THE UNDERLYING STATUTORY FRAMEWORK
The National Environmental Management Act, 107 of 1998, as amended (“NEMA”), establishes a robust framework for environmental governance in South Africa, including provisions for appeals against decisions made under NEMA or specific environmental management Acts. Section 43 of NEMA delineates the right to appeal to the Minister, the Member of the Executive Council (“MEC”), or a municipal council, depending on the decision-maker, while empowering the appeal authority to confirm, vary, or set aside such decisions. This framework is operationalised through regulations, with the National Appeal Regulations, 2025 (published on 13 March 2025 in Government Gazette No. 52269) (“2025 Regulations”) replacing the National Appeal Regulations, 2014 (GNR. 993 of 8 December 2014, as amended) (“2014 Regulations”) to refine the appeal process.
THE EVOLVING REGULATORY CONTEXT
The appeal mechanism under NEMA serves as a critical safeguard, ensuring accountability and fairness in environmental decision-making. The 2014 Regulations previously governed the submission, processing, and adjudication of appeals, setting strict timelines and procedural requirements. However, as of 13 March 2025, the 2025 Regulations have superseded these, reflecting a decade of practical experience and legislative evolution. These new regulations aim to streamline procedures, accommodate complex appeals, and enhance administrative efficiency, all while aligning with section 43 of NEMA.
KEY FEATURES OF THE 2025 REGULATIONS
The 2025 regulations apply to appeals against decisions under NEMA and specific environmental management acts, such as the National Environmental Management: Waste Act, 2008, and the National Environmental Management: Air Quality Act, 2004. Below are the salient regulations –
Submitting an Appeal – An appellant (being, widely, any person or organ of state so entitled under section 43) must submit an appeal within 20 calendar days of the decision being communicated, or within 30 days for appeals against directives under section 43(8). The appeal must be lodged with the appeal administrator in writing, using a prescribed form available online, and accompanied by supporting documentation and proof of a non-refundable fee (if applicable). Applicants must notify, and make a copy of the appeal available to, registered interested and affected parties and affected organs of state within five days of the appeal period’s expiry, and must further submit proof of such notification with the appeal administrator within 5 calendar days of the last notification, ensuring transparency.
Responding Statements and Additional Information – The applicant, decision-maker, I&APs and affected organs of state may submit to the appeal administrator and to the appellant, a responding statement within 20 calendar days of receiving the appeal, using a prescribed form. The appeal administrator retains discretion to request additional information from relevant parties or affected organs of state, bolstering the evidentiary basis for adjudication.
Decision Timelines and Complex Appeals – The appeal authority (be it the Minister, MEC, municipal council or other authority so delegated) must decide an appeal (and notify the relevant parties) within 50 calendar days of receiving responding statements, providing written reasons for the decision. For complex appeals (e.g., those requiring advisory panels, expert assistance, site inspections, or more than one appeal administrator to process such appeal due to extensive documentation involved and/or technical nature of the appeal), this extends to 70 days, or 50 days from receiving panel or expert recommendations, acknowledging the intricacies of certain environmental disputes.
Advisory Appeal Panels – Where expertise is needed, the appeal authority may appoint an independent advisory panel or expert to consider and advise on the appeal. The 2025 Regulations mandate that such appointees be independent, free of conflicts of interest and possess relevant qualifications and experience regarding the substance of the appeal, with their written recommendations due within 10 days of instruction. This enhances the technical rigor of appeal outcomes.
Effect of an Appeal – Per Section 43(7), lodging an appeal suspends the contested decision (e.g., an environmental authorisation), unless it involves a directive addressing significant environmental harm. However, the appeal authority may, under Section 43(9), direct that a decision not be suspended (or that a directive be suspended) pending the appeal, balancing urgency with due process.
OUTCOME AND PROCEDURAL SAFEGUARDS
The appeal authority’s decision, accompanied by written reasons, may confirm, modify, or cancel the original decision or directive, as per section 43(6) and (11). The 2025 Regulations repeal the 2014 Regulations and the 2016 Integrated Coastal Management Act Appeal Regulations, consolidating the appeal process under a single, updated framework. Transitional arrangements ensure that pre-2025 appeals follow the legislative framework that existed at the time the appeal was submitted, while post-13 March 2025 appeals adhere to the 2025 Regulations.
CRITICAL ANALYSIS: BALANCING EFFICIENCY AND EQUITY
The 2025 Regulations mark a progressive step in refining NEMA’s appeal process. The extended timelines for complex appeals and formalised panel provisions address practical challenges highlighted by the 2014 framework’s relatively rigid 20 to 30 day decision periods. The 2025 Regulations further enhance rational decision making in prescribing various requirements for experts and members of the advisory panels, such as independence, expertise and suitability. Although arguably burdensome on the applicant, the additional onus on applicants to notify I&APs and affected organs of state and make available a copy of the appeal to them, will bolster effective public participation and accountability in decisions relating to the environment.
CONCLUSION
The 2025 Regulations reinforce NEMA’s commitment to procedural fairness in environmental governance, offering a structured yet adaptable appeal mechanism. For stakeholders (ranging from mining companies to community groups) this framework clarifies the path to challenge decisions, while imposing rigorous timelines and evidentiary standards. However, its success hinges on consistent application. Environmental practitioners and affected parties must engage this regime strategically, leveraging its provisions to ensure decisions align with both legal intent and sustainable outcomes.
