Merrily down the stream Ian Cox Row, row, row your boat Gently down the stream Merrily, merrily, merrily, merrily Life is but a dream.
The September 2019 edition of the Flyfishing and Flytying magazine features an article about the ongoing conflict between recreational anglers and canoeists in the United Kingdom. I would not mention this in a South African context save that it speaks to many of the issues driving the conflict between anglers and small scale fishers in South Africa. The public right to access rivers in the United Kingdom is heavily restricted. Public rights of access are limited to navigable tidal rivers and to the small number of rivers were public use has existed since time immemorial. This applies equally to the right to fish or canoe on these rivers or indeed any other use. As I mentioned in the July 2019 edition of this magazine, English common law reposes the right to access, and thus exploit, most of Britain’s rivers in the hands of riparian landowners. The result is that a tiny proportion of Britain rivers are truly open to the public. This is also the legal position in South Africa as far as fishing is concerned. However, it is not the case when canoeing on rivers. Roman Dutch law applies to canoeists and it grants a general right of access that British www.saflyfishingmag.co.za
canoeists are fighting for. The right to canoe South Africa’s rivers was recognised over 30 years ago in the case of Butgereit v Transvaal Canoe Union. The South African legal position is thus an anomalous one in that sometimes Roman Dutch law applies and sometimes it does not. It is hard not to conclude that South African law makers adopted the English law regime opportunistically where this enabled landowners to limit a general right of access to private properties. Anglers in both the United Kingdom and South Africa have overcome this impediment by entering into agreements with land owners, including the state, which allow clubs and/or syndicates privileged access to these waters. Many of these arrangements are longstanding. In some cases where state land is involved, they have been formalised into laws or policy. For example, Jake Alletson writes in Greenheart to Graphite of trout acclimatisation societies being encouraged by government in what was then Natal as a means of allowing select members public to gain access to the Provinces state funded trout waters. 92
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