National Environment Management

Everyone has the right:–

(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

And so it is entrenched in the Bill of Rights, in section 24 of our Constitution. This state of affairs is the laudable (but not easily achieved) aim of the National Environmental Management Act 1998.

The Act falls under the authority of the Minister of Environmental Affairs but the Director-General in the department is really the one who carries the can.

A. Environmental authorisation

1. The Minister (or a Provincial MEC with the concurrence of the Minister) can identify activities which, and areas in which certain activities, may not commence without authorisation from the relevant authority. (The activities are listed in section G below.) It is a criminal offence to do so.¹

2. Certain activities do not require environmental authorisation. However, if norms and standards or procedures, criteria or conditions have been prescribed for the activities, it is a crime not to comply with any of them.²

3. Anyone who fails to comply with (or contravenes) a condition of an authorisation for any activity, or of an approved environmental management programme, is guilty of an offence.³

B. Exemptions

1. The Minister (or a Provincial MEC) can grant exemption from certain of the provisions in the Act. If he does, and attaches conditions to the exemption, it is an offence to contravene or fail to comply with any such condition as may be applicable.⁴

C. Incidents

An ‘incident’ is an unexpected, sudden and uncontrolled release of a hazardous substance (from whatever source, or for any reason) that may cause significant harm to the environment, or human life, or property.⁵

1. The responsible person or (where the incident occurred in the course of that person’s employment) his employer, must forthwith report, through the most effective means reasonably available:
   • the nature of the incident;⁶
   • any risks posed by the incident to public health, safety and property;⁷
   • the toxicity of substances or by-products released by the incident; and⁸
   • any steps that should be taken in order to avoid or minimise the effects of the incident on public health and the environment.⁹

   The report must be sent to:

   • the Director-General;¹⁰
   • the South African Police Services and the relevant fire prevention service;¹¹
   • the relevant provincial head of department or municipality; and¹²
   • all persons whose health may be affected by the incident.¹³

   It is a crime not to comply with all of these stipulations.

2. The responsible person (or his employer) must, as soon as is reasonably practicable:
   • take all reasonable measures to contain and minimise the effects of the incident, and any risks posed by the incident;¹⁴
   • undertake clean-up procedures;¹⁵
   • remedy the effects of the incident; and¹⁶
   • assess the immediate and long-term effects of the incident on the environment and public health.¹⁷
3. The responsible person (or his employer) must, within 14 days of the incident, further report to the Director-General, provincial head of department and municipality, such information as is available to enable an evaluation of the incident, including:
   • the nature of the incident;¹⁸
   • the substances involved and an estimation of the quantity released;¹⁹
   • the possible acute effect on persons and the environment;²⁰
   • the data needed to assess these effects;²¹
   • initial measures taken to minimise impacts;²²
   • the causes of the incident (whether direct or indirect) including equipment, technology, system, or management failure; and²³
   • measures taken and to be taken to avoid a recurrence of such incident.²⁴
4. A relevant authority may direct the responsible person to undertake specific measures within a specific time. It is an offence to fail to comply with any such directive.²⁵

D. Whistle-blowers

No person is civilly or criminally liable, and nor may he be dismissed, disciplined, prejudiced or harassed because he disclosed information whilst he genuinely and reasonably believed that he was disclosing evidence of an environmental risk.^26 27

1. It is a crime to benefit someone (or to promise to do so) in exchange for not exercising his right to the whistle-blower protection.²⁸

2. Anyone who takes any of the steps (contemplated above) against a whistle-blower is guilty of an offence.²⁹

E. General

1. Anyone who commits any act or omission which causes significant pollution or degradation of the environment or is likely to cause significant pollution or degradation of the environment is guilty of an offence.³⁰

2. Any person who commits any act or omission which detrimentally affects or is likely to detrimentally affect the environment is guilty of an offence.³¹

F. Officials and inspectors

1. It is a crime to disclose information about any other person if that information was acquired while exercising or performing any power or duty in terms of the Act.³²

2. It is a crime to hinder or interfere with an environmental management inspector in the execution of his duties.³³

3. It is a crime to pretend to be an environmental management inspector, or the interpreter or assistant of such an inspector.³⁴

4. It is a crime to furnish false or misleading information when complying with a request of an environmental management inspector.³⁵

5. It is a crime to fail to comply with a request of an environmental management inspector.³⁶

6. An environmental management inspector can issue a ‘compliance notice’ to any person who is believed to be contravening the Act, or any term or condition of a permit, etc. If you fail to comply with, or contravene any such compliance notice you will be guilty of an offence.³⁷

G. Activities requiring authorisation before commencement

1. The construction of billboards exceeding 18 square metres in size outside urban or mining areas or outside industrial complexes.

2. The construction of reservoirs for bulk water supply with a capacity of more than 250 cubic metres.

3. The construction of masts or towers of any material or type used for telecommunication broadcasting or radio transmission purposes where the mast:
   • is to be placed on a site not previously used for this purpose, and
   • will exceed 15 metres in height, but excluding attachments to existing buildings and masts on rooftops.

4. The construction of a road wider than 4 metres with a reserve less than 13.5 metres.

5. The construction of resorts, lodges or other tourism accommodation facilities.

6. The conversion of existing structures to resorts, lodges or tourism accommodation facilities that sleep 15 people or more.

7. The construction of aircraft strips and runways 1.4 kilometres and shorter.

8. The construction of above ground cableways and funiculars.

9. The construction of facilities or infrastructure for the storage, or storage and handling of dangerous goods, where such storage occurs in containers with a combined capacity of 30 but not exceeding 80 cubic metres.

10. The construction of tracks or routes for the testing, recreational use or outdoor racing of motor powered vehicles (but excluding the conversion of existing tracks or routes).

11. The clearance of an area of 300 square metres or more of vegetation where 75% or more of the vegetative cover constitutes indigenous vegetation.

12. The clearance of an area of 1 hectare or more of vegetation where 75% or more of the vegetative cover constitutes indigenous vegetation, except where such removal of vegetation is required for the undertaking of a process or activity included in the list of waste management activities published in terms of the Act; or the undertaking of a linear activity falling below the prescribed thresholds.

13. The clearance of an area of 5 hectares or more of vegetation where 75% or more of the vegetative cover constitutes indigenous vegetation, except where such removal of vegetation is required for:
    • purposes of agriculture or afforestation inside areas identified in spatial instruments adopted by the competent authority for agriculture or afforestation purposes;
    • the undertaking of a process or activity included in the list of waste management activities published in terms of section 19 of the Act; or the undertaking of a linear activity falling below the prescribed thresholds.

14. The construction of facilities, infrastructure or structures of any size for any form of aquaculture.

15. The construction of:
    • jetties exceeding 10 square metres in size;
    • slipways exceeding 10 square metres in size;
    • buildings with a footprint exceeding 10 square metres in size; or
    • infrastructure covering 10 square metres or more where such construction occurs within a watercourse or within 32 metres of a watercourse measured from the edge of a watercourse excluding where such construction will occur behind the development setback line.

16. The expansion of reservoirs for bulk water supply where the capacity will be increased by more than 250 cubic metres.

17. The expansion of a resort, lodge, hotel and tourism or hospitality facilities where the development footprint will be expanded.

18. The widening of a road by more than 4 metres, or the lengthening of a road by more than 1 kilometre.

19. The expansion of runways or aircraft landing strips where the expanded runways or aircraft landing strips will be longer than 1.4 kilometres in length.

20. The expansion of above ground cableways and funiculars where the development footprint will be increased.

21. The expansion of tracks or routes for the testing, recreational use, or outdoor racing of motor powered vehicles (excluding the conversion of existing tracks or routes) where the development footprint will be expanded.

22. The expansion of facilities or infrastructures for the storage, or storage and handling of a dangerous good, where such storage facilities will be expanded by 30 cubic metres or more but less than 80 cubic metres.

23. The expansion of:
    • jetties where the jetty will be expanded by 10 square metres in size or more;
    • slipways where the slipway will be expanded by 10 square metres or more;
    • buildings where the buildings will be expanded by 10 square metres or more in size; or
    • infrastructure where the infrastructure will be expanded by 10 square metres or more where such construction occurs within a watercourse or within 32 metres of a watercourse, measured from the edge of a watercourse, excluding where such construction will occur behind the development setback line.

24. The expansion of facilities, infrastructure or structures of any size for any form of aquaculture.

25. Phased activities for all activities listed in the Schedule; and, as it applies to a specific geographical area, any activity which commenced on or after the effective date of the schedule, where any phase of the activity may be below a threshold but where a combination of the phases, including expansions or extensions, will exceed a specified threshold.