THE RELEVANCE OF THE DOCTRINE OF RES PUBLICAE IN MODERN LAW.

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

2. OVERVIEW • Purpose of this paper • Tensions between academic camps • Scope

3. 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 FRAMEWORK

4. ROMAN AND ROMAN-DUTCH LAW

5. ROMAN LAW

6. ROMAN-DUTCH LAW

7. PUBLIC PROPERTY

8. 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

9. 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 PUBLIC TRUST DOCTRINE

10. 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

11. ROMAN WATER LAW

12. 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

13. 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.

14. 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’

15. 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

16. 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

17. 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

18. 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

19. 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) CONCLUSION