ROW, ROW, ROW YOUR BOAT, GENTLY DOWN THE STREAM
2 November 2018
A person may use the water or the water surface of a water resource to which that person has lawful access for recreational purposes. A person may therefore only use the water if the person has lawful access to the water. Lawful access would require the permission of the person on whose property the water resource is situated or from the owner of the property where the canoeist launches his tube, raft, canoe or kayak in order to use the watercourse. For further illustration in this article I am going to use a canoeist as example.
Should a person only have right of way over a property and the right of way crosses or is next to a water resource, it is submitted that person does not have lawful access to the water resource and the person may therefore not use the water in the water resource for recreational purposes. The question arises whether a canoeist is permitted to portage his/her canoe over a piece of land adjacent to the river belonging to another person. Canoeing will obviously be seen as a recreational purpose in this discussion.
In order to further clearly explain the legal position, I first give the following scenario:
- A canoeist paddles down a river for recreational purposes.
- The canoeist gained access to the river lawfully by permission from a Canoe Club.
- Along the river an obstruction exists which hinders the canoeist from proceeding down the river on the water surface of the water resource.
- The canoeist therefore portages his/her canoe or boat on land, belonging to an unknown person, adjacent to the river in order to continue boating on the river.
- The owner of the land over which the canoeist portages the canoe sees the said action as trespassing.
- The owner of the land adjacent to the river attempts to take action against the canoeist – either legal action or taking matters into his/her own hands by for example opening gunfire on the canoeist.
LEGAL POSITION AND APPLICATION
At present, the use of water and water surfaces are regulated by the National Water Act, Act 36 of 1998 (hereinafter referred to as “the Act”). It is therefore important to refer to the Act when needing to consider the facts of a situation and the subsequent application of law thereto.
According to Schedule 1(1)(e) of the Act:
- A person may, subject to this Act-
- for recreational purposes-
- use the water or the water surface of a water resource to which that person has lawful access; or
- portage any boat or canoe on any land adjacent to a watercourse in order to continue boating on that watercourse
Furthermore, in terms of Section 1 of the Act the term “watercourse” is defined as –
- a river or spring;
- a natural spring in which water flows regularly or intermittently;
- a wetland, lake or dam into which, or from which, water flows; and
- any collection of water which the Minister may, by notice in the Gazette, declare to be a watercourse,
and a reference to a watercourse includes, where relevant, its bed and banks.
According to The American Heritage Dictionaries “access” means the following:
- The ability to approach, enter, exit, communicate with, or make use of;
- Public access
Also according to the same dictionary the word “lawful” means:
- Being within the law; allowed by law
With “lawful” being an adjective it describes the action taken, in this instance being “access”. For this discussion it is important to identify this matter as it is a key part of having the ability to gain means of entry to the river. Lawful access will therefore be admission to a river, with the permission of an owner of land adjacent to the river, from the mentioned piece of land.
According to the classification of things in the South African law, rivers are grouped as res omnium communes. This means that rivers are not susceptible to human control but are seen as public property. The problem which presents itself when a river is the boundary of a person’s piece of land, is that of to where that person has ownership of the land. It is customary and trite law that the boundary held by a river is in the middle of the river, in other words midstream.
In this regard a person’s extent of his/her land may increase or decrease should the river change its normal path of flow. The boundary will then still be midstream regardless of the fact that the previous path of flow has changed.
Schedule 1(1)(e) therefore makes provision for a person to actually “trespass” on another person’s land to portage his/her boat on land adjacent to a river to continue boating on the same river. In doing the said action of portaging over land adjacent to the river, the person doing the portaging must do so civiliter modo. This means that the person must be reasonable in his/her movement over the other person’s land. The reasonableness of the movement is also subject to the circumstances of the situation which have to be taken into account.
Prior to the commencement of the National Water Act 38 of 1998 on 1 October 1998, the position was that it was not permissible for a canoeist to portage his/her boat over land adjacent to the river on which the canoeist was paddling. As section 7(a) of the repealed Water Act 54 of 1956 classified the legal capacities of the public in relation to public water, to the members of the public who have lawful access to the water, the same restrictions are also applicable to persons navigating on water. Persons without lawful access to the riverbanks on a specified area of land therefore did not have the capacity to access the same area of land from the water. In Transvaal Canoe Union v Garbett 1993 4 SA 829 (A) the Appeal Court held that canoeists had no right to portage their canoes over land adjacent to the river, where they were not able to canoe further, without the prior consent of the riverbank owner by agreement.
As already set out above the position has drastically changed by the advent of the National Water Act 38 of 1998 since 1 October 1998. A person may for recreational purposes, portage a boat or canoe on land adjacent to a watercourse in order to continue boating on that watercourse. Canoeists may therefore now carry their canoes on the land adjacent to a river provided that their actions are reasonable and they do not unnecessarily infringe on the use and enjoyment of the land of the owner, otherwise those lifejackets may unfortunately need to double as bulletproof vests…