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 the fact that international commentators argue that a constitutional and statutory foundation has been laid for a doctrine of public trust to operate in South African law, very little has been written in South African literature on what the subject might entail. The reality is, however, that the philosophical notion that governments exercise a fiduciary trust on behalf of their people, and that ‘certain interests are so particularly the gifts of nature’s bounty that they ought to be reserved for the whole of the populace’ has been incorporated in different pieces of environmental and natural resources-related legislation. This notion, as embodied in s 24 of the Constitution and subsequent statutes dealing with natural resources, establishes a stewardship ethic of public trusteeship and state custodianship in South African natural resources law. An analysis of the relevant natural resources legislation leads to the conclusion that the concept of public trusteeship has, in limited fields, been incorporated in South African law in unique stewardship doctrines of public trust. As this stewardship ethic has been created in different statutes, the consequences brought about by this statutory intervention depend exclusively on the symbioses between the provisions of each individual statute