What happens on the beach stays on the beach: A speculative legal analysis of nudism in South African protected areas

Abstract

The Hibiscus Coast Municipality assumed it had the authority to issue or amend by-laws to formalise an existing nudist friendly beach within the Mpenjati Nature Reserve. Following a complaint, the Public Protector concluded the same when she investigated the legality of the Municipality’s actions. Two immediate questions arise. The first, whether the Municipality and the Public Protector were correct in their view that the Municipality has the authority over the beach irrespective of the presence of a protected area, and the second, whether nudism is a legal activity therein. Both the Municipality and the Public Protector overlooked the relevance of the nudist friendly beach being located within a protected area and the power of the management authority to determine the nature of the tourism that takes place therein. Nudism within a protected area appears not to be in conflict with the Sexual Offences Act 23 of 1969 and hence may be a legitimate activity within such area. The National Environmental Management: Protected Areas Act 57 of 2003 and the Regulations  thereunder appear not to contain provisions that prohibit nudism or other niche nature based tourism activities. Provided that the activity conforms to the purpose of the Act and proteced area management plan and zonation and does not pose a significant physical risk to the integrity of the protected area, the conservation agency may be hard-pressed to refuse a request for a niche nature based tourism activity, such as nudism, to be included in the zonation – should one be received.