THE RELEVANCE OF THE DOCTRINE OF RES PUBLICAE IN MODERN LAW. AN ANALYSIS OF RES PUBLICAE IN LIGHT OF THE CONSTITUTION, APPLICABLE LEGISLATION AND THE PUBLIC TRUST DOCTRINE

OVERVIEW Purpose of this paper Tensions between academic camps Scope

FRAMEWORK PART 1 History Roman and Roman-Dutch conceptions of things, ownership and property Public Trust Doctrine Historical overview American jurisprudence PART 2 Water law Historical overview Modern water law Has PBT been imported? Relevance of res publicae? Mineral law Historical overview Modern mineral law Has PBT been imported? Can notion of res publicae include minerals

ROMAN AND ROMAN-DUTCH LAW

ROMAN LAW

ROMAN-DUTCH LAW

PUBLIC PROPERTY

PUBLIC TRUST DOCTRINE HISTORICAL OVERVIEW Middle Ages - Principle of Sovereignty Evidence of foundations in res publicae US JURISPRUDENCE Illinois Railways Joseph Sax: Beneficial use State trustee Against public trust use

PUBLIC TRUST DOCTRINE ADVANTAGES Right of recall CL judicial control - in line with SoP Proactive and reactive DISADVANTAGES Uncertainty as to its application Public purpose? Counter-majoritarian debate

PTD in SA LAW? National Environmental Management Act State is appointed as trustee of protected areas in the Republic National Water Act ‘As the public trustee of the nation’s water resources’ Mineral and Petroleum Resources Development Act State is custodian of mineral and petroleum resources, which is the common heritage of all people and must be administered for the benefit of all South Africans

ROMAN WATER LAW

ANALYSIS OF WATER LAW History Roman Law and Roman-Dutch law Res publicae Res communes omnium Pre-2002 Absolute dominis fluminus + res publicae Depublicization of water rights Partial return to original system National Water Act Constitutional objectives S24 - right to environment S27(1)(b) - right of access to water S3 of the Act

S3 OF THE NATIONAL WATER ACT 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. 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. The National Government, acting through the Minister, has the power to regulate the use, flow and control of all water in the Republic.

PTD AND WATER LAW Intention of the Legislature White paper and objectives of Act Wording of S3 of the Act Obligations in terms of PTD Establish the state’s obligations with regard to the management of water. 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’

RES PUBLICAE AND WATER LAW Distinction between private and public water rights abolished = all water is public All water can thus be classified as res publicae Owned and regulated by the state Subject to use by everyone Thus original position restored Res publicae Dominus fluminus

ANALYSIS OF MINERAL LAW History maxim cuius est solum eius est usque ad caelum et usque ad inferos = owner of everything above and below the land No known mineral right in Roman or RD law Usufruct / fruit? Limited real right sui generis / personal servitude? S5(1) MPRDA: mineral right =limited real right sui generis No evidence of res publicae, res communes omnium or public trust doctrine in mineral law Mineral and Petroleum Resources Development Act S3: State custodianship

PUBLIC TRUST DOCTRINE Doctrine capable of evolution? ‘The possibility of growth in the application of the public trust doctrine to new frontiers achieved (in the evocative words of Professor Sax) by ‘liberating the public trust doctrine from its historical shackles’, reinforces the notion that this doctrine embraces an idea of fundamental importance for our law on rights in property’ Importance of regulating minerals: Non-renewable nature of resource Foundation of wealth - economic benefits Inter-generational argument Advantages of doctrine Proactive and reactive Expropriation Judicial regulation

RES PUBLICAE AND MINERAL LAW No historical basis May fit definition as collective entity: Analysis of the reasoning in De Beers Consolidated Mines Ltd v Ataqua Mining (Pty) Ltd - states that minerals are not res publicae. Van den Berg argues that the court in this instance was referring to minerals as a single entity in their own right, and did not take account of the argument that minerals, petroleum and water rights can be viewed as a collective entity of the whole nation. (Patrimonium bona) Strained argument

CONCLUSION WATER LAW Public trust doctrine has been introduced by way of National Water Act Res publicae now applies to all water MINERAL LAW Public trust doctrine has been introduced by way of MPRDA Unsure as to whether res publicae is necessary As a collective entity can be categorised as patrimonium bona (contrast this with De Beers v Ataqua judgment)