Recent commentary on the expansion of municipal environmental enforcement powers described a directive issued under section 28 of the National Environmental Management Act 107 of 1998 (NEMA) as “a different beast entirely” from the compliance notices that municipalities have historically relied upon. Having recently navigated the appeal and suspension processes associated with a municipal section 28 directive first-hand, it is difficult to disagree.Recent commentary on the expansion of municipal environmental enforcement powers described a directive issued under section 28 of the National Environmental Management Act 107 of 1998 (NEMA) as “a different beast entirely” from the compliance notices that municipalities have historically relied upon. Having recently navigated the appeal and suspension processes associated with a municipal section 28 directive first-hand, it is difficult to disagree.
At a glance
- Municipal environmental enforcement powers have been expanded to include a directive issued under section 28 of the National Environmental Management Act 107 of 1998.
- The legislative amendment empowering municipal managers and delegated municipal officials to issue duty of care directives was intended to bring environmental enforcement closer to the source of pollution.
- The most important lesson from recent experience is that a municipal section 28 directive should never be treated as a routine regulatory notice. Once issued, it creates a complex web of procedural, technical and legal obligations.
The legislative amendment empowering municipal managers and delegated municipal officials to issue duty of care directives was intended to bring environmental enforcement closer to the source of pollution. In principle, that objective is difficult to fault. Municipal officials are often the first responders to complaints regarding pollution incidents, illegal dumping, contaminated stormwater systems and impacts on watercourses.
What is perhaps less appreciated is the procedural machinery that is set in motion once such a directive is issued.
The procedural trap created by section 28(4A)
A compliance notice in terms of section 31L and a section 28 directive may, at first glance, appear to pursue similar objectives. Both seek to address environmental harm. The similarities largely end there.
The introduction of section 28(4A) represented an important procedural safeguard in the section 28 directive regime. It expressly requires the relevant authority, before issuing a directive under section 28(4), to give the intended recipient adequate written notice of the proposed directive and a reasonable opportunity to make written representations. In doing so, section 28(4A) introduced an express audi alteram partem requirement into the duty of care directive process, thereby confirming that affected parties should ordinarily be afforded a meaningful opportunity to engage the factual, technical and legal basis for the proposed directive before binding remedial obligations are imposed.
Importantly, the subsection also recognises an urgency exception. Where urgent action is necessary for the protection of the environment, the authority may issue the directive first and afford the recipient an opportunity to make representations as soon as is reasonable thereafter. The practical significance of this amendment is therefore twofold: it strengthens procedural fairness in ordinary cases, but also creates a potential area of dispute where an authority invokes urgency to justify issuing a directive setting out remedial measures to be implemented without prior engagement.
In theory, this appears straightforward. In practice, questions quickly arise:
- What constitutes adequate notice?
- What information must accompany the warning to allow meaningful representations?
- How much evidence must be disclosed?
- What qualifies as a “reasonable opportunity”
to respond?
When can an authority legitimately rely on urgency to bypass these requirements?
Where a municipality invokes urgency, the procedural safeguards may be significantly curtailed. The recipient may find itself dealing with substantive directives before having had any meaningful opportunity to engage the allegations or underlying evidence.
The appeal that does not stop the directive
Many recipients assume that, once an appeal is submitted, the impugned decision will be suspended pending the outcome of the appeal process. This is not the case with section 28 directives, and a separate interlocutory suspension application needs to be submitted setting out good cause as to why the directive should be suspended pending the outcome of the appeal. The result is often two parallel administrative processes running at the same time. One challenges the validity of the directive, while the other seeks temporary relief from the consequences of the directive.
In practice, this often necessitates the preparation of extensive legal submissions supporting expert input and detailed factual evidence while the main appeal remains pending. The suspension application can therefore begin to resemble a
mini-appeal before the appeal itself is ever heard.
The complexity is compounded by the fact that NEMA prescribes no detailed procedural framework for how municipal suspension applications are to be processed, how quickly they must be determined, or what evidentiary standard should be applied when assessing whether “good cause” has been shown. This can leave appellants facing imminent compliance deadlines while waiting for a decision on whether the directive should be suspended in the first place.
When regulatory exposure becomes personal
Another practical reality that is often overlooked is that a section 28 directive may not exist in isolation. Municipal authorities frequently possess a suite of enforcement powers derived from environmental legislation, municipal by-laws and criminal enforcement mechanisms. The result can be the simultaneous pursuit of multiple enforcement processes arising from the same underlying incident.
In one recent matter, the recipient of a municipal section 28 directive was not only required to contend with a warning letter, a formal directive, an appeal process and a separate suspension application, but a senior employee at the facility was also issued with a municipal by-law infringement notice and summoned to appear before a magistrates’ court in connection with the alleged failure to comply with municipal by-laws. The employee faced the prospect of criminal proceedings while the company was simultaneously challenging the validity of the directive itself.
Local government is still finding its feet
Municipal empowerment under section 28 is relatively recent. As a result, many municipalities are still developing institutional experience regarding: the content of warning notices; procedural requirements before issuing directives; appeal administration; and suspension applications.
This is not a criticism of municipalities. Rather, it reflects the reality that a significant enforcement power has been decentralised to local government and that both regulators and regulated parties are navigating a rapidly evolving framework. The inevitable result is that procedural disputes are becoming increasingly common.
Takeaways
The most important lesson from recent experience is that a municipal section 28 directive should never be treated as a routine regulatory notice. Once issued, it creates a complex web of procedural, technical and
legal obligations.
The recipient may need to engage lawyers, environmental consultants, engineers and specialists almost immediately. Appeals, suspension applications, evidence gathering and compliance planning may all need to occur simultaneously and under severe time pressure.
That is precisely why describing a section 28 directive as “a different beast” resonates so strongly with those who have had to navigate the process as real challenges are faced by the procedural machinery that follows once a municipality decides to deploy one of the most powerful environmental enforcement tools available in South African environmental law.
And if recent enforcement trends are an indication of what is to come, businesses would be wise to implement internal measures to avoid this prospect entirely, alternatively familiarise themselves with that machinery before the beast arrives at their own door.
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.
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