This section sets out the fundamental principles upon which responsible environmental management should rely. These principles apply throughout South Africa and to everybody, including organs of state.

Compliance Obligations?

As these principles guide the administration of this Act and all laws in South Africa that are concerned with protecting the environment, they are of the utmost importance. Ensure that there is a fundamental understanding of what they entail, as this could sensibly guide policy planning and implementation of your systems to ensure legal compliance and good environmental management.

This section seeks to promote integrated environmental management by promoting the principals set out in section 2.

Compliance Obligations?

This section seeks to ensure that environmental impacts are identified and evaluated with a view to minimizing negative impacts. Public participation is granted in the decision making process where decisions are taken that may affect the environment.

This section provides that the Minister (or an MEC with the concurrence of the Minister) may identify activities that may not commence without an environmental authorization. The potential consequences for or impacts on the environment of such listed activities must be considered, investigated, assessed and reported on to the competent authority.

Compliance Obligations?

The Minister has identified activities that may not commence without an environmental authorization (“listed activities”). If you trigger a listed activity the Environmental Impact Assessment Regulations determine the process you will be required to follow in order to obtain an environmental authorization.

The type of environmental impact assessment which must be completed will be determined by which listed activity you trigger (listed activity 1, 2 or 3).

The Minister may identify geographical areas based on environmental attributes, and as specified in an environmental management instrument, adopted in the prescribed manner by the Minister or an MEC, with the concurrence of the Minister, in which specified activities may not commence without an environmental authorisation from the competent authority. In addition the Minister may exclude from the requirement to obtain an environmental authorisation but which must comply with the requirements set out in an environmental management instrument.

These sections set out the procedures to be followed by the Minister or MEC when listing or de-listing activities or areas as contemplated in section 24 above. The procedures for identifying the competent authorities responsible for the granting of environmental authorizations is explained. There is also a requirement that the Minister or MEC has to publish a list of listed activities and competent authorities in the relevant Government Gazette. The minimum conditions attached to environmental authorisations is also set out.

Compliance Obligations?

It is important to take note of the requirements placed on the Minister or MEC, as the results of the procedures explained above impact directly on you if you commence a listed activity.

This section makes it an offence to commence and continue with a listed activity in the absence of an environmental authorisation.

Compliance Obligations?

It is very important to assess activities before commencement to determine if they trigger any of the listed activities published by the Minister. If they do, an environmental authorization must be obtained first.

In effect, this section allows any person who has commenced with a listed activity without first having obtained an environmental authorization, to apply “retrospectively” to the relevant Minister or MEC for an environmental authorization. In addition, a person who has commenced, undertaken or conducted a waste management activity without a waste management licence in terms of section 20(b) of the National Environmental Management Waste Act, 2008.

The Minister may order that the activity ceases immediately (either in whole or in part) and the environment is rehabilitated within such time and subject to such conditions as the Minister may deem necessary. Alternatively, the Minister may issue an environmental authorization on such conditions as the Minister or MEC sees fit. As the commencement of a listed activity without an environmental authorization is unlawful, this section provides that a person applying under this section has to pay an administrative fine.

Compliance Obligations?

If you have commenced with a listed activity for which you should have obtained an environmental authorization before you did so, this section allows you to apply “retrospectively”. Note that a fine will be paid. Note further that if the application results in an order to stop the activity and you fail to do so, you will be liable for a fine up to the maximum legislated amount set out in the Act.

Please note the amendments inserted to section 24G by the National Environmental Management Law Amendment Act.

This section regulates environmental management programmes. The main reason for the inclusion of this section in the summary is the odd inclusion of a liability clause as set out in subsection (8). It is important that you take note of this clause.

Compliance Obligations?

The effect of subsection (8) is that directors of a company or members of a close corporation are jointly and severable liable for any negative impact on the environment, whether advertently or inadvertently caused by the company or close corporation which they represent, including damage, degradation or pollution.

This section requires applicants for an environmental authorisation for prospecting, exploration, mining or production to comply with the prescribed financial provision for the rehabilitation, closure and ongoing post decommissioning management of negative environmental impacts.

Compliance Obligations?

If you apply for an environmental authorisation for any of the abovementioned activities, you must ensure you comply with any financial provision prescribed by the Minister responsible for mineral resources.

As a holder of any of the abovementioned rights, you must annually assess your environmental liability and increase your financial provision to the satisfaction of the Minister responsible for mineral resources; and submit an audit report on the adequacy of the financial provision.

Please note the amendments inserted to section 24P by the National Environmental Management Law Amendment Act.

This section regulates the requirements when a holder, holder of an old order right and owner of works close a mine.

Compliance Obligations?

All the above mentioned parties remain responsible for any environmental liability, pollution or ecological degradation, the pumping and treatment of polluted or extraneous water, the management and sustainable closure of a mine. This is notwithstanding the provision of a closure certificate.

This section regulates the management of residue stockpiles and deposits.

Compliance Obligations?

Residue stockpiles and deposits must be deposited and managed in accordance with the provisions of the National Environmental Management: Waste Act 59 of 2008.

In essence, this section places a duty of care to take reasonable measures to prevent significant pollution or degradation of the environment on anybody who causes, has caused or who intends to cause such pollution or degradation. This duty of care extends to significant pollution or degradation that occurred before the commencement of this Act, or that arises or is likely to arise at a different time from the actual activity that caused the contamination. It also extends to the acts or activities of any person that result in a change to pre-existing contamination.

Compliance Obligations?

You must ensure that where possible, significant pollution and degradation of the environment is avoided. If this is not possible, you must do all you can to minimise and rectify the pollution or degradation. If you do not, you may receive a directive from the Director General: Environmental Affairs and Tourism to take such steps as is deemed necessary to exercise this duty of care. If you fail to heed the directive, the Director General or relevant head of the provincial department may take such steps to remedy the situation and recover the costs of so doing from you. If you are found to have unlawfully, intentionally or negligently committed any act or omission which can or does cause significant environmental damage or degradation, or if you fail to comply with a directive, you will be guilty of an offence and you may be liable upon conviction to a fine or to imprisonment or to both.

This section gives a person the right to refuse to perform work that results in an imminent and serious threat to the environment.

Compliance Obligations?

If an employee has refused to do work that result in an imminent and serious threat to the environment, the employee will not be civilly or criminally liable, nor may that employee be dismissed, disciplined, prejudiced or harassed.

This section sets out the steps that should be taken by the responsible person when dealing with an emergency incident. Note the definition of “incident” in this section.

Compliance Obligations?

If you are the responsible person you must report the incident in accordance with the provisions of section 30(3). You should also take immediate measures to contain and minimise the effect of the incident, undertake cleanup procedures, remedy the effects of the incident and assess the immediate and long term effects of the incident on the environment and on public health. Your initial evaluation of the incident must be reported to the relevant authorities within 14 days of the incident.

This section allows the competent authority on its own initiative or at the request of a person, to direct a person to carry out a listed or specified activity, without obtaining an environmental authorisation in order to prevent or contain an emergency situation or to prevent, contain or mitigate the effects of the emergency situation.

Compliance Obligations?

You may be directed or request orally or in writing to carry out a listed or specified activity without obtaining an environmental authorisation. You must include the information required in subsection (2) in your request.

This can only be done in certain circumstances and the competent authority will consider various factors before they make a decision.

In general terms, this section provides that no person will be civilly or criminally liable, nor may that person be dismissed, disciplined, prejudiced or harassed on account of having disclosed any information that discloses evidence of an environmental risk.

Compliance Obligations?

Provided such a person acted in good faith and in accordance with the requirements of section 31(5), no steps may be taken against such a person for acting in such a manner.

These sections of the Act deal with the application and enforcement of the Act and any specific environmental management Act, by environmental management inspectors (“EMI”). They also require that when an EMI is appointed, the appointing body must designate the enforcement mandate of the EMI, by stating which environmental laws the EMI may enforce under the terms of the EMI’s appointment. The powers and functions of EMI’s are set out in detail. This part of the Act also gives any person who is served with a compliance notice the right to object.

Compliance Obligations?

If an EMI has served a compliance notice on you, you should take steps to either comply with the requirements of the notice within the time limits contained therein, or you should proceed to object as envisaged by section 31M. Failure to comply is an offence.