Abstract
South Africa has 291 functional estuaries of which 43 per cent are threatened. These estuaries provide numerous environmental goods and services to the species situated within and adjacent to them. In an effort to improve the protection of the country’s estuaries and the environmental goods and services they provide, many laws of direct and indirect relevance to estuaries have been introduced over the past two decades. The provision of these environmental goods and services is however contingent upon maintaining the natural ecological flows inherent in estuaries. One significant threat to maintaining these natural ecological flows is the artificial opening of the mouth of an estuary, an action often triggered by the desire to protect private property against flooding when estuarine water levels rise. Decisions to artificially open the mouth of an estuary often therefore need to achieve a difficult balance between ecological (generally public) interests and proprietary (generally private) interests, a balance which should ideally be informed by the numerous laws, and their associated plans and policies, of direct relevance to protecting and managing estuaries. The courts have recently been called upon to resolve disputes regarding decisions about whether or not to artificially open the mouth of an estuary, and what one recent decision of the Supreme Court of Appeal in Abbott v Overstrand Municipality (2016) clearly illustrates is that there are not only significant challenges in the implementation of the legal framework of direct relevance to estuaries, but also in the judiciary’s understanding and application thereof. It furthermore illustrates distinct anomalies in the interpretation of the original, assigned and incidental executive authority of local government in relation to environmental matters, and that notwithstanding a swathe of recent relevant jurisprudence in this regard, confusion still abounds in this environmental governance quagmire.
 
Highlights
Estuaries provide essential environmental goods and services to species inhabiting the coast, an area facing increasing pressure from particular human migration to and the associated development of the often narrow and ecologically sensitive strip lying on the terrestrial and marine divide. These environmental goods and services include nesting and feeding habitats for aquatic plants and animals, stopovers for migratory birds, nursery areas for fish, storm surge management, flood water control, the provision of raw building materials and food, sediment and pollutant filtration, and recreational opportunities to those inhabiting the area. The provision of these environmental goods and services is dependent on maintaining the natural ecological flows in estuaries – "the amount of water required for the aquatic ecosystem to continue to thrive and provide the services humans and other species rely upon"
The main relief sought by Mr Abbot was the review and setting aside of the decision of the Overstrand Municipality to refuse to take steps to prevent damage being caused to his house by the flooding of the Klein River.43. He further requested the court to remit the matter to the Overstrand Municipality for reconsideration, which he requested should include a consideration of steps to prevent his house from being flooded, the flooding possibly being caused by their failure to artificially breach the Klein River Estuary (KRE) when water levels reached 2.1 metres above mean sea-level (MSL).44
The Supreme Court of Appeal (SCA) was able to dispense with the applicant's alternate cause of action on the basis that he had sought to invoke the doctrine of substantive legitimate expectation,83 which the court confirmed was yet to be recognised as part of South African law
Summary
How to cite this article Paterson A "Maintaining the Ecological Flows of Estuaries: A Critical Reflection on the Application and Interpretation of the Relevant Legal Framework through the Lens of the Klein River Estuary" PER / PELJ 2018(21) - DOI http://dx.doi.org/10.17159/17273781/2018/v21i0a2781
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