the relevance of the doctrine of res publicae in modern law

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 paperTensions between academic campsScope

FRAMEWORK

PART 1

History

Roman and Roman-Dutch conceptions of things, ownership and property

Public Trust Doctrine

Historical overviewAmerican jurisprudence

PART 2

Water lawHistorical overviewModern water lawHas PBT been imported?Relevance of res publicae?

Mineral lawHistorical overviewModern mineral lawHas PBT been imported?Can notion of res publicae include minerals

ROMAN AND ROMAN-DUTCH LAW

a Patrimonium bona b

KASER

ROMAN LAW

Res in nostro patrimonio

Res nullius Res universitas Res communes Res publicae

Res extra nostrum patrimonio

JUSTINIAN

ROMAN-DUTCH LAW

Res intra commercium

Res publicae Res communes omnium Res singolorum Res nullius

Res extra commercium

GROTIUS / HUBER

PUBLIC PROPERTY

- Capable of use by all- No private ownership- Within the borders of State-State regulated / controlled

- Capable of use by all- No private ownership- Global understanding: for humans in general- State regulation possible

RES PUBLICAE PUBLIC PROPERTY RES COMMUNES OMNIUM

PUBLIC TRUST DOCTRINE

HISTORICAL OVERVIEW

Middle Ages - Principle of SovereigntyEvidence of foundations in res publicae

US JURISPRUDENCE

Illinois RailwaysJoseph Sax:

Beneficial useState trusteeAgainst public trust use

PUBLIC TRUST DOCTRINE

ADVANTAGES

Right of recallCL judicial control - in line with SoPProactive and reactive

DISADVANTAGES

Uncertainty as to its applicationPublic 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

Banks and alveus = res publicae

Perennial streamsPublic

Seasonal streamsPrivate

Free-flowing = res communesIncapable of ownership

WATER

ANALYSIS OF WATER LAW

HistoryRoman Law and Roman-Dutch law

Res publicaeRes communes omnium

Pre-2002Absolute dominis fluminus + res publicaeDepublicization of water rightsPartial return to original system

National Water ActConstitutional objectives

S24 - right to environmentS27(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 LegislatureWhite paper and objectives of ActWording of S3 of the Act

Obligations in terms of PTDEstablish 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 stateSubject to use by everyone

Thus original position restored

Res publicaeDominus 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 lawUsufruct / fruit?Limited real right sui generis / personal servitude?S5(1) MPRDA: mineral right =limited real right sui

generisNo 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 DOCTRINEDoctrine 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 resourceFoundation of wealth - economic benefitsInter-generational argument

Advantages of doctrineProactive and reactiveExpropriationJudicial regulation

RES PUBLICAE AND MINERAL LAW

No historical basisMay 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 LAWPublic trust doctrine has been introduced by way of National Water ActRes publicae now applies to all water

MINERAL LAWPublic trust doctrine has been introduced by way of MPRDAUnsure as to whether res publicae is necessaryAs a collective entity can be categorised as patrimonium bona (contrast this with De Beers v Ataqua judgment)