According to AR5, one of the most important consequences of global warming is the rise of the sea level.11. The change in global mean sea level is called eustatic change.
Sea-level rise and its consequences for South Africa
Coastal erosion
The extent to which it does this will depend on the nature of the restrictions and the location of the coastal management line.33. The provisions of Chapter Three of the draft Overberg Coastal Regulations are set out and discussed in Chapter Two of this thesis.
Research question
In light of the provisions of section 25 of the Constitution, the purpose of this dissertation is to critically examine the limitations that section 25 of the ICM Act read together with Chapter Three of the draft Overberg Coastal Regulations imposes on the right to the owner of the land to develop or his property and determine whether these restrictions meet the requirements of Article 25 of the Constitution and, in particular, the requirements of Article 25(1), namely the right not to be arbitrarily deprived of property. The answers to the questions posed above will hopefully provide a better understanding of the relationship between regulatory measures aimed at preserving and protecting the environment and the constitutional right to property.
Research methodology
Structure of the study
The scope and extent of the constitutional right not to be arbitrarily deprived of property is considered in Chapter Three. The components that make up each of these zones, as well as their legal status, are detailed in Chapter Two of the ICM Act.
The legal provisions governing coastal management lines
The first three parts deal with public coastal property, the coastal protection zone and coastal access land respectively. In fact, coastal setback lines prohibit or restrict the construction, expansion or repair of structures located wholly or partially seaward of the line.
Background and history of coastal management lines
In fact, the situation is such that the municipalities are authorized to do so and have made great progress in moving to the method of practical implementation of the establishment of coastal management lines. 60. One of the advantages of establishing regulatory boundaries for coastal zone management is that South Africa has an established history of restricting the use of private property, particularly to meet the objectives of environmental legislation, and there is no reason not to incorporate these objectives and policies into land use planning and management in response to threats from sea level rise.
The draft Overberg Coastal Regulations 1 Introduction
- The objects of the draft Overberg Regulations
- Chapter Three of the draft Overberg Coastal Regulations
- Enforcement of the draft Overberg Coastal Regulations
- Expropriation in terms of the draft Overberg Coastal Regulations
Having established the purpose of the coastal management line, the third chapter continues. The provisions of Article 25 of the ICM Act and the Overberg Draft Coastal Regulations make it clear that coastal management lines can severely limit a landowner's right to develop their property, either by prohibiting such development or by Furthermore, the role played by section 25(4) in the court's interpretation of section 25(1) and (2) of the property right is of paramount importance.
Question (a) - the constitutional concept of property
The extremely broad nature of the constitutional concept of property is clearly illustrated by the Constitutional Court's judgment in Shoprite Checkers (Pty) Ltd v MEC for Economic. In this case, a majority of the Court ruled that a liquor license could be regarded as property within the meaning of Article 25 of the Constitution. In reaching this decision, a majority of the Constitutional Court was of the opinion that the constitutional concept of property should be interpreted broadly to include all constitutional rights and further transformation.
Question (b) – the constitutional concept of a deprivation
Furthermore, the interest must be a concrete, specific asset and not merely relate to a person's general wealth or financial status.109 “The fact that an intangible interest has economic value is therefore (in itself) insufficient to qualify as constitutional property. ”.110. In this case, the Court held that the presence of a hardship depends on the "degree of interference with or restriction on the use, enjoyment, exploitation" of property and that "at least substantial interference or restriction beyond the normal restrictions on the use and enjoyment of property in an open and democratic society would amount to a deprivation”.112. Moreover, he also states that “it is unclear why the definition of disadvantage should be linked to the idea of what is normal in an open democracy,” as regulatory controls are not only used by democratic societies.
Question (c) – the requirements for a valid deprivation 1 Introduction
Law of general application
The deprivation must not be arbitrary
The extent and scope of the element of procedural fairness was considered in considerable detail by the Constitutional Court in the Mkontwana case. It must be determined by evaluating the relationship between the means used, namely the deprivation in question, and the objectives to be achieved, namely the purpose of the law in question. The tests differ depending on the nature of the purpose served by the regulation and the effect the regulation has on private property rights.
Conclusion
Van der Walt suggests that in terms of necessary and legitimate regulatory deprivations potentially based on the FNB decision would not reach the justification stage under section 36(1). Given that neither the ICM Act nor the draft Overberg Coastal Regulations expressly empower the State to expropriate property in order to establish coastal management lines and/or achieve their objectives, it follows that neither of these provisions can unreasonably infringe section 25, PCS. ) in the constitution. As will be seen, the central question to be answered is whether the restrictions imposed on landowners under section 25 of the ICM Act read with regulations 9, 10 and 12 of the draft Overberg Coastal Regulations are arbitrary or not , or more particularly whether there is sufficient reason for the restrictions imposed on landowners under section 25 of the ICM Act in conjunction with regulations 9, 10 and 12 of the draft Overberg Coastal Regulations.
Do coastal management lines interfere with constitutional property?
Part B related to activities that could not be undertaken seaward of the coastal strip without a coastal permit and was included. Any activity that causes pollution of the environment and that has not been approved in writing by a competent state body. 141 The activities listed in Appendix 2 of the Regulation include the following permitted activities that may be undertaken without a coastal permit within the coastal protection zone or seaward of the coastal strip:
Do coastal management lines deprive a landowner of his or her property?
In answering this question, it is worth noting that one of the most important features of the common law concept of ownership is that it confers a wide range of rights on its holder. Given the approach taken in Mkontwana and Reflect-All, it can be argued that section 25 of the ICM Act read together with regulations 9, 10 and 12 of the draft Overberg Regulations does interfere with constitutional property. This is because, regardless of which approach is taken, the provisions of section 25 of the ICM Act read together with regulations 9, 10 and 12 of the draft Overberg Coastal Regulations comply with both approaches.
Do coastal management lines satisfy the requirements for a valid deprivation?
The deprivation must be authorised by a law of general application
The law authorising the deprivation must not be arbitrary
Are coastal management lines procedurally unfair?
Section 84(1)(e) of the ICM Act provides that the MEC must include the process to be followed in obtaining permission to do so, including the authority by whom, the circumstances in which and the conditions under which the permission can be granted. being given. In addition, any relevant national, provincial or municipal coastal management program should be consulted, as well as consultation with the Overberg or other local municipality if the location of the proposed activity falls within their jurisdiction. This is because the MEC complies with all the requirements of “administrative action” as defined in section 1 of PAJA.166 It is therefore governed by PAJA and the MEC should follow due process in terms of section 3 of PAJA.
Is there a sufficient reason for coastal management lines?
There is a different application of the test where different forms of property are involved and where the property is tangible movable or immovable, the proportionality test applies. Since we are dealing with one of the most important property rights, the proportionality test will be applied. In this analysis, the proportionality test essentially involves an inquiry into its purpose or intent.
The goal or purpose of the deprivation
Given that regulations 9, 10 and 12 of the draft Overberg Coastal Regulations place rather severe restrictions on the right to develop, the proportionality test is appropriate. Furthermore, the coastal management guidelines are consistent with the right to the environment as contained in section 24 of the Constitution and South Africa's use of regulatory methods to limit the use of private property for environmental purposes. It is also one of the most cost-effective methods of protecting against sea-level rise compared to strong protection measures and outright retreat, and allows for gradual changes in land cover.
The extent of the infringement of the fundamental right to property
In that case, petitioner applied for an order declaring the South Carolina Beach Management Act of 1988 unconstitutional on the ground that it violated the Fifth Amendment to the United States Constitution, which provides, inter alia, that property private property cannot be "taken for public use, without just compensation" (the "takings clause"). The Beach Management Act violated the takings clause, petitioner argued, because it prohibited him from developing two beach front lots that he simply owned because they were situated on the seaward side of a line of coastal administration established in accordance with law, without payment of mere compensation. It therefore constituted a so-called "regulatory taking" and as such fell within the intent and purpose of the taking clause.
Conclusion
Coastal management lines were introduced in South Africa in terms of NEM:ICMA in 2008, although they only came into force by way of amendment to the legislation in 2015. Van der Walt AJ “Notes on the Interpretation of the Property Clause in the New Constitution". Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Field, C.B., V.R.
