NATIONAL
ENVIRONMENTAL MANAGEMENT ACT 107 OF 1998
(English text signed by the
President)
[Assented
To: 19 November 1998]
[Commencement
Date: 29 January 1999]
as amended by:
National Environmental Management
Act 56 of 2002
Mineral and Petroleum Resources
Development Act 28 of 2002
National Environmental Management
Amendment Act 46 of 2003
[with effect from
1 May 2005]
National Environmental Management
Amendment Act 8 of 2004
[with effect from
7 January 2005]
To
provide for co-operative environmental governance by establishing principles
for decision-making on matters affecting the environment, institutions that
will promote cooperative governance and procedures for co-ordinating
environmental functions exercised by organs of state; to provide for certain
aspects of the administration and enforcement of other environmental management
laws; and to provide for matters connected therewith.
[Long title
amended by s. 3 of Act 56/2002 and substituted by s. 13 of Act 46/2003]
Preamble -
WHEREAS many inhabitants of
everyone
has the right to an environment that is not harmful to his or her health or
wellbeing;
the State
must respect, protect, promote and fulfill the social, economic and
environmental rights of everyone and strive to meet the basic needs of
previously disadvantaged communities;
inequality
in the distribution of wealth and resources, and the resultant poverty, are
among the important causes as well as the results of environmentally harmful
practices;
sustainable
development requires the integration of social, economic and environmental
factors in the planning, implementation and evaluation of decisions to ensure
that development serves present and future generations;
everyone
has the right to have the environment protected, for the benefit of present and
future generations, through reasonable legislative and other measures that -
prevent
pollution and ecological degradation;
promote
conservation; and
secure
ecologically sustainable development and use of natural resources while
promoting
justifiable economic and social development;
the
environment is a functional area of concurrent national and provincial
legislative competence, and all spheres of government and all organs of state
must cooperate with, consult and support one another;
AND
WHEREAS it is
desirable -
that the
law develops a framework for integrating good environmental management into all
development activities;
that the law
should promote certainty with regard to decisionmaking by organs of state on
matters affecting the environment;
that the
law should establish principles guiding the exercise of functions affecting the
environment;
that the
law should ensure that organs of state maintain the principles guiding the
exercise of functions affecting the environment;
that the
law should establish procedures and institutions to facilitate and promote
cooperative government and intergovernmental relations;
that the
law should establish procedures and institutions to facilitate and promote
public participation in environmental governance;
that the
law should be enforced by the State and that the law should facilitate the
enforcement of environmental laws by civil society:
NATIONAL ENVIRONMENTAL MANAGEMENT
PRINCIPLES
INSTITUTIONS
3. Establishment,
objects and functions of National Environmental Advisory Forum
5. Conditions
of appointment to Forum
7. Establishment,
objects and functions of Committee
9. Meetings
of Committee, subcommittees and working groups
PROCEDURES FOR COOPERATIVE
GOVERNANCE
11. Environmental
implementation plans and management plans
12. Purpose
and objects of environmental implementation plans and environmental management
plans
13. Content
of environmental implementation plans
14. Content
of environmental management plans
16. Compliance
with environmental implementation plans and environmental management plans
21. Appointment
of panel and remuneration
22. Relevant
considerations, report and designated officer
INTEGRATED ENVIRONMENTAL MANAGEMENT
24. Environmental
authorisations
24A. Procedure
for listing activity or area
24B. Procedure
for delisting of activities or areas
24C. Procedure
for identifying the competent authority
24E. Minimum
conditions attached to environmental authorisations
24F. Offences
relating to commencement or continuation of listed activity
24I. Appointment
of external specialist to review assessment
INTERNATIONAL OBLIGATIONS AND
AGREEMENTS
25. Incorporation
of international environmental instruments
COMPLIANCE AND ENFORCEMENT
28. Duty of
care and remediation of environmental damage
29. Protection
of workers refusing to do environmentally hazardous work
30. Control
of emergency incidents
31. Access
to environmental information and protection of whistleblowers
Part 2 : Application and enforcement of Act and
specific environmental management Acts
31B. Designation
of environmental management inspectors by Minister
31C. Designation
of environmental management inspectors by MEC
31J. Powers
to stop, enter and search vehicles, vessels and aircraft
31L. Power
to issue compliance notices
31M. Objections
to compliance notice
31N. Failure
to comply with compliance notice
31O. Powers
of South African Police Service members
31P. Duty to
produce documents
32. Legal
standing to enforce environmental laws
34A. Offences
relating to environmental management inspectors
34B. Award of
part of fine recovered to informant
34E. Treatment
of seized live specimens
34F. Security
for release of vehicles, vessels or aircraft
ENVIRONMENTAL MANAGEMENT COOPERATION
AGREEMENTS
ADMINISTRATION OF ACT AND SPECIFIC
ENVIRONMENTAL MANAGEMENT ACTS
38. Intervention
in litigation
40. Appointment
of employees on contract
42. Delegation
of powers and duties by Minister and Director-General
42A. Delegation
of powers by MEC
45. Regulations
for management cooperation agreements
46. Model
environmental management bylaws
47. Procedure
for making regulations
47A. Regulations,
legal documents and steps valid under certain circumstances
47C. Extension
of time periods
GENERAL AND TRANSITIONAL PROVISIONS
(1) In this Act, unless the context requires
otherwise -
“activities” includes policies, programmes,
plans and projects;
[Definition of
“activities” substituted by s. 1 of Act 56/2002]
“Agenda 21” means the document by that name adopted at the United
Nations Conference of Environment and Development held in Rio de Janeiro,
Brazil in June 1992;
“aircraft” means an airborne craft of any type whatsoever, whether
self-propelled or not, and includes a hovercraft;
[Definition of
“aircraft” inserted by s. 1 of Act 46/2003]
“assessment”, when used in Chapter 5, means the process of collecting,
organising, analysing, interpreting and communicating information that is
relevant to decision-making;
[Definition of
“assessment” inserted by s. 1 of Act 8/2004]
“best practicable environmental
option” means the
option that provides the most benefit or causes the least damage to the
environment as a whole, at a cost acceptable to society, in the long term as
well as in the short term;
“commence”, when used in Chapter 5, means the start of any physical
activity on the site in furtherance of a listed activity;
[Definition of
“commence” inserted by s. 1 of Act 8/2004]
“commercially confidential
information” means
commercial information, the disclosure of which would prejudice to an
unreasonable degree the commercial interests of the holder: Provided that
details of emission levels and waste products must not be considered to be
commercially confidential notwithstanding any provision of this Act or any
other law;
“Committee” means the Committee for Environmental
Coordination referred to in section 7;
“community” means any group of persons or a
part of such a group who share common interests, and who regard themselves as a
community;
“competent authority”, in respect of a listed activity or specified activity,
means the organ of state charged by this Act with evaluating the environmental
impact of that activity and, where appropriate, with granting or refusing an
environmental authorisation in respect of that activity;
[Definition of
“competent authority” inserted by s. 1 of Act 8/2004]
“Constitution” means the Constitution of the
Republic of South Africa, 1996 (Act No. 108 of 1996);
“delegation”, in relation to a duty, includes an
instruction to perform the duty;
[Definition of
“delegation” inserted by s. 1 of Act 46/2003]
“Department” means the Department of
Environmental Affairs and Tourism;
“Director-General” means the Director-General of
Environmental Affairs and Tourism;
“ecosystem” means a dynamic system of plant, animal and micro-organism
communities and their nonliving environment interacting as a functional unit;
“environment” means the surroundings within which
humans exist and that are made up of -
(i) the land, water and atmosphere of the
earth;
(ii) micro-organisms, plant and animal life;
(iii) any part or combination of (i) and (ii) and
the interrelationships among and between them; and
(iv) the physical, chemical, aesthetic and
cultural properties and conditions of the foregoing that influence human health
and wellbeing;
“environmental assessment practitioner”, when used in Chapter 5, means the individual responsible
for the planning, management and coordination of environmental impact
assessments, strategic environmental assessments, environmental management
plans or any other appropriate environmental instruments introduced through
regulations;
[Definition of
“environmental assessment practitioner” inserted by s. 1 of Act 8/2004]
“environmental authorisation”, when used in Chapter 5, means the authorisation by a
competent authority of a listed activity in terms of this Act;
[Definition of
“environmental authorisation” inserted by s. 1 of Act 8/2004]
“environmental implementation plan” means an implementation plan
referred to in section 11;
“environmental management cooperation agreement” means an agreement referred to in section 35 (1);
“environmental management inspector” means a person designated as an
environmental management inspector in terms of section 31B or 31C;
[Definition of
“environmental management inspector” inserted by s. 1 of Act 46/2003]
“environmental management plan” means a management plan referred to
in section 11;
“evaluation”, when used in Chapter 5, means the process of
ascertaining the relative importance or significance of information, in the
light of people’s values, preferences and judgements, in order to make a
decision;
[Definition of
“evaluation” inserted by s. 1 of Act 8/2004]
“financial year” means a period commencing on 1 April of any year and ending
on 31 March of the following year;
“Forum” means the National Environmental
Advisory Forum referred to in section 3;
“hazard” means a source of or exposure to
danger;
“international environmental instrument” means any international agreement,
declaration, resolution, convention or protocol which relates to the management
of the environment;
“listed activity”, when used in Chapter 5, means an activity identified in
terms of section 24(2)(a) and (d);
[Definition of
“listed activity” inserted by s. 1 of Act 8/2004]
“listed area”, when used in Chapter 5, means a geographical area
identified in terms of section 24(2)(b) and (c);
[Definition of
“listed area” inserted by s. 1 of Act 8/2004]
“MEC” means the Member of the Executive
Council to whom the Premier has assigned responsibility for environmental
affairs;
[Definition of
“MEC” substituted by s. 1 of Act 8/2004]
“Minister” means the Minister of
Environmental Affairs and Tourism;
“national
department” means a department of State within the national sphere of
government;
“organ
of state”
means organ of state as defined in the Constitution;
“person” includes a juristic
person;
“pollution” means any change in the
environment caused by -
(i) substances;
(ii) radioactive or other waves; or
(iii) noise, odours, dust or heat,
emitted from any activity, including
the storage or treatment of waste or substances, construction and the provision
of services, whether engaged in by any person or an organ of state, where that
change has an adverse effect on human health or wellbeing or on the
composition, resilience and productivity of natural or managed ecosystems, or
on materials useful to people, or will have such an effect in the future;
“prescribe” means prescribe by regulation in
the Gazette;
“provincial head of department” means the head of the provincial
department responsible for environmental affairs;
“regulation” means a regulation made under this
Act;
“specific environmental management
Acts” means -
(i) the
National Environmental Management: Biodiversity Act, 2003; and
(ii) the
National Environmental Management: Protected Areas Act, 2003,
and includes any regulations or other subordinate
legislation made in terms of any of those Acts;
[Definition of
“specific environmental management Acts” inserted by s. 1 of Act 46/2003]
“review”, when used in Chapter 5, means the process of determining
whether an assessment has been carried out correctly or whether the resulting
information is adequate in order to make a decision;
[Definition of
“review” inserted by s. 1 of Act 8/2004]
“specific environmental management Act” means an Act of Parliament that
regulates a specific aspect of the environment, as defined in this Act, and
includes any regulations or other subordinate legislation made in terms of such
an Act;
[Definition of
“specific environmental management Act” inserted by s. 1 of Act 8/2004]
“specified activity”, when used in Chapter 5, means an activity as specified
within a listed geographical area in terms of section 24(2)(b) and (c);
[Definition of
“specified activity” inserted by s. 1 of Act 8/2004]
“state land” means land which vests in the national or a provincial
government, and includes land below the high water mark and the Admiralty
Reserve, but excludes land belonging to a local authority;
“sustainable development” means the integration of social,
economic and environmental factors into planning, implementation and
decisionmaking so as to ensure that development serves present and future
generations;
“this Act” includes the schedules, and
regulations and any notice issued under the Act.
“vessel” means any waterborne craft of any kind, whether self-propelled or not,
but does not include any moored floating structure that is not used as a means of
transporting anything by water.
[Definition of
“vessel” inserted by s. 1 of Act 46/2003]
(2) Words derived from the word or terms defined
have corresponding meanings, unless the context indicates otherwise.
(3) A reasonable interpretation of a provision
which is consistent with the purpose of this Act must be preferred over an
alternative interpretation which is not consistent with the purpose of this
Act.
(4) Neither -
(a) a reference to a duty to consult specific
persons or authorities, nor
(b) the absence of any reference in this Act
to a duty to consult or give a hearing,
exempts the official or authority exercising a power or performing a
function from the duty to act fairly.
NATIONAL ENVIRONMENTAL MANAGEMENT
PRINCIPLES
(1) The principles set out in this section apply
throughout the Republic to the actions of all organs of state that may
significantly affect the environment and -
(a) shall apply alongside all other
appropriate and relevant considerations, including the State’s responsibility
to respect, protect, promote and fulfil the social and economic rights in Chapter 2 of the Constitution and in
particular the basic needs of categories of persons disadvantaged by unfair
discrimination;
(b) serve as the general framework within
which environmental management and implementation plans must be formulated;
(c) serve as guidelines by reference to which
any organ of state must exercise any function when taking any decision in terms
of this Act or any statutory provision concerning the protection of the
environment;
(d) serve as principles by reference to which
a conciliator appointed under this Act must make recommendations; and
(e) guide the interpretation, administration
and implementation of this Act, and any other law concerned with the protection
or management of the environment.
(2) 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.
(3) Development must be socially,
environmentally and economically sustainable.
(4) (a) Sustainable development requires the consideration of all
relevant factors
including the following:
(i) That the disturbance of ecosystems and
loss of biological diversity are avoided, or, where they cannot be altogether
avoided, are minimised and remedied;
(ii) that pollution and degradation of the
environment are avoided, or, where they cannot be altogether avoided, are
minimised and remedied;
(iii) that the disturbance of landscapes and
sites that constitute the nation’s cultural heritage is avoided, or where it
cannot be altogether avoided, is minimised and remedied;
(iv) that waste is avoided, or where it cannot
be altogether avoided, minimised and reused or recycled where possible and
otherwise disposed of in a responsible manner;
(v) that the use and exploitation of
non-renewable natural resources is responsible and equitable, and takes into
account the consequences of the depletion of the resource;
(vi) that the development, use and exploitation
of renewable resources and the ecosystems of which they are part do not exceed
the level beyond which their integrity is jeopardised;
(vii) that a risk-averse and cautious approach is
applied, which takes into account the limits of current knowledge about the
consequences of decisions and actions; and
(viii) that negative impacts on the environment and
on people’s environmental rights be anticipated and prevented, and where they
cannot be altogether prevented, are minimised and remedied.
(b) Environmental management must be integrated,
acknowledging that all elements of the environment are linked and interrelated,
and it must take into account the effects of decisions on all aspects of the
environment and all people in the environment by pursuing the selection of the
best practicable environmental option.
(c) Environmental justice must be pursued so
that adverse environmental impacts shall not be distributed in such a manner as
to unfairly discriminate against any person, particularly vulnerable and
disadvantaged persons.
(d) Equitable access to environmental resources,
benefits and services to meet basic human needs and ensure human wellbeing must
be pursued and special measures may be taken to ensure access thereto by
categories of persons disadvantaged by unfair discrimination.
(e) Responsibility for the environmental health
and safety consequences of a policy, programme, project, product, process,
service or activity exists throughout its life cycle.
(f) The participation of all interested and
affected parties in environmental governance must be promoted, and all people
must have the opportunity to develop the understanding, skills and capacity
necessary for achieving equitable and effective participation, and
participation by vulnerable and disadvantaged persons must be ensured.
(g) Decisions must take into account the
interests, needs and values of all interested and affected parties, and this
includes recognising all forms of knowledge, including traditional and ordinary
knowledge.
(h) Community wellbeing and empowerment must be
promoted through environmental education, the raising of environmental
awareness, the sharing of knowledge and experience and other appropriate means.
(i) The social, economic and environmental
impacts of activities, including disadvantages and benefits, must be
considered, assessed and evaluated, and decisions must be appropriate in the
light of such consideration and assessment.
(j) The right of workers to refuse work that is
harmful to human health or the environment and to be informed of dangers must
be respected and protected.
(k) Decisions must be taken in an open and
transparent manner, and access to information must be provided in accordance
with the law.
(l) There must be intergovernmental
coordination and harmonisation of policies, legislation and actions relating to
the environment.
(m) Actual or potential conflicts of interest
between organs of state should be resolved through conflict resolution
procedures.
(n) Global and international responsibilities
relating to the environment must be discharged in the national interest.
(o) The environment is held in public trust for
the people, the beneficial use of environmental resources must serve the public
interest and the environment must be protected as the people’s common heritage.
(p) The costs of remedying pollution,
environmental degradation and consequent adverse health effects and of
preventing, controlling or minimising further pollution, environmental damage
or adverse health effects must be paid for by those responsible for harming the
environment.
(q) The vital role of women and youth in
environmental management and development must be recognised and their full
participation therein must be promoted.
(r) Sensitive, vulnerable, highly dynamic or
stressed ecosystems, such as coastal shores, estuaries, wetlands, and similar
systems require specific attention in management and planning procedures,
especially where they are subject to significant human resource usage and
development pressure.
3. Establishment,
objects and functions of National Environmental Advisory Forum
(1) The National Environmental Advisory Forum is
hereby established.
(2) The object of the Forum is to -
(a) inform the Minister of the views of
stakeholders regarding the application of the principles set out in section 2; and
(b) advise the Minister on -
(i) any matter concerning environmental
management and governance and specifically the setting and achievement of
objectives and priorities for environmental governance; and
(ii) appropriate methods of monitoring
compliance with the principles set out in section 2.
(3) The Forum may, on its own initiative and
after consultation with the Director-General, draw the Minister’s attention to
any matter concerning environmental management requiring attention, and the
Minister may refer matters for consideration by the Forum.
(1) The Forum consists of at least 12 but not
more than 15 members appointed by the Minister.
(2) The Minister appoints persons who represent
stakeholders, and persons who have experience, expertise or skills necessary to
enable the Forum to carry out its functions: Provided that the Minister must
take into account the desirability of appointing women, youth and persons
disadvantaged by unfair discrimination and ensuring representation of
vulnerable and disadvantaged persons.
(3) Before persons contemplated in subsection
(2) are appointed, the Minister must -
(a) invite nominations from organised labour,
organised business, nongovernmental organisations and community-based
organisations in a manner that he or she may consider appropriate, and invite
nominations from others by notice in the Gazette,
at least two nationally distributed newspapers, appropriate local newspapers
and on the radio specifying a period within which nominations must be
submitted;
(b) stipulate in such notice, the procedure to
be adopted regarding such nominations; and
(c) consult with -
(i) the MECs; and
(ii) the Committees of the National Assembly
and the National Council of Provinces that scrutinise environmental affairs.
(4) The Minister appoints the chairperson
of the Forum.
(5) (a) Each member of the Forum designates, with the concurrence
of the Minister and
the organisation or
person who nominated him or her, an alternate to take his or her place if he or
she is unable to attend a meeting of the Forum.
(b) The Minister may appoint a replacement for a
member who vacates his or her office in terms of section 5 (3), and the Minister may
invite nominations from the sector or organisation that nominated such member.
(6) The replacement must serve for the balance
of the term of the person he or she replaces.
5. Conditions
of appointment to Forum
(1) A member of the Forum holds office for a
period of two years.
(2) At the expiry of his or her term of office a
member may be appointed for one further term.
(3) A member or replacement member of the Forum
must vacate his or her office if -
(a) the Minister at any time terminates such
term of office for good reason;
(b) he or she can no longer perform his or her
duties on the Forum;
(c) he or she is convicted of a criminal
offence, involving dishonesty, and is sentenced to imprisonment without the
option of a fine;
(d) he or she is absent from more than two
consecutive meetings of the Forum without the leave of the chairperson; or
(e) he or she resigns by way of written notice
to the Minister.
(4) Members of the Forum and members of a
committee of the Forum may be paid such remuneration and allowances for their
services as the Minister may determine with the concurrence of the Minister of
Finance.
(5) If any member of the Forum or his or her
spouse has a direct or indirect financial interest in any matter before the
Forum, he or she shall disclose such interest and may not take part in any
discussion regarding such matter.
(1) The Minister must -
(a) lay down rules for the functioning of the
Forum, including -
(i) by publication in the Gazette, a constitution for the Forum
which may contain provisions relating to -
(aa) advice on matters related to Chapter 6;
(bb) participation in meetings relating to
international environmental matters;
(cc) subcommittees and working groups of the
Forum;
(ii) the manner and timing of reports by the
Forum; and
(iii) consultation with the Director-General;
(b) with the concurrence of the Minister of Finance
make available funds for the functioning of the Forum for purposes other than
the payment of remuneration referred to in section 5 (4), from -
(i) money appropriated by Parliament for this
purpose; and
(ii) funds obtained from donations or grants.
(2) The Director General may -
(a) designate as many officers and employees
as he or she may deem necessary to assist the Forum in the performance of its
work; and
(b) engage persons on contract to assist the
Forum in the performance of its work.
(3) The Minister must present an annual report
to Parliament on the work of the Forum, including the following:
(a) the work plan for the next year;
(b) information and recommendations submitted;
and
(c) financial report and budget.
(4) The meetings of the Forum must be open to
the public and all documents considered or produced by the Forum must be
available for inspection by the public.
7. Establishment,
objects and functions of Committee
(1) The Committee for Environmental Coordination
is hereby established.
(2) The object of the Committee is to promote
the integration and coordination of environmental functions by the relevant
organs of state, and in particular to promote the achievement of the purpose
and objectives of environmental implementation plans and environmental
management plans as set out in section 12.
(3) The functions of the Committee shall include
the following:
(a) scrutinising, reporting and making
recommendations on the environmental implementation plans submitted to it in
accordance with section 15;
(b) investigating and making recommendations regarding
the assignment and delegation of functions between organs of state under this
Act or any other law affecting the environment and regarding the practical
working arrangements, including memoranda of understanding, between the organs
of state represented by members and other organs of state;
(c) investigating and recommending the
establishment of mechanisms in each province, with the concurrence of the MEC,
for providing a single point in the province for the receipt of applications
for authorisations, licences and similar permissions required for activities
under legal provisions concerned with the protection of the environment where
such authorisations, licences or permissions are required from more than one
organ of state, and procedures for the coordinated consideration of such
applications by the organs of state concerned;
(d) making recommendations to coordinate the
application of integrated environmental management as contemplated in Chapter 5, including cooperation in
environmental assessment procedures and requirements and making determinations
regarding the prevention of duplication of efforts as contemplated in section 24 (4);
(e) making recommendations aimed at securing
compliance with the principles set out in section 2 and national norms and standards
contemplated in section 146 (2) (b) (i) of
the Constitution;
(f) making recommendations regarding the
harmonisation of the environmental functions of all relevant national
departments and spheres of government;
(g) advising the Minister on providing
guidelines for the preparation of environmental management plans and
environmental implementation plans; and
(h) endeavouring to ensure compliance with the
principle set out in section 2 (2) by making appropriate
recommendations, requiring reports from its members and advising government on
law reform.
(1) The Committee comprises:
(a) the Director-General: Environmental
Affairs and Tourism, who acts as chairperson;
(b) the Director-General: Water Affairs and
Forestry;
(c) the Director-General: Minerals and Energy;
(d) the Director-General: Land Affairs;
(e) the Director-General: Constitutional
Development;
(f) the Director-General: Housing;
(g) the Director-General: Agriculture;
(h) the Director-General: Health;
(i) the Director-General: Labour;
(j) the Director-General: Arts, Culture,
Science and Technology;
(k) the provincial heads of department
appointed by the Minister with the concurrence of the MEC;
(l) a representative of the national
organisation recognised in terms of section 2 of the Organised Local Government
Act, 1997 (Act No. 52 of 1997), appointed by the Minister with the
concurrence of that organisation; and
(m) any other Director-General appointed by the
Minister with the concurrence of the Minister under whose portfolio that
Department falls.
(2) (a) The Committee may co-opt persons to assist it in carrying
out its functions.
(b) The Committee may invite persons to attend
its meetings and to assist it in carrying out its functions.
(3) In making the appointments as contemplated
in subsection (2) (a), the Committee must give due consideration to
representation of the local sphere of government.
(4) Every member of the Committee referred to in
subsection (1), must appoint an alternate member with the necessary authority
from his or her department or provincial government.
(5) The alternate member appointed under
subsection (4) must act in such member’s absence or inability to act as member
of the Committee.
9. Meetings
of Committee, subcommittees and working groups
(1) The Committee meets at least four times a
year.
(2) The Director-General determines -
(a) the procedure for convening meetings of
the Committee;
(b) the quorum for meetings;
(c) procedures at meetings; and
(d) records the Committee must keep.
(3) The Director-General furnishes the Minister
with copies of the minutes of all meetings, within three weeks of such
meetings.
(4) The Committee may establish ad hoc and
permanent subcommittees to assist the Committee in the performance of its
functions, and such subcommittees may include persons who need not necessarily
be members of the Committee.
(5) The Committee may establish ad hoc working
groups to assist a subcommittee in the performance of its functions, and such
working groups may include persons who need not necessarily be members of the
subcommittee.
(6) Every subcommittee established in terms of
subsection (4) must report at each meeting of the Committee on its own activities
as well as those of any working groups established in terms of subsection (5)
to assist the subcommittee.
(1) The Committee presents an annual report on
its activities to the Minister on the following:
(a) the work of the Committee and the work
plan for the next year;
(b) comments submitted to the Director-General
on the environmental implementation and environmental management plans
received;
(c) recommendations made in respect of
environmental implementation and environmental management plans received;
(d) recommendations made in order to secure
compliance with the principles set out in section 2 and national norms and standards;
(e) law reform undertaken and proposed by
organs of state represented on the Committee;
(f) compliance with environmental
implementation and management plans by municipalities; and
(g) any other matter relevant to the
coordination of policies, plans and programmes that may affect the environment.
(2) At the request of members of the public, the
Committee must make copies available of the report contemplated in subsection
(1).
(3) The Minister must present an annual report
to Parliament on the work of the Committee, including the matters listed in
subsection (1).
11. Environmental
implementation plans and management plans
(1) Every national department listed in Schedule 1 as exercising functions which
may affect the environment and every province must prepare an environmental implementation
plan within one year of the promulgation of this Act and at least every four
years thereafter.
(2) Every national department listed in Schedule 2 as exercising functions
involving the management of the environment must prepare an environmental
management plan within one year of the promulgation of this Act and at least
every four years thereafter.
(3) Every national department that is listed in
both Schedule 1 and Schedule 2 may prepare a consolidated
environmental implementation and management plan.
(4) Every organ of state referred to in
subsections (1) and (2) must, in its preparation of an environmental
implementation plan or environmental management plan, and before submitting
such plan take into consideration every other environmental implementation plan
and environmental management plan already adopted with a view to achieving
consistency among such plans.
(5) The Minister may by notice in the Gazette -
(a) extend the date for the submission of any
environmental implementation plans and environmental management plans for
periods not exceeding 12 months;
(b) on application by any organ of state, or
on his or her own initiative with the agreement of the relevant Minister where
it concerns a national department, and after consultation with the Committee,
amend Schedules 1 and 2.
(6) The Director-General must, at the request of
a national department or province assist with the preparation of an
environmental implementation plan.
(7) The preparation of environmental
implementation plans and environmental management plans may consist of the
assembly of information or plans compiled for other purposes and may form part
of any other process or procedure.
(8) The Minister may issue guidelines to assist
provinces and national departments in the preparation of environmental
implementation and environmental management plans.
12. Purpose and objects of environmental implementation
plans and environmental management plans
The purpose of environmental
implementation and management plans is to -
(a) coordinate and harmonise the environmental
policies, plans, programmes and decisions of the various national departments
that exercise functions that may affect the environment or are entrusted with
powers and duties aimed at the achievement, promotion, and protection of a
sustainable environment, and of provincial and local spheres of government, in
order to -
(i) minimise the duplication of procedures
and functions; and
(ii) promote consistency in the exercise of
functions that may affect the environment;
(b) give effect to the principle of
cooperative government in Chapter 3 of the Constitution;
(c) secure the protection of the environment
across the country as a whole;
(d) prevent unreasonable actions by provinces
in respect of the environment that are prejudicial to the economic or health
interests of other provinces or the country as a whole; and
(e) enable the Minister to monitor the
achievement, promotion, and protection of a sustainable environment.
13. Content
of environmental implementation plans
(1) Every environmental implementation plan must
contain:
(a) a description of policies, plans and
programmes that may significantly affect the environment;
(b) a description of the manner in which the
relevant national department or province will ensure that the policies, plans
and programmes referred to in paragraph (a) will comply with the principles set
out in section 2 as well as any national norms and
standards as envisaged under section 146 (2) (b) (i) of the
Constitution and set out by the Minister, or by any other Minister, which have
as their objective the achievement, promotion, and protection of the
environment;
(c) a description of the manner in which the
relevant national department or province will ensure that its functions are
exercised so as to ensure compliance with relevant legislative provisions,
including the principles set out in section 2, and any national norms and
standards envisaged under section 146 (2) (b) (i) of
the Constitution and set out by the Minister, or by any other Minister, which
have as their objective the achievement, promotion, and protection of the
environment; and
(d) recommendations for the promotion of the
objectives and plans for the implementation of the procedures and regulations
referred to in Chapter 5.
(2) The Minister may, after consultation with
the Committee, make regulations for the purpose of giving effect to subsections
(1) (b) and (c).
14. Content
of environmental management plans
Every environmental management plan
must contain -
(a) a description of the functions exercised
by the relevant department in respect of the environment;
(b) a description of environmental norms and
standards, including norms and standards contemplated in section 146 (2) (b) (i) of
the Constitution, set or applied by the relevant department;
(c) a description of the policies, plans and
programmes of the relevant department that are designed to ensure compliance
with its policies by other organs of state and persons;
(d) a description of priorities regarding
compliance with the relevant department’s policies by other organs of state and
persons;
(e) a description of the extent of compliance
with the relevant department’s policies by other organs of state and persons;
(f) a description of arrangements for
cooperation with other national departments and spheres of government,
including any existing or proposed memoranda of understanding entered into, or
delegation or assignment of powers to other organs of state, with a bearing on
environmental management; and
(g) proposals for the promotion of the
objectives and plans for the implementation of the procedures and regulations
referred to in Chapter 5.
(1) Every environmental implementation plan and
every environmental management plan must be submitted to the Committee by a
date to be set by the Minister.
(2) (a) The Committee scrutinises every environmental
implementation plan and either
recommends adoption of
such plan or reports to the Minister as well as every other Minister
responsible for a department which is represented on the Committee and every
Provincial Premier concerned on the extent to which the environmental
implementation plan concerned fails to comply with -
(i) the principles in section 2;
(ii) the purpose and objectives of
environmental implementation plans; or
(iii) any relevant environmental management plan,
and
specifies changes needed in the environmental implementation plan concerned.
(b) If the Committee recommends adoption of an
environmental implementation plan, then the relevant organ of state must adopt
and publish its plan in the relevant Gazette
within 90 days of such approval and the plan becomes effective from the date of
such publication.
(3) Any difference or disagreement between the
Committee and a national department regarding either a failure to submit or the
content of an environmental implementation plan may, if it cannot be resolved
by agreement between the parties concerned, be referred by the Director-General
for determination by the Minister in consultation with the Ministers
responsible for the Department of Land Affairs, Department of Water Affairs and
Forestry, Department of Minerals and Energy and Department of Constitutional
Development.
(4) Any difference or disagreement between the
Committee and a province regarding either a failure to submit or the content of
an environmental implementation plan may, if it cannot be resolved by agreement
between the parties concerned, be referred by the Director-General to
conciliation in accordance with Chapter 4 and if such conciliation fails,
or where the Director-General does not refer the dispute to conciliation, to
the Minister with a request for intervention in accordance with section 100 of the Constitution: Provided
that such disputes shall be dealt with in accordance with the act contemplated
in section 41 (2) of the Constitution,
once promulgated.
(5) A national department which has submitted an
environmental management plan must adopt and publish its plan in the Gazette within 90 days of such
submission and the plan becomes effective from the date of such publication.
(6) The exercise of functions by organs of state
may not be delayed or postponed on account of -
(a) the failure of any organ of state to
submit an environmental implementation plan;
(b) the scrutiny of any environmental
implementation plan by the Committee;
(c) the amendment of any environmental
implementation plan following scrutiny of the plan by the Committee;
(d) any difference or disagreement regarding
any environmental implementation plan and the resolution of that difference or
disagreement; or
(e) the failure of any organ of state to adopt
and publish its environmental implementation or management plan.
16. Compliance with environmental implementation
plans and environmental management plans
(1) (a) Every organ of state must exercise every function it may
have, or that has been
assigned or delegated to
it, by or under any law, and that may significantly affect the protection of
the environment, substantially in accordance with the environmental
implementation plan or the environmental management plan prepared, submitted
and adopted by that organ of state in accordance with this Chapter: Provided that
any substantial deviation from an environmental management plan or
environmental implementation plan must be reported forthwith to the
Director-General and the Committee.
(b) Every organ of state must report annually
within four months of the end of its financial year on the implementation of
its adopted environmental management plan or environmental implementation plan
to the Director-General and the Committee.
(c) The Minister may, after consultation with
the Committee, recommend to any organ of state which has not submitted and
adopted an environmental implementation plan or environmental management plan,
that it comply with a specified provision of an adopted environmental
implementation plan or submitted environmental management plan.
(2) The Director-General monitors compliance
with environmental implementation plans and environmental management plans and
may -
(a) take any steps or make any inquiries he or
she deems fit in order to determine if environmental implementation plans and environmental
management plans are being complied with by organs of state; and
(b) if, as a result of any steps taken or
inquiry made under paragraph (a), he or she is of the opinion that an
environmental implementation plan and an environmental management plan is not
substantially being complied with, serve a written notice on the organ of state
concerned, calling on it to take such specified steps as the Director-General
considers necessary to remedy the failure of compliance.
(3) (a) Within 30 days of the receipt of a notice contemplated in
subsection (2) (b), an
organ of state must
respond to the notice in writing setting out any -
(i) objections to the notice;
(ii) steps that will be taken to remedy
failures of compliance; or
(iii) other information that the organ of state
considers relevant to the notice.
(b) After considering the representations from
the organ of state and any other relevant information, the Director-General
must within 30 days of receiving a response referred to in paragraph (a) issue
a final notice -
(i) confirming, amending or cancelling the
notice referred to in subsection (2) (b);
(ii) specify steps and a time period within
which steps must be taken to remedy the failure of compliance.
(c) If, after compliance with the provisions of
paragraphs (a) and (b) there still remains a difference or disagreement between
the organs of state and the Director-General, the organ of state may request
the Minister to refer any difference or disagreement between itself and the
Director-General regarding compliance with an environmental implementation
plan, or the steps necessary to remedy a failure of compliance, to conciliation
in accordance with Chapter 4.
(d) Where an organ of state does not submit any
difference or disagreement to conciliation in accordance with paragraph (c), or
if conciliation fails to resolve the matter, the Director-General may within 60
days of the final notice referred to in paragraph (b) if the matter has not
been submitted to conciliation, or within 30 days of the date of conciliation,
as the case may be -
(i) where the organ of state belongs to the
provincial sphere of government, request the Minister to intervene in
accordance with section 100 of the Constitution: Provided
that such a difference or disagreement must be dealt with in accordance with
the Act contemplated in section 41 (2) of the Constitution
once promulgated;
(ii) where the organ of state belongs to the
local sphere of government, request the MEC to intervene in accordance with section 139 of the Constitution: Provided
that such a difference or disagreement must be dealt with in accordance with
the Act contemplated in section 41 (2) of the Constitution
once promulgated; or
(iii) where the organ of state belongs to the
national sphere of government refer the matter for determination by the
Minister in consultation with the Ministers responsible for the Department of
Land Affairs, Department of Water Affairs and Forestry, Department of Minerals
and Energy and Department of Constitutional Development.
(4) Each provincial government must ensure that
-
(a) the relevant provincial environmental
implementation plan is complied with by each municipality within its province
and for this purpose the provisions of subsections (2) and (3) must apply with
the necessary changes; and
(b) municipalities adhere to the relevant
environmental implementation and management plans, and the principles contained
in section 2 in the preparation of any policy,
programme or plan, including the establishment of integrated development plans
and land development objectives.
(5) The Director-General must keep a record of
all environmental implementation plans and environmental management plans,
relevant agreements between organs of state and any reports submitted under
subsection (1) (b); and such plans, reports and agreements must be
available for inspection by the public.
(1) Any Minister, MEC or Municipal Council -
(a) where a difference or disagreement arises
concerning the exercise of any of its functions which may significantly affect
the environment, or
(b) before whom an appeal arising from a
difference or disagreement regarding the protection of the environment is
brought under any law,
may, before reaching a decision,
consider the desirability of first referring the matter to conciliation and -
(i) must if he, she or it considers
conciliation appropriate either -
(aa) refer the matter to the Director-General for
conciliation under this Act; or
(bb) appoint a conciliator on the conditions,
including timelimits, that he, she or it may determine; or
(cc) where a conciliation or mediation process is
provided for under any other relevant law administered by such Minister, MEC or
Municipal Council, refer the matter for mediation or conciliation under such
other law; or
(ii) if he, she or it considers conciliation
inappropriate or if conciliation has failed, make a decision: Provided that the
provisions of section 4 of the Development Facilitation
Act, 1995 (Act No. 67 of 1995), shall prevail in respect of decisions in
terms of that Act and laws contemplated in subsection 1 (c) thereof.
(2) Anyone may request the Minister, a MEC or
Municipal Council to appoint a facilitator to call and conduct meetings of
interested and affected parties with the purpose of reaching agreement to refer
a difference or disagreement to conciliation in terms of this Act, and the
Minister, MEC or Municipal Council may, subject to section 22, appoint a facilitator and
determine the manner in which the facilitator must carry out his or her tasks,
including timelimits.
(3) A court or tribunal hearing a dispute
regarding the protection of the environment may order the parties to submit the
dispute to a conciliator appointed by the Director-General in terms of this Act
and suspend the proceedings pending the outcome of the conciliation.
(1) Where a matter has been referred to
conciliation in terms of this Act, the Director-General may, on the conditions,
including timelimits, that he or she may determine, appoint a conciliator
acceptable to the parties to assist in resolving a difference or disagreement:
Provided that if the parties to the difference or disagreement do not reach
agreement on the person to be appointed, the Director-General may appoint a
person who has adequate experience in or knowledge of conciliation of
environmental disputes.
(2) A conciliator appointed in terms of this Act
must attempt to resolve the matter -
(a) by obtaining such information whether
documentary or oral as is relevant to the resolution of the difference or
disagreement;
(b) by mediating the difference or
disagreement;
(c) by making recommendations to the parties
to the difference or disagreement; or
(d) in any other manner that he or she
considers appropriate.
(3) In carrying out his or her functions, a
conciliator appointed in terms of this Act must take into account the
principles contained in section 2.
(4) A conciliator may keep or cause to be kept,
whether in writing or by mechanical or electronic means, a permanent record of
all or part of the proceedings relating to the conciliation of a matter.
(5) Where such record has been kept, any member
of the public may obtain a readable copy of the record upon payment of a fee as
approved by Treasury.
(6) Where conciliation does not resolve the
matter, a conciliator may enquire of the parties whether they wish to refer the
matter to arbitration and may with their concurrence endeavour to draft terms
of reference for such arbitration.
(7) (a) The conciliator must submit a report to the
Director-General, the parties and the
person who referred the
matter for conciliation, setting out the result of his or her conciliation, and
indicating whether or not an agreement has been reached.
(b) In the event of no agreement having been
reached, the report may contain his or her recommendations and reasons
therefor.
(c) Where relevant, the report must contain the
conciliator’s comments on the conduct of the parties.
(d) The report and any agreement reached as a
result of the conciliation must be available for inspection by the public and
any member of the public may obtain a copy thereof upon payment of a fee as
approved by Treasury.
(8) The Director-General may from time to time
with the concurrence of the Minister of Finance, appoint persons or
organisations with relevant knowledge or expertise to provide conciliation and
mediation services.
(1) A difference or disagreement regarding the
protection of the environment may be referred to arbitration in terms of the
Arbitration Act, 1965 (Act No. 42 of 1965).
(2) Where a dispute or disagreement referred to
in subsection (1) is referred to arbitration the parties thereto may appoint as
arbitrator a person from the panel of arbitrators established in terms of section 21.
The Minister may at any time appoint one or more persons to
assist either him or her or, after consultation with a Municipal Council or MEC
or another national Minister, to assist such a Municipal Council or MEC or
another national Minister in the evaluation of a matter relating to the
protection of the environment by obtaining such information, whether
documentary or oral, as is relevant to such evaluation and to that end -
(a) the Minister may by notice in the Gazette give such person or persons
the powers of a Commission of Inquiry under the Commissions Act, 1947 (Act
No. 8 of 1947);
(b) the Minister may make rules by notice in
the Gazette for the conduct of
the inquiry: Provided that the decision of the inquiry and the reasons therefor
must be reduced to writing;
(c) the Director-General must designate,
subject to the provisions of the Public Service Act, 1994 (Proclamation
No. 103 of 1994), as many officers and employees of the Department as may be
necessary to assist such person and any work may be performed by a person other
than such officer or employee at the remuneration and allowances which the
Minister with the concurrence of the Minister of Finance may determine.
21. Appointment
of panel and remuneration
(1) The Minister may, with the concurrence of
the Minister of Finance, determine remuneration and allowances, either in
general or in any particular case, to be paid from money appropriated by
Parliament for that purpose to any person or persons appointed in terms of this
Act to render facilitation, conciliation, arbitration or investigation
services, who are not in the fulltime employment of the State.
(2) The Minister may create a panel or panels of
persons from which appointment of facilitators and arbitrators in terms of this
Act may be made, or contracts entered into in terms of this Act.
(3) The Minister may, pending the establishment
of a panel or panels in terms of subsection (2), adopt the panel established in
terms of section 31 (1) of the Land Reform (Labour
Tenants) Act, 1996 (Act No. 3 of 1996).
22. Relevant
considerations, report and designated officer
(1) Decisions under this Act concerning the
reference of a difference or disagreement to conciliation, the appointment of a
conciliator, the appointment of a facilitator, the appointment of persons to
conduct investigations, and the conditions of such appointment, must be made
taking into account -
(a) the desirability of resolving differences
and disagreements speedily and cheaply;
(b) the desirability of giving indigent
persons access to conflict resolution measures in the interest of the
protection of the environment;
(c) the desirability of improving the quality
of decisionmaking by giving interested and affected persons the opportunity to
bring relevant information to the decisionmaking process;
(d) any representations made by persons
interested in the matter; and
(e) such other considerations relating to the
public interest as may be relevant.
(2) (a) The Director-General shall keep a record and prepare an
annual report on
environmental conflict
management for submission to the Committee and the Forum, for the purpose of
evaluating compliance and conflict management measures in respect of
environmental laws.
(b) The record and report referred to in
paragraph (a) may include the following:
(i) Proceedings under this chapter, including
reports of conciliators and agreements reached;
(ii) proceedings under Chapter 7, including complaints, charges
and judgments;
(iii) proceedings under other laws listed in Schedule 3;
(iv) proceedings by the Human Rights Commission
and the Public Protector.
(c) The Director-General shall designate an
officer to provide information to the public on appropriate dispute resolution
mechanisms for referral of disputes and complaints.
(d) The reports, records and agreements referred
to in this subsection must be available for inspection by the public.
INTEGRATED ENVIRONMENTAL MANAGEMENT
(1) The purpose of this Chapter is to promote
the application of appropriate environmental management tools in order to
ensure the integrated environmental management of activities.
(2) The general objective of integrated
environmental management is to -
(a) promote the integration of the principles
of environmental management set out in section 2 into the making of all decisions
which may have a significant effect on the environment;
(b) identify, predict and evaluate the actual
and potential impact on the environment, socio-economic conditions and cultural
heritage, the risks and consequences and alternatives and options for
mitigation of activities, with a view to minimising negative impacts,
maximising benefits, and promoting compliance with the principles of
environmental management set out in section 2;
(c) ensure that the effects of activities on
the environment receive adequate consideration before actions are taken in
connection with them;
(d) ensure adequate and appropriate
opportunity for public participation in decisions that may affect the
environment;
(e) ensure the consideration of environmental
attributes in management and decisionmaking which may have a significant effect
on the environment; and
(f) identify and employ the modes of
environmental management best suited to ensuring that a particular activity is
pursued in accordance with the principles of environmental management set out
in section 2.
(3) The Director-General must coordinate the
activities of organs of state referred to in section 24 (1) and assist them in
giving effect to the objectives of this section and such assistance may include
training, the publication of manuals and guidelines and the coordination of
procedures.
24. Environmental
authorisations
(1)
In order to give effect to the
general objectives of integrated environmental management laid down in this
Chapter, the potential impact on the environment of listed activities must be
considered, investigated, assessed and reported on to the competent authority
charged by this Act with granting the relevant environmental authorisation.
(2)
The Minister, and every MEC with the
concurrence of the Minister, may identify -
(a) activities which may not commence without
environmental authorisation from the competent authority;
(b) geographical areas based on environmental
attributes in which specified activities may not commence without environmental
authorisation from the competent authority;
(c) geographical areas based on environmental attributes in which specified activities may
be excluded from authorisation by the competent authority;
(d) individual or generic existing activities
which may have a detrimental effect on the environment and in respect of which
an application for an environmental authorisation must be made to the competent
authority:
Provided that where an activity falls under the jurisdiction
of another Minister or MEC, a decision in respect of paragraphs (a) to (d) must
be taken after consultation with such other Minister or MEC.
(3)
The Minister, and every MEC with the
concurrence of the Minister, may compile information and maps that specify the
attributes of the environment in particular geographical areas, including the
sensitivity, extent, interrelationship and significance of such attributes
which must be taken into account by every competent authority.
(4)
Procedures for the investigation,
assessment and communication of the potential impact of activities must ensure,
as a minimum, with respect to every application for an environmental
authorisation -
(a) investigation of the environment likely to
be significantly affected by the proposed activity and alternatives thereto;
(b) investigation of the potential impact of
the activity and its alternatives on the environment and assessment of the
significance of that potential impact;
(c) investigation of mitigation measures to
keep adverse impacts to a minimum, as well as the option of not implementing
the activity;
(d) public information and participation which
provide all interested and affected parties, including all organs of state in
all spheres of government that may have jurisdiction over any aspect of the
activity, with a reasonable opportunity to participate in such information and
participation procedures;
(e) reporting on gaps in knowledge, the
adequacy of predictive methods and underlying assumptions, and uncertainties
encountered in compiling the required information;
(f) investigation and formulation of
arrangements for the monitoring and management of impacts, and the assessment
of the effectiveness of such arrangements after their implementation;
(g) coordination and cooperation between organs
of state in the consideration of assessments where an activity falls under the
jurisdiction of more than one organ of state;
(h) that the findings and recommendations
flowing from such investigation, the general objectives of integrated
environmental management laid down in this Act and the principles of
environmental management set out in section 2 are taken into account in any
decision made by an organ of state in relation to the proposed policy,
programme, plan or project; and
(i) that environmental attributes identified
in the compilation of information and maps as contemplated in subsection (3)
are considered.
(5)
The Minister, and every MEC with the
concurrence of the Minister, may make regulations consistent with subsection
(4) -
(a) laying down the procedure to be followed in
applying for, the issuing of and monitoring compliance with environmental
authorisations;
(b) laying down the procedure to be followed
and the institutional arrangements in respect of -
(i) the
efficient administration and processing of environmental authorisations;
(ii) fair
decision-making and conflict management in the consideration and processing of
applications for environmental authorisations;
(iii) the
preparation and evaluation of environmental impact assessments, strategic
environmental assessments, environmental management plans and any other
relevant environmental management instruments that may be developed in time;
(iv) applications to the competent authority by
any person to be exempted from the provisions of any regulation in respect of a
specific activity;
(v) appeals against decisions of competent
authorities;
(c) prescribing fees to be paid for -
(i) the
consideration and processing of applications for environmental authorisations;
(ii) the
review of documents, processes and procedures by specialists on behalf of the
competent authority;
(d) requiring the provision of financial or
other security to cover the risks to the State and the environment of
non-compliance with conditions attached to environmental authorisations;
(e) specifying that environmental impact
assessments, or other specified tasks performed in connection with an
application for an environmental authorisation,
may only be performed by an environmental assessment practitioner
registered in accordance with the prescribed procedures;
(f) requiring that competent authorities
maintain a registry of applications for,
and records of decisions in respect
of, environmental authorisations;
(g) specifying that a contravention of a
specified regulation is an offence and prescribing penalties for the
contravention of that regulation;
(h) prescribing minimum criteria for the report
content for each type of report and for each process that is contemplated in
terms of the regulations in order to ensure a consistent quality and to
facilitate efficient evaluation of reports;
(i) prescribing review mechanisms and
procedures including criteria for, and responsibilities of all parties in, the
review process;
(j) prescribing any other matter necessary for
dealing with making and evaluating applications for environmental
authorisations.
(6)
An MEC may make regulations in terms
of subsection (5) only in respect of listed activities or areas in respect of
which the MEC is the competent authority.
(7)
Compliance with the procedure laid
down by the Minister or an MEC in terms of subsection (4) does not remove the
need to obtain an authorisation, other than an environmental authorisation, for
that activity from any organ of state charged by law with authorising,
permitting or otherwise allowing the implementation of the activity.
(8)
Authorisations or permits obtained
under any other law for an activity listed or specified in terms of this Act
does not absolve the applicant from obtaining authorisation under this Act and
any such other authorisations or permits may only be considered by the
competent authority if they are in compliance with subsection (4)(d).
(9)
Only the Minister may make
regulations in accordance with subsection (5) stipulating the procedure to be
followed and the report to be prepared in investigating, assessing and
communicating potential impacts for the purpose of complying with subsection
(1) where the activity will affect -
(a) more than one province or traverse
international boundaries; or
(b) compliance with obligations resting on the
Republic under customary international law or a convention.
[S. 24
substituted by s. 2 of Act 8/2004]
24A. Procedure for
listing activity or area
Before identifying any activity or area in terms of section 24(2), the Minister or MEC, as the
case may be, must publish a notice in the relevant Gazette -
(a)
specifying, through description, a
map or any other appropriate manner, the activity or area that it is proposing
to list;
(b)
inviting interested parties to submit
written comments on the proposed listing within a period specified in the
notice.
[S. 24A inserted
by s. 3 of Act 8/2004]
24B. Procedure for
delisting of activities or areas
(1)
The Minister may delist an activity
or area identified by the Minister in terms of section 24(2).
(2)
An MEC may, with the concurrence of
the Minister, delist an activity or area identified by the MEC in terms of section 24(2).
(3)
The Minister or MEC, as the case may
be, must comply with section 24A, read with the changes required
by the context, before delisting an activity or area in terms of this section.
[S. 24B inserted
by s. 3 of Act 8/2004]
24C. Procedure for
identifying the competent authority
(1)
When listing activities in terms of section 24(2) the Minister, or the MEC with
the concurrence of the Minister, must identify the competent authority
responsible for granting environmental authorisations in respect of those
activities.
(2)
The Minister must be identified as
the competent authority in terms of subsection (1) if the activity -
(a) has implications for national environmental
policy or international environmental commitments or relations;
(b) will take place within an area identified
in terms of section 24(2)(b) or (c) as a result of the
obligations resting on the Republic in terms of any international environmental
instrument, other than any area falling within the sea-shore, a conservancy, a
protected natural environment, a proclaimed private nature reserve, a natural
heritage site, or the buffer zone or transitional area of a biosphere reserve
or a world heritage site;
(c) will affect more than one province or
traverse international boundaries;
(d) is undertaken, or is to be undertaken, by -
(i) a
national department;
(ii) a
provincial department responsible for environmental affairs; or
(iii) a
statutory body, excluding any municipality, performing an exclusive competence
of the national sphere of government; or
(e) will take place within a national
proclaimed protected area or other conservation area under control of a
national authority.
(3)
The Minister and an MEC may agree
that applications for environmental authorisations with regard to any activity
or class of activities -
(a) contemplated in subsection (2) may be dealt
with by the MEC;
(b) in respect of which the MEC is identified
as the competent authority may be dealt with by the Minister.
[S. 24C inserted
by s. 3 of Act 8/2004]
The Minister or MEC, as the case may be, must publish in the
relevant Gazette a notice
listing activities and areas identified in terms of section 24(2) and listing the competent
authorities identified in terms of section 24C and the date on which the list
is to come into effect.
[S. 24D inserted
by s. 3 of Act 8/2004]
24E. Minimum
conditions attached to environmental authorisations
Every environmental authorisation
must as a minimum ensure that -
(a)
adequate provision is made for the
ongoing management and monitoring of the
impacts of the activity on the
environment throughout the life cycle of the activity;
(b)
the property, site or area is
specified; and
(c)
provision is made for the transfer of
rights and obligations when there is a change of ownership in the property.
[S. 24E inserted
by s. 3 of Act 8/2004]
24F. Offences
relating to commencement or continuation of listed activity
(1)
Notwithstanding the provisions of any
other Act, no person may commence an activity listed in terms of section 24(2)(a) or (b) unless the
competent authority has granted an environmental authorisation for the
activity, and no person may continue an existing activity listed in terms of section 24(2)(d) if an application for an
environmental authorisation is refused.
(2)
It is an offence for any person to
contravene subsection (1) or the conditions applicable to any environmental
authorisation granted for a listed activity.
(3)
It is a defence to a charge in terms
of subsection (2) to show that the activity was commenced or continued in
response to an emergency so as to protect human life, property or the
environment.
(4)
A person convicted of an offence in
terms of subsection (2) 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.
[S. 24F inserted
by s. 3 of Act 8/2004]
24G. Rectification
of unlawful commencement or continuation of listed activity
(1)
On application by a person who has
committed an offence in terms of section 24F(2) the Minister or MEC, as the
case may be, may direct the applicant to -
(a) compile a report containing -
(i) an
assessment of the nature, extent, duration and significance of the impacts of
the activity on the environment, including the cumulative effects;
(ii) a
description of mitigation measures undertaken or to be undertaken in respect of
the impacts of the activity on the environment;
(iii) a
description of the public participation process followed during the course of
compiling the report, including all comments received from interested and
affected parties and an indication of how issues raised have been addressed;
(iv) an environmental management plan; and
(b) provide such other information or undertake
such further studies as the Minister or MEC may deem necessary.
(2)
Upon the payment by the person of an
administration fine not exceeding Rl million as determined by the competent
authority, the Minister or MEC concerned must consider the report contemplated
in subsection (1) and thereafter may -
(a) direct the person to cease the activity,
either wholly or in part, and to rehabilitate the environment within such time
and subject to such conditions as the Minister or MEC may deem necessary; or
(b) issue an environmental authorisation to
such person subject to such conditions as the Minister or MEC may deem
necessary.
(3)
A person who fails to comply with a
directive contemplated in subsection (2)(a) or who contravenes or fails to
comply with a condition contemplated in subsection (2)(b) is guilty of an
offence and liable on conviction to a penalty contemplated in section 24F(4).
[S. 24G inserted
by s. 3 of Act 8/2004]
(1)
An association proposing to register
its members as environ-mental assessment practitioners may apply to the
Minister to be appointed as a registration authority in such manner as the
Minister may prescribe.
(2)
The application must contain -
(a) the constitution of the association;
(b) a list of the members of the association;
(c) a description of the criteria and process
to be used to register environmental assessment practitioners;
(d) a list of the qualifications of the members
of the association responsible for the assessment of applicants for
registration;
(e) a code of conduct regulating the ethical
and professional conduct of members of the association; and
(f) any other prescribed requirements.
(3)
After considering an application, and
any other additional information that the Minister may require, the Minister
may -
(a) by notice in the Gazette, appoint the association as a registration authority; or
(b) in writing addressed to the association,
refuse the application, giving reasons for such refusal.
(4)
The Minister may, for good cause and
in writing addressed to the association, terminate the appointment of an
association as a registration authority.
(5)
The Minister must maintain a register
of all associations appointed as registration authorities in terms of this
section.
[S. 24H inserted
by s. 3 of Act 8/2004]
24I. Appointment
of external specialist to review assessment
The Minister or MEC may appoint an external specialist
reviewer, and may recover costs from the applicant, in instances where -
(a)
the technical knowledge required to
review any aspect of an assessment is not readily available within the
competent authority;
(b)
a high level of objectivity is
required which is not apparent in the documents submitted, in order to
ascertain whether the information contained in such documents is adequate for
decision-making or whether it requires amendment.
[S. 24I inserted
by s. 3 of Act 8/2004]
25. Incorporation of international
environmental instruments
(1) Where the Republic is not yet bound by an
international environmental instrument, the Minister may make a recommendation
to Cabinet and Parliament regarding accession to and ratification of an
international environmental instrument, which may deal with the following:
(a) Available resources to ensure
implementation;
(b) views of interested and affected parties;
(c) benefits to the Republic;
(d) disadvantages to the Republic;
(e) the estimated date when the instrument is
to come into effect;
(f) the estimated date when the instrument
will become binding on the Republic;
(g) the minimum number of states required to
sign the instrument in order for it to come into effect;
(h) the respective responsibilities of all
national departments involved;
(i) the potential impact of accession on
national parties;
(j) reservations to be made, if any; and
(k) any other matter which in the opinion of
the Minister is relevant.
(2) Where the Republic is a party to an
international environmental instrument the Minister, after compliance with the
provisions of section 231 (2) and (3) of the
Constitution, may publish the provisions of the international environmental
instrument in the Gazette and
any amendment or addition to such instrument.
(3) The Minister may introduce legislation in
Parliament or make such regulations as may be necessary for giving effect to an
international environmental instrument to which the Republic is a party, and
such legislation and regulations may deal with inter alia the following -
(a) the coordination of the implementation of
the instrument;
(b) the allocation of responsibilities in
terms of the instrument, including those of other organs of state;
(c) the gathering of information, including
for the purposes of compiling and updating reports required in terms of the
instrument and for submission to Parliament;
(d) the dissemination of information related
to the instrument and reports from international meetings;
(e) initiatives and steps regarding research,
education, training, awareness raising and capacity building;
(f) ensuring public participation;
(g) implementation of and compliance with the
provisions of the instrument, including the creation of offences and the
prescription of penalties where applicable; and
(h) any other matter necessary to give effect
to the instrument.
(4) The Minister may prior to a recommendation
referred to in subsection (1), publish a notice in the Gazette, stating his or her intention to make such
recommendation and inviting written comments.
(1) The Minister must report to Parliament once
a year regarding international environmental instruments for which he or she is
responsible and such report may include details on -
(a) participation in international meetings
concerning international environmental instruments;
(b) progress in implementing international
environmental instruments to which the Republic is a party;
(c) preparations undertaken in respect of
international instruments to which the Republic is likely to become a party;
(d) initiatives and negotiations within the
region of
(e) the efficacy of coordination mechanisms;
and
(f) legislative measures that have been taken
and the time frames within which it is envisaged that their objectives will be
achieved.
(2) (a) The Minister must initiate an Annual Performance Report on
Sustainable
Development to meet the
government’s commitment to Agenda 21.
(b) (i) The Annual Performance Report must cover all relevant activities
of all
national departments and spheres of
government.
(ii) All relevant organs of state must provide
information to the Minister by a date to be determined by the Minister for the
purposes of the report referred to in paragraph (a) and this may consist of an
assembly of information compiled for other purposes.
(c) The Minister may appoint persons as he or
she considers necessary to act as a Secretariat to ensure preparation of the
report.
(d) The purpose of the report shall be to -
(i) provide an audit and a report of the
government’s performance in respect of Agenda 21;
(ii) review procedures for coordinating
policies and budgets to meet the objectives of Agenda 21; and
(iii) review progress on a public educational
programme to support the objectives of Agenda 21.
(1) This Chapter applies to any international
environmental instrument whether the Republic became a party to it before or
after the coming into force of this Act.
(2) The provisions of any international
environmental instrument published in accordance with this section are evidence
of the contents of the international environmental instrument in any
proceedings or matter in which the provisions of the instrument come into
question.
[Heading
substituted by s. 2 of Act 46/2003]
28. Duty
of care and remediation of environmental damage
(1) Every person who causes, has caused or may
cause significant pollution or degradation of the environment must take
reasonable measures to prevent such pollution or degradation from occurring,
continuing or recurring, or, in so far as such harm to the environment is
authorised by law or cannot reasonably be avoided or stopped, to minimise and
rectify such pollution or degradation of the environment.
(2) Without limiting the generality of the duty
in subsection (1), the persons on whom subsection (1) imposes an obligation to
take reasonable measures, include an owner of land or premises, a person in
control of land or premises or a person who has a right to use the land or
premises on which or in which -
(a) any activity or process is or was
performed or undertaken; or
(b) any other situation exists,
which causes, has caused or is
likely to cause significant pollution or degradation of the environment.
(3) The measures required in terms of subsection
(1) may include measures to -
(a) investigate, assess and evaluate the
impact on the environment;
(b) inform and educate employees about the
environmental risks of their work and the manner in which their tasks must be
performed in order to avoid causing significant pollution or degradation of the
environment;
(c) cease, modify or control any act, activity
or process causing the pollution or degradation;
(d) contain or prevent the movement of
pollutants or the causant of degradation;
(e) eliminate any source of the pollution or
degradation; or
(f) remedy the effects of the pollution or
degradation.
(4) The Director-General or a provincial head of
department may, after consultation with any other organ of state concerned and
after having given adequate opportunity to affected persons to inform him or
her of their relevant interests, direct any person who fails to take the
measures required under subsection (1) to -
(a) investigate, evaluate and assess the
impact of specific activities and report thereon;
(b) commence taking specific reasonable
measures before a given date;
(c) diligently continue with those measures;
and
(d) complete them before a specified
reasonable date:
Provided that the Director-General
or a provincial head of department may, if urgent action is necessary for the
protection of the environment, issue such directive, and consult and give such
opportunity to inform as soon thereafter as is reasonable.
(5) The Director-General or a provincial head of
department, when considering any measure or time period envisaged in subsection
(4), must have regard to the following:
(a) the principles set out in section 2;
(b) the provisions of any adopted
environmental management plan or environmental implementation plan;
(c) the severity of any impact on the
environment and the costs of the measures being considered;
(d) any measures proposed by the person on
whom measures are to be imposed;
(e) the desirability of the State fulfilling
its role as custodian holding the environment in public trust for the people;
(f) any other relevant factors.
(6) If a person required under this Act to
undertake rehabilitation or other remedial work on the land of another,
reasonably requires access to, use of or a limitation on use of that land in
order to effect rehabilitation or remedial work, but is unable to acquire it on
reasonable terms, the Minister may -
(a) expropriate the necessary rights in
respect of that land for the benefit of the person undertaking the
rehabilitation or remedial work, who will then be vested with the expropriated
rights; and
(b) recover from the person for whose benefit
the expropriation was effected all costs incurred.
(7) Should a person fail to comply, or
inadequately comply, with a directive under subsection (4), the
Director-General or provincial head of department may take reasonable measures
to remedy the situation.
(8) Subject to subsection (9), the
Director-General or provincial head of department may recover all costs
incurred as a result of it acting under subsection (7) from any or all of the
following persons -
(a) any person who is or was responsible for,
or who directly or indirectly contributed to, the pollution or degradation or
the potential pollution or degradation;
(b) the owner of the land at the time when the
pollution or degradation or the potential for pollution or degradation
occurred, or that owner’s successor in title;
(c) the person in control of the land or any
person who has or had a right to use the land at the time when -
(i) the activity or the process is or was
performed or undertaken; or
(ii) the situation came about; or
(d) any person who negligently failed to
prevent -
(i) the activity or the process being
performed or undertaken; or
(ii) the situation from coming about:
Provided that such person failed to take the measures
required of him or her under subsection (1).
(9) The Director-General or provincial head of
department may in respect of the recovery of costs under subsection (8), claim
proportionally from any other person who benefited from the measures undertaken
under subsection (7).
(10) The costs claimed under subsections (6), (8)
and (9) must be reasonable and may include, without being limited to, labour,
administrative and overhead costs.
(11) If more than one person is liable under
subsection (8), the liability must be apportioned among the persons concerned
according to the degree to which each was responsible for the harm to the
environment resulting from their respective failures to take the measures
required under subsections (1) and (4).
(12) Any person may, after giving the
Director-General or provincial head of department 30 days’ notice, apply to a
competent court for an order directing the Director-General or any provincial
head of department to take any of the steps listed in subsection (4) if the
Director-General or provincial head of department fails to inform such person
in writing that he or she has directed a person contemplated in subsection (8)
to take one of those steps, and the provisions of section 32 (2) and (3) shall apply to
such proceedings with the necessary changes.
(13) When considering any application in terms of
subsection (12), the court must take into account the factors set out in
subsection (5).
29. Protection
of workers refusing to do environmentally hazardous work
(1) Notwithstanding the provisions of any other
law, no person is civilly or criminally liable or may be dismissed,
disciplined, prejudiced or harassed on account of having refused to perform any
work if the person in good faith and reasonably believed at the time of the refusal
that the performance of the work would result in an imminent and serious threat
to the environment.
(2) An employee who has refused to perform work
in terms of subsection (1) must as soon thereafter as is reasonably practicable
notify the employer either personally or through a representative that he or
she has refused to perform work and give the reason for the refusal.
(3) Subsection (1) applies whether or not the
person refusing to work has used or exhausted any other applicable external or
internal procedure or otherwise remedied the matter concerned.
(4) No person may advantage or promise to
advantage any person for not exercising his or her right in terms of subsection
(1).
(5) No person may threaten to take any action
contemplated by subsection (1) against a person because that person has
exercised or intends to exercise his or her right in terms of subsection (1).
30. Control of emergency incidents
(1) In this section -
(a) “incident” means an unexpected sudden
occurrence, including a major emission, fire or explosion leading to serious
danger to the public or potentially serious pollution of or detriment to the
environment, whether immediate or delayed;
(b) “responsible person” includes any person
who -
(i) is responsible for the incident;
(ii) owns any hazardous substance involved in
the incident; or
(iii) was in control of any hazardous substance
involved in the incident at the time of the incident;
(c) “relevant authority” means -
(i) a municipality with jurisdiction over the
area in which an incident occurs;
(ii) a provincial head of department or any
other provincial official designated for that purpose by the MEC in a province
in which an incident occurs;
(iii) the Director-General;
(iv) any other Director-General of a national
department.
(2) Where this section authorises a relevant
authority to take any steps, such steps may only be taken by -
(a) the person referred to in subsection
(1) (c) (iv) if no steps have been taken by any of the other persons
listed in subsection (1) (c);
(b) the person referred to in subsection
(1) (c) (iii) if no steps have been taken by any of the persons
listed in subsection (1) (c) (i) and (c) (ii);
(c) the person referred to in subsection
(1) (c) (ii) if no steps have been taken by the person listed in
subsection (1) (c) (i):
Provided that any relevant authority
may nevertheless take such steps if it is necessary to do so in the
circumstances and no other person referred to in subsection (1) (c) has
yet taken such steps.
(3) The responsible person or, where the
incident occurred in the course of that person’s employment, his or her
employer must forthwith after knowledge of the incident, report through the
most effective means reasonably available -
(a) the nature of the incident;
(b) any risks posed by the incident to public
health, safety and property;
(c) the toxicity of substances or by-products
released by the incident; and
(d) any steps that should be taken in order to
avoid or minimise the effects of the incident on public health and the
environment to -
(i) the Director-General;
(ii) the South African Police Services and the
relevant fire prevention service;
(iii) the relevant provincial head of department
or municipality; and
(iv) all persons whose health may be affected
by the incident.
(4) The responsible person or, where the
incident occurred in the course of that person’s employment, his or her
employer, must, as soon as reasonably practicable after knowledge of the incident
-
(a) take all reasonable measures to contain
and minimise the effects of the incident, including its effects on the
environment and any risks posed by the incident to the health, safety and
property of persons;
(b) undertake cleanup procedures;
(c) remedy the effects of the incident;
(d) assess the immediate and long-term effects
of the incident on the environment and public health.
(5) The responsible person or, where the
incident occurred in the course of that person’s employment, his or her
employer, must, within 14 days of the incident, report to the Director-General,
provincial head of department and municipality such information as is available
to enable an initial evaluation of the incident, including -
(a) the nature of the incident;
(b) the substances involved and an estimation
of the quantity released and their possible acute effect on persons and the
environment and data needed to assess these effects;
(c) initial measures taken to minimise
impacts;
(d) causes of the incident, whether direct or
indirect, including equipment, technology, system, or management failure; and
(e) measures taken and to be taken to avoid a
recurrence of such incident.
(6) A relevant authority may direct the
responsible person to undertake specific measures within a specific time to
fulfil his or her obligations under subsections (4) and (5): Provided that the
relevant authority must, when considering any such measure or time period, have
regard to the following:
(a) the principles set out in section 2;
(b) the severity of any impact on the
environment as a result of the incident and the costs of the measures being
considered;
(c) any measures already taken or proposed by
the person on whom measures are to be imposed, if applicable;
(d) the desirability of the State fulfilling
its role as custodian holding the environment in public trust for the people;
(e) any other relevant factors.
(7) A verbal directive must be confirmed in
writing at the earliest opportunity, which must be within seven days.
(8) Should -
(a) the responsible person fail to comply, or
inadequately comply with a directive under subsection (6);
(b) there be uncertainty as to who the
responsible person is; or
(c) there be an immediate risk of serious
danger to the public or potentially serious detriment to the environment,
a
relevant authority may take the measures it considers necessary to -
(i) contain and minimise the effects of the
incident;
(ii) undertake cleanup procedures; and
(iii) remedy the effects of the incident.
(9) A relevant authority may claim reimbursement
of all reasonable costs incurred by it in terms of subsection (8) from every
responsible person jointly and severally.
(10) A relevant authority which has taken steps
under subsections (6) or (8) must, as soon as reasonably practicable, prepare
comprehensive reports on the incident, which reports must be made available
through the most effective means reasonably available to -
(a) the public;
(b) the Director-General;
(c) the South African Police Services and the
relevant fire prevention service;
(d) the relevant provincial head of department
or municipality; and
(e) all persons who may be affected by the
incident.
31. Access
to environmental information and protection of whistleblowers
(1) Access to information held by the State is
governed by the statute contemplated under section 32 (2) of the Constitution:
Provided that pending the promulgation of such statute, the following
provisions shall apply:
(a) every person is entitled to have access to
information held by the State and organs of state which relates to the
implementation of this Act and any other law affecting the environment, and to
the state of the environment and actual and future threats to the environment,
including any emissions to water, air or soil and the production, handling,
transportation, treatment, storage and disposal of hazardous waste and
substances;
(b) organs of state are entitled to have
access to information relating to the state of the environment and actual and
future threats to the environment, including any emissions to water, air or
soil and the production, handling, transportation, treatment, storage and
disposal of hazardous waste held by any person where that information is
necessary to enable such organs of state to carry out their duties in terms of
the provisions of this Act or any other law concerned with the protection of
the environment or the use of natural resources;
(c) a request for information contemplated in
paragraph (a) can be refused only:
(i) if the request is manifestly unreasonable
or formulated in too general a manner;
(ii) if the public order or national security
would be negatively affected by the supply of the information; or
(iii) for the reasonable protection of
commercially confidential information;
(iv) if the granting of information endangers
or further endangers the protection of the environment; and
(v) for the reasonable protection of personal
privacy.
(2) Subject to subsection (3), the Minister may
make regulations regarding access by members of the public to privately held
information relating to the implementation of this Act and any other law
concerned with the protection of the environment and may to this end prescribe
the manner in which such information must be kept: Provided that such
regulations are reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom.
(3) The Minister must take into account -
(a) the principles set out in section 2;
(b) the provisions of subsection (1) (c);
(c) the provisions of international law and
foreign law; and
(d) any other relevant considerations.
(4) Notwithstanding the provisions of any other
law, no person is civilly or criminally liable or may be dismissed,
disciplined, prejudiced or harassed on account of having disclosed any
information, if the person in good faith reasonably believed at the time of the
disclosure that he or she was disclosing evidence of an environmental risk and
the disclosure was made in accordance with subsection (5).
(5) Subsection (4) applies only if the person
concerned -
(a) disclosed the information concerned to -
(i) a committee of Parliament or of a
provincial legislature;
(ii) an organ of state responsible for
protecting any aspect of the environment or emergency services;
(iii) the Public Protector;
(iv) the Human Rights Commission;
(v) any attorney-general or his or her
successor;
(vi) more than one of the bodies or persons
referred to in subparagraphs (i) to (v);
(b) disclosed the information concerned to one
or more news media and on clear and convincing grounds believed at the time of
the disclosure -
(i) that the disclosure was necessary to
avert an imminent and serious threat to the environment, to ensure that the
threat to the environment was properly and timeously investigated or to protect
himself or herself against serious or irreparable harm from reprisals; or
(ii) giving due weight to the importance of
open, accountable and participatory administration, that the public interest in
disclosure of the information clearly outweighed any need for nondisclosure;
(c) disclosed the information concerned
substantially in accordance with any applicable external or internal procedure,
other than the procedure contemplated in paragraph (a) or (b), for reporting or
otherwise remedying the matter concerned; or
(d) disclosed information which, before the
time of the disclosure of the information, had become available to the public,
whether in the Republic or elsewhere.
(6) Subsection (4) applies whether or not the
person disclosing the information concerned has used or exhausted any other
applicable external or internal procedure to report or otherwise remedy the
matter concerned.
(7) No person may advantage or promise to
advantage any person for not exercising his or her right in terms of subsection
(4).
(8) No person may threaten to take any action
contemplated by subsection (4) against a person because that person has
exercised or intends to exercise his or her right in terms of subsection (4).
Part 2
Application and enforcement of Act
and specific environmental management Acts
(1)
This Part applies to the enforcement
of this Act and the specific environmental management Acts.
(2)
In this Part, unless inconsistent
with the context, a word or expression to which a meaning has been assigned in
a specific environmental management Act has, in relation to the administration
or enforcement of that Act, the meaning assigned to it in that Act.
(3)
For the purposes of this Part, Schedule 1 to the Criminal Procedure Act,
1977 (Act No. 51 of 1977), is deemed to include an offence committed in terms
of this Act or a specific environmental management Act.
31B. Designation of
environmental management inspectors by Minister
(1)
The Minister may -
(a) designate as an environmental management
inspector, any staff member of -
(i) the
Department; or
(ii) any
other organ of state; and
(b) at any time withdraw a designation made in
terms of paragraph (a).
(2)
A designation in terms of subsection
(1)(a)(ii) may only be made by agreement between the Minister and the relevant
organ of state.
31C. Designation of
environmental management inspectors by MEC
(1) An MEC may -
(a) designate as an environmental management
inspector, any staff member of -
(i) the
department responsible for environmental management in the province;
(ii) any
other provincial organ of state; or
(iii) any
municipality in the province; and
(b) at any time withdraw a designation made in
terms of paragraph (a).
(2)
A designation in terms of subsection
(1)(a)(ii) or (iii) may only be made by agreement between the relevant MEC and
the relevant provincial organ of state or municipality.
(1)
When designating a person as an
environmental management inspector, the Minister or MEC must, subject to
subsection (2), determine whether the person concerned is designated for the
enforcement of -
(a) this Act;
(b) a specific environmental management Act;
(c) specific provisions of this Act or a
specific environmental management Act;
(d) this Act and all specific environmental
management Acts; or
(e) any combination of those Acts or provisions
of those Acts.
(2)
An MEC may designate a person as an
environmental management inspector for the enforcement of only those provisions
of this Act or any specific environmental management Act -
(a) which are administered by the MEC or a
provincial organ of state; or
(b) in respect of which the MEC or a provincial
organ of state exercises or performs assigned or delegated powers or duties.
(3)
A person designated as an
environmental management inspector may exercise any of the powers given to environmental
management inspectors in terms of this Act that are necessary for the
inspector’s mandate in terms of subsection (1) and that may be specified by the
Minister or MEC by notice in writing to the inspector.
(1)
The Minister may prescribe -
(a) qualification criteria for environmental
management inspectors; and
(b) training that must be completed by
environmental management inspectors.
(2)
The Minister may only prescribe
criteria and training in terms of subsection (1) after consultation with the
Minister responsible for safety and security.
(1)
A prescribed identity card must be
issued to each person designated as an environmental management inspector.
(2)
When exercising any powers or
performing any duties in terms of this Act or a specific environmental
management Act, an environmental management inspector must, on demand by a
member of the public, produce the identity card and the notice issued to the
inspector in terms of section 31D(3).
(1)
An environmental management inspector
within his or her mandate in terms of section 31D -
(a) must monitor and enforce compliance with a
law for which he or she has been designated in terms of that section;
(b) may investigate any act or omission in
respect of which there is a reasonable suspicion that it might constitute -
(i) an
offence in terms of such law;
(ii) a
breach of such law; or
(iii) a
breach of a term or condition of a permit, authorisation or other instrument
issued in terms of such law.
(2)
An environmental management inspector
-
(a) must carry out his or her duties and
exercise his or her powers -
(i) in
accordance with any instructions issued by the Minister or MEC, as the case may
be; and
(ii) subject
to any limitations and in accordance with any procedures that may be
prescribed; and
(b) may be accompanied by an interpreter or any
other person whose assistance may reasonably be required;
(c) must exercise his or her powers in a way
that minimises any damage to, loss or deterioration of any premises or thing.
(1)
An environmental management
inspector, within his or her mandate in terms of section 31D, may-
(a) question a person about any act or omission
in respect of which there is a reasonable suspicion that it might constitute -
(i) an
offence in terms of a law for which that inspector has been designated in terms
of that section;
(ii) a
breach of such law; or
(iii) a
breach of a term or condition of a permit, authorisation or other instrument
issued in terms of such law;
(b) issue a written notice to a person who
refuses to answer questions in terms of paragraph (a), requiring that person to
answer questions put to him or her in terms of that paragraph;
(c) inspect, or question a person about, any
document, book or record or any written or electronic information -
(i) which
may be relevant for the purpose of paragraph (a); or
(ii) to
which this Act or a specific environmental management Act relates;
(d) copy, or make extracts from, any document,
book or record or any written or electronic information referred to in
paragraph (c), or remove such document, book, record or written or electronic
information in order to make copies or extracts;
(e) require a person to produce or deliver to a
place specified by the inspector, any document, book or record or any written
or electronic information referred to in paragraph (c) for inspection;
(f) inspect, question a person about, and if
necessary remove any specimen, article, substance or other item which, on
reasonable suspicion, may have been used in -
(i) committing
an offence in terms of the law for which that inspector has been designated in
terms of section 31D;
(ii) breaching
such law; or
(iii) breaching
a term or condition of a permit, authorisation or other instrument issued in terms of such
law;
(g) take photographs or make audio-visual
recordings of anything or any person that is relevant for the purposes of an
investigation;
(h) dig or bore into the soil;
(i) take samples;
(j) remove any waste or other matter deposited
or discharged in contravention of the law for which that inspector has been
designated in terms of section 31D or a term or condition of a
permit, authorisation or other instrument issued in terms of such law; or
(k) carry out any other prescribed duty not
inconsistent with this Act and any other duty that may be prescribed in terms
of a specific environmental management Act.
(2)
A written notice issued in terms of
subsection (1)(b) must be in the prescribed format and must require a person to
answer specified questions either orally or in writing, and either alone or in
the presence of a witness, and may require that questions are answered under
oath or affirmation.
(3)
A person who receives a written
notice in terms of subsection (1)(b), must answer all questions put to him or
her truthfully and to the best of his or her ability, notwithstanding that an
answer might incriminate him or her, but any answer that incriminates such
person may not be used against him or her in any subsequent criminal
proceedings for an offence in terms of this Act or a specific environmental
management Act.
(4)
An environmental management inspector
must -
(a) provide a receipt for -
(i) any
document, book, record or written or electronic information removed in terms of
subsection (1)(d); or
(ii) any
specimen, article, substance or other item removed in terms of subsection
(1)(f); and
(b) return anything removed within a reasonable
period or, subject to section 34D, at the conclusion of any
relevant criminal proceedings.
(5)
In addition to the powers set out in
this Part, an environmental management inspector, within his or her mandate in
terms of section 31D, has all the powers assigned in
terms of Chapters 2, 5, 7 and 8 of the Criminal Procedure Act, 1977, to a
police official who is not a commissioned officer.
(1)
The provisions of sections 30 to 34 of the Criminal Procedure
Act, 1977, apply to the disposal of anything seized in terms of this Part,
subject to such modifications as the context may require.
(2)
When an item is seized in terms of
this Part, the environmental management inspector may request the person who
was in control of the item immediately before the seizure of the item, to take
it to a place designated by the inspector, and if the person refuses to take
the item to the designated place, the inspector may do so.
(3)
In order to safeguard a vehicle,
vessel or aircraft that has been seized, the environmental management inspector
may immobilise it by removing a part.
(4)
An item seized in terms of this
section, including a part of a vehicle, vessel or aircraft referred to in
subsection (3), must be kept in such a way that it is secured against damage.
(5)
An environmental management inspector
may -
(a) in the case of a specimen of a threatened
or protected species or alien species being imported into the Republic, at the
port of entry, request the person responsible for the import or that person’s
agent, to produce the original copies of the import permit, together with such
other documentation as may be required; and
(b) in the case of a specimen of a threatened
or protected species, being exported or re-exported from the Republic, at the
port of exit, request the person responsible for the export or re-export or
that person’s agent to produce the original copy of the export or re-export
permit, together with such other documentation as may be required.
31J. Powers to
stop, enter and search vehicles, vessels and aircraft
(1)
An environmental management
inspector, within his or her mandate in terms of section 31D, may, without a warrant, enter
and search any vehicle, vessel or aircraft, or search any pack-animal, on
reasonable suspicion that that vehicle, vessel, aircraft or pack-animal -
(a) is being or has been used, or contains or
conveys anything which is being or has been used, to commit -
(i) an
offence in terms of the law for which that inspector has been designated in
terms of section 31D; or
(ii) a
breach of such law or a term or condition of a permit, authorisation or other
instrument issued in terms of such law; or
(b) contains or conveys a thing which may serve
as evidence of such offence or breach.
(2)
An environmental management inspector
may, without a warrant, seize anything contained in or on any vehicle, vessel,
aircraft or pack-animal that may be used as evidence in the prosecution of any
person for an offence in terms of this Act or a specific environmental
management Act.
(3)
The provisions of section 31I apply to anything seized in
terms of subsection (2), subject to such modifications as the context may require.
(4)
An environmental management inspector
may, for the purpose of implementing subsection (1), at any time, and without a
warrant -
(a) order the driver of a vehicle or vessel to
stop, or the pilot of an aircraft to land; or
(b) if necessary and possible, force the driver
or pilot to stop or land, as the case may be.
(5)
An environmental management inspector
may exercise on or in respect of such vehicle, vessel or aircraft any of the
powers mentioned in section 31H.
(6)
An environmental management inspector
may apply to the National or Provincial Commissioner of Police for written
authorisation in terms of section 13(8) of the South African Police
Service Act, 1995 (Act No. 68 of 1995), to establish a roadblock or a
checkpoint.
(7)
An environmental management inspector
has, within his or her mandate in terms of section 31D, all the powers of a member of
the South African Police Service in terms of section 13(8) of the South African Police
Service Act, 1995.
(1)
An environmental management
inspector, within his or her mandate in terms of section 31D, and subject to subsection (2),
may, at any reasonable time, without a warrant, enter and inspect any building,
land or premises for the purposes of ascertaining compliance with -
(a) the legislation for which that inspector
has been designated in terms of section 31D; or
(b) a term or condition of a permit, authorisation
or other instrument issued in terms of such legislation.
(2)
An environmental management
inspector, within his or her mandate in terms of section 31D, may, with a warrant obtained
in terms of subsection (3), but subject to subsection (4), enter and inspect
any residential premises for the purposes of ascertaining compliance with -
(a) the legislation for which that inspector
has been designated in terms of section 31D; or
(b) a term or condition of a permit,
authorisation or other instrument issued in terms of such legislation.
(3)
A magistrate may issue a warrant
contemplated in subsection (2) only on written application by an environmental
management inspector setting out under oath or affirmation that it is necessary
to enter and inspect the specified residential premises for the purposes of
ascertaining compliance with the Acts for which that inspector has been
designated in terms of section 31D.
(4)
An environmental management inspector
may in terms of subsection (2) enter and inspect any residential premises
without a warrant, but only if -
(a) the person in control of the premises
consents to the entry and inspection; or
(b) there are reasonable grounds to believe
that a warrant would on application be issued, but that the delay that may be
caused by applying for a warrant would defeat the object of the entry or
inspection.
(5)
While carrying out a routine inspection,
an environmental management inspector may seize anything in or on any business
or residential premises or land that may be used as evidence in the prosecution
of any person for an offence in terms of this Act or a specific environmental
management Act.
(6)
The provisions of section 31I apply to anything seized in
terms of subsection (5), subject to such modifications as the context may
require.
(7)
An environmental management inspector
may exercise on such business or residential premises or land any of the powers
mentioned in section 31H.
31L. Power to
issue compliance notices
(1)
An environmental management
inspector, within his or her mandate in terms of section 31D, may issue a compliance notice
in the prescribed form and following a prescribed procedure if there are
reasonable grounds for believing that a person has not complied -
(a) with a provision of the law for which that
inspector has been designated in terms of section 31D; or
(b) with a term or condition of a permit,
authorisation or other instrument issued in terms of such law.
(2)
A compliance notice must set out -
(a) details of the conduct constituting
non-compliance;
(b) any steps the person must take and the
period within which those steps must be taken;
(c) any thing which the person may not do, and
the period during which the person may not do it; and
(d) the procedure to be followed in lodging an
objection to the compliance notice with the Minister or MEC, as the case may
be.
(3)
An environmental management inspector
may, on good cause shown, vary a compliance notice and extend the period within
which the person must comply with the notice.
(4)
A person who receives a compliance
notice must comply with that notice within the time period stated in the notice
unless the Minister or MEC has agreed to suspend the operation of the
compliance notice in terms of subsection (5).
(5)
A person who receives a compliance
notice and who wishes to lodge an objection in terms of section 31M may make representations to the
Minister or MEC, as the case may be, to suspend the operation of the compliance
notice pending finalisation of the objection.
31M. Objections to
compliance notice
(1)
Any person who receives a compliance
notice in terms of section 31L may object to the notice by making
representations, in writing, to the Minister or MEC, as the case may be, within
30 days of receipt of the notice, or within such longer period as the Minister
or MEC may determine.
(2)
After considering any representations
made in terms of subsection (1) and any other relevant information, the
Minister or MEC, as the case may be -
(a) may confirm, modify or cancel a notice or
any part of a notice; and
(b) must specify the period within which the
person who received the notice must comply with any part of the notice that is
confirmed or modified.
31N. Failure to
comply with compliance notice
(1)
A person who fails to comply with a
compliance notice commits an offence.
(2)
If a person fails to comply with a
compliance notice, the environmental management inspector must report the
non-compliance to the Minister or MEC, as the case may be, and the Minister or
MEC may -
(a) revoke or vary the relevant permit,
authorisation or other instrument which is the subject of the compliance
notice;
(b) take any necessary steps and recover the
costs of doing so from the person who failed to comply; and
(c) report the matter to a Director of Public
Prosecutions.
31O. Powers of
South African Police Service members
(1)
A member of the South African Police
Service has, in respect of an offence in terms of this Act or a specific
environmental management Act, all the powers of an environmental management
inspector in terms of this Part excluding the power to conduct routine
inspections in terms of section 31K and the power to issue and
enforce compliance notices in terms of sections 31L to 31O.
(2)
Notwithstanding subsection (1), the
Minister or MEC, as the case may be, may, with the concurrence of the Minister
responsible for safety and security, by written notice to a member of the South
African Police Service, assign to that member all the powers contemplated in sections 31K to 31O.
31P. Duty to
produce documents
Any person to whom a permit, licence, permission,
certificate, authorisation or any other document has been issued in terms of
this Act or a specific environmental management Act, must produce that document
at the request of an environmental management inspector.
(1)
It is an offence for any person to
disclose information about any other person if that information was acquired
while exercising or performing any power or duty in terms of this Act or a
specific environmental management Act, except -
(a) if the information is disclosed in
compliance with the provisions of any law;
(b) if the person is ordered to disclose the
information by a court;
(c) if the information is disclosed to enable a
person to perform a function in terms of this Act or a specific environmental
management Act; or
(d) for the purposes of the administration of
justice.
(2)
A person convicted of an offence in
terms of this section is liable to a fine or imprisonment for a period not
exceeding one year or to both a fine and such imprisonment.
[Part 2 inserted
by s. 4 of Act 46/2003]
[Heading inserted
by s. 5 of Act 46/2003]
32. Legal
standing to enforce environmental laws
(1)
Any person or group of persons may
seek appropriate relief in respect of any breach or threatened breach of any
provision of this Act, including a principle contained in Chapter 1, or of any provision of a
specific environmental management Act, or of any other statutory provision
concerned with the protection of the environment or the use of natural
resources -
(a) in that person’s or group of person’s own
interest;
(b) in the interest of, or on behalf of, a
person who is, for practical reasons, unable to institute such proceedings;
(c) in the interest of or on behalf of a group
or class of persons whose interests are affected;
(d) in the public interest; and
(e) in the interest of protecting the
environment.
[Sub-s. (1)
amended by s. 6 of Act 46/2003]
(2)
A court may decide not to award costs
against a person who, or group of persons which, fails to secure the relief
sought in respect of any breach or threatened breach of any provision of this
Act, including a principle contained in Chapter 1, or of any provision of a
specific environmental management Act, or of any other statutory provision
concerned with the protection of the environment or the use of natural
resources, if the court is of the opinion that the person or group of persons
acted reasonably out of a concern for the public interest or in the interest of
protecting the environment and had made due efforts to use other means
reasonably available for obtaining the relief sought.
[Sub-s. (2)
substituted by s. 6 of Act 46/2003]
(3)
Where a person or group of persons
secures the relief sought in respect of any breach or threatened breach of any
provision of this Act, or of any provision of a specific environmental
management Act, or of any other statutory provision concerned with the
protection of the environment, a court may on application -
(a) award costs on an appropriate scale to any
person or persons entitled to practice as advocate or attorney in the Republic
who provided free legal assistance or representation to such person or group in
the preparation for or conduct of the proceedings; and
(b) order that the party against whom the
relief is granted pay to the person or group concerned any reasonable costs
incurred by such person or group in the investigation of the matter and its
preparation for the proceedings.
[Sub-s. (3)
amended by s. 6 of Act 46/2003]
(1) Any person may -
(a) in the public interest; or
(b) in the interest of the protection of the
environment,
institute and conduct a prosecution
in respect of any breach or threatened breach of any duty, other than a public
duty resting on an organ of state, in any national or provincial legislation or
municipal bylaw, or any regulation, licence, permission or authorisation issued
in terms of such legislation, where that duty is concerned with the protection
of the environment and the breach of that duty is an offence.
(2) The provisions of sections 9 to 17 of the Criminal Procedure
Act, 1977 (Act No. 51 of 1977) applicable to a prosecution instituted and
conducted under section 8 of that Act must apply to a
prosecution instituted and conducted under subsection (1): Provided that if -
(a) the person prosecuting privately does so
through a person entitled to practice as an advocate or an attorney in the
Republic;
(b) the person prosecuting privately has given
written notice to the appropriate public prosecutor that he or she intends to
do so; and
(c) the public prosecutor has not, within 28
days of receipt of such notice, stated in writing that he or she intends to
prosecute the alleged offence,
(i) the person prosecuting privately shall
not be required to produce a certificate issued by the Attorney-General stating
that he or she has refused to prosecute the accused; and
(ii) the person prosecuting privately shall not
be required to provide security for such action.
(3) The court may order a person convicted upon
a private prosecution brought under subsection (1) to pay the costs and
expenses of the prosecution, including the costs of any appeal against such
conviction or any sentence.
(4) The accused may be granted an order for
costs against the person prosecuting privately, if the charge against the
accused is dismissed or the accused is acquitted or a decision in favour of the
accused is given on appeal and the court finds either:
(a) that the person instituting and conducting
the private prosecution did not act out of a concern for the public interest or
the protection of the environment; or
(b) that such prosecution was unfounded,
trivial or vexatious.
(5) When a private prosecution is instituted in
accordance with the provisions of this Act, the Attorney-General is barred from
prosecuting except with the leave of the court concerned.
(1) Whenever any person is convicted of an
offence under any provision listed in Schedule 3 and it appears that such
person has by that offence caused loss or damage to any organ of state or other
person, including the cost incurred or likely to be incurred by an organ of
state in rehabilitating the environment or preventing damage to the
environment, the court may in the same proceedings at the written request of
the Minister or other organ of state or other person concerned, and in the
presence of the convicted person, inquire summarily and without pleadings into
the amount of the loss or damage so caused.
(2) Upon proof of such amount, the court may
give judgment therefor in favour of the organ of state or other person
concerned against the convicted person, and such judgment shall be of the same
force and effect and be executable in the same manner as if it had been given
in a civil action duly instituted before a competent court.
(3) Whenever any person is convicted of an
offence under any provision listed in Schedule 3 the court convicting such person
may summarily enquire into and assess the monetary value of any advantage
gained or likely to be gained by such person in consequence of that offence,
and, in addition to any other punishment imposed in respect of that offence,
the court may order the award of damages or compensation or a fine equal to the
amount so assessed.
(4) Whenever any person is convicted of an
offence under any provision listed in Schedule 3 the court convicting such person
may, upon application by the public prosecutor or another organ of state, order
such person to pay the reasonable costs incurred by the public prosecutor and
the organ of state concerned in the investigation and prosecution of the
offence.
(5) Whenever any manager, agent or employee does
or omits to do an act which it had been his or her task to do or to refrain
from doing on behalf of the employer and which would be an offence under any
provision listed in Schedule 3 for the employer to do or omit
to do, and the act or omission of the manager, agent or employee occurred
because the employer failed to take all reasonable steps to prevent the act or
omission in question, then the employer shall be guilty of the said offence
and, save that no penalty other than a fine may be imposed if a conviction is
based on this subsection, liable on conviction to the penalty specified in the
relevant law, including an order under subsections (2), (3) and (4), and proof
of such act or omission by a manager, agent or employee shall constitute prima
facie evidence that the employer is guilty under this subsection.
(6) Whenever any manager, agent or employee does
or omits to do an act which it had been his or her task to do or to refrain
from doing on behalf of the employer and which would be an offence under any
provision listed in Schedule 3 for the employer to do or omit
to do, he or she shall be liable to be convicted and sentenced in respect
thereof as if he or she were the employer.
(7) Any person who is or was a director of a
firm at the time of the commission by that firm of an offence under any
provision listed in Schedule 3 shall himself or herself be
guilty of the said offence and liable on conviction to the penalty specified in
the relevant law, including an order under subsection (2), (3) and (4), if the
offence in question resulted from the failure of the director to take all
reasonable steps that were necessary under the circumstances to prevent the
commission of the offence: Provided that proof of the said offence by the firm
shall constitute prima facie evidence that the director is guilty under this
subsection.
(8) Any such manager, agent, employee or
director may be so convicted and sentenced in addition to the employer or firm.
(9) In subsection (7) and (8) -
(a) “firm” shall mean a body incorporated by
or in terms of any law as well as a partnership; and
(b) “director” shall mean a member of the
board, executive committee, or other managing body of a corporate body and, in
the case of a close corporation, a member of that close corporation or in the
case of a partnership, a member of that partnership.
(10) (a) The Minister may amend Part (a) of Schedule 3 by regulation.
(b) An MEC may amend Part (b) of Schedule 3 in respect of the province of
his or her jurisdiction by regulation.
34A. Offences
relating to environmental management inspectors
(1)
A person is guilty of an offence if
that person -
(a) hinders or interferes with an environmental
management inspector in the execution of that inspector's official duties;
(b) pretends
to be an environmental management
inspector, or the interpreter or
assistant of such an inspector;
(c) furnishes false or misleading information
when complying with a request of an environmental management inspector; or
(d) fails to comply with a request of an
environmental management inspector.
(2)
A person convicted of an offence in
terms of subsection (1) is liable to a fine or to imprisonment for a period not
exceeding one year or to both a fine and such imprisonment.
[S. 34A inserted
by s. 7 of Act 46/2003]
34B. Award of part
of fine recovered to informant
(1)
A court which imposes a fine for an
offence in terms of this Act or a specific environmental management Act may
order that a sum of not more than one-fourth of the fine be paid to the person
whose evidence led to the conviction or who assisted in bringing the offender
to justice.
(2)
A person in the service of an organ
of state or engaged in the implementation of this Act or a specific
environmental management Act is not entitled to such an award.
[S. 34B inserted
by s. 7 of Act 46/2003]
(1)
The court convicting a person of an
offence in terms of this Act or a specific environmental management Act may -
(a) withdraw any permit or other authorisation
issued in terms of this Act or a specific environmental management Act to that
person, if the rights conferred by the permit or authorisation were abused by that
person;
(b) disqualify that person from obtaining a
permit or other authorisation for a period not exceeding five years;
(c) issue an order that all competent
authorities authorised to issue permits or other authorisations be notified of
any disqualification in terms of paragraph (b).
[S. 34C inserted
by s. 7 of Act 46/2003]
(1)
The court convicting a person of an
offence in terms of this Act may declare any item including but not limited to
any specimen, container, vehicle, vessel, aircraft or document that was used
for the purpose of or in connection with the commission of the offence and was
seized under the provisions of this Part, to be forfeited to the State.
(2) The
provisions of section 35 of the Criminal Procedure Act,
1977 (Act No. 51 of 1977), apply to the forfeiture of any item in terms of
subsection (1), subject to such modifications as the context may require.
(3)
The Minister must ensure that any
specimen forfeited to the State in terms of subsection (1) is -
(a) repatriated to the country of export or
origin as appropriate, at the expense of the person convicted of the
offence involving that specimen;
(b) deposited in an appropriate institution,
collection or museum, if -
(i) the
specimen is clearly marked as a seized specimen; and
(ii) the
person convicted of the offence does not benefit or gain from such deposit; or
(c) otherwise disposed of in an appropriate
manner.
[S. 34D inserted
by s. 7 of Act 46/2003]
34E. Treatment of
seized live specimens
Pending the institution of any criminal proceedings in terms
of this Act or a specific environmental management Act or the resolution of
such proceedings, a live specimen that has been seized in terms of this Part
must be deposited with a suitable institution, rescue centre or facility which
is able and willing to house and properly care for it.
[S. 34E inserted
by s. 7 of Act 46/2003]
34F. Security for
release of vehicles, vessels or aircraft
(1)
If a vehicle, vessel or aircraft is
seized in terms of this Act and is kept for the purposes of criminal
proceedings, the owner or agent of the owner may at any time apply to a court
for the release of the vehicle, vessel or aircraft.
(2)
A court may order the release of the
vehicle, vessel or aircraft on the provision of security determined by the
court.
(3)
The amount of the security must at
least be equal to the sum of -
(a) the market value of the vehicle, vessel or
aircraft;
(b) the maximum fine that a court may impose
for the alleged offence; and
(c) costs and expenses incurred or reasonably
foreseen to be incurred by the State in connection with prosecuting the offence
and recoverable in terms of this Act.
(4)
If the court is satisfied that there
are circumstances which warrant a lesser amount of security, it may order the
release of the vehicle, vessel or aircraft subject to the provision of security
for such lesser amount.
[S. 34F inserted
by s. 7 of Act 46/2003]
(1)
The Minister may by regulation
specify offences in terms of this Act or a specific environmental management
Act in respect of which alleged offenders may pay a prescribed admission of
guilt fine instead of being tried by a court for the offence.
(2)
An environmental management inspector
who has reason to believe that a person has committed an offence specified in
terms of subsection (1) may issue to the alleged offender a written notice
referred to in section 56 of the Criminal Procedure Act,
1977 (Act No. 51 of 1977).
(3)
The amount of the fine stipulated in
the notice referred to in subsection (2) may not exceed the amount -
(a) prescribed for the offence; and
(b) which a court would presumably have imposed
in the circumstances.
(4)
The provisions of sections 56, 57 and 57A of the Criminal Procedure Act, 1977,
apply subject to such modifications as the context may require, to written
notices and admission of guilt fines referred to in this section.
[S. 34G inserted
by s. 7 of Act 46/2003]
(1) The Minister and every MEC and municipality,
may enter into environmental management cooperation agreements with any person
or community for the purpose of promoting compliance with the principles laid
down in this Act.
(2) Environmental management cooperation
agreements must -
(a) only be entered into with the agreement of
-
(i) every organ of state which has
jurisdiction over any activity to which such environmental management
cooperation agreement relates;
(ii) the Minister and the MEC concerned;
(b) only be entered into after compliance with
such procedures for public participation as may be prescribed by the Minister;
and
(c) comply with such regulations as may be
prescribed under section 45.
(3) Environmental management cooperation
agreements may contain -
(a) an undertaking by the person or community
concerned to improve on the standards laid down by law for the protection of
the environment which are applicable to the subject matter of the agreement;
(b) a set of measurable targets for fulfilling
the undertaking in (a), including dates for the achievement of such targets;
and
(c) provision for -
(i) periodic monitoring and reporting of
performance against targets;
(ii) independent verification of reports;
(iii) regular independent monitoring and inspections;
(iv) verifiable indicators of compliance with
any targets, norms and standards laid down in the agreement as well as any
obligations laid down by law;
(d) the measures to be taken in the event of
non-compliance with commitments in the agreement, including where appropriate
penalties for non-compliance and the provision of incentives to the person or
community.
[Heading
substituted by s. 8 of Act 46/2003]
(1) The Minister may purchase or, subject to
compensation, expropriate any property for environmental or any other purpose
under this Act, if that purpose is a public purpose or is in the public
interest.
[Sub-s. (1)
amended by s. 110 of Act 28/2002]
(2) The Expropriation Act, 1975 (Act No. 63 of
1975) applies to all expropriations under this Act and any reference to the
Minister of Public Works in that Act must be read as a reference to the
Minister for purposes of such expropriation.
(3) Notwithstanding the provisions of subsection
(2), the amount of compensation and the time and manner of payment must be
determined in accordance with section 25 (3) of the Constitution,
and the owner of the property in question must be given a hearing before any
property is expropriated.
The Minister may reserve State land with the consent of the
Minister authorised to dispose of the land, and after consultation with any
other Minister concerned, for environmental or other purposes in terms of this
Act, if that purpose is a public purpose or is in the public interest.
38. Intervention
in litigation
The Minister may intervene in
litigation before a court in any matter under this Act.
The Director-General may enter into agreements with organs
of state in order to fulfil his or her responsibilities.
40. Appointment
of employees on contract
(1) The Director-General may appoint employees
on contract outside the provisions of the Public Service Act,
1994 (Proclamation No. 103 of 1994), when this is necessary to carry out
the functions of the Department.
(2) The Director-General must, from time to
time, and after consultation with the Department of Public Service and
Administration, determine the conditions of employment of such employees.
(3) Such employees must be remunerated from
money appropriated for that purpose by Parliament.
(1) In this section “assignment” means an
assignment as contemplated in section 99 of the Constitution.
(2) The Minister must record all assignments
referred to in subsection (1) in a Schedule to this Act and may amend that
Schedule.
42. Delegation
of powers and duties by Minister and Director-General
(1)
The Minister may delegate a power or
duty vested in him or her in terms of this Act or a specific environmental
management Act to -
(a) the Director- General;
(b) an MEC, by agreement with the MEC;
(c) the management authority of a protected
area; or
(d) any organ of state, by agreement with that
organ of state.
(2)
A delegation referred to in
subsection (1) -
(a) must be in writing;
(b) may be made subject to conditions;
(c) does not prevent the exercise of the power
or the performance of the duty by the Minister himself or herself;
(d) may include the power to subdelegate; and
(e) may be withdrawn by the Minister.
(2A)
The Minister must give notice in the Gazette of any delegation of a power
or duty to an MEC, the management authority of a protected area or an organ of
state.
(2B)
The Minister may confirm, vary or
revoke any decision taken in consequence of a delegation or subdelegation in
terms of this section, subject to any rights that may have accrued to a person
as a result of the decision.
(2C)
The Minister may not delegate a power
or duty vested in the Minister in terms of this Act or a specific environmental
management Act -
(a) to make regulations;
(b) to publish notices in the Gazette;
(c) to appoint a member of a board or
committee; or
(d) to expropriate private land.
(3)
The Director-General may delegate a
power or duty vested in him or her by or under this Act or a specific
environmental management Act to -
(a) the holder of an office in the Department;
or
(b) after consultation with a provincial head
of department, an officer in a provincial administration or municipality.
(4)
The Director-General may permit a
person to whom a power or duty has been delegated by the Director-General to
delegate further that power or duty.
(5)
A delegation referred to in
subsection (3) and the permission referred to in subsection (4) -
(a) must be in writing;
(b) may be subject to conditions;
(c) do not prevent the exercise of the power or
the performance of the duty by the Director-General himself or herself; and
(d) may be withdrawn by the Director-General.
[S. 42
substituted by s. 9 of Act 46/2003]
42A. Delegation of
powers by MEC
(1)
The MEC of a province may delegate a
power or duty vested in or delegated to the MEC in terms of this Act or a
specific environmental management Act to -
(a) the head of that MEC's department;
(b) the management authority of a provincial or
local protected area;
(c) a municipality, by agreement with the
municipality; or
(d) any provincial organ of state, by agreement
with that organ of state.
(2)
A delegation in terms of subsection
(1) -
(a) must be in writing;
(b) may be made subject to conditions;
(c) does not prevent the exercise of the power
or the performance of the duty by the MEC personally;
(d) may include the power to subdelegate; and
(e) may be withdrawn by the MEC.
(3)
The MEC may confirm, vary or revoke
any decision taken in consequence of a delegation or subdelegation in terms of
this section, subject to any rights that may have accrued to a person as a
result of the decision.
(4)
The MEC may not delegate a power or
duty vested in the MEC in terms of this Act or a specific environmental
management Act -
(a) to make regulations;
(b) to publish notices in the Gazette;
(c) to appoint a member of a board or
committee; or
(d) to expropriate private land.
[S. 42A inserted
by s. 10 of Act 46/2003]
(1)
Any affected person may appeal to the
Minister against a decision taken by any person acting under a power delegated
by the Minister under this Act or a specific environmental management Act.
(2)
Any affected person may appeal to the
relevant MEC against a decision taken by any person acting under a power
delegated by the MEC under this Act or a specific environmental management Act.
(3)
Any affected party may appeal to the
Minister or MEC, as the case may be, against -
(a) any decision to issue or to refuse to issue
an environmental authorisation or to grant an exemption in terms of Chapter 5;
(b) any provision or condition of an
environmental authorisation or exemption issued or granted in terms of Chapter 5;
(c) any directive issued in terms of Chapter 5.
(4)
An appeal under subsections (1) to
(3) must be noted and must be dealt with in the manner prescribed and upon
payment of a prescribed fee.
(5)
The Minister or MEC, as the case may
be, may consider and decide an appeal or appoint an appeal panel to consider
and advise the Minister or MEC on the appeal.
(6)
The Minister or MEC may, after
considering such an appeal, confirm, set aside or vary the decision, provision,
condition or directive or make any other appropriate order, including an order
that the prescribed fee paid by the appellant, or any part thereof, be
refunded.
(7)
An appeal under this section does not
suspend an environmental authorisation or exemption, or any provisions or
conditions attached thereto, or any directive, unless the Minister or MEC
directs otherwise.
[S. 43
substituted by s. 4 of Act 8/2004]
(1) The Minister may make regulations -
(a) dealing with any matter which under this
Act must be dealt with by regulation;
(aA) prohibiting, restricting or controlling
activities which are likely to have a detrimental effect on the environment;
and
[Para. (aA)
inserted by s. 2 of Act 56/2002]
(b) generally, to carry out the purposes and
the provisions of this Act.
(2) The Minister may make different regulations
under this Act in respect of different activities, provinces, geographical
areas and owners or classes of owners of land.
(3) The Minister may by regulation provide that
infringements of certain regulations constitute criminal offences and prescribe
penalties for such offences.
45. Regulations
for management cooperation agreements
(1) The Minister may make regulations concerning
-
(a) procedures for the conclusion of
environmental management cooperation agreements, which must include procedures
for public participation;
(b) the duration of agreements;
(c) requirements relating to the furnishing of
information;
(d) general conditions and prohibitions;
(e) reporting procedures;
(f) monitoring and inspection.
(2) An MEC or municipal council may substitute
his or her or its own regulations or bylaws, as the case may be, for the
regulations issued by the Minister under subsection (1) above: Provided that
such provincial regulations or municipal bylaws must cover the matters
enumerated in subsection (1), and comply with the principles laid down in this
Act.
46. Model
environmental management bylaws
(1) The Minister may make model bylaws aimed at
establishing measures for the management of environmental impacts of any
development within the jurisdiction of a municipality, which may be adopted by
a municipality as municipal bylaws.
(2) Any municipality may request the
Director-General to assist it with the preparation of bylaws on matters
affecting the environment and the Director-General may not unreasonably refuse
such a request.
(3) The Director-General may institute
programmes to assist municipalities with the preparation of bylaws for the
purposes of implementing this Act.
(4) The purpose of the model bylaws referred to
in subsection (1) must be to -
(a) mitigate adverse environmental impacts;
(b) facilitate the implementation of decisions
taken, and conditions imposed as a result of the authorisation of new
activities and developments, or through the setting of norms and standards in
respect of existing activities and developments; and
(c) ensure effective environmental management
and conservation of resources and impacts within the jurisdiction of a
municipality in cooperation with other organs of state.
(5) The model bylaws referred to in subsection
(1) must include measures for environmental management, which may include -
(a) auditing, monitoring and ensuring
compliance; and
(b) reporting requirements and the furnishing
of information.
47. Procedure
for making regulations
(1) Before making any regulations under this
Act, a Minister or MEC must -
(a) publish a notice in the relevant Gazette -
(i) setting out the draft regulations; and
(ii) inviting written comments to be submitted
on the proposed regulations within a specified period mentioned in the notice;
and
(b) consider all comments received in
accordance with paragraph (a) (ii).
(2) The Minister must, within 30 days after
promulgating and publishing any regulations under this Act, table the
regulations in the National Assembly and the National Council of Provinces, and
an MEC must so table the regulations in the relevant provincial legislature or,
if Parliament or the provincial legislature is then not in session, within 30
days after the beginning of the next ensuing session of Parliament or the
provincial legislature.
(3) ……….
[Sub-s. (3)
deleted by s. 5 of Act 8/2004]
(4) ……….
[Sub-s. (4)
deleted by s. 5 of Act 8/2004]
(5) ……….
[Sub-s. (5)
deleted by s. 5 of Act 8/2004]
(6) ……….
[Sub-s. (6)
deleted by s. 5 of Act 8/2004]
47A. Regulations,
legal documents and steps valid under certain circumstances
(1)
A regulation or notice, or an
authorisation, permit or other document, made or issued in terms of this Act or
a specific environmental management Act -
(a) but which does not comply with any
procedural requirement of the relevant Act, is nevertheless valid if the
non-compliance is not material and does not prejudice any person;
(b) may
be amended or replaced
without following a
procedural requirement of the relevant Act if -
(i) the
purpose is to correct an error; and
(ii) the
correction does not change the rights and duties of any person materially.
(2)
The failure to take any steps in
terms of this Act or a specific environmental management Act as a prerequisite
for any decision or action does not invalidate the decision or action if the
failure -
(a) is not material;
(b) does not prejudice any person; and
(c) is not procedurally unfair.
[S. 47A inserted
by s. 11 of Act 46/2003]
When in terms of this Act or a specific environmental
management Act the Minister or an MEC is required to consult any person or
organ of state, such consultation is regarded as having been satisfied if a
formal written notification of intention to act has been made to that person or
organ of state and no response has been received within a reasonable time.
[S. 47B inserted
by s. 11 of Act 46/2003]
47C. Extension of
time periods
The Minister or an MEC may extend, or condone a failure by a
person to comply with, a period in terms of this Act or a specific
environmental management Act, except a period which binds the Minister or MEC.
[S. 47C inserted
by s. 11 of Act 46/2003]
(1)
A notice or other document in terms
of this Act or a specific environmental management Act may be issued to a
person -
(a) by delivering it by hand;
(b) by sending it by registered mail -
(i) to
that person’s business or residential address; or
(ii) in
the case of a juristic person, to its registered address or principal place of
business; or
(c) where an address is unknown despite
reasonable enquiry, by publishing it once in the Gazette and once in a local newspaper circulating in the area of
that person's last known residential or business address.
(2)
A notice or other document issued in
terms of subsection (1)(b) or (c) must be regarded as having come to the notice
of the person, unless the contrary is proved.
[S. 47D inserted
by s. 11 of Act 46/2003]
This Act is binding on the State
except in so far as any criminal liability is concerned.
Neither the State nor any other
person is liable for any damage or loss caused by -
(a)
the exercise of any power or the performance
of any duty under this Act or any specific environmental management Act; or
(b)
the failure to exercise any power, or
perform any duty under this Act or any specific environmental management Act,
unless the exercise of or failure to exercise the power, or
performance of or failure to perform the duty was unlawful, negligent or in bad
faith.
[S. 49
substituted by s. 12 of Act 46/2003]
(1) Sections
2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 14A, 14B, 14C, 15, 27A and 38 of
the Environment Conservation Act, 1989 (Act No. 73 of 1989), are hereby
repealed.
(2) Sections 21, 22 and 26 of the Environment Conservation Act,
1989 (Act No. 73 of 1989) and the notices and regulations issued pursuant to
sections 21 and 22 and in force on the commencement date of this Act are
repealed with effect from a date to be published by the Minister in the Gazette, which date may not be
earlier than the date on which regulations or notices made or issued under section 24 of this Act are promulgated and
the Minister is satisfied that the regulations and notices under sections 21
and 22 have become redundant.
(3) Any application made in terms of section 21, 22 or 26 of the Environment Conservation Act,
1989 (Act No. 73 of 1989), that has been submitted but not finalised when those
sections are repealed, must be finalised as if those sections had not been
repealed.
[Sub-s. (3) added by s. 6 of Act 8/2004]
(4) In order to ensure that the transition between
the legal requirements of sections 21, 22 and 26 of the Environment Conservation Act,
1989 (Act No. 73 of 1989), and the requirements of this Act is efficient, the
Minister may by notice in the Gazette
list activities included in Government Notice R1182 of 5 September 1997
that will remain valid until such time as an MEC promulgates a list of activities
for that province.
[Sub-s. (4) added by s. 6 of Act 8/2004]
Anything done or deemed to have been
done under a provision repealed by this Act -
(a) remains
valid to the extent that it is consistent with this Act until anything done
under this Act overrides it; and
(b) subject
to paragraph (a) is considered to be an action under the corresponding
provision of this Act.
This Act is called the National
Environmental Management Act, 1998.
This Act comes into operation on a
date fixed by the President in the Gazette.
Section 11 (1)
National departments exercising functions which may affect
the environment
* Department of Environmental Affairs and Tourism
* Department of Land Affairs
* Department of Agriculture
* Department of Housing
* Department of Trade and Industry
* Department of Water Affairs and Forestry
* Department of Transport
* Department of Defence
Section 11 (2)
National departments exercising functions that involve the
management of the environment
* Department of Environmental Affairs and Tourism
* Department of Water Affairs and Forestry
* Department of Minerals and Energy
* Department of Land Affairs
* Department of Health
* Department of Labour
(Section 34)
Part
(a): National Legislation
|
No. and year of law |
Short title |
Relevant provisions |
|
Act No.
36 of 1947 |
Fertilizers,
Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947 |
Section
18(1)(i) in so far as it relates to contraventions of sections 7 and 7bis |
|
Act No.
71 of 1962 |
Animals
Protection Act, 1962 |
Sections
2(1) and 2A |
|
Act No.
45 of 1965 |
Atmospheric
Pollution Prevention Act, 1965 |
Section 9 |
|
Act No.
63 of 1970 |
Mountain
Catchment Areas Act, 1979 |
Section
14 in so far as it relates to contraventions of section 3 |
|
Act No.
15 of 1973 |
Hazardous
Substances Act, 1973 |
Section
19(1)(a) and (b) in so far as it relates to contraventions of sections 3 and
3A |
|
Act No.
63 of 1977 |
Health
Act, 1977 |
Section
27 |
|
Act No.
73 of 1980 |
Dumping
at Sea Control Act, 1980 |
Sections
2(1)(a) and (b) |
|
Act No. 6
of 1981 |
Marine
Pollution (Control and Civil Liability) Act, 1981 |
Section
2(1) |
|
Act No.
43 of 1983 |
Conservation
of Agricultural Resources Act, 1983 |
Sections
6 and 7 |
|
Act No. 2
of 1986 |
Marine
Pollution (Prevention of Pollution from Ships) Act, 1986 |
Section
3A |
|
Act No.
73 of 1989 |
Environment
Conservation Act, 1989 |
Section
29(2)(a) and (4) |
|
Act No.
18 of 1998 |
Marine
Living Resources Act, 1998 |
Section
58(1) in so far as it relates to contraventions of sections 43(2), 45 and 47,
and section 58(2) in so far as it relates to contraventions of international
conservation and management measures |
|
Act No.
36 of 1998 |
National
Water Act, 1998 |
Section
151(i) and (j) |
[Part (a) substituted by s. 8 of Act
8/2004]
Part (b): Provincial
Legislation
|
No. and year of law |
Short title
|
Relevant provisions |
|
Ordinance
No. 8 of 1969 |
Orange
Free State Conservation |
Section
40 (1) (a) in so far as it relates to contraventions of sections
2 (3), 14 (2), 15 (a), 16 (a) and 33 |
|
Ordinance
No. 9 of 1969 |
Orange
Free State Townships |
Section
40 (1) (a) (ii) |
|
Ordinance
No. 15 of 1974 |
Natal
Nature Conservation |
Section
55 in so far as it relates to section 37 (1), to section 49 in respect
of specially protected game and to section 51 in respect of specially
protected game, section 109 in so far as it relates to section 101, to
section 102 and to section 104, section 154 in so far as it relates to
section 152; section 185 in so far as it relates to section 183, and section
208 in so far as it relates to section 194 and to section 200 |
|
Ordinance
No. 19 of 1974 |
Cape
Nature and Environmental Conservation |
Section
86 (1) in so far as it relates to contraventions of sections 26,
41 (1) (b) (ii) and (c)(e), 52 (a), 57 (a),
58 (h) and 62 (1) |
|
Ordinance
No. 12 of 1983 |
Transvaal
Nature Conservation |
Sections
16A, 42, 84, 96 and 98 |
|
Ordinance
No. 15 of 1985 |
Cape Land
Use Planning |
Section
46 (1) in so far as it relates to sections 23 (1) and 39 (2) |
|
Ordinance
No. 15 of 1986 |
Transvaal
Town Planning and Townships |
Sections
42, 93 and 115 |
|
Act No. 5
of 1998 |
KwaZulu
Natal Planning and Development |
Section
48 |
|
Act No.
29 of 1992 |
KwaZulu
Nature Conservation |
Section
67 in so far as it relates to sections 59 (1), 59 (2), 60 (1)
and 62 (1); section 86 in so far as it relates to sections 76, 77 and
82; and section 110 in so far as it relates to section 109 |