1. Regulatory Framework

1.1 Key Environmental Protection Policies, Principles and Laws

Laws Regulating Environmental Management and Protection

Various laws regulate the protection of the environment in South Africa

The Constitution of the Republic of South Africa, 1996 (Constitution), which is the supreme law, enshrines the right of all South Africans to an environment that is not harmful to health or wellbeing and to have this right protected, for the benefit of present and future generations through reasonable legislative and other measures.

Various national, provincial and local level laws reflect these legislative measures. The national framework environmental legislation is the National Environmental Management Act, 1998 (NEMA) which must be read together with the "specific environmental management acts" (SEMAs), namely:

  • the National Environmental Management – Air Quality Act, 2004 (NEMAQA);
  • the National Environmental Management Biodiversity Act, 2004 (NEMBA);
  • the National Environmental Management – Integrated Coastal Management Act, 2008 (ICMA);
  • the National Environmental Management – Protected Areas Act, 2003 (NEMPAA);
  • the National Environmental Management – Waste Act, 2008 (NEMWA); and
  • the National Water Act, 1998 (NWA).

Although the long-awaited National Environmental Management Laws Amendment Act, 2022 (NEMAA) was finally enacted in June 2022, its date of commencement is yet to be proclaimed. Once effective, it will introduce significant changes to both NEMA and a number of the SEMAs, including NEMAQA and NEMWA.

Environmental and heritage resource protections are also found in the following:

  • the Mineral and Petroleum Resources Development Act, 2002;
  • the National Forests Act, 1998 (National Forests Act); and
  • the National Heritage Resources Act, 1999.

Principles Governing Environmental Management

Many of the key principles governing the regulation of the environment are aligned with international environmental legal principles. These principles, which are incorporated into Section 2 of NEMA, apply to the actions of all organs of state that may significantly affect the environment and serve as guidelines by reference to which any organ of state must exercise any function when taking any decision in terms of NEMA or any other statutory provision concerning the protection of the environment.

The NEMA Section 2 principles require that:

  • environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably;
  • development must be socially, environmentally and economically sustainable;
  • sustainable development requires the consideration of all relevant factors;
  • environmental management must be integrated and the best practicable environmental option for development must be selected in decision-making;
  • there must be equitable access to environmental resources, benefits and services to meet basic human needs and ensure human well-being; and
  • the participation of interested and affected parties in decision-making must be promoted.

2. Enforcement

2.1 Key Regulatory Authorities

Environmental matters are a concurrent competence of national and provincial government, which means that both these tiers of government may make law. However, air pollution, water and sanitation limited to potable water supply systems and domestic waste water and sewage disposal systems are areas also regulated at local government level. This means that local municipalities may publish local by-laws relating to these matters.

At a national level, the key regulatory bodies responsible for enforcement of environmental laws include:

  • the Department of Forestry, Fisheries and Environment (DFFE);
  • the Department of Mineral Resources and Energy (DMRE);
  • the Department of Water and Sanitation (DWS);
  • the Environmental Management Inspectorate, comprised of officials designated as Environmental Management Inspectors (EMIs) by either the Minister of Forestry, Fisheries and Environment, the Minister of Water and Sanitation, or (in the case of mining) the Minister of Mineral Resources and Energy – provincially, a member of the Provincial Executive Council to whom the Premier has assigned responsibility for environmental affairs may also designate EMIs;
  • the South African Heritage Resources Agency (SAHRA);
  • the Department of Agriculture, Land Reform and Development; and
  • the South African Police Service (SAPS), in relation to criminal enforcement.

As environmental matters are a concurrent national and provincial competence, provincial departments of environment are also established for each of the nine provinces

Mining and water are areas of exclusive national competence; at a provincial level, the functions of these departments are carried out by regional offices.

Significantly, once the NEMAA comes into effect, municipal managers will also have certain administrative enforcement powers.

3. Environmental Incidents and Permits

3.1 Investigative and Access Points

Compliance and Enforcement Powers under NEMA

NEMA, as the framework legislation, establishes the powers and functions of the EMIs. Depending on their appointments and mandates, EMIs may take enforcement action in relation to matters regulated under NEMA and the SEMAs. Under the NEMAA, once effective, EMIs will also be appointed for any provincial Acts that substantively deal with environmental management.

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