien v Gien 1979 (2) SA 1113 (T) 1120 as cited by Badenhorst, et al The Law of Property 91. 23 Badenhorst, et al The Law of Property 92. 24 Badenhorst, et al The Law of Property 93. 25 Maasdorp The Introduction to Dutch Jurisprudence of Hugo Grotius 41. 26 Kaser Roman Private Law 100. 27 Kaser Roman Private Law 100.

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independent physical things’, which were capable of ownership.28 In this paper I discuss water as a unified entity, which satisfies the criteria of patrimonium bona. Much of the current debate regarding whether res publicae can be used to classify resources turns on whether one is viewing the resource from an individualistic perspective, in which case, it would not be applicable. However, if one views the resource as a collective entity (namely patrimonium bona), then it would satisfy the criteria that property needs to be independent, and could therefore be classified as res publicae.29 If this is the definition that is adopted, it will be easier to explain where the legal title of water as a resource lies.30 Firstly, the state would act in the capacity of trustee of the res publicae (that, is the collective resource) and would bear the legal title thereof. Because the nation does not have a legal personality, they therefore cannot acquire rights and duties.31 This proposition best offers a solution to the challenge posed by the wording in the National Water Act, whereby a discrepancy arises as to whether legal title vests in the state or the nation.

2.3 Property

With regards to the classification of property generally, Justinian drew a distinction between res in nostro patrimonio (what was later classified as res in commercio) and res extra nostrum patrimonium (this came to be classified as res

extra commercium).32 The latter was further classified into res communes omnium,33 res publicae, res universitas and res nullius. Res intra commercium were those things having commercial qualities or value and res extra commercium were those things to which no commercial value attached for the purposes of the property regime.34 Res communes

omnium is defined by Kaser as things which ‘conceived of the air, flowing rainwater and water of rivers, the sea and its shores.’35 On the other hand, he defines res publicae as ‘things the ownership of which vested in the state’.36 However, ownership in the res publicae sense must not be understood as the notion by which we understand ownership in the private property regime today.37 Res publicae were not capable of private ownership because the state (generally) was exempt from private law.38 Thus, things classified as res publicae strictly speaking were owned by the state, with the exception that the state was not subject to the normal rules of private property that would apply to all private owners under normal circumstances.

Van der Schyff discusses the lack of clarity amongst the writers between res communes omnium and res publicae.39 She concludes that res communes omnium came to represent those things that were not capable of ownership in lieu of

28 Kaser Roman Private Law 100. 29 Van den Berg 2009 Stell L R 151. 30 Van den Berg 2009 Stell L R 152. 31 Van den Berg 2009 Stell L R 152. 32 Lee The jurisprudence of Holland Volume 1 by Huge Grotius 63. 33 Dig 1 8 2 1 as cited by Burger 2007 TSAR 83. 34 Kaser Roman Private Law 100. 35 Kaser Roman Private Law 101. 36 Kaser Roman Private Law 101. 37 Kaser Roman Private Law 101. 38 Kaser Roman Private Law 101. 39 Van der Schyff 2008 TSAR 86.

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natural law and could be used by all men – thus it represented a notion of property at a global level.40 As opposed to this global phenomenon, res publicae were those things that belonged to the ‘citizens or inhabitants of the state’.41 Abrams contends that res communes omnius was not capable of ‘being dealt with’ or of business transactions, in the sense that the state could not grant any rights in respect of these commodities, because by their very nature they were the ‘common property of all men’.42 Within the classification of res publicae, however, he notes that some entities may have been capable of ordinary business relations, and includes within this category the public treasury.43 This is in accordance with Van der Schyff’s view.

The importance of these classifications with regard to this paper is that it is uncertain whether res publicae has any role to play in modern law in light of the resource reform legislation, namely, the National Water Act. As will be discussed below, there is overwhelming support for the conclusion that the public trust doctrine has been imported into our law via the latest legislation. The problem is that there is to a large extent an overlap between the public trust and the inherent qualities of res publicae. As a result, it is unclear whether the public trust has made res publicae redundant in our law. The alternative is that the two concepts are not mutually exclusive and can in fact work together to form the best system to govern and manage water as a resource within the framework of the modern legislation. This would entail developing the Roman and Roman-Dutch notions of res publicae by supplementing it with the most attractive and suitable features of the public trust doctrine. Thus, res publicae would be used to define water and its place as a thing in the greater scheme of property. The public trust doctrine would in turn define the notions of custodianship and public trusteeship incumbent on the state thereby supplying critical jurisprudence where potential gaps exist in the law.

2.4 History of water law: From Roman jurisprudence to modern Constitutional

constructs

In Roman law, all free-flowing water was classified as res communes omnium and was thus incapable of private ownership.44 A distinction was further made between public and private streams.45 Perennial streams were classified as public, whilst seasonal streams were classified as private.46 In addition to this, the banks and alveus of public streams were regarded as res publicae, that is, owned by the state but capable of use by everyone.47 The purpose of allowing the public access to and the use of these entities was so that they might ‘navigate and fish and make fast at the ports’.48 In addition, it is asserted that ‘what was public was the river as such, not the water, which was common, or the soil of the

40 Van der Schyff 2008 TSAR 90 - 91. 41 Van der Schyff 2008 TSAR 91. 42 Abrams 2006 U Mich J L Reform 872. 43 Abrams 2006 U Mich J L Reform 872. 44 Allan 2003 Nat Resources J 428. 45 Allan 2003 Nat Resources J 428. 46 Allan 2003 Nat Resources J 428. 47 Allan 2003 Nat Resources J 426 - 428. 48 Buckland A Text-Book of Roman Law from Augustus to Justinian 183.

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bed which belonged to the riparians’49. Thus it is clear that the notion of res publicae in Roman law amounted to a vested right in the state and only a use right vested in the public.

On arrival in the Cape, the Dutch immediately implemented the idea that perennial water was res publicae, which was essentially owned by the state. The role of the state was that of the dominus fluminis, meaning ‘master of the river’50. As a result, riparian landowners were only given rights to water on the basis of a government grant, and these rights could be withdrawn at any time.51 However, in the 1855 case of Retief v Louw,52 the Cape Supreme Court began a ‘process of ‘depublicizing’ water resources and reconstituting access to flowing waters as a natural right of land ownership’.53 This seems to have given rise to some confusion as to what the position of landowners’ rights were in relation to the use of water.54 The position was cleared up in 1870 when De Villiers CJ in the case of Hough v Van der Merwe55 drew a distinction between public and private waters, which was essentially an importation of the Anglo-American notion of the doctrine of riparian rights.56

The effect of the distinction between private and public water was that the state was no longer in the position of dominus

fluminus, and the notion of res publicae could no longer be applied to the ‘waters of public rivers’ as this particular notion became privatised.57 Instead, this water was owned privately by the respective riparian landowners.58The doctrine of riparian rights afforded owners of the land through which perennial rivers flowed ownership of that water to the extent that its use should only ‘reasonably diminish the flow’ of the water.59 Many authors contend that the importation of this doctrine was completely inappropriate given South Africa’s arid landscape, arguing instead that the prior appropriation doctrine should have been implemented instead.60 This doctrine ultimately instilled a system of ‘first in time, first in right’ whereby subsequent users had to respect the rights of prior or earlier users.61 Burger argues that practically this was the system used by the Romans, which is more appropriate because the Roman Empire had similar water conditions to South Africa as compared with Holland (representing the Roman-Dutch area) which incurs no water shortages.62

With the implementation of the Water Act 54 of 1956, ownership of water was effectively abolished.63 However, this was of little consequence to the many without access to water supplies, as access to water was still inherently linked to land

49 Buckland A Text-Book of Roman Law from Augustus to Justinian 185. 50 Burger 2007 TSAR 72; Zimmerman & Visser Southern Cross: Civil Law and Common Law in South Africa 671. 51 Zimmerman & Visser Southern Cross: Civil Law and Common Law in South Africa 672. 52 (1874) Buch 165. Zimmerman states that this case was heard in 1856 although it was only published in 1874. 53 Zimmerman & Visser Southern Cross: Civil Law and Common Law in South Africa 672. 54 Zimmerman & Visser Southern Cross: Civil Law and Common Law in South Africa 672 - 673. 55 (1874) 4 Buch 148. 56 Zimmerman & Visser Southern Cross: Civil Law and Common Law in South Africa 673. 57 Zimmerman & Visser Southern Cross: Civil Law and Common Law in South Africa 674. 58 Zimmerman & Visser Southern Cross: Civil Law and Common Law in South Africa 674. 59 Burger 2007 TSAR 72. 60 Burger 2007 TSAR 74. 61 Burger 2007 TSAR 75 - 76. 62 Burger 2007 TSAR 79. 63 Allan 2003 Nat Resources J 438.

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ownership, which was predominantly in the hands of the white population.64 Furthermore, riparian land that was beyond the control of the Minister remained to a large extent quasi-private water and thus the state was only partially restored to the position of dominus fluminus.65

3. Modern water law

The Constitution introduced two provisions that are important to water law, and which necessitated the introduction of the National Water Act 36 of 1998. Section 24 provides that everyone has the right to an environment, which entails that the environment is both protected and managed. Secondly, section 27(1)(b) provides for the right of access to water. Inherent to both of these provisions is an obligation on the state to take reasonable and other legislative measures to further these rights. A water right, as defined by Soltau is “a right to a share in the resource defined by the holder’s priority of use, the amount that may be taken, a guarantee of the quality of the water, the source of the water to be used, and the right to change the place and manner of abstraction”.66 It is argued that this description of a water right has been incorporated into the Act, by virtue of the requirements set out in section 3(1) (discussed below).

The National Water Act has as its primary objective to “provide for fundamental reform of the law relating to water resources…”.67 The new system abolished private ownership of water, replacing the notion of ownership instead with “authorisation to use water”.68 Burger argues that the National Water Act has to a limited extent restored the law to its Roman law origins by reintroducing concepts from the prior appropriation doctrine.69 However, he is critical of the current permit system as he states that it is susceptible to corruption and fails to be regulated by objective criteria.70 It also gives rise to uncertainty in the agricultural sector where a reliable source of water is essential to economic stability and planning.71 He argues that the Roman conceptions of water (divided into perennial, non-perennial, flowing, non-flowing et cetera) and its use should be assimilated into the various pieces of legislation in order to best govern our water resources.72

It is clear that there is a constitutional mandate on the State to ensure access to sufficient water, and positive obligations are clearly imposed on the State by virtue of the fact that legislative and other measures have to be implemented to

64 Van der Schyff & Viljoen 2008 TD: The journal for transdisciplinary research in Southern Africa 340. 65 Soltau 1999 Acta Juridica 237. 66 Soltau 1999 Acta Juridica 239. 67 Badenhorst, et al The Law of Property 725. 68 Badenhorst, et al The Law of Property 720. 69 Burger 2007 TSAR 318. 70 Burger 2007 TSAR 319. 71 Burger 2007 TSAR 80. 72 Burger 2007 TSAR 318.

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attain this goal.73 In accordance with this imperative, the National Water Act together with the Water Services Act gives momentum for achieving these constitutional aspirations.74

The National Water Act in section 3 provides the following:

(1) As the public trustee of the nation’s water resources the National Government, acting through the Minister, must ensure that water is protected, used, developed, conserved, managed, and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate.

(2) Without limiting subsection (1), the Minister is ultimately responsible to ensure that water is allocated equitably and used beneficially in the public interest, while promoting environmental values.

(3) The National Government, acting through the Minister, has the power to regulate the use, flow and control of all water in the Republic.

By virtue of the fact that the words ‘public trustee of the nation’s water resources’, together with the specific requirements to ‘protect, use, develop, conserve, manage and control’, it must be concluded that the legislature intended that government acts in the capacity of trustee with regard to water as an entity. In support of this notion, Allan assumes for instance that this Act automatically implemented the American public trust doctrine.75

4. Notions of public ownership of water

There are two possible constructions of ownership that have been alluded to throughout the paper, namely the Roman law res publicae construct and the American public trust doctrine. These will now be discussed.

4.1 The public trust doctrine

The public trust doctrine in modern law is ordinarily at home in American jurisprudence. Thus, in order to understand the doctrine, it will be discussed in light of its history, as well as the scope of its implementation in American law. Van der Schyff notes that the two key features of the public trust doctrine are that the state is made custodian of the resource resulting in a fiduciary duty to manage and protect the resource, together with a ‘bequest to the nation’.76 The nature of the doctrine is not trust law, but the state’s fiduciary responsibilities can be equated to that of a trustee.77 She further asserts that the public trust doctrine is not a construct of our Roman and Roman-Dutch common law, but basic principles

73 Allan 2003 Nat Resources J 437; Support for this can be implicitly found in the judgment of Yacoob in Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) as well as Stein 2004 Tex L Rev 2171 - 2172. 74 Allan 2003 Nat Resources J 437. 75 Allan 2003 Nat Resources J 439. 76 Van der Schyff 2008 TSAR 760. 77 Van der Schyff 2008 TSAR 760.

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can be found in both res communes omnium and res publicae.78 Although its exact origins are uncertain, most authors agree that the public trust doctrine was developed in Roman and Canon law during the Middle Ages, and essentially arose out of the principle of sovereignty.79 Some authors contend that Roman law presents the most doctrinally pure form of the public trust.80 It is also argued that the earliest recordings of the public trust was made by Justinian in his declaration of all ‘natural law communal rights in certain basic and omnipresent natural resources’, which included running water, the sea and its shores.81

With regards to the foundations of the public trust doctrine in American jurisprudence, three central tenets can be established.82 Firstly, all persons have a beneficial interest in water, which facilitates the use of water for commercial, navigation and fishing purposes.83 Implicit in this first notion is that the state is obliged to maintain the ecological viability and sustainability of water for these purposes.84 The second component renders the state the trustee of water and this requires that the state ‘prevent[s] unnecessary harm to public trust uses’.85 The third element is that there may be instances where the state has to award the use of water for purposes that may detract from the trust uses in order to further economic interests.86 There is nothing barring the state from doing so, provided it is consistent with the state’s duties as trustee – that is, in the best interests of the beneficiaries.87 Slade argues that the doctrine has evolved from merely affording the public access to water to a point where it is a ‘doctrine of environmental stewardship’.88 Sax posited that a legal right (which was enforceable against the government) vested in the public, the ‘substance of the right being harmonious with environmental concerns’.89 This makes it the appropriate forum through which environmental concerns in relation to resources can be protected.90

The defining case with regards to the public trust doctrine in the United States is that of Illinois Central Railroad Co v

Illinois91 which states that the government was ‘neither free to alienate its navigable waters nor abdicate its public trust responsibilities over such waters in a manner that was inconsistent with its public trust duties.’92 The effect of this case was to create a distinction between property that the state owned and could freely dispose of and property which had to be carefully managed on behalf of all citizens and in the interest of the nation.93 Importantly, the state is owner in both

78 Van der Schyff 2008 TSAR 760. 79 Abrams 2006 U Mich J L Reform 878. 80 Author unknown 1969 Yale L J 762 at 764. 81 Lazarus 1985 Iowa L Rev 633. 82 Roos-Collins 2004Tex L Rev 1932. 83 Roos-Collins 2004 Tex L Rev 1932. 84 Roos-Collins 2004 Tex L Rev 1932. 85 Roos-Collins 2004 Tex L Rev 1932. 86 Roos-Collins 2004 Tex L Rev 1932. 87 Roos-Collins 2004 Tex L Rev 1932 88 Slade The Public Trust in Motion 1. 89 Lazarus 1985 Iowa L Rev 642. 90 Lazarus 1985 Iowa L Rev 642. 91 146 US 387 (1892). 92 Brown 2006 Fla St U L Rev 12. 93 Van der Schyff 2008 TSAR 762 - 763.

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instances, but the duties imposed on the state in relation to each differ dramatically.94 In the latter instance, the state can only discharge its duty by positively engaging with its obligations, that is, to manage and control.95 The state cannot simply discharge its duty by alienating property subject to the public trust, unless and only if it would promote the public interest or not substantially impair it.96

4.1.1 Problems with the doctrine

There are a number of problems with the doctrine in the United States that militate against its wholesale importation into South African law. Firstly, there is uncertainty as to how it is applied from state to state. There is a distinction between high-tide states where public trust resources may not be privately owned, and low-tide states, where private ownership is possible.97 There is, in addition, a distinction between eastern states where a riparian system of ownership is implemented, and western states where the prior appropriation doctrine operates.98 However, it seems that the American jurisprudence has to a large extent evolved since the Illinois case and today most water resources are governed by the public trust doctrine.99 In addition, it has been extended to other natural resources, such as wildlife, beaches and marine life, thereby indicating the doctrine’s inherently flexible nature.100 In South Africa, these discrepancies are to a large degree mitigated by the fact that the National Water Act has abolished the distinction between public and private water, and with it the riparian system of ownership. However, if our courts are to interpret and apply the public trust doctrine in light of its inclusion in the Act, they will inevitably have to rely on the American jurisprudence from whence it came. This again brings us back to the problem of which particular jurisprudence they will rely on and furthermore, what justification can be utilised to favour one state’s interpretation of the public trust over another.

The second factor that is particularly problematic is that public use is defined in American jurisprudence as being for the public purpose.101 Who decides this and what necessitates a good or better public purpose? This seems to allow for a highly flexible standard of decisions-making. The legislature is definitely best suited to make policy decisions that are inherently variable and this is perhaps the best way to approach this problem. There is already constitutional jurisprudence with regards to policy decisions arising from the Bill of Rights, where the Constitutional Court has made it clear that when acting in light of constitutional rights, the state has both a positive and negative obligation to fulfil the right.102 The Constitution qualifies the government’s responsibility of ensuring access to water by requiring only the progressive realisation of the right through reasonable legislative measures to the extent that it is within the available

94 Van der Schyff 2008 TSAR 762 - 763. 95 Van der Schyff 2008 TSAR 763. 96 Van der Schyff 2008 TSAR 763. 97 Ryan 2003 Mich Telecomm & Tech L Rev 338. 98 Soltau 1999 Acta Juridica 233. 99 Lazarus 1985 Iowa L Rev 648. 100 Lazarus 1985 Iowa L Rev 649. 101 Brown 2006 Fla St U L Rev 15. 102 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC).

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resources of the government to do so.103 However, in Government of the Republic of South Africa and Others v

Grootboom and Others,104 the court interpreted this wording to mean that the provision imposes both negative and positive obligations on the state.105 Thus, the state must initiate constructive measures in order to comply with its obligations and simply introducing legislative measures is not sufficient to discharge these duties.106 This case represents the essence of transformative justice, whereby “a society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality”.107 The Legislature is also highly accountable when acting in terms of the public benefit or purpose in terms of administrative law. As a result, if any decision or policy made by the Legislature fails to realise progressively the rights in a positive manner, or is not objectively in the public interest, the public will have the requisite locus standi in terms of the Constitution to challenge the decision.

The third problem, which is implicitly borne from the second, is that any review that takes place by the courts will also give rise to the counter-majoritarian dilemma. The problem espoused by the counter-majoritarian dilemma is that a group of unelected judges, when dealing with policies made by the legislature, have the power to overrule these decisions, despite the legislature being a formally elected body that is representative of the nation.108 Support for this problem is found in Dunning’s questioning of why the regulation of this doctrine cannot be left to the legislature, and further why the courts should be able to intervene and limit the legislature’s discretion.109 However, Dunning later argues that the very nature of the doctrine and the fact that it aims to protect natural resources, is exactly why the courts should be able to intervene and exercise powers of oversight over the legislature.110 This accords with the separation of powers doctrine, which requires due deference and respect to be maintained between the executive, legislature and judiciary.111

4.1.2 Benefits of the doctrine

Despite its pitfalls, there are good reasons why the doctrine is well-suited to our current situation. The doctrine affords the government the right to recall any use rights or licences that have been awarded at any point in time provided it can show that it is a ‘paramount claim’.112 This is in accordance with the National Water Act, which allows the state at any point to retract use rights of water. This is an important implication as the state should not be able to bind itself indefinitely to decisions it has made. This is particularly so given that future circumstances may change the context of the decision and it may potentially no longer be in the best interests of the nation for the decision to be upheld.

103 Section 27 of the Constitution as cited by Gowlland-Gualtieri 2007 IELRC Working Paper 2. 104 Badenhorst, et al The Law of Property 738. 105 Badenhorst, et al The Law of Property 738. 106 Badenhorst, et al The Law of Property 738. 107 Para 44 as cited by Sandra Liebenberg 2006 Stell L R 34. 108 Currie & De Waal The New Constitutional & Administrative Law 35 – 36. 109 Dunning Issues in Legal Scholarship: Joseph Sax and the Public Trust 6. 110 Dunning Issues in Legal Scholarship: Joseph Sax and the Public Trust 6. 111 Currie & De Waal The Bill of Rights Handbook 18. 112 Brown 2006 Fla St U L Rev 13.

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The doctrine incorporates a two-fold approach to resource management. On the one hand, it requires a reactive approach when unsatisfactory or inadequate decisions have been made or when resources are being mismanaged. On the other, it also requires a proactive approach whereby the legislature is able to exercise its initiative and discretion to prevent the need for disaster-management measures and litigation.113 This is also in accordance with the Grootboom decision as discussed above, which requires positive steps to be implemented in order for the state to satisfy its constitutional mandate. The practical workings of the doctrine require the legislature to effectively manage the trust.114 The judiciary will then procure an oversight function in instances where this fiduciary obligation has been breached.115 Joseph Sax, the father of the modern public trust doctrine stated that:

‘When a state holds a resource which is available for the free use of the general public, a court will look with considerable scepticism upon any governmental conduct which is calculated either to reallocate that resource to more restricted uses or to subject public uses to the self-interest of private parties.’116

The implication of this statement is that the state is under incredible scrutiny at all times to manage the resource with the utmost credibility and integrity. Van der Schyff argues that the public trust doctrine obliges the state to act positively in accordance with the objectives set out in the National Water Act, and failure to do so will result in the act being ultra

vires.117 Another valuable element of the doctrine is that it affords everyone who forms part of the ‘nation’ a judicially enforceable right to ensure that the state complies with its duties.118 This is consonant with section 38 of the Constitution, which provides locus standi to anyone who alleges that a right in the Bill of Rights has been infringed.119 What further enhances the necessity for credibility is that section 33 of the Constitution and The Promotion of Administration of Justice Act 3 of 2000 afford a right to just administrative action.120 Where a body exercising a public power or function has not acted in a manner that is lawful, reasonable and procedurally fair, the decision may be set aside by the courts.121 Furthermore, where a person’s rights are adversely affected, they have the right to written reasons from the administrative body.122

Rose provides another appealing justification for the doctrine. The public trust doctrine affords the judiciary with an element of control over inherently public resources123. As she states, legislatures are often susceptible to intense pressure from special interest groups, for example mining companies.124 Furthermore, it is clear that ‘legislatures are

113 Brown 2006 Fla St U L Rev 17. 114 Van der Schyff 2008 TSAR 764. 115 Van der Schyff 2008 TSAR 764. 116 Brown 2006 Fla St U L Rev 9. 117 Van der Schyff & Viljoen 2008 TD: The journal for transdisciplinary research in Southern Africa 346. 118 Van der Schyff & Viljoen 2008 TD: The journal for transdisciplinary research in Southern Africa 346. 119 Van der Schyff & Viljoen 2008 TD: The journal for transdisciplinary research in Southern Africa 346. 120 Hoexter Administrative Law in South Africa 2. 121 Section 33(1) of the Constitution. 122 Section 33(2) of the Constitution. 123 Brown 2006 Fla St U L Rev 15. 124 Brown 2006 Fla St U L Rev 15.

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likely to favour well-funded and organised developers of natural resources particularly when their opposition tends to be large and diffuse’.125 Thus by investing the judiciary with the right to use this doctrine, effectively they would be able to investigate and challenge the legislature’s decisions with regards to these resources and thereby prevent the ‘unwarranted diminution of public rights through excessive privatisation of public resources’.126 Should the legislature refuse to intervene in a matter of critical importance, the public trust doctrine allows the judiciary to ‘block appropriators from exercising the fullness of their legal limits when doing so would pose extreme harm to the water source and dependent species’.127 Furthermore, in these instances there is no requirement for just compensation if the supervening importance of exercising the doctrine can be shown.128 Thus the public trust doctrine in accordance with the act prevents the situation of expropriation arising. Soltau agrees with this, and argues further that if the state had a duty to compensate on the basis that this amounted to expropriation, it would undermine their right to regulate the entire body of water law.129 However, he concedes that there will necessarily be cases where some compensation or other measure will be appropriate.130 This is all in accordance with the current legislation on water law.

There are three ways in which the doctrine has been invoked in litigation in the United States.131 Firstly, when the government wishes to hold private persons accountable for a violation of the doctrine they have done so on the basis of the public trust doctrine.132 The second manner in which it is utilised is the corollary, namely, when private bodies use the doctrine to hold the state accountable to its obligations.133 The third way is for private bodies to hold other private bodies liable for a violation of the doctrine.134

4.2.3 Has the public trust doctrine been imported into SA water law?

It is argued that the public trust doctrine has been introduced into South African law and is encapsulated in two relevant pieces of legislation. Firstly, it is found in the NEMA wherein it states that the ‘environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage’.135 Most importantly for purposes of this discussion, it is expressly mentioned and incorporated into the National Water Act. At present, South Africa’s conception of the public trust doctrine is far wider than that of America.136 This is because the American notion is limited only to certain types of water, historically, navigable waters,137 and the jurisprudence also varies from state to state. This seems particularly affected

125 Brown 2006 Fla St U L Rev 15. 126 Brown 2006 Fla St U L Rev 16. 127 Brown 2006 Fla St U L Rev 20. 128 Brown 2006 Fla St U L Rev 16. 129 Soltau 1999 Acta Juridica 246. 130 Soltau 1999 Acta Juridica 246. 131 Lazarus 1985 Iowa L Rev 645 – 646. 132 Lazarus 1985 Iowa L Rev 645 – 646. 133 Lazarus 1985 Iowa L Rev 645 – 646. 134 Lazarus 1985 Iowa L Rev 645 – 646. 135 Glazewski Environmental Law in South Africa 18; S2(4)(o) NEMA. 136 Brown 2006 Fla St U L Rev 2. 137 Brown 2006 Fla St U L Rev 7.

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by whether one is looking at Eastern or Western American law.138 The South African public trust doctrine, however, embodies all water in the hydrological cycle. As was discussed above, this serves to solve some of the inherent dilemmas of the doctrine for purposes of South African water law. However, it is clear that the courts may have to wade through a confusing body of jurisprudence in order to establish clear and binding precedent with regards to the obligations imposed by the public trust on the state.

The National Water Act expressly provides for the implementation of the public trust doctrine, by identifying the state as trustee of water.139 Stein argues that the public trust doctrine in fact forms the “cornerstone of the public rights system introduced by the National Water Act.140 It is clear from Stein’s writings that the public trust doctrine was extensively researched in the White Paper stage when the National Water Act was still a bill being tabled in Parliament.141 The unavoidable conclusion here is that the legislature must have intended that the public trust doctrine be imported from American jurisprudence to assimilate some of its inherent advantages with regard to the maintenance and management of water.142 In an attempt to create a generic water model, Allan applauded South Africa’s introduction of the public trust doctrine, stating that the government is now in a “better position to handle the problems of iniquity and lack of access”.143 Another author who firmly posits that the public trust doctrine has been introduced is Soltau, whereby he argues that the doctrine “expresses the perfectly reasonable idea that the state remains the guardian of the nation’s natural resources”.144

Stein highlights the two critical purposes of this doctrine in light of our Constitutional obligations.145 The first is to establish the state’s obligations with regard to the management of water.146 The second purpose is to ensure that this is done in a manner that benefits all persons such that it “takes into account the public nature of water resources, while ensuring fair access to and beneficial use of those resources”.147 It is furthermore clear from the wording of the Act that the legislature envisaged that the state would assume the role of trustee insofar as it requires the state to protect, use, develop, conserve, manage and control all water in the land.148

4.2 Res publicae

The distinction between public and private waters has, for all intents and purposes, been abolished by the National Water Act.149 This includes the doctrine of riparian rights.150 Soltau agrees with the abandonment of the distinction

138 Brown 2006 Fla St U L Rev 2. 139 Section 3(2). 140 Stein 2004Tex L Rev 2167. 141 Stein 2004Tex L Rev 2173. 142 Stein 2004Tex L Rev 2173 - 2174. 143 Allan 2003 Nat Resources J 478. 144 Soltau 1999 Acta Juridica 240. 145 Stein 2004Tex L Rev 2174. 146 Stein 2004Tex L Rev 2174. 147 Stein 2004Tex L Rev 2174. 148 Section 3(1). 149 Allan 2003 Nat Resources J 438.

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between private and public water and states that it is much more sustainable and equitable to treat all water in the hydrological cycle in a consistent manner.151 Insofar as there is now no longer a distinction between public and private rivers, all water can now be classified as public water in light of the basic tenets of this doctrine. Stein proposes that the common law justification for this lies in the Roman and Roman-Dutch conception of res omnium communes whereby water cannot be privately appropriated but is available for public use and enjoyment.152

If it is the case that the legislature intended the public trust doctrine to be introduced into our law and if Stein is correct in her assertion that all water can now be classified within the broad category of res omnium communes, then it follows that water found in rivers can still be classed as res publicae. Inherent to the understanding of this class of property is that it is state controlled but amenable to public use. This fits in quite well with the notion of the public trust doctrine, to which certain American authors have acknowledged that the doctrine in fact stems from the Roman law res publicae category.153 It is also stated that “almost every written comment on the public-trust doctrine begins with the following citation of Roman law and the Institutes of Justinian: ‘all of these things are by natural law common to all: air, flowing water, the sea, and consequently the shores of the sea’”.154

I would argue that all water is today regarded as res publicae rather than res omnium communes if one is to take a strict interpretation of the Roman, Roman-Dutch law and the National Water Act. This argument is apparent from the distinction found between the two conceptions. Res publicae is water which is capable of use by all but is held by the state, whereas res omnium communes is capable of use and enjoyment by all but is not held by the state (rather representing a form of property at a global or international level, as discussed above).155 As such, res publicae, in fact, forms a better notional understanding of the status of all water in modern South African law.156 There is overwhelming support for this view from Soltau, who submits that the ‘state has been returned to its position as dominus fluminus and the nation’s water resources are once more unambiguously classified as a res publicae – as a national asset managed by the state for the benefit of all’.157

As was established earlier, in terms of the current legislation, the government is thus the trustee of all water within the countries boundaries and acts as trustee through the Minister of Water Affairs and Forestry.158 The intention behind this principle is that the notion of trusteeship replaces any form of private ownership of water.159 In addition, the Department of Water and Forestries (today known as the Department of Water and Environmental Affairs) has defined this

150 Glazewski Environmental Law in South Africa 431. 151 Soltau 1999 Acta Juridica 241 - 242. 152 Stein 2004Tex L Rev 2178. 153 Ryan 2003 Mich Telecomm & Tech L Rev 337; Brown 2006 Fla St U L Rev 9. 154 Ryan 2003 Mich Telecomm & Tech L Rev 338, ft 287. 155 Du Bois et al Wille’s Principles of South African law 417. 156 Du Bois et al Wille’s Principles of South African law 417. 157 Soltau 1999 Acta Juridica 241. 158 Gowlland-Gualtieri 2007 IELRC Working Paper 2. 159 Gowlland-Gualtieri 2007 IELRC Working Paper 2.

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trusteeship to mean that ‘the Minister has authority over water in the country’.160 Thereafter, the guidelines state that water itself belongs to all people.161 The consequences of this statement is that the construction of the current legislation de facto fits the definition for res publicae. Despite the intentional inclusion of the public trust doctrine in the legislation, there is still considerable room for the argument that res publicae can still be used to account for the notion of water within the property regime.

This conclusion is problematic in the sense that both the public trust and res publicae can be accounted for by the legislation, although the former is explicitly expressed, whereas the latter is found implicitly. The questions it gives rise to are whether both expressions are necessary or whether the debate is purely semantic. In addition, although res publicae is a classification used in property law to define a class of things, all logic seems to dictate that the right to water can no longer be regulated by private property law and is instead better suited to be dealt with by public branches of the law, such as administrative law.

In order to solve this abovementioned dilemma, I propose the following construction of water law, which fits neatly within the construction of the National Water Act.

1. Water, globally, can still be classififed as res communes omnium and this will be relevant in the international sphere, particularly as water shortages and quality become a more pressing issue.

2. The traditional notion of res publicae needs to be developed in order to accommodate the new demands placed on this classification by the National Water Act. It is argued that the competing ideas of the public trust doctrine and res

publicae can in fact work harmoniously in order to cater for water under this legal dispensation. This will be done in the following way:

(a) The public trust doctrine outlines the duties of the state in relation to the resource, Dominium of water vests in the state, that is, the legal title is held by the state.162 But this entitlement requires that the state must manage the resource for the benefit of the nation, this obligation requiring of the state a fiduciary duty akin to that of trustees in trust law.

(b) Res publicae provides the broader classification of this resource as a collective entity (that is, patrimonium bona) as a notion in property law. Thus, it has been developed to incorporate all water within the Republic, and the ancient distinction between perennial, flowing and other water is abolished. This is in accordance with the Act.

I argue that this is the modern position of our law. It provides a classification of water as an entity in our property law, to which everything is given some place in relation to all other things. It provides an answer as to who owns the resource

160 Gowlland-Gualtieri 2007 IELRC Working Paper 2. 161 Guide to the National Water Act as cited by Gowlland-Gualtieri 2007 IELRC Working Paper 4. 162 Van der Schyff & Viljoen 2008 TD: The journal for transdisciplinary research in Southern Africa 344.

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and how it is to be administered. It is in accordance with the terminology used in the Act as well as the objectives in the Act. Van der Schyff and Viljoen both argue that the public trust doctrine is a foreign concept which has been introduced into our legal system by virtue of legislative intervention.163 It is not a construct of our common law past.164 Nonetheless, it will have to be interpreted in light of this common law history, as well as customary law, international law and the Constitution.165 As a result, a uniquely South African jurisprudence will develop over time with regards to the public trust doctrine.166 Finally, the proposed construction pays due respect to the concepts of social justice and transformative government, and complies with the Constitution by providing the mechanism through which people can enforce their constitutional right of access to water.167

5. Conclusion

In conclusion, I would argue that the public trust doctrine has been introduced into our understanding of water law intentionally by virtue of the Constitution, National Water Act and NEMA. By the wording of the various acts it is clear that this was the Legislature’s intention. Furthermore, it provides the public with additional rights with regards to these resources by obligating the state to act in the capacity of trustee. Despite the inherent difficulties in adopting jurisprudence from another country, there are overwhelming benefits to adopting and implementing this system.

I would also argue that the res publicae doctrine is still alive and well in modern South African law, and now caters for all water found within the boundaries of the territory. There is no conflict here with the public trust doctrine, because the doctrine explains the relationship between the state and its citizens, and specifically defines the nature of the state’s obligations in relation thereto. However, res publicae is a category of property that is used to define the nature of the resource. It stems from both Roman and Roman-Dutch law, and thus it is appropriate that it should remain comfortably within the realm of the common law. These two doctrines form a common law alternative to the legislation, thereby supplementing and strengthening the resolve of both the State’s objectives and obligations. Water law must be approached in light of the fact that the state ultimately regulates these resources, and that such regulation must occur for the benefit and in the best interests of South African citizens.

In addition to this conclusion, an attempt was made to clarify the position of water in terms of Roman and Roman-Dutch conceptions of property. This analysis is useful in order to ascertain where and how these things fit into the property regime. Water on a global level, that is, in terms of the world’s resource, can be understood as res communes omnium.

All water that is found within the boundaries of the nation can today be classified as res publicae. All water within South Africa can in addition be understood as patrimonium bona – a collective entity incapable of private ownership. The distinction between public and private water has been abolished, and with it the notion of private ownership of water.

163 Van der Schyff & Viljoen 2008 TD: The journal for transdisciplinary research in Southern Africa 342. 164 Van der Schyff & Viljoen 2008 TD: The journal for transdisciplinary research in Southern Africa 342. 165 Van der Schyff & Viljoen 2008 TD: The journal for transdisciplinary research in Southern Africa 342. 166 Van der Schyff & Viljoen 2008 TD: The journal for transdisciplinary research in Southern Africa 342. 167 Van der Schyff & Viljoen 2008 TD: The journal for transdisciplinary research in Southern Africa 353.

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There is thus a sui generis system of use rights of water, but no actual private ownership of the water.

I propose that this construction best serves the interests of society by affording everyone a beneficial interest in the management of water and by facilitating a greater level of accountability from the state. In addition, this would best serve the goals of sustainable development by requiring the state to appropriately balance the interests of society, the economy and the environment. Should the balance become too heavily tipped in favour of one party, the state would have the right in terms of the public trust doctrine to recall and redistribute water permits in a manner that would be in the best interests of the nation.

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Du Bois F et al Wille’s Principles of South African law 9ed (2007) Juta Cape Town. Glazewski J Environmental Law in South Africa (2006) LexisNexis Butterworth Durban. Hoexter C Administrative Law in South Africa (2007) Juta Cape Town. Jolowicz H Historical introduction to the study of Roman law 3ed (1972) University Microfilms International Ann Arbor,

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