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
Neil Kirby
 
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”

Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Law Practice Management
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.