Applications for rectification of unlawful commencement or continuation of listed activities
Since its first incorporation into NEMA, s.24G has been a thorn in the flesh of a wide group of different stakeholders, from authorities to civil society organisations to innocent and aggrieved violators of NEMA.
S.24G currently provides that the Minister or MEC may, on application by a party who has committed an offence under s.24F of NEMA (i.e. commenced listed activity without an environmental authorisation), direct that party to prepare what is essentially an environmental impact report (including public participation) and an environmental management plan (EMP). On receipt of such a report and EMP, the Minister or MEC may either grant an after-the-fact environmental authorisation subject to conditions, or direct the applicant to rehabilitate the harm caused.
In May 2011, based on inputs from CER stakeholders and members of its expert panel, the Centre for Environmental Rights made a submission to the Department of Environmental Affairs that proposed a revised s.24G. Download that submission and the proposed revised s.24G here.
In September 2011, the Centre for Environmental Rights made a submission to the Department of Environmental Affairs on the National Environmental Management Laws Amendment Bill, 2011, published for comment on 26 August 2011. The Amendment Bill included amendments proposed to s.24G.
Following public comment, the Draft Bill was submitted to the Parliament of the Republic of South Africa in February 2012. The Bill was referred to the Portfolio Committee on Water and Environmental Affairs and the Select Committee on Land and Environmental Affairs in terms of Joint Rule 159, on 10 February 2012, for processing.
On 4 May 2012, the National Environmental Management Laws Amendment Bill [B13-2012] was introduced in Parliament. The Portfolio Committee on Water and Environmental Affairs invited interested stakeholders to submit written comments on the Bill by 18 July 2012 (although comments were invited on 19 March 2012, this was before the latest version of the draft Bill was available for comment). Specific dates and times for public hearings have not yet been provided.
Among other things, the Bill proposes: an increase of the s. 24G administrative fine from R1 million to R5 million; specific mention of the applicability of the section to the commencement of a waste management activity without a waste management licence; and an exemption of a listed activity undertaken in emergency response situations from the payment of such fine. According to the Memorandum on the Objects of the Bill:
- The Department has received requests regarding the applicability of section 24G to the unlawful commencement of the waste management activity under the National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008). This amendment will provide legal clarity on the applicability of section 24G to the unlawful commencement of the waste management activity under the National Environmental Management: Waste Act, 2008.
- In addition, the Department has also observed the trends of companies budgeting for the section 24G administrative fine and then commence with an activity without the environmental authorisation. The amendment will also increase the section 24G administrative fine from R1 Million Rand to R5 Million Rand.
- Furthermore, the Department of Cooperative Affairs requested the Department to provide for the exemption from the payment of the section 24G administrative fine for those persons undertaking a listed activity in emergency response situations. The current provisions do not allow the competent authority to consider a section 24G application before the payment of the administrative fine. This amendment will provide for an exemption from section 24G administrative fine for a person undertaking a listed activity without an environmental authorisation in emergency response situations.
On 18 July 2012, the CER and the LRC made a joint written submission on the Bill. Annexure 1 to these submissions are the May 2011 submissions attached above. A Master’s thesis on section 24G of NEMA by Lea September was also an annexure to the joint submissions. Various other organisations supported these submissions.
On 21 August 2012, both the Centre and the LRC made oral submissions to the PCWEA.