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Control of Vessels and Boating Activities on the Berg River Estuary By-law, 2020
- Published in Western Cape Provincial Gazette no. 8338 on 23 October 2020
- Commenced on 23 October 2020
- [This is the version of this document from 23 October 2020 and includes any amendments published up to 15 December 2022.]
PreambleWHEREAS to provide measures to manage, control and regulate the use of boating activities on sheltered waters, so as to provide for safe and environmentally sensitive recreation. To provide for the repeal of laws and savings and to provide for matters incidental thereto.Whereas there is a need to develop legislation to govern the use of jet skis and other watercraft within the jurisdiction of the Municipality;Now therefore the Bergrivier Municipality in terms of and under the provisions of Section 151 (1) and (2) and 156(2) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) and Schedule 4B and 5B, Bergrivier Municipality enacts as follows:-Reference was made to the Merchant Shipping Act (57/1951): Merchant-Shipping (National Small Vessels Safety) Regulations, 2007.
1. DefinitionsIn this By-law, except as otherwise expressly provided, or unless the context otherwise requires:-"Aid to Navigation" means any device or system, external to a vessel that is designed and operated to enhance the safe and efficient navigation of vessels and/or vessel traffic;"authorised officer" means a person in the employ of the Municipality, authorised by the Municipality to perform the functions of an authorised officer under this By-law or a member of the South African Police or officials appointed by CapeNature or any Enforcement Officers appointed by other institutions, such as SAMSA;"Bokkomlaan" means the channel of water closest to the Piketberg road and gravel road in Zone D extending from corner of Granaat Road and Bokkomlaan (gravel road) to "Die Slot";"bow" means the front part of the vessel;"commercial fishing" Commercial fishing is the activity of catching fish and other seafood for commercial profit, mostly from wild fisheries. Operating from the Carinus bridge out to sea only and not upstream in the river."commercial vessel" means a vessel that is not a pleasure vessel"Die Slot" is where the river narrows directly in front of the Velddrif Yacht Club on the west/east leg, before it turns to the south/north leg in Zone D; Die Slot is a no-wake zone;"estuary" means the Berg River Estuary and is a body of surface water -(a)that is part of a water course that is permanently or periodically open to the sea;(b)in which a rise and fall of the water level as a result of the tides is measurable at spring tides when the water course is open to the sea; or(c)in respect of which the salinity is measurably higher as a result of the influence of the sea;"helmsman" means a person who steers or controls a vessel;"houseboat" includes any vessel, irrespective of whether or not it is propelled under its own power, capable of being occupied by more than one person, which is equipped with facilities for day or night accommodation and on which food preparation facilities and toilet or washing facilities have been provided, operating on sheltered waters, but excludes a sailing vessel, commercial fishing vessel and a cabin vessel equipped with ablution and/or cooking facilities."idling speed" means the speed at which a vessel moves without producing any white water behind the vessel and at a maximum of ten (10) km per hour;"Municipality" means the Bergrivier Municipality established in terms of Section 12 of the Municipal Structures Act, 117 of 1998, as amended and includes any political structure, political office bearer, duly authorised agent or any employee acting in connection with this By-law by virtue of a power vested in the Municipality and delegated or sub-delegated to such political structure, political office bearer, agent or employee;"Municipal Manager" means the Municipal Manager of the Municipality;"NSRI" means the National Sea Rescue Institute;"nuisance" means any form of interference with or encroachment on a person's right to the use and enjoyment of their vessel, or fishing experience or any disturbance to the environment, also including noise pollution and unnecessary wave action;"no-wake zone" means an area in the river where the skipper or owner must operate or control a vessel at a speed so as not to cause a wake or waves in the water;"operate" or "control" or any like expression, in relation to a vessel means to launch, use, sail, navigate or moor a vessel to be launched, used, sailed, navigated or moored on the river, or to have a vessel, or to permit a vessel to be, on the river;"passenger vessel" means a vessel that carries more than twelve (12) passengers;"permission" means the written permission of the Municipality;"permit" means a permit issued by the Municipality for the vessels to operate in its area, in addition to SAMSA licences;"permit holder" means the person in whose name a vessel has been registered as required in terms of this By-law;"person" means a human being (natural person) or a group of human beings, a corporation, a partnership, an estate, or other legal entity (artificial person or juristic person) recognized by law as having rights and duties as related to the activities described in this By-law;"pleasure vessel" means a vessel that is used solely for sport or recreation;"POMA" means the Port Owen Marina Authority"port" means the left side of the vessel as seen from the stern;"powerboat" means a vessel propelled by means of a motor or other mechanical apparatus, either in - or outboard, irrespective of whether or not such motor or apparatus is the main source of power;"power-driven", in relation to a vessel, means propelled primarily by mechanical means;"Personal Water Craft" is a vessel of less than 4m in length, which uses an internal combustion engine powering a water-jet pump as its primary source of propulsion.And is designated to be operated by a person or persons sitting, standing or Kneeling on the craft, rather than within the confines of a hull."prohibited entry area" means that entry to such area by any person except an authorised official is prohibited;"publish" in respect of the provisions of Section 17(1) means:(a)to publish a notice in the Provincial Gazette and a local newspaper; and(b)to display the notice so published on the notice boards of the Municipality;"regulations 37" means power-driven not exceeding (<) fifteen (15) horsepower (hp), sailing vessels of less than (<) seven (7) meters in overall length, and rowing or paddling vessels. (Human propelled vessels);"regulation 37 vessel" means a vessel which is a power-driven vessel not exceeding fifteen (15) horsepower, sailing vessels of less than seven (7) metres in overall length, rowing or paddling vessels, SAMSA - Merchant Shipping National Small Vessel Safety Regulations, 2007;"registered vessel" means a vessel issued with an identification number in accordance with this By-law;"river" means the Berg River Estuary and river;"rowing vessel" means a vessel designed to be propelled by means of oars without any mechanical assistance;"safety of navigation" can be described as the process of planning, recording and controlling the movement of a vessel safely from one place to another;"sail" or "underway" means when a vessel is not anchored, moored or on dry land;"sailing vessel" means any vessel which is capable of being powered by wind under sail;"SAMSA" means the South African Maritime Safety Authority;"sheltered waters" means any of the following:(a)A tidal lagoon or a tidal river as defined in section 1 of the Sea-Shore Act 1935 (Act No. 21 of 1935);(b)The waters within the breakwaters of any port in the Republic; or(c)Inland waters;"Small vessel" means every commercial vessel regardless of size that is used on Inland waters; every commercial vessel under 25 gross tonnage and every pleasure vessel of less than 100 gross tonnage;"starboard" means the right side of the vessel seen from the stern;"stern" means the back of the vessel;"the Regulations" means the Merchant Shipping Act (57/1951): Merchant Shipping (National Small Vessels Safety) Regulations, 2007"this By-law" means the Bergrivier Municipality By-law Relating to the Control of Vessels and Boating Activities on the Berg River;"trolling" means a method of fishing where one or more fishing lines, baited with lures or bait fish, are drawn through the water. This may be behind a moving vessel, or by slowly winding the line in when fishing from a static position, or even sweeping the line from side-to-side, e.g. when fishing from a jetty."vicinity of the river" means the properties adjacent to or in the immediate vicinity of the river;"visible" means that can be seen or viewable by someone with reasonable eyesight during a dark night when the atmosphere is clear;"water area" means the area between the high water mark on both banks of the river and its mouth at any given time;"water ski" means to ski or skate in the water with or without the assistance of any kind of skating apparatus and where the water-skier is towed by a vessel by means of a towing rope;"water-skier" or "skier" means a person who is water-skiing; and"wastewater" means water that has been used in the home, in a business, or as part of an industrial process, containing any chemical substance.
2. Purpose of By-lawThe purpose of this By-law is:-
3. Application of this By-law
Management and use of vessels on rivers
4. Operation of vessels on the river
5. Prohibited behaviour
6. Use zones
7. Equipment required on board a vessel
8. Rules for boating
9. Water-skiing where permitted
Permitting of vessels
10. Permitting of vessels
11. Automatic lapsing or cancellation of permits
12. Cancellation of permits
Fixing of tariffs and fees
13. Fixing of tariffs, fees and levies
Specific provisions relating to environmental protection
14. Pollution of rivers and estuaries
15. Management plans for specific rivers
Powers of authorised officers
16. Powers of authorised officers
17. Removal of vessel from the river
19. Delegation of powerThe Municipality may delegate and or transfer any powers conferred on it under this By-law with the exception of the power to levy or determine fees, to any person or persons or organisation.
20. Exemption from liability
22. AppealA person whose rights are affected by a decision of the Municipality may appeal against that decision by giving written notice of the appeal and the reasons therefore in terms of Section 62 of the Local Government: Municipal Systems Act, Act 32 of 2000 to the municipal manager within twenty one (21) days of the date of the notification of the decision.
23. PenaltiesA person who has committed an offence in terms of this By-law is liable to a fine or upon conviction to a fine or imprisonment, or either such fine or imprisonment or to both such fine and such imprisonment and, in the case of a continuing offence, to an additional fine or an additional period of imprisonment or to such additional imprisonment without the option of a fine or to both such additional fine and imprisonment for each day on which such offence is continued and, a further amount equal to any costs and expenses found by the Court to have been incurred by the Municipality as result of such contravention or failure.It is an offence to-
24. Repeal of By-lawsThe provisions of any By-laws previously promulgated by the Municipality or by any of the disestablished municipalities now incorporated in the Municipality, are hereby repealed as far as they relate to matters provided for in this By-law, and insofar as it has been made applicable to the Municipality by the authorisation for the execution of powers and functions in terms of Section 84(3) of the Local Government: Municipal Structures Act, Act 117 of 1998.
25. Short title and commencementThis By-law is called the By-law Relating to the Control of Vessels and Boating Activities on the Berg River Estuary for Bergrivier Municipality (2020), and comes into effect on the date of publication thereof in the Provincial Gazette.
History of this By-law
23 October 2020 this versionPublished in Western Cape Provincial Gazette no. 8338By-law commences.
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