By Anton Katz
Many would be surprised by seeing the words the law and surfing in the same sentence. But the reality is, there is an interesting dynamic at play.
The law and surfing interact often, and in subtle and surprising ways. There are two things that made me think of the relationship. The first is the images of many surfers protesting and defying the government’s covid-19 closure of the beaches. During the beach ban I saw many surfers in the water and on the beach as if there was no ban and that Covid-19 did not exist. Not only that the pandemic did not exist, but that there is no law governing the surfer in his ocean paradise.
Secondly, my children in their surfing excitement have managed to persuade me to enter and enjoy the ocean in Muizenberg, even at my age and shape. In the water I have come across all manner of persons — young and old, fit and the not-so-fit, those who are heavily overweight, and experienced as well as rank beginner surfers. I met a seventy-two-year-old woman from Pretoria thoroughly enjoying her first-ever surfing lesson. She incredibly managed to stand on her board for a few seconds.
They all had a sense a freedom and peace far removed from the laws and traumas of daily life. I wondered and researched whether, and if so how, the law and surfing intersect. What I discovered should not have been a surprise. There is a growing overlap.
The law concerns humans, our interactions with each other, with the environment, with businesses and with government. And surfing does the same. Beaches attract a unique mix of people: beach walkers, sunbathers, athletes, families, swimmers, bodysurfers, boogie-board riders, surfboard riders, kite surfers, sailboard riders, lifesavers and homeless persons to name a few. Surf schools, surf magazines and surf equipment have developed at a fast pace over the last decade. Safety measures concerning attacks by sharks and other marine wildlife are in some places regarded as government responsibility. Emergency medical care for injuries which occur in the water must be available, it is argued. And one of the five new sports at the Tokyo 2021 Olympics will be surfing.
In law no two cases are ever the same. Every single case constitutes competing parties arguing why they, on the basis of precedent or simply logic, should succeed. That applies to divorce cases, criminal matters, commercial disputes and indeed all types of case. No human is exactly the same; so all cases are different, although earlier decided cases will guide and often bind the court hearing the dispute. In the ocean no two waves are ever the same. But, just as in the law, experience indicates when and how a wave will probably break, and how big it will be.
An interesting example in the law of defamation was decided in the Cape Town High Court a few years ago. Zigzag is a surfing magazine which has a readership of between thirty to forty thousand. It published a photograph of a twelve-year old girl from Port Elizabeth at the beach in Cape St Francis without her or her mother’s consent or authority. The photograph was stamped “filth” and on the cover of the magazine a statement appeared saying “100% pure filth photos inside”. The mother sued the magazine owner claiming damages because her daughter had received and been the target of social media unpleasantness. The girl had been labelled a ‘slut’ and “PE’s little porn star.” Zigzag magazine in defending the claim relied on the constitutional right to freedom of expression, and that in the surfing community the expression ‘pure filth’ had a positive connotation meaning something of great quality. The editor of Zigzag testified that the words ‘pure filth’ had a specific meaning within the surfing community; that is of something of good quality and was a phrase which was complimentary, either of a wave or of a young woman. The Court rejected the defence and held that the word ‘filth’ in any primary context, to any reader of ordinary intelligence, must hold a negative connotation. The High Court in concluding stated: “The photograph was not one which captured happy holiday-makers on a glorious South African beach, the type of photograph that appears from time to time in daily newspapers. Nor was it similar to the fleeting image of an attractive woman caught on television by the perennially sexist camera crews, recording a cricket match on a hot South African summer’s afternoon but whose crowd shots are invariably of scantily clad young women as opposed to studious cricket spectators. In this case, the court is confronted by a photograph, to which a full page was devoted, which was clearly designed to be a pinup shot.” Although the mother sought damages in the amount of R 500 000 the Court only awarded R10 000.
To summarise, it is worth referring to a scholarly article in California Western Law Review: “Surfing has for many years been a sport or activity free from legal consequences and legislative regulation. The mentality and customs of surfing teach peace, love, and respect for fellow surfers. With popular surf locations becoming overcrowded and collision injuries increasingly prevalent, the idea of ‘surfer liability’ and the potential for a delict/tort* damages claim in negligence is becoming more of a reality every day. Surfing, through an increase in worldwide publicity, has steadily grown in popularity yielding a saturation of common surf spots. This overcrowding, combined with a disrespect for, or ignorance of, well-known surf customs designed to promote safety and order in the water are two possible explanations for collision accidents. A long-held custom is for surfers to secure their boards with a leg leash. But if they do not, and the board crashes into another person and injures him or her, should the surfer be liable. Proposals in California range from labelling a surfboard a dangerous weapon to creating ‘surf police’ who would patrol surf locations on jet skis and issue tickets for violations of leash laws and other beach community ordinances.
The life and experience of the somewhat small but growing community of surfers gives us pause when we consider the law and how it impacts our lives.
Perhaps the lesson is that no matter how free and easy humans may wish to live and be, there will always be necessary limits on what we may do. Ideally those limits should be narrow. The limits should only arise when our conduct (negatively) affects others, and the exercise of their rights and freedoms.
*A delict is wrong committed by one person against another giving rise to a claim for damages by the victim of the unlawful conduct against the wrong-doer.
• Published in the print edition of the May 2021 issue. Download the May 2021 issue PDF here.
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