Life is a beach
When lockdown level 3.2 returned, it returned with the closure of beaches in hotspots. This during South Africa’s summer holiday season, in a year where everybody deserved a beach holiday and a rest.
Regulation 36(9), under the heading “gatherings”, states:
This prohibition lead to people asking “what is the beach exactly?” and “can we still surf?” and “where do I get a fishing licence and must I carry a rod on my fake fishing trip?”
This blog looks at some of the interpretative conundrums of these regulations and ends off with a bit of game theory talk, just because it popped up in my head when thinking about this.
Please note here that I am not assessing whether the rule itself is a good or not, or even complies with the legality principle. Two court cases found, for various reasons, that the decision is no unlawful or irrational, so for now, it stands. Here, here, here and here are some information about beaches and COVID, for those interested. In the process, I have also found that beaches have been closed in many other jurisdictions to various degrees, such as Ghana, Italy, Spain, Portugal, and many other places.
Emergency legislation: clarity and transparency
While I am not entering the debate on whether the choice is a good choice or not, I do want to state two of the many principles that emergency legislation, such as the Covid regulations, should adhere to: the principle that there must be legal certainty and clarity in public communication, and the code that decision-making should be transparent. I will leave it up to you, reader, to assess the degree the government complied with these two principles in this specific instance.
But for now, allow me to get into the juicy law-nerd stuff.
Who owns the beach?
A bit off track, this is a topic that long fascinates me – the question of who owns the beach. But it does link to the question of what a beach is.
The National Environmental Management: Integrated Coastal Management Act, applies to the geographic area of the “coastal zone”. It does not define beach, but it does define the sea-shore as “the areas between the high-water mark and the low-water mark” and the sea as “all marine waters”.
As far as ownership is concerned, that Act states that “ownership of coastal public property vests in the citizen of the Republic and coastal public property must be held in trust by the State on behalf of the citizens of the Republic”.
The State is not the owner in the private ownership sense of the word – it holds it in trust for us, the South African people. The following areas constitute “public property”:
This means that while the State holds the property in trust, the public has the right to use this property, also for recreational purposes. The state may not alienate (for example by selling) the property, but it is entitled to control and manage it. While the ICM Act covers the area from the high-water mark to the sea but is mum about the dry-beach area (including, for instance, dunes).
That being said, under certain circumstances, it is possible to privatise the beach area, but that for another day.
What constitutes a “beach”?
Zoning out of property law mode to legal interpretation mode, what constitutes a “beach” for purposes of Covid regulations? Since the regulations does not define it, one can turn to other legislation or to dictionaries to find meaning.
The Cape Town Coastal By-law of 2020 (aimed at managing and protecting the coastal zone) define “beach area” (but not beach) as
the beach and any part of the coastal area and its immediate surroundings, including any public open space, park, road, lane, parking space, pathway, or any municipal property or public amenity located in such area;
“seashore” or “beach” means the area between the low-water mark and the high-water mark, or as may be determined or adjusted from time to time in respect of the coastal zone boundaries by a competent national or provincial authority in terms of the National Environment Management: Integrated Coastal Management Act, 2008 (Act 24 of 2008).
Beach area is probably too wide, and seashore probably too narrow, at least in the layman’s understanding of the word.
In terms of the dictionary meaning, Merriam-Webster defines beach as
a : a shore of a body of water covered by sand, gravel, or larger rock fragments
b : a seashore area
while the Collins dictionary
A beach is an area of sand or stones beside the sea.
If it is the seashore, it might include the water area between the low and high water mark. But the beach, literally, refer to the sandy area (or rocky pebbles area in some countries).
One thing is sure: even if the beach is privately owned, it will still be subject to the regulations unless explicitly excluded. The State may, and often does, regulate the use of private property.
So if access to the beach is restricted, does this include the water too? Or can one swim and surf?
There is a flyer doing the rounds that relies on regulation 84(16) to justify the fact the windsurfing and kite-surfing are allowed. There is also a similar argument made on a law firm’s website. Another argument is that it is the beach, and not the sea that is off limits, and therefore, if you can get into the sea without going onto the beach, then you are good to go.
Regulation 84(16) states:
In other words, if surfing is a “sporting activity” falling under regulation 84(16), then you may do it if you do it under a sporting body.
A “sports body” is defined in the directions as:
“sports body” means any national federation, agency, club or body, including a trust, professional league, or registered company of such a national federation, agency, club or body, involved in the administration of sport or recreation at local, provincial or national level”.
Reliance on regulation 84(16), can not be used to justify recreational surfing.
Surfing is my exercise
Another argument that is raised in this instance is that if you jog or walk, you are also doing sports, and unless you do it under a sports body, this should equally not be allowed.
Or the flip-side: if people can walk and jog as “sports”, why can’t surfers surf?
The question then becomes if an individual doing exercise is busy with a “sporting activity” as meant by regulation 84(16), or rather exercise? In which case, the usual rules about gatherings and being in public applies: no social gatherings, social distancing, and mask on (unless the exercise is vigorous).
But the places where the exercise is performed is not off-limits. Streets are open, and so are (some) parks, but beaches are not. Which leaves the only loop-hole “it is the beach, not the sea that is off-limits”.
And of course, on a very literal interpretation, this is so, but it might not convince a court. Let me explain why I think so.
Out of the bowels of the regulations
Even if one follows a strict literalist interpretation, arguing that one can surf if, for instance, you launch a boat from the harbour and then go surfing in the surf (careful not to go onto the seashore), such an interpretation seems “absurd and repugnant to common sense”, as the old English lords would say.
Using systematic interpretation – where individual provisions are read with the other clauses and components of the text one draws on the system or the logic of the text – in this instance the (level 3.2) regulations.
(The common-law refers to this as ex visceribus actus approach – one of the Latin phrases I will never forget. It means “from the bowels of the Act”.)
In the context of the regulations, there are areas that the state has elected to be no-go areas, to curb the spread of the virus. Access to some of these places are restricted because it is difficult to monitor and to enforce the regulations – and beaches was elected to be one of the places.
On a purposive interpretation, the question will be what the purpose of these regulations are. The purpose is to be found in the Disaster Management Act. These specific regulations aim to limit “gatherings” in certain spaces – including beaches and beach areas (as we will see below).
If you are surfing, there is a real possibility that you might end up on the sea-shore (where if you are, for instance, sailing, hopefully not). I find it unconvincing that the regulation allows surfing (and by implication swimming) as long as people don’t go onto the beach (whatever that might be).
A solution is for the regulations to make express allowance for surfing, similar to fishing in regulation 36(10)(b). My prediction is that government will then not only be making fishers of people, but also surfers.
I am mindful that even if the decisions are based on science, deciding which gatherings will be prohibited remains a political decision. And as mentioned before – the courts have found that the decision to close beaches is lawful. Twice.
Which means that even if you disagree with it on a political level, it is, for now, a legally valid decision.
No swimming in dams, lakes and rivers but swimming in sea?
It is also essential to look at the context in which the word “beaches” appear.
Regulation 36 (9), again, it states that:
The fact that dams, lakes, and rivers follow beaches, arguably indicates that it is not only the sandy part of the beach but also the area in the sea (but not the deep sea). And even though press statements do not constitute law, it seems clear that government no only want to stop people from gathering on the sand, but also in the water.
So exercise in the sea not explicitly prohibited then? Perhaps. I might concede that it is unclear and a “grey area” on a literal interpretation. But a grey area by no means amounts to a clear “yes” for surfing and swimming, as social media at times wants us to believe.
But, it is not a crime!
Scenes of police officers arresting people on the beach have been making their rounds on social media.
I am not privy to the reasons for the arrest. But being on the beach or surfing do not constitute offences in terms of the regulations.
And we have a legal definition….
[This part was added after the first publication of the blog.]
And, alas, the mystery was solved with the definition of “beach” inserted in the regulations on 11 January 2021. And what does it say? Well:
‘beach’ means the sandy, pebbly or rocky shore-
(a) between the high-water mark and low-water mark adjacent to-
(i) the sea; or
(ii) an estuary mouth extending 1000 meters inland from the mouth; and
(b) within 100 metres of the high-water mark, excluding private property,
including the sea and estuary themselves adjacent to the beach;
[Definition of ‘beach’ inserted by GNR.11 of 11 January 2021.]
So, this includes the first 100m from the beach into the sea, and 100m the other way. Initially some people were concerned that the 100m include promenades, restaurants and even houses. But luckily, if the definition is read a a whole, the 100m is only applicable as long as it is “sandy, pebbly or rocky shore”.
If the law won’t save us, game theory might explain us
Government is trying to stop people from “gathering” in areas where people are likely not to social distance and drop the masks. Beaches are difficult to control. And people are probably more likely to drop their masks than to sport mask tans.
And of course, you might argue that something like surfing is hardly a “gathering”. With that I can agree. But, enter game theory.
Game theory works as follow: individuals are asked to cooperate to the benefit of others. If all the individuals act in their self-interest, they all lose. If only one individual act in their own self-interest, and the other not, the individual acting in their self-interest is rewarded, while the rest of the individual gets nothing. If all the individuals cooperate, they are all rewarded (although not as much as they would have been rewarded, did they act in their self-interest while others complied).
Applied to the pandemic-restrictions, it looks as follow: if everyone follows the beach bans, the one person who violates the prohibition wins because they will not get infected. They can carry on with their life as usual. If everyone ignores the ban, it increases the chances of the rate of infection, which can lead to a worse situation for everyone (or many people – by overburdening the health care system).
The theory is, like most, not perfect. For one, a person must believe that they will lose if they don’t comply, something which young, healthy people with access to adequate medical care might not think. Nor people who think that Covid is not as severe as we are made out to believe. Or that individuals surfing poses absolutely no risk.
But it might be a useful way to understand why some liberties might be restricted for a while, and how cooperation works in everyone’s favour.
So, even if through clever tricks and loopholes, you can sink your feet in the sand at hotspots, it might be helpful to ask: what will be the consequences if everyone did this?