Drawing the line

RECENT media reports suggesting that certain tracts of land abutting the high-water mark along the southern Cape coastline have been “stolen” deserve a riposte.

A fundamental principle of our centuries’ old Roman Dutch law is that the area below high-water mark is “res publicae”, meaning that in common law any member of the public has the right to use and enjoy the sea and shore below the high-water mark.

However the question of access, often over private land, can be contentious. This is not a peculiarly South African problem but a feature of coastal countries worldwide where private land abuts the shore.

Some relief lies in the fact that the South African common law also recognises that a public servitude, in the form of a right of way, may exist if it can be shown that it was used as such since time immemorial.

Furthermore when original grants of land abutting the high-water mark were originally made in the 18th century the Cape colonial government at the time would typically demarcate a 100-foot wide strip as a “Government” or an “Admiralty” Reserve.

In Natal, the entire coastal strip was demarcated in this way probably because by the time original grants of land were made, there was a uniformly applicable act.

The precise purpose of a public servitude right of way to the sea shore is not entirely clear but sources suggest they were either to grant people the right to outspan or for the government to have access to the shore to salvage booty washed ashore.

These ancient principles have been fortified by the enactment of the Integrated Coastal Management Act of 2008, which confers a right of access to coastal public property, a phrase defined in the Act.

The “Red Line” issue which has received recent publicity has confused the above principles and has caused some controversy.

In earlier eras, when original grants of land were made, land-surveyors lacked the sophisticated instrumentation and precise means of indicating the exact location of beacons, as they are able to do today.

The use of Red Lines on diagrams was a crude way that land surveyors, adhering to regulations applicable at the time, attempted to rectify what became evident as inaccurate surveys and/or property figures. In the result some properties were reflected as gaining land and others losing land by the Red Line figure.

But to suggest a sinister political motive to “steal” land as Cameron Dugmore does (“‘Theft by sleight of hand’ of coastal land”, Weekend Argus Saturday, September 5) does not bear out the historical facts. Nor does it assist the Surveyor-General to rectify what is clearly a complex technical issue, not a political one.