On 23 October 2026, the Minister of Forestry, Fisheries and the Environment, David Maynier, published the draft National Environmental Management Laws (Administrative Penalties) Amendment Bill, 2026 (the Bill) for public comment in Government Gazette No. 55620 (Notice 8083). The Bill would introduce, for the first time, a system of non-criminal administrative penalties that environmental management inspectors may impose for contraventions of the National Environmental Management Act 107 of 1998 (NEMA) and the specific environmental management Acts (SEMAs), with variable penalties of up to R50 million per contravention.

At present, South Africa’s environmental enforcement regime depends largely on the criminal justice system, supplemented by compliance notices, directives and the rectification mechanism in section 24G. The Department of Forestry, Fisheries and the Environment (DFFE) has concluded that reliance on criminal sanctions does not adequately address all forms of non-compliance, and that environmental authorities lack a graduated “toolbox” of the kind found in other jurisdictions.

Written representations on the Bill are due within 60 calendar days of publication in the Gazette, or of the corresponding newspaper advertisement, whichever is later, which on the Gazette date alone falls on about 22 December 2026.

Why The Department Is Proposing The Change

The explanatory memorandum records that certain contraventions are not effectively deterred or remedied through criminal prosecution alone. Prosecutions are slow, depend on the capacity of the National Prosecuting Authority and the courts, and require proof beyond reasonable doubt. Recent practice shows both the strengths and limits of that route: significant sentences are possible, as the R15 million sentence imposed this year on the developer of a Western Cape lodge illustrates, but they follow lengthy investigations and are resolved case by case.

The Bill is described as the product of a collaborative process involving all environmental enforcement agencies, and of a policy approved by MINMEC. It is intended to supplement, not replace, the criminal sanctions in NEMA, and the Department expects to implement it largely using existing compliance and enforcement resources, including personnel currently dedicated to section 24G applications, with a minor increase in resources.

The Two-Tier Penalty System

The proposed Part 2A of Chapter 7 of NEMA establishes two categories of administrative penalty, each of which may be imposed by an environmental management inspector or an environmental mineral and petroleum inspector within their designated mandate u2013

• Fixed administrative penalties (proposed sections 31R and 31S) u2013 for less serious contraventions, being breaches of a licence, permit, authorisation or exemption condition that do not cause significant pollution, degradation or harm to a species or ecosystem, and breaches of provisions or norms and standards that the Minister identifies by Gazette notice. The Minister must specify the amount and a reduced amount payable if the penalty is paid within a stated period. The recipient may object within 30 days, and the objection must be decided by a different person from the one who issued the penalty, who may confirm, withdraw or reduce the amount and must give written reasons;
• Variable administrative penalties (proposed sections 31T to 31X) u2013 for more serious contraventions, including breaches of conditions that may cause significant pollution, degradation or harm, and breaches of provisions not identified for a fixed penalty. The penalty may not exceed R50 million per contravention. Each organ of state that employs inspectors must establish a variable administrative penalty committee, with a composition to be prescribed by the Minister, to recommend whether and in what amount a penalty should be imposed.

The amount of a variable penalty is determined by reference to criteria in proposed section 31U: the actual or potential environmental impact, including pollution, biodiversity and socio-economic impact; the fault of the offender; and any financial benefit to the offender or a related party. That amount may then be adjusted for modifying factors, namely mitigation, rehabilitation or remediation, the offender’s compliance record, voluntary reporting, cooperation with inspectors, and ability to pay. The Minister must prescribe the weighting of these factors and the calculation method, and part of a penalty may be suspended on prescribed conditions.

Process And Objections

Before a variable penalty is issued, the inspector must give adequate written notice and a reasonable opportunity to make written representations to the committee. The notice must specify the alleged contravention, the maximum penalty, the criteria to be applied and the proposed manner of payment, and must require the offender to investigate, evaluate and assess the impact of the activity on the environment. The committee may consult specialists and instruct the offender to submit specialist reports. The inspector must consider the representations and the committee’s recommendations and give written reasons, whether or not a penalty is imposed.

A person issued with a variable penalty may object within 30 days to a functionary determined by the inspector’s employer, for example the Director-General, a provincial head of department or, in the case of a municipal inspector, the municipal manager. That functionary may confirm, withdraw, reduce or increase the penalty. The Bill does not state whether an objection suspends the obligation to pay. That gap echoes the experience under section 28 directives, where an appeal does not automatically suspend the decision, and it is an obvious point for comment.

The standard of proof is a balance of probabilities. That is a material difference from the criminal process and will place a premium on the quality of evidence and representations at the earliest stage.

Section 24G And Section 22A: The End Of The Fixed Rectification Fine

The Bill substantially restructures the position of a person who commences a listed activity unlawfully and then applies for ex post facto authorisation. Currently, section 24G(4) of NEMA requires payment of an administrative fine of up to R10 million, determined by the competent authority, before the application is considered. The Bill would remove that fine. Instead, the competent authority may decide a section 24G application only after the application fee, if prescribed, has been paid and either an administrative penalty has been paid, if imposed, or any criminal proceedings have concluded.

Criminal proceedings are deemed concluded where the National Prosecuting Authority decides not to prosecute, where the applicant is acquitted, or where a conviction has survived all appeal and review. Importantly, the submission of a section 24G application would expressly not derogate from the inspector’s authority to impose an administrative penalty. The memorandum explains that an unlawful commencer may therefore be either prosecuted or issued with an administrative penalty, and the application is considered only after the chosen process concludes, unless no enforcement action is required. The same changes are made to section 22A of the National Environmental Management: Air Quality Act 39 of 2004 for unlawful listed activities with atmospheric emissions. Applications pending when the changes commence will continue under the existing provisions.

For developers, the practical consequence is that the rectification route becomes both more exposed and less predictable. The cost will no longer be a determinable fine of up to R10 million but a penalty assessed against impact, fault and financial benefit, with a ceiling of R50 million, and the decision on the application itself is held back until enforcement has run its course.

Personal Liability, Publication And Recovery

Proposed section 31Y mirrors, in the administrative setting, the personal liability provisions of section 34 of NEMA. A person who is or was a director of a firm, or a public sector manager of an organ of state, when the contravention occurred may be held personally liable for the penalty, in addition to the firm or organ of state, if the contravention resulted from a failure to take all reasonable steps to ensure that the provision was not contravened. Proof of a contravention by the firm is prima facie evidence against the director. An employee or agent whose act or failure constitutes the employer’s contravention is also personally liable. The Bill defines “director” widely, to include board members, members of close corporations, partners and trustees, and “public sector manager” to include municipal managers, Directors-General and provincial heads of department.

Three further features should be noted. First, a firm or organ of state issued with a variable penalty must publish its details on its website for a year and in its annual report, and failure to do so is an offence. The memorandum states that the aim is to create a deterrent effect. Second, an unpaid penalty may be filed with the registrar of a competent court and enforced as a civil judgment, and failure to pay is itself an offence carrying a fine of up to R5 million or five years’ imprisonment, rising to R10 million or ten years for a second conviction. Third, a court convicting a person for non-payment may order payment of the penalty.

Interaction With Criminal Prosecution

Proposed section 31Z provides that an administrative penalty may be imposed only against a person who has not been criminally charged for the same contravention, or where the prosecution was withdrawn or the person acquitted. An administrative penalty is not a previous conviction for purposes of Chapter 27 of the Criminal Procedure Act 51 of 1977. The Bill therefore forces an early choice of enforcement route. That choice will influence the position of a regulated party considerably, since a penalty carries no criminal record but is published, while a prosecution carries the risk of conviction and the personal criminal liability of directors under section 34.

Issues Businesses May Wish To Raise In Comment

Our preliminary reading of the Bill suggests that the following points merit attention in written representations u2013

• Independence and fairness of the process u2013 inspectors impose the penalty, a committee they receive advice from calculates it, and objections go to a senior official of the same organ of state, who may increase the amount. Businesses may wish to ask for an independent appeal mechanism, or at least clear provision for judicial review and for compliance with the Promotion of Administrative Justice Act 3 of 2000;
• Suspension pending objection u2013 the Bill is silent on whether lodging an objection suspends payment, and on interim relief. Clarity is needed;
• Retrospectivity and drafting u2013 proposed section 50B and the memorandum confine penalties to contraventions after commencement, but the draft table of contents describes section 50B as dealing with acts “prior to or after” commencement. This inconsistency should be resolved;
• Discretion over the penalty tier and quantum u2013 the dividing line between fixed and variable penalties turns on what constitutes “significant” harm, and the weighting of factors is left to later regulation. Businesses will want to see these prescribed before the Act commences, not afterwards;
• Personal liability of employees and agents u2013 the extension of liability to employees and agents is broad, and the relationship of that provision with the defence of having taken all reasonable steps requires careful drafting; and
• Capacity of municipal and provincial inspectorates u2013 the Bill extends penalty powers to inspectors at all three spheres. Capacity and consistency will differ, as the early experience of municipal section 28 directives has shown.

How Bishop Fraser Attorneys Can Assist

The Bill, if enacted, would change the economics and the dynamics of environmental enforcement in South Africa, moving a significant part of the process out of the courtroom and into the hands of inspectors, with large financial consequences and the possibility of personal liability for directors and employees.

Bishop Fraser Attorneys advises clients on environmental compliance and enforcement, responding to inspections, notices and directives, section 24G and section 22A rectification applications, and the personal exposure of directors under NEMA. We can assist clients to review the Bill against their operations, to prepare written representations before the comment deadline, and to put compliance systems in place now, so that they are ready for the new regime if it is enacted.