Centre for Environmental Rights – Advancing Environmental Rights in South Africa

On 26 August 2011, the Minister of Water and Environmental Affairs published the National Environmental Management Laws Amendment Bill, 2011 for comment by 25 September 2011.

Key features of this broad scope amendment bill include:

• the proposed creation of an effective amnesty for government departments who have failed to prepare environmental implementation plans, and make these due every 5 years (s.2, amending s.11 of NEMA);
• a proposal for creating additional powers for the Minister and MECs to prohibit or restrict authorisations, and to develop norms and standards, for specific activities, sectors of geographical areas (referred to as “sensitive areas” in the explanatory note) (ss.4-5, amending ss.23-24 of NEMA);
• a proposed option of escalating unprocessed applications for environmental authorisations in provinces to DEA (s.6, amending s.24C of NEMA);
• various proposed amendments to s.24G, including increasing the maximum administrative fine to R5 million per offence, but excluding persons who acted in emergency from the fine (s.8);
• various proposed “adjustments” to s.28 of NEMA (s.10);
• proposed deletion of s.28(12) of NEMA, which gives any person the right to take reasonable measures under s.28(4) after 30 days’notice to the DEA or provincial environment department (s.10(f));
• a proposed new s.28A creating a criminal offence of fault-based pollution, degradation or detrimental impact on the environment. This proposed provision seems to be a duplication of the current s.28(14) and (15)), except for increasing the penalty from R1 million and 1 year imprisonment to R5 million and 5 years for a first conviction, and R10 million and 10 years for a second (s.11);
• a proposed inclusion of non-compliance with a directive under s.30(6) of NEMA in the criminal offence linked to s.30 (emergency incidents) (s.12);
• a proposed amendment to s.31J of NEMA to align the search and seizure powers of EMIs with the Criminal Procedure Act (s.13);
• a proposal to make organs of state also subject to criminal liability under NEMA (s.17, amending s.48);
• a proposal giving certain authorised officials the right to enter private land to fulfil functions under NEMA or any of the SEMAs (s.18, creating a new s.49A);
• various amendments to the NEM: Biodiversity Act (ss. 20-49); and
• a proposal to increase the effective maximum penalties under NEM: Air Quality Act regulations from R100 000 and 5 years to R5 million and 5 years for a first conviction, and R10 million and 10 years for a second (s.50, amending s.55 of NEMAQA). This will align NEM:AQA with NEMA and the other SEMAs.

The amendment bill is published as R.586 of 2011, Government Gazette 34558 of 26 August 2011 and can be downloaded here.

We encourage all members of the public and civil society organisations to submit comments. These must be sent to [email protected] or fax 012 320 7561 by 25 September 2011, and enquiries can be directed to Sibusiso Shabalala at 012 310 3449. You are welcome to copy the Centre on your submissions, or to send your suggestions and comments by no later than 18 September 2011 to [email protected]. The Centre will prepare a comprehensive submission to the DEA on the amendment bill.