Positive and Negative Obligations of Landowners in South African Law: An Environmental Perspective

Summary

INTRODUCTION

South Africa has a unique biodiversity profile and is in the top ten of the world's most biologically diverse countries. Various strategies have been adopted to protect and conserve the country's indigenous biodiversity, including the proclamation of national parks and nature reserves. However, one of the most pressing challenges has been to protect valuable biodiversity that falls outside of these formally protected areas. This challenge is significant because the majority of South Africa's globally unique biodiversity is situated on private property. In this context, a sufficiently flexible strategy is needed to impose positive and negative obligations on private owners in pursuit of this important public purpose and in a manner that is constitutionally valid. One key strategy is the biodiversity stewardship programme (BSP) that was introduced in 2003 after a prototype of the project yielded great success. Biodiversity stewardship contracts in terms of the BSP present an innovative mechanism for national, provincial and local government to secure land in biodiversity priority areas by means of contractual agreements with both private and communal landowners, under the guidance and care of conservation authorities.

The BSP's key feature is that it adds to the conservation estate of South Africa in a nuanced, contextual manner. The BSP is based on voluntary commitments from landowners to accept additional positive and negative obligations to protect the biodiversity on their property, while retaining control and title of their property. The degree of commitment is determined by the landowner by choosing, in consultation with the relevant provincial authority, the correct type of biodiversity stewardship contract. Stewardship agreements are tailored to suit the needs of the owner and other land users as well as the value of the biodiversity on the land. Concomitantly, the level of support from the conservation authorities increase with the level of commitment made by landowners. In return for assuming more extensive obligations, owners receive state support, primarily by way of technical assistance to manage biodiversity.

The example of endangered fynbos habitats in the lowland areas of the City of Cape Town was selected to illustrate the challenges of protecting biodiversity that 1) occurs naturally on land that is privately owned, 2) that is not formally protected as part of a national park and 3) is extremely vulnerable to human interference and degradation caused by especially urban sprawl.