South Africa: New Environmental Law Regulations

Last Updated: 21 August 2006
Article by Neil Kirby and Laura Sauer

FROM THE WRITERS

In the face of South Africa’s obligations ahead of the World Cup in 2010, the country’s proposed economic growth targets and other developments that have attracted public attention, such as the Gautrain and pebble bed nuclear reactors, developments throughout the country are attracting more attention from the point of view of the impact that such developments may or may not have on the environment. Environmental concerns, in the context of such developments, are thus becoming more important and attracting more public attention. The regulations that are now proposed, for the purposes of regulating environmental impact assessments, will be an increasingly important element of any development. South Africans are becoming increasingly aware of their environment and the impact that a development has on the environment. This awareness is reflected, to a degree, in the new environmental impact assessment regulations. This edition of EnviroWerks explores the proposed regulations ahead of the commencement date of these regulations on 3 July 2006.

INTRODUCTION

The Department of Environmental Affairs ("the Department") has taken another step towards ensuring that environmental concerns are fully addressed when doing business in South Africa. Regulations to the National Environmental Management Act No. 107 of 1998 ("the Act"), which will come into effect on 3 July 2006, prescribe far-reaching amendments to the current organization and application of environmental impact assessments ("an environmental assessment"). An environmental assessment is necessary before undertaking certain projects or developments that are identified in the regulations and which projects or developments may, without proper control, adversely affect the environment.

THE NEW ENVIRONMENTAL ASSESSMENT REGULATIONS

To date the environmental assessment application process has been riddled with delays and problems. The blame for these delays has been placed on severe capacity restraints within the Department and the inadequacies of the previous regulations relating to environmental impact assessments. The Department has stated, in its presentation accompanying the regulations, that the scope of activities covered by the previous regulations was too wide resulting in an inconsistent application by authorities. Accordingly, the new regulations are streamlined and designed to narrow the spectrum of activities that are subject to an environmental assessment by differentiating between different types of assessments for different kinds of activities. For example, an application for the construction of a small sports facility is subject to a basic assessment while large projects, which are more likely to have a more significant adverse impact on the environment, are subject to an extensive "scoping" process. Higher risk activities, such as mining activities, are therefore subjected to a thorough and more comprehensive assessment process.

In terms of the new regulations, a number of significant changes are introduced into the assessment application process -

  • the applicant must appoint an environmental assessment practitioner who is independent, objective and who has the required expertise. If the competent authority is of the view that the practitioner managing the application is not independent, it may, subject to appeal, refuse to accept any reports from such practitioner and require an external review or complete revision of the work at the applicant's cost;
  • the environmental assessment practitioner has the responsibility, under the new regulations, to consult extensively with interested and affected parties in order to facilitate proper public participation;
  • time frames are now prescribed in order to speed up the assessment application process. In this regard, the Department or responsible provincial government must acknowledge receipt of the application within 14 days of receipt of the application and then has 30 days to either grant or refuse an environmental assessment authorisation;
  • an applicant who intends to undertake more than one activity, as part of the same development, is required to submit a single application for all the activities comprising a particular project or development;
  • the compliance and enforcement provisions of the regulations have been strengthened. A person who provides incorrect or misleading information in an application or who fails to comply with the regulations or continues an activity without an authorisation, is now subject to a maximum of two years imprisonment or a corresponding fine determined by the Minister of Justice;
  • the new regulations provide that the competent authority is now entitled to have access to all information that may reasonably or potentially have an impact on or influence any decision it takes. The applicant must, on request by the competent authority, disclose such information, unless the information is protected by law.

NEW ACTIVITIES REGULATED

The new regulations also introduce new activities that are subject to the environmental impact assessment process. The previous list of activities merely included 11 categories and sub-categories. However, the new regulations create two separate lists; one dealing with activities requiring basic assessments and the other dealing with activities that require comprehensive scoping. Thresholds have also been designed in order to differentiate between the types of assessments. For example, construction of facilities for the generation of electricity, where the output is more than 10 megawatts but less than 20 megawatts, are subject to a basic assessment, while any facility generating more than 20 megawatts of electricity is subject to a comprehensive scoping process.

New activities that are subject to basic assessments include the construction of sports facilities with a capacity of more than 8 000 people, the construction of a road wider than 4 metres or the transformation of undeveloped, vacant or derelict land in order to establish urban development. The last-mentioned of these activities includes residential, commercial, retail, institutional, educational and mixed-use development in a built-up area that is at least 50% abutted by urban development. Activities that fall exclusively within the ambit of "scoping" include the construction of petrol filling stations or any other facility for the underground storage of dangerous goods and the refining of gas, oil and petroleum products.

The regulations do allow an applicant to apply to the competent authority for an exemption from certain provisions of the regulations in respect of a specific activity. An exemption will only be granted by a competent authority if the rights and interests of other parties are not likely to be adversely affected.

PUBLIC PARTICIPATION AND INTERESTED AND AFFECTED PARTIES

The regulations also set out certain minimum requirements regarding interested and affected parties. The person conducting the public participation aspect of the application process must give notice to all interested and affected parties of any project or development identified in the regulations. In terms of the regulations, such persons include -

  • the owners or occupiers of land adjacent to the project or development site;
  • the municipal councillor of the ward in which the site is situated;
  • any organisation of ratepayers that represents the community in the area in which the site is located;
  • the municipality that has jurisdiction over the area in which the site is located; and
  • the organ of state that has jurisdiction in respect of the activity that it is proposed be conducted on the site.

Additional obligations that are imposed upon the person interacting with interested and affected parties include primarily the following -

  • advertisements must be placed in provincial and national newspapers if the activity will have an impact that extends beyond the boundaries of the metropolitan area in which the activity is undertaken;
  • the applicant or environmental assessment practitioner must open and maintain a register that contains the names and addresses of the interested and affected parties who are entitled to comment on all written submissions made to the competent authority;
  • the environmental assessment practitioner managing the application must ensure that all comments made by interested and affected parties are recorded in the reports that are submitted by any applicant, in terms of the regulations, to the competent authority.

EFFECTIVE DATE OF THE COMMENCEMENT OF THE ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS

The regulations will come into effect on 3 July 2006 except for those regulations relating to mining activities, which will only come into force at a date yet to be fixed. This delay is due to the required reforms needed to implement an effective assessment system in the mining sector.

In the interim, transitional arrangements are provided for in Chapter 9 of the regulations. Anything done or any authorisation, issued in terms of the previous regulations and which is in force when the new regulations take effect, will be regarded as being authorised in terms of the regulations. Any pending applications or appeals must still be dispensed with in terms of the previous regulations, as if they have not been repealed.

PENALTIES UNDER THE ACT

The provisions of the Act allow any person or group of persons to seek appropriate relief in respect of any breach or threatened breach of any statutory provision concerned with the protection of the environment or the use of natural resources. Therefore a person or a group of persons, in its own interest of or on behalf of another, in the public interest or merely in the interest of protecting the environment may bring a company or person to court, for not complying with any applicable environmental legislation.

A court has the discretionary power to enquire into and assess the monetary value of the loss or damage caused to the environment or the costs likely to be incurred in rehabilitating the environment. A court may order the transgressor to be liable to pay the reasonable costs incurred. These provisions of the Act will also apply to the regulations.

The liability of a person who does not comply with the Act or the regulations is severe. No person can commence with any activity listed in the regulations unless the competent authority has granted permission in respect of such an activity. It is an offence if a person proceeds with the activity without the required authorisation to do so. A person convicted of such an offence is liable to a fine not exceeding R5 million or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment.

Any person who is or was a director of a company at the time of the commission by that company of an offence shall personally be guilty and liable on conviction to the penalty specified in the relevant law. The court may also declare any item that was used for the purpose of or in connection with the commission of the offence to be forfeited to the State. These penalty provisions apply to a body incorporated in terms of any law, including a partnership.

CONCLUSION

While the regulations provide some clarity on the types of activities that are to be regulated and the extent to which these activities are regulated, there seems to be a considerable overlap between the lists. Certain activities are included in both lists, such as mining exploration and reconnaissance and it will be up to the Department to explain which assessment process in the regulations, applies to which activity.

The regulations will have an extensive impact upon many businesses, especially those in the mining and property industries. The potential costs and the consequent liability, should a company fail to comply with the regulations, are extremely onerous.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions