National Assembly Portfolio Committee on Environmental Affairs and Tourism
Summary of comments

The reference to schedule 1 of the criminal Procedure Act (CPA) has limited application. Environmental offences will only be deemed to be schedule 1 offences for the purpose of part 2 of Nema. The affect of deeming environmental offences as schedule 1 will be the following –
Environmental management inspectors will be able to make arrests without a warrant, where appropriate, inspectors will be able to establish road blocks and check points without the authorisation of the national or provincial commissioner of police.

These necessary powers in particular to enable inspectors to act effectively against poaching.

On the advice of the SAPS the general approach of the bill has been to cross-refer to the CPA where appropriate. This effect of this approach is generally; Nema will not set out the powers of environmental management inspectors where those powers are already dealt with in the CPA. So for example powers of arrest of inspectors will not be dealt with in Nema. Instead inspectors have all the powers assigned to a noncommissioned police officering terms of various chapters of the CPA, including chapter 5 which deal with powers of arrest.

On this approach, however it is necessary to deem environmental offences as schedule 1 offences. This is so because section 40 of the CPA which falls within chapter 5 provides that a peace officer may arrest a person without a warrant if that officer reasonably suspects the person of having committed an offence referred to in schedule 1 of the CPA.
Similarly, section 13(8) of the South African Police Service Act 68 of 1995, which deals with the setting up of road blocks and check points on public roads, will be made applicable to environmental management inspectors in terms of the proposed section 31 J(6) and (7) of NEMA. Section 13(8) of the SAPS Act, however, requires authorisation from the national of provincial police commissioner before a road block or check point can be set up except in certain circumstances. One of these circumstances is if the official has reasonable grounds to suspect that an offence mentioned in schedule 1 to the CPA has been committed.

-The Bill contains the following safeguards to ensure against a constitutional challenge –
the only circumstances when a person will be obliged to answer questions even if the answer may incriminate him or her, is if that person receives a notice in terms of section 31 H(2) and in these circumstances, any incriminating answer may not be used against that person in subsequent criminal proceedings for an offence in terms of an environmental law;

-search and seizure powers are dealt with in terms of the CPA where a warrant is generally required unless this would defeat the purpose of the search;

- additional seizure powers are set out in section 31J which provides that an inspector may enter and search any vehicle, vessel or aircraft without a warrant, on reasonable suspicion that it is being used to commit an offence or a breach of a term or condition of a permit, or that it contains something that may be used as evidence of such offence or breach. The circumstances in which vehicles, vessels or aircraft may be searched constitutes a reasonable limitation to the general principle that search and seizure powers should be preceded by the issue of a warrant. The power to search vehicles, vessels, etc without a warrant and to seize items during that search was considered a necessary power to afford inspectors, particularly in the context of preventing poaching;

- routine inspections of premises other than residential premises may be conducted without a warrant, whereas
routine inspections of residential premises will require a warrant. This is in line with the Constitutional Court finding
that routine inspections conducted without a warrant are constitutional in so far as the inspections are of business as
opposed to residential premises (see Mistry V Interim Medical and Dental Council of SA and others 1998 (4) SA
1127 (CC)).

the PAIA differs significantly from section 31 of NEMA primarily in that it includes mandatory refusal provisions. In
contrast, section 31 of NEMA gives the state the ultimate discretion over whether to grant or refuse information.
While section 31 is in line with international precedent on access to environmental information, PAIA seriously
erodes the right to environmental information; access to environmental information is a reasonable measure required
to protect the constitutional right to the environment. By repealing section 31 of NEMA, a progressive measure will
be replaced by a retrogressive measure, rendering the repeal itself subject to constitutional challenge; section 31
should be retained in an amended form, to clarify the relationship between the section and PAIA.

In the light of these comments it was decided that further investigation is required into the issue of access to environmental information and that amendments to section 31 should be delayed until after such investigation has been completed

rather than in each specialist bill. For this reason the new part in NEMA on enforcement will apply not only to NEMA
but also to the specific environmental management Acts which are defined as including the Protected Areas Act.
In line with this approach, it is envisaged that law enforcement by SANP will be conducted using the provisions that
are proposed will be inserted into NEMA by this amendment Bill. The Minister or an MEC may designate SANP staff
as environmental management inspectors in terms of sections 31 B or 31 C. This will be done with the agreement of
the SANP (see subsection 2 of 31 B and 31 C). Those staff members of SANP who are designated as environmental
management inspectors will have all the powers set out in Part 2 as specified in a notice to each inspector in terms
of section 31 D(3).

The proposal by SANP to amend the Protected Areas Bill to include law enforcement as a function of the SANP is
considered unnecessary and inappropriate, given the above approach. If the proposal was adopted, it would mean
extensive further amendments to the Protected Areas Bill setting out the powers and functions of the SANP with
regard to law enforcement. This will be unnecessary duplication with the provisions of NEMA.