4 x 4 law ignored - by far!

By Sue Matthews. Published in African Wildlife Vol 55 No 2 (2001)

At the launch of the Coastal Policy White Paper in June last year, Minister of Environmental Affairs & Tourism Valli Moosa reiterated his threat to ban off-road vehicles, or ORVs, from South Africa's beaches. As could be expected, this was met with a storm of protest, particularly from the recreational angling community, who make up the majority of ORV users at the coast.

Nevertheless, the Minister did not back down on the issue, and new regulations for controlling ORV use on the coast are in the process of being drafted. Whether the legislation will take the form of an outright ban remains to be seen though, as apart from the public opposition, indications are that few authorities would be willing or capable of enforcing it.

"The new regulations will be advertised for comment and the Minister will consider the reaction to them before making a final decision on the matter", says Shaun Schneier, the Marine & Coastal Management official charged with drafting the regulations. "What is clear is that the existing policy has numerous shortcomings, and its implementation is woefully inadequate."

The existing policy, which was promulgated in 1994 in terms of the Environment Conservation Act (no. 73 of 1989), excludes recreational ORV use from the coast in principle, expect in specific demarcated areas where controlled access is allowed subject to the conditions of a permit. The policy also stipulates that the following areas must be closed to ORVs:

• Bathing areas and beaches adjacent to them that are used by the public for strolling

• Ecologically sensitive areas, including dunes, estuarine saltmarshes, estuarine intertidal sand- and mudflats, bird- and turtle-nesting areas, and beaches with steep gradients

• Protected areas that have been established to conserve the coastal environment, such as national parks, nature reserves and wilderness areas

• Any other site with historical or palaeontological importance.

Responsibility for ensuring that the relevant national and provincial ministers, local authorities and government institutions complied with the Policy was originally vested in the Director-General of the Department of Environment Affairs & Tourism. However, in 1996 an amendment of the Act transferred the responsibility for monitoring compliance by local authorities and government institutions to the provincial authorities.

Most beaches outside formally protected areas fall under the jurisdiction of a local authority, yet few are implementing the policy as it was intended. Shaun's suspicion that this was the case, after receiving numerous complaints from members of the public about ORVs on beaches, were confirmed after he distributed a detailed questionnaire to 70 local authorities around the coast in July 1998. Despite sending out reminders, only 36 local authorities responded, and these revealed a startling trend of non-compliance.

Many local authorities were ignoring key requirements of the policy, such as the closure of bathing beaches to ORVs or the introduction of a permit system to regulate ORV use in demarcated areas. Four local authorities had not promulgated the necessary regulations under the Seashore Act to implement the policy in their area of jurisdiction, and only four were complying with all the policy's requirements (assuming their responses were accurate). Of these, Cape Town and George had closed their beaches - due to physical inaccessibility in the case of George - and the West Coast Peninsula and Margate had instituted permit systems.

The provincial authorities are not entirely guiltless either – ORV use is still allowed in many protected areas under provincial jurisdiction, including parts of the St Lucia and Maputaland marine reserves, although here are least it is strictly controlled. And clearly the provincial authorities have not been living up to their obligation to ensure that all local authorities comply with the policy, although some success stories do exist. The Western Cape government even went so far as to institute legal proceedings against the Overberg Services Council for failing to close the sensitive stretch of coastline adjacent to the Papkuilsfontein Nature Reserve. The court proceedings, which make for an interesting constitutional test case, have still not been finalised.

"The poor implementation of the policy is partly due to weaknesses in the policy itself," explains Shaun. "For example, the requirement for a permit system to ensure that ORVs are adequately controlled in demarcated areas is too vague. While some permits, such as those issued by the KwaZulu-Natal Nature Conservation Service, stipulate detailed requirements with which the ORV user must comply, others are nothing more than a receipt indicating the holder has made a payment to the local authority. Some local authorities derive a significant amount of revenue from issuing permits, but exert little or no form of control."

Another problem with the existing policy is that the Seashore Act does not apply above the high water mark, so regulations promulgated under it cannot be used to penalise ORV use on dunes, which are far more sensitive to damage by ORVs than beaches. Driving on bare, unvegetated dunes can destabilise them and cause wind-eroded 'blowouts', while the pioneer vegetation of the foredune area, which helps to anchor the sand, can take years to recover if damaged. The eggs and chicks of seabirds that breed in the foredune area, such as terns, oystercatchers and plovers, can be crushed by ORV traffic, which also disturbs the adult birds from the nest, threatening the survival of the young. Furthermore, driving in dunes risks destroying shell middens, compromising the integrity of South Africa's historical record.

In any case, enforcement of regulations promulgated under the Seashore Act is generally poor, and any penalties that are imposed for illegal beach driving are insufficient to deter transgressors. So all in all, maintaining the status quo by retaining the existing ORV policy is unlikely to result in any improvement in the situation.

On the other hand, the Minister's proposal to ban ORV use altogether would only prove effective if strictly enforced. Due to a lack of manpower and/or political will, law enforcement on beaches is virtually non-existent, with the exception of those controlled by the KwaZulu-Natal Nature Conservation Service. Yet even this organisation has indicated that it would oppose a ban. According to its marine and coast conservator Rob Broker, an outright ban on ORVs would detrimentally affect tourism in their coastal protected areas, as extended sections of coastline would become inaccessible.

"We would be unable to derive revenue from the use of these inaccessible areas or from beach permits, which currently generate approximately two million Rand per annum," he says. "Many anglers would no longer spend their holidays at our resorts if they were not permitted to use ORVs on the beach, and overcrowding of anglers would probably result on beaches close to the established camps. Providing alternative road access to remote beaches through dune forest would have more severe environmental impacts than allowing access along the beach at low tide."

Nevertheless, there is much to be said for leaving these remote areas inaccessible.

"The most insidious problem caused by the use of ORVs on the coast is that they allow ready access of people to remote areas that would otherwise remain largely undisturbed," says UCT's Prof Phil Hockey, Co-ordinator of the nation-wide Oystercatcher Conservation Programme. "These areas previously acted as refuge areas for species susceptible to human disturbance - such as oystercatchers - or to exploitation - such as recreational linefish."

The African Black Oystercatcher is listed as a threatened species, while at least 20 key linefish species are dangerously overexploited.

"Unfortunately, I think it is highly unlikely that the proposal for total closure of the coast to ORVs will ever fly," he adds. "It will be perceived as Draconian, but it is an excellent strategy and starting point from which to negotiate a compromise. The ideal would be to end up with designated areas of relatively low ecological importance where people are allowed to use ORVs."

Indeed, this could form the basis of a third option with respect to ORV use at the coast - to zone the entire coast and allow ORV use in some places under strictly controlled conditions, but with new, more effective legislation. Local authorities would have to submit an environmental impact assessment with their application to open beaches to ORV use, and prepare a management plan that would ensure the protection of ecologically sensitive areas, historical and palaeontological sites, and the safety and consideration of other recreational users.

Phil Hockey offers a final thought on the issue.

"As human pressures on our coast increase exponentially as a result of a booming tourist market and rampant coastal development, the number of areas that act as natural refuges for coastal biota is decreasing. Several of these areas are accessed largely or exclusively by ORV users, a very small and rarified sector of the South African public."

"A strong moral and ethical question arises as to whether these people, by virtue of their wealth, should be allowed to exploit these 'publicly owned' resources for their own pleasure - ultimately to the detriment of the country's biological diversity and hence to the detriment of future generations of South Africans."

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