Since June 2023, when most of the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLAA) took effect, municipal managers, and the officials to whom they delegate, have been entitled to issue binding directives under section 28 of the National Environmental Management Act 107 of 1998 (NEMA). Before that, the power was confined to the Director-General of the environmental department, the Director-General responsible for mineral resources and provincial heads of department, or their delegates. Municipal inspectors could issue compliance notices under section 31L, but that instrument carries considerably less weight.

The reform was designed to put enforcement nearer to the source of harm. Municipalities are usually the first to receive complaints about pollution incidents, illegal dumping, contaminated stormwater and damage to watercourses, so the objective is sound. Practitioners who have acted for recipients of municipal directives report, however, that the process which follows is demanding, technical and fast-moving, and that many businesses are unprepared for it.

The Duty Of Care In Brief

Section 28 obliges every person who causes, has caused or may cause significant pollution or degradation of the environment to take reasonable measures to prevent it from occurring, continuing or recurring. Where the harm is authorised by law or cannot reasonably be avoided, the obligation is to minimise and rectify it.

Its reach is broad. It covers historic contamination, including pollution that arose long ago or only comes to light years after the activity that caused it. It binds not only the polluter but also landowners, persons in control of land and persons entitled to use it, wherever the land is, has been or is likely to be a source of significant pollution. Reasonable measures can include employee training, containing pollutants, eliminating the source of the problem and remedying its effects. If these steps are not taken, the authority may issue a directive, a binding order to stop the activity, investigate and assess the impact, and rectify the harm by a stated deadline.

Notice And Representations: The Role Of Section 28(4A)

A compliance notice and a section 28 directive may look alike, since each is aimed at environmental harm, but they differ markedly in consequence and in process. Section 28(4A) requires the authority, before it issues a directive under section 28(4), to give the proposed recipient adequate written notice and a reasonable opportunity to make written representations. This builds the audi alteram partem principle into the process: those affected should ordinarily be able to engage with the factual, technical and legal basis for the proposed measures before they become binding.

The provision also allows an exception for urgency. Where immediate action is needed to protect the environment, the authority may issue the directive first and invite representations afterwards, as soon as reasonably possible. The amendment therefore improves fairness in the ordinary case, but opens a possible line of dispute where urgency is relied upon to impose remedial obligations with no prior engagement at all.

Several questions follow in practice u2013

• How much notice is adequate, and what must it contain?
• What supporting information and evidence must be shared so that representations can be meaningful?
• How long is a reasonable period in which to respond?
• In what circumstances may urgency lawfully be invoked? and
• What remedy exists where urgency is claimed without a proper basis?

Where urgency is invoked, the recipient may be confronted with substantive obligations before it has had any real chance to test the allegations. Directive templates used by authorities show the scope of what can be demanded: investigating and assessing the impact, stopping or controlling the activity, containing pollutants, eliminating the source and remedying the effects.

Compliance Notice Or Directive: Choosing The Tool

Understanding why a municipality might prefer a directive to a compliance notice helps a business anticipate its approach. A section 31L compliance notice is directed at a contravention of a specific provision, condition or authorisation, and requires the recipient to remedy that contravention. A section 28 directive is aimed at the broader duty to prevent, minimise and rectify significant pollution or degradation, and can therefore be used where no particular permit condition has been breached, where the contamination is historic, or where the person responsible for the land is not the original polluter.

That breadth makes the directive attractive to a municipality facing a complaint it must resolve quickly. It can compel investigation and assessment as well as clean-up, it can reach landowners and occupiers, and it forms the basis of a criminal charge if ignored. For the recipient, it means that compliance with every permit and by-law condition is not a complete answer: the question will also be whether reasonable measures were taken to prevent harm.

Why An Appeal Does Not Stop The Clock

It is commonly assumed that lodging an appeal under section 43 of NEMA suspends the decision under appeal. That was the rule for directives before the amendments, but it no longer applies. Appeals against directives issued by a municipal manager or a delegated official are determined by the municipal council, and the directive remains operative unless the recipient separately applies for it to be suspended and shows good cause.

A recipient may therefore find itself running two processes at once: the appeal, which attacks the validity of the directive, and the suspension application, which seeks interim relief from its effects. The second often demands extensive legal argument, expert evidence and detailed factual material, all before the appeal has been heard, so that in substance it can become a contest of its own.

The statute offers little guidance on how these applications are to be handled. NEMA does not set out how a municipality should process a suspension application, how quickly it must decide, or what standard of proof governs good cause. A recipient can accordingly face looming compliance deadlines while still waiting to learn whether the directive is suspended. Draft replacement appeal regulations propose a 30-day period for appeals against duty of care directives, but that should be verified against the final regulations before it is relied upon.

Parallel Enforcement And Personal Liability

A directive is seldom the only step taken. Municipalities hold powers under environmental legislation, by-laws and criminal procedure, and one incident can trigger several processes together. In a recent matter, a facility that received a municipal directive also dealt with an earlier letter from the municipality, an appeal and a suspension application, while a senior employee was served with a by-law infringement notice and summoned to the magistrates’ court. The individual faced possible criminal proceedings at the same time as the company was disputing the directive’s validity.

Non-compliance with a directive is an offence listed in Schedule 3 to NEMA, and commentators indicate that a conviction may attract a fine of up to R10 million, up to ten years’ imprisonment, or both. Section 34(7) further provides that where a company commits a Schedule 3 offence, a person who was a director at the time may be held personally guilty if the offence resulted from a failure to take all reasonable steps to prevent it. Although rarely used in the past, the provision featured in the Phalaborwa Regional Court on 21 September 2023, where the company that owned the Hans Merensky Hotel, Golf and Spa and its sole director were convicted after repeated sewage spillages into a watercourse feeding towards the Olifants River in the Kruger National Park. The company was penalised R3 million, and the director R5 million, with R3 million of that suspended for five years. The case arose from an ignored compliance notice rather than a municipal directive, but its message carries over: once a regulator has specified what must be done and it is not done, the consequences for both the entity and its directors are real.

What Businesses Should Do

The practical lessons include the following u2013

• Treat any directive as a major legal event u2013 it will usually call for lawyers, environmental consultants, engineers and other specialists to be engaged immediately, and the obligations it creates are procedural, technical and legal at once;
• Use the representations stage fully u2013 this is the best opportunity to influence the scope, deadlines and practicality of any required measures, and the notice, the evidence relied on and any claim of urgency should be scrutinised closely;
• Prepare for the appeal and suspension application to run together u2013 a business must be ready either to comply within the stated period or to bring a well-supported suspension application alongside its appeal, often under severe time pressure;
• Anticipate multiple processes u2013 by-law notices and criminal summonses may be directed at employees as well as the company, so strategy must cover everything arising from the incident;
• Protect directors and managers u2013 a documented record of oversight, reporting and responses to regulatory correspondence is the best evidence that all reasonable steps were taken; and
• Invest in prevention u2013 given the direction of enforcement, businesses should strengthen internal controls to avoid a directive altogether, and understand the process before one arrives.

How Bishop Fraser Attorneys Can Assist

The extension of section 28 directive powers to municipalities brings NEMA’s duty of care regime to a level of government that many businesses deal with daily, often on a less formal footing than with provincial or national regulators.

Bishop Fraser Attorneys advises clients on section 28 duty of care compliance, responding to proposed directives, preparing representations, appeals and applications for suspension, managing parallel by-law and criminal enforcement, environmental due diligence in property and corporate transactions, and director exposure under section 34(7) of NEMA. Early legal engagement, before a directive arrives, is almost always the more effective and less costly course.