Conservation servitudes in South Africa

• DOI: https://doi.org/10.47348/SAJELP/v26/a4
• Author: Theart, M.
• Pages: 105-133
• Date: 10 December 2021
• Published date: 10 December 2021

105

https://doi.org/10.47348/SAJELP/v26/a4

CONSERVATION SERVITUDES IN

SOUTH AFRICA

Marthán Theart* and Kirstin Meiring†

Abstract

In recent years, the conservation servitude has gained traction as a biodiversity

stewardship mechanism for the protection of biodiversity and ecological

infrastructure on private land in South Africa. This article provides insight

into what a conservation servitude is and showcases how it has been used

in practice by non-governmental organisations, environmental authorities and

municipalities in South Africa to further conservation objectives. It explores the

common and statutory law limitations on the use of servitudes for conservation

purposes and identifies some of the innovative strategies that have been used,

by especially non-government organisations and municipalities, to overcome

these limitations. The similarities and differences between conservation

servitudes and other mechanisms used in South Africa to secure areas of

biodiversity significance or ecological infrastructure are considered, before

identifying the various contexts in which conservation servitudes are currently

being used in practice.

1 INTRODUCTION

Conservation servitudes are mechanisms for protecting and

managing biodiversity and ecological infrastructure1 in South

Africa�2 In the recent past, they have become recognised

* BA LLB (Stellenbosch), LLM (Environmental Law) (UCT), Legal

Specialist, South African National Biodiversity Institute�

† LLB, LLM (Environmental Law) (UCT), Environmental Law Intern,

South African National Biodiversity Institute�

1 The South African National Biodiversity Institute (SANBI) defines

‘ecological infrastructure’ as ‘naturally functioning ecosystems that deliver

valuable services to people, such as fresh water, climate regulation, soil

formation and disaster risk reduction’ (SANBI Ecological Infrastructure:

Nature Delivering Services (2013), available at http://biodiversityadvisor�

sanbi�org/wp-content/uploads/2014/02/Ecological-Infrastructure-Fact-Sheet-

2nd-edition�pdf (accessed 16 June 2021))� Furthermore, according to SANBI,

‘[it] includes, for instance, healthy mountain catchments, rivers, wetlands,

coastal dunes, and nodes and corridors of natural habitat, which together form

a network of interconnected structural elements in the landscape’ (ibid)�

2 SANBI Biodiversity Stewardship Guideline (2018) A Guideline produced

for the Department of Environmental Affairs by the National Biodiversity

Stewardship Technical Working Group at 19�

(2020) 26 SAJELP 105

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https://doi.org/10.47348/SAJELP/v26/a4

mechanisms for biodiversity stewardship3 and have emerged as

key alternatives to the declaration of protected areas in terms of

the National Environmental Management: Protected Areas Act4

(NEMPAA) to promote the conservation of biodiversity and

ecological infrastructure on private land�5 Conservation servitudes

do not qualify as protected areas but have been identified as

mechanisms which could qualify as satisfying the criteria of

‘other effective area-based conservation measure[s]’6 (OECM) as

defined in the Convention on Biological Diversity (CBD)�7 As such,

conservation servitudes can be used to increase the percentage

of land in South Africa that is under better management and

can potentially8 grow South Africa’s internationally recognised

conservation estate in the future�

The purpose of this article is to explain what a conservation

servitude is and showcase the ways in which servitudes can

be used in South Africa to promote conservation� It is broken

down into four main parts� First, it explains the nature and scope

of conservation servitudes and the domestic law governing

3 The concept of ‘biodiversity stewardship’ is described as ‘an approach to

securing land in biodiversity priority areas through entering into agreements

with private landowners, CPAs [communal property associations] and the

occupiers of communal land, led by conservation authorities and supported by

conservation NGOs [non-governmental organisations]’ (ibid at 2 and 8)�

4 Act 57 of 2003�

5 SANBI (n2) at 19�

6 D Marnewick, C Stevens, R Antrobus-Wuth & H Jonas Assessing the

Extent of OECMs in South Africa: Final Project Report (2020) at 45�

7 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992 (1992)

31 ILM 818� The term OECM has been specifically defined as follows: ‘a

geographically defined area other than a Protected Area, which is governed and

managed in ways that achieve positive and sustained long-term outcomes for

the in-situ conservation of biodiversity, with associated ecosystem functions

and services and where applicable, cultural, spiritual, socio-economic, and

other locally relevant values’ (CBD, ‘Protected Areas and OECMs’ (30

November 2018) UN Doc UNEP/CBD/COP/DEC/XIV/8, para� 2)�

8 Marnewick et al (n6) at 11 and 33� According to the authors, there is

an opportunity for the national department responsible for environmental

affairs to facilitate the institutionalisation of OECMs within South Africa’s

national policy framework to ensure the alignment of OECMs with existing

frameworks, to recognise and report on conservation areas at a national level

and to meet the international reporting requirements of the Convention on

Biological Diversity�

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