Law firm Werksmans Attorneys said it has been inundated with inquiries from individuals, professional and recreational athletes as well as sports organizations regarding the impact of adjusted Level 3 regulations on activities in and around the beach.
He noted that a private letter from the company to South African law enforcement had recently been leaked on social media. In this article, he sets out our take on beach closures under regulations.
Coronavirus regulations were last amended on January 11, 2021. In general terms, the regulations treat hot spots and the rest of the country separately in separate chapters.
All the beaches in the country, with the exception of the beaches in the North Cape province, are located in hot spots. In the North Cape, beaches are open between 6 a.m. and 7 p.m., except for authorized fishing, which is allowed outside of these hours, said Shayne Krige, co-head of investment funds and private equity practice at Werksmans Attorneys.
The law firm stressed that the regulations are intended to curb the spread of the virus through non-pharmaceutical interventions and a number of restrictions, including restrictions on the movement of people and restrictions on gatherings.
In general, indoor gatherings are limited to 50 people and outdoor gatherings to 100 people whose access can be controlled. This applies, for example, to cinemas, theaters, restaurants, casinos and gymnasiums.
Although some public places to which access cannot be controlled are closed (parks for example), other public places are open (including roads and sidewalks).
What sports are allowed?
Organized sport, i.e. sporting activities by recognized sporting organizations, is regulated (Regulation 84 (16)).
“This is presumably because organized sport inevitably results in a rally. While organized sport has been banned under the strict lockdown, it is now allowed subject to limitations that apply to sports matches, TV crews, spectators, etc. Said Krige.
Some sports, including sailing and surfing, have already agreed on required protocols with the government to allow their registered members to practice.
“It has been said that the only form of sport currently authorized by regulation is professional sport (sport organized by regulated sporting bodies). We find no support for this position in the regulations and note that government officials did not refer to a ban on recreational sports and that such a ban is not enforced.
“During the strict lockdown, regulations effectively prohibited any form of exercise other than walking, running and cycling. This restriction on recreational sport no longer exists, ”Krige said.
The sea is not closed under the regulations, Werksmans lawyers said.
“It was suggested that the reference to beach closure be interpreted as a sea closure. Not only did this suggestion conflict with the definition of ‘beach’ in our environmental laws, but the matter has now been clarified by the new definition of ranges in the regulations, ”said Krige.
Closure of hotspot beaches
Beaches, dams, lakes and rivers are closed to the public under regulation 84 (9). “It appears the reference to ‘dams, lakes and rivers’ was added after the initial beach closures resulted in congregations moving to the shores of dams, lakes and rivers.
The reference to “public” suggests that beaches, dams, lakes and rivers are not closed to owners of private facilities, members of private clubs or other facilities to which access is controlled.
“In this regard, some beaches in state-owned nature reserves with controlled access are open. This is consistent with the regulatory approach to allow access where gatherings can effectively be limited to 50 indoors and 100 outdoors, ”Krige said.
A definition of “beach” was inserted into the regulation on January 11, 2021.
As such, the beach is made up of rocks, sand or pebbles. Boardwalks, piers, causeways, slipways, grassed areas, parking lots and harbors are not part of the beach. In addition, any private property is excluded from the definition, the law firm said.
“However, it is stated that the sandy, pebbly or rocky shore within 100 meters of the high water mark, including the sea adjacent to the beach, is included. We therefore understand that water within 100m of the high water mark is now included in the definition of beach, ”said Krige.
“In our opinion, the fact that the sea beyond the beach is open necessarily implies a right to cross the beach to access the sea. This vision is reinforced by the new definition of the beach”, he said declared.
If the definition of beach included the first 100 meters of land and sea all along our coast, the sea, which is not closed, would be inaccessible. There is precedent in South African law for this approach. Using the banks to enter and exit a river is considered a “necessary boating incident” and the public has the right to use the bank (even if it is private) to access the river.
“Likewise, we believe that the public has the right to access the sea and crossing the beach for this purpose is a necessary incident of the activity,” he said.
The beaches are not closed to fishing with a permit.
Although the beach is closed (by-law 84 (9)), failure to comply with this provision does not constitute an offense within the meaning of by-law 87. It may seem inconsistent to say that the beaches are closed, but being on beach n It’s not an offense, Werksmans’ lawyers said.
It is generally known that before the December 29 rule changes, wearing masks in public places was mandatory, but it was not an offense not to wear them. Likewise, being on the beach is not an offense, even if the beach is closed, he said.
However, rule 84 (17) provides that in the event of a “gathering” in violation of the bylaws, an enforcement officer must order the persons (plural) present at the assembly to disperse and if the persons refuse, then the enforcement officer can take action, including arrest or fine of the individual.
“An individual can only be guilty if he participates in a rally and refuses to disperse,” Krige said.
What is a gathering?
The regulations themselves contain a definition of “assembly”. The definition refers to an “assembly, hall or procession”.
“These are words that were used in apartheid-era security laws and were the subject of a number of court cases,” Krige said.
“The apartheid state has always sought to argue that the smallest number of people constitute an assembly, hall or procession, and some courts have held that a gathering can consist of only two people.
“The courts have demanded some form of coordination between people at a rally – just being in the same public space at the same time does not constitute an assembly, competition or procession.”
In 1994, the Law on the Regulation of Gatherings was passed and it defines a gathering in the same way by referring to an assembly, hall or procession, but includes a requirement of at least 15 people.
The greater the number of water users concentrated in a given area (the definition of a single beach is nebulous), the greater the risk that an assembly may be considered to have been formed.
“This is no different from the risk posed by running, cycling or other recreational sports, where gatherings can also spontaneously form on the roads. What is clear, however, is that an individual alone cannot constitute a gathering, ”said the legal expert.
How have other countries handled this?
Many countries around the world have closed their beaches to deal with the risk of people gathering on the beach, the law firm said. Most countries have recognized the benefit of having outdoor exercise opportunities and have adopted procedures to open up beaches and lakes for sport, he said.
“Australia initially closed its beaches to all users, but then reopened them for sport only. Some states introduced a “no towel” rule, which opened the beach for exercise, but did not allow beach stopping or congregation.
“At Bondi Beach, which is famous among surfers, a ‘Surf and Go’ policy was introduced whereby users entered the sea through a designated thoroughfare and had to leave the beach as soon as they were done. We understand that this same approach has been taken in some nature reserves in South Africa, ”Krige said.
From a legal point of view, in South Africa all recreational sports are currently allowed. It would appear logistically difficult, but not impossible, for users to enter the sea without crossing a beach, he said.
There is, in any case, an argument that users have the right to cross a closed beach to access the sea – which is clearly no longer part of the beach.
As a user can restrict their activities at a distance of more than 100 m from the high water mark, they would not contravene the closure of the beach during the activity.
“The user would only be guilty of an offense if he organized a gathering with at least one other person on the beach (or in the water that is part of the beach) and refused to disperse on the order of a enforcement officer, ”Krige said.
He said that given the likelihood that the virus will exist for some time and the socio-economic consequences of beach closures, it is hoped that confirmation will soon be provided that water sports can be practiced at sea and on dams. and lakes and that the only restriction is on gatherings, whether on land or in water.
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