First introduced as a Bill in 2017, the National Environmental Management Laws Amendment Act, 2 of 2022 (“NEMLA”) was finally published in 2022. On 30 June 2023, NEMLA was officially promulgated in the Government Gazette, bring the majority of the Act’s provisions into effect.
NEMLA has been enacted to deter non-compliance with environmental laws by, among other things, introducing new offences, increasing the quantum of fines and administrative penalties, and extending enforcement powers to enable more widespread enforcement of environmental laws.
In order to effect these widespread changes, the promulgation of NEMLA will amend the provisions of various key environmental statutes, including the National Environmental Management Act (“NEMA”), the National Environmental Management: Protected Areas Act, National Environmental Management: Biodiversity Act, National Environmental Management: Air Quality Act and the National Environmental Management: Integrated Coastal Management Act.
Some notable changes brought about by NEMLA include –
- Strengthening Environmental Impact Assessment (“EIA”) procedures. NEMLA will enhance the effectiveness of environmental impact assessments by introducing stricter requirements for conducting EIAs. It provides clearer guidelines on the scope and content of EIAs, ensuring that potential environmental impacts are adequately assessed and mitigated before project approval.
- Improved Enforcement and Penalties. NEMLA contains more stringent penalties for non-compliance with environmental laws and regulations, and empowers environmental enforcement authorities to take concrete action against individuals or entities found to be in violation of environmental requirements, thereby promoting compliance and deterrence.
- Changes to rectification provisions under the NEMA and National Environmental Management: Air Quality Act. This will ensure extended accountability for “successors in title” and “persons in control” of land on which a listed activity has been unlawfully commenced, and imposes more stringent fines for non-compliance.
- Changes to financial provision (“FP”). NEMLA has laid the foundation for the long-awaited replacement FP Regulations under NEMA, which are set to be published in September 2023. This will see a change in the definition of “financial provision”, which will ensure the application of FP requirements to both new applicants and historical holders of Environmental Authorisations for mining activities, ensuring more comprehensive accountability for rehabilitation, closure and post-closure activities.
Notwithstanding the above, it is important to note that certain provisions (being sections 11, 35(a), 57, 60, 61(c), 61(j), 61(k), 62,63, 64,65, 66, 72, 76, 77, 86, 87 and 88) of NEMLA have been specifically excluded and did not come into effect upon promulgation of the Act. Some of these sections, specifically those relating to the definition of “waste” and other related provisions, were specifically excluded due to the recent unanimous Constitutional Court judgment in South African Iron and Steel Institute and Others v Speaker of the National Assembly and Others [2023] ZACC 18.
The Constitutional Court found that Parliament had failed to comply with its constitutional obligation to facilitate public involvement in respect of certain provisions of NEMLA relating to waste, commercial value, trade and transitional provisions, with the result that these provisions were declared invalid and unconstitutional.
This has the unfortunate consequence of continuing the regulatory grey area surrounding “residue stockpiles” and “residue deposits” under the National Environmental Management: Waste Act. In its current form, these stockpiles and deposits fall under the definition of “waste” and therefore only require a waste management licence in order to be processed. Had the relevant NEMLA provisions been enacted, these stockpiles and deposits would have been excluded from the definition of waste, and been more fully regulated under the provisions of NEMA.
While the majority of the NEMLA provisions have come into force, it is clear that its implementation, together with the resolution of its unconstitutional provisions, remains a future challenge.
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