Stewardship doctrines of public trust : has the eagle of public trust landed on South African soil?

Abstract

The idea of a doctrine of public trust is a controversial one in South African law. Despite \nthe fact that international commentators argue that a constitutional and statutory \nfoundation has been laid for a doctrine of public trust to operate in South African law, very \nlittle has been written in South African literature on what the subject might entail. The \nreality is, however, that the philosophical notion that governments exercise a fiduciary \ntrust on behalf of their people, and that ‘certain interests are so particularly the gifts of \nnature’s bounty that they ought to be reserved for the whole of the populace’ has been \nincorporated in different pieces of environmental and natural resources-related legislation. \nThis notion, as embodied in s 24 of the Constitution and subsequent statutes dealing \nwith natural resources, establishes a stewardship ethic of public trusteeship and state \ncustodianship in South African natural resources law. An analysis of the relevant natural \nresources legislation leads to the conclusion that the concept of public trusteeship has, in \nlimited fields, been incorporated in South African law in unique stewardship doctrines of \npublic trust. As this stewardship ethic has been created in different statutes, the \nconsequences brought about by this statutory intervention depend exclusively on the \nsymbioses between the provisions of each individual statute

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