You can probably cross the beach to get to the sea – but you can’t play until you are 100m out

Business Insider SA
A closed beach
  • Though badly worded, South Africa's newly-defined beach ban includes a zone 100 metres out into the water, a lawyer says.
  • But from 100 metres out, the ocean is legally yours to use as you see fit.
  • That means you can cross the closed beach in order to get to the deeper water, he reckons.
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The ban on beaches across most of South Africa extends deep into the ocean too, lawyers say, thanks to a new definition – but does not mean you can't cross the beach.

Just as long as you don't start enjoying yourself until you are at least 100 metres into the water.

On Tuesday, co-operative governance and traditional affairs minister Nkosazana Dlamini Zuma added a definition for "beach" to South Africa's disaster regulations, which provide the legal basis for everything from curfew to the alcohol ban. That is the definition police must now use to enforce the closure of beaches – for most purposes – across much (but not all) of South Africa.

See also | You can still visit any beach in SA for about R150 – but you can’t swim

Though badly worded, the intention behind that definition is to include a 100 metre zone of ocean starting from the high-water mark to the beach, and so ban the use of that stretch of water, says Shayne Krige of Werksmans Attorneys .

That makes for a banned zone of 200 metres, with the high-water line in the middle: 100 metres into the ocean, and 100 metres to the land side. On land, though, only sand, pebble, or rocky shore appears to be included, so that grass and man-made structures are legal to use, and all private property is explicitly and clearly excluded from closed areas. 

But sporting activities, such as swimming or paddling, are not illegal, and there is no restriction on the use of the sea from 100 metres out, so that – probably – means you can cross the closed beach.

"In our view, the fact that the sea beyond the beach is open, necessarily implies a right to traverse the beach to access the sea," says Krige. 

"There is precedent in South African law for this approach. The use of riverbanks to enter and leave a river is considered a 'necessary incident of navigation' and the public is entitled to use the riverbank (even if privately owned) in order to access the river. Similarly, we think that the public is entitled to access the sea and crossing the beach to that end is a necessary incident of the activity."

Having crossed the beach zone, you can do what you like, as long as you confine activities to at least 100 metres out from the high-water mark – just as long as you don't do it with other people. Forming a gathering in the water, and refusing to disperse when ordered to do so by law enforcement, would make you guilty of an offence, Krige warns. 

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