Abstract
The past decade has borne witness to the transformation of South Africa's natural resources law with the introduction of a new legal concept, that of "public trusteeship", to South African jurisprudence. The concept of "public trusteeship" as it is embodied in South African legislation encapsulates the sovereign's duty to act as guardian of certain interests to the benefit of the nation as a whole. In the quest to demystify the incorporation of the concept of "public trusteeship" in South Africa, this article, as a first tentative step, focuses solely on the public trust doctrine as it functions in American jurisprudence. It is the aim of this article to give a thorough theoretical exposition of the development and application of the public trust doctrine in American jurisprudence in order to provide the South African scholar with a perspective on a legal construct founded on the philosophical notion that governments exercise a "fiduciary trust" on behalf of their people.
Highlights
The past decade has borne witness to the transformation of South Africa's natural resources law with the introduction of a new legal concept to South African jurisprudence
With the promulgation of these pieces of legislation, the state has had conferred upon it the obligation to act as either trustee or custodian of the environment or a specific natural resource, whilst the environment or that particular natural resource has been bequeathed to the people of South Africa
The concept of "public trusteeship", as it is embodied in South African legislation, encapsulates the sovereign's duty to act as guardian of certain interests to the benefit of the nation as a whole
Summary
The past decade has borne witness to the transformation of South Africa's natural resources law with the introduction of a new legal concept to South African jurisprudence. The concept of "public trusteeship", as it is embodied in South African legislation, encapsulates the sovereign's duty to act as guardian of certain interests to the benefit of the nation as a whole. This concept is founded securely in legal philosophy. Whilst South African courts have referred to "the State fulfilling its role as custodian holding the environment in public trust for the people",11 there has been no attempt in reported cases to give a thorough exposition of the notion. This article intends to give an account of the historical development and application of the public trust doctrine in American jurisprudence with specific reference to the nature and scope of the doctrine, whilst highlighting the consequences of the application of the doctrine for both environmental and property law
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