National Environmental Management: Biodiversity Act [No. 10 of 2004]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 467 Cape Town 7 June 2004 No. 26436
THE PRESIDENCY No. 700 7 June 2004
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 10 of 2004: National Environmental Management: Biodiversity Act, 2004.


2 No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004
Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004
(English text signed by the President.) (Assented to 31 May 2004.)
_ . . ,
-. : ’. ACT ... . .
To provide for the management and conservation of South Africa’s biodiversity within the framework of the National Environmental Management Act, 1998; the protection of species and ecosystems that warrant national protection; the sustainable use of indigenous biological resources; the fair and equitable sharing of benefits arising from bioprospecting involving indigenous biological resources; the establishment and functions of a South African National Biodiversity Institute; and for matters connected therewith.
E IT ENACTED by the Parliament of the Republic of South Africa, as B fo110~~~:- TABLE O F CONTENTS
Section
CHAPTER 1 5
INTERPRETATION, OBJECTIVES AND APPLICATION O F ACT
1. 2. 3. 4. 5. 6. 7 . 8. 9.
Definitions Objectives of Act State’s trusteeship of biological diversity Application of Act Application of international agreements Application of other biodiversity legislation National environmental management principles Conflicts with other legislation Norms and standards
CHAPTER 2
SOUTH AFRICAN NATIONAL BIODIVERSITY INSTITUTE
Part 1
Establishment, powers and duties of Institute
10. Establishment 1 1. Functions 12. General powers
Par t 2
Governing board, composition and membership
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15
20
13. Composition 14. Qualifications
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15. 16. 17. 18. 19. 20. 21. 22.
23. 24. 25. 26. 27.
28. 29.
30. 31.
Appointment procedure Chairperson Term of offce Conditions of appointment Conduct of members Termination of membership Removal from office F i h g of vacancies
Part 3
Operating procedures of Board I ,
Meetings Procedures Quorum and decisions Committees Delegation of powers and duties
Part 4
Administration of Institute
Appointment of Chief Executive Officer Employment of staff
Part 5
Financial matters
Financial accountability Funding
32. Investments
33. 34.
35. 36.
37.
38. 19. 40. 41. 42.
Part 6
National botanical gardens
Declaration Amendment or withdrawal of declarations
Part 7
General
Minister's supervisory powers Absence of functional Board
CHAPTER 3
BIODIVERSITY PLANNING AND MONITORING
Purpose of Chapter Part 1
Biodiversity planning
National biodiversity framework Contents of national biodiversity framework Bioregions and bioregional plans Contents of bioregional plans Review and amendment of bioregional plans
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40
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Act No. 10.2004 NATIONAL ENVIRONMENTAL MANAGEMENT.
43. 44. 45. 46. 47.
48. 49. 50.
BIODIVERSITY ACT, 2004
Biodiversity management plans Biodiversity management agreements Contents of biodiversity management plans Review and amendment of biodiversity management plans Consultation
Part 2
Co-ordination and alignment of plans, monitoring and research
Co-ordination and-alignment of biodiversity plans Monitoring Research
\
CHAPTER 4
THREATENED OR PROTECTED ECOSYSTEMS AND SPECIES
5 I . Purpose of Chapter
Part 1
Protection of threatened or protected ecosystems
52. Ecosystems that are threatened or in need of protection 53. Threatening processes in listed ecosystems 54. Certain plans to take into account protection of listed ecosystems 55. Amendment of notices
Part 2
Protection of threatened or protected species
56. Listing of species that are threatened or in need of national protection 57. Restricted activities involving listed threatened or protected species 58. Amendment of notices
Part 3
Trade in listed threatened or protected species
59. Functions of Minister 60. Establishment of scientific authority 6 1. Functions of scientific authority 62. Annual non-detriment findings
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Part 4
General provisions
63. Consultation
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SPECIES AND ORGANISMS POSING POTENTIAL THREATS TO BIODIVERSITY
64. Purposes of Chapter
Part 1 5
i Alien species \
65. Restricted activities involving alien species 66. Exemptions 67. Restricted activities involving certain alien species totally prohibited 68. Amendment of notices 10 69. Duty of care relating to alien species
Part 2
Invasive species
70. 71. 72. 73. 74. 75. 76. 77.
List of invasive species Restricted activities involving listed invasive species Amendment of notices Duty of care relating to listed invasive species Requests to competent authorities to issue directives Control and eradication of listed invasive species Invasive species control plans of organs of state Invasive species status reports
Part 3
Other Threats
78. Genetically modified organisms
Part 4
General provisions
79. Consultation
CHAPTER 6
BIOPROSPECTING, ACCESS AND BENEFIT-SHARING
80. Purpose and application of Chapter 8 1, Bioprospecting involving indigenous biological resources 82. Benefit-sharing agreements 83. Export of listed indigenous biological resources 84. Material transfer agreements 85. Establishment of Bioprospecting Trust Fund 86. Exemptions
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Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004
CHAPTER 7
PERMITS
87. Purpose of Chapter
Part 1
Permit system
88. Application for p&nits \ 89. Risk: assessments and expert evidence 90. Permits 91. Additional requirements relating to alien and invasive species 92. Integrated permits 93. Cancellation of permits
Part 2
Appeals
94. Appeals to be lodged with Minister 95. Appeal panels 96. Decisions
CHAPTER 8
ADMINISTRATION OF ACT
Part 1
Regulations
97. Regulations by Minister 98. General
Part 2
Consultation process
99. Consultation 100. Public participation
CHAPTER 9
OFFENCES AND PENALTIES
101. Offences 102. Penalties
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CHAPTER 10
MISCELLANEOUS
103. Repeal of Act 122 of 1984 104. Savings 105. Existing bioprospecting projects 106. Short title and commencement
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Definitions
1. (1) In this Act, unless the context indicates othemise- “alien species” means- fa) a species that is not an indigenous species; or fbj an indigenous spscies translocated or intended to be translocated to a place
outside its naturd distribution range in nature, but not an indigenous species that has extended its natural distribution range by natural means of migration or dispersal without human intervention;
“benefit”, in relation to bioprospecting involving indigenous biological resources, means any benefit, whether commercial or not, arising from bioprospecting involving such resources, and includes both monetary and non-monetary returns; “biological diversity” or “biodiversity” means the variability among living organisms from all sources including, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part and also includes diversity within species, between species, and of ecosystems; “bioprospecting”, in relation to indigenous biological resources, means any research on, or development or application of, indigenous biological resources for commercial or industrial exploitation, and includes- (a) the systematic search, collection or gathering of such resources or making
extractions from such resources for purposes of such research, development or application;
(b) the utilisation for purposes of such research or development of any information regarding any traditional uses of indigenous biological resources by indigenous communities; or
(c) research on, or the application, development or modification of, any such traditional uses, for commercial or industrial exploitation;
“bioregion” means a geographic region which has in terms of section 40(1) been determined as a bioregion for the purposes of this Act; “Board” means the board referred to in section 13; “competent authority”, in relation to the control of an alien or invasive species, means- (a) the Minister; (bj an organ of state in the national, provincial or local sphere of government
designated by regulation as a competent authority for the control of an alien species or a listed invasive species in terms of this Act; or
(c ) any other organ of state; “components”, in relation to biodiversity, includes species, ecological communi- ties, genes, genomes, ecosystems, habitats and ecological processes; “control”, in relation to an alien or invasive species, mean- (aj to combat or eradicate an alien or invasive species; or (b) where such eradication is not possible, to prevent, as far as may be practicable,
the recurrence, re-establishment. re-growth, multiplication, propagation, regeneration or spreading of an alien or invasive species;
“critically endangered ecosystem” means any ecosystem listed as a critically endangered ecosystem in terms of section 52(2);
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“critically endangered species” means any indigenous pecies listed as a critical1.y endangered species in terms of section 56; “delegation”, in relation to a duty, includes an instruction to perform the duty; “Department” means the national Department of Environmental Affairs and Tourism; 5 “derivative”, in relation to an animal, plant or other organism, means any part, tissue or extract, of an animal, plant or other organism, whether fresh, preserved or processed, and includes any chemical compound derived from such part, tissue or extract; “Director-General” g e a n s the Director-General of the D partment; 10 “ecological community” means an integrated group of species inhabiting a given area; “ecosystem” means a dynamic complex of animal, plant and micro-organism communities and their non-living environment interacting as a functional unit; “endangered ecosystem” means any ecosystem listed as an endangered 15 ecosystem in terms of section 52(2); “endangered species” means any indigenous species listed as an endangered species in terms of section 56; “environmental management inspector” means a person authorised in terms of the National Environmental Management Act to enforce the provisions of this Act; 20 “export”, in relation to the Republic, means to take out or transfer, or attempt to take out or transfer, from a place within the Republic to another country or to international waters; L‘Gazette7’, when used- (a) in r‘elation to the Minister, means the Government Gazette; or 25 (b) in relation to the MEC for Environmental Affairs of a province, means the
“genetic material” means any material of animal, plant, microbial or other biological origin containing functional units of heredity; “genetic resource” includes- 30 ( a ) any genetic material; or (6) the genetic potential or characteristics of any species; “habitat” means a place where a species or ecological community naturally occurs; “import”, in relati n to the Republic- 35 (a) means to land on, bring into or introduce into the Republic, or attempt to land
(b) includes to bring into the Republic for re-export to a place outside the
“indigenous biological resource” - 40 (a) whem used in relation to bioprospecting, means any indigenous biological
resource as defined in section 80(2); or ( b ) when used in relation to any other matter, means any resource consisting Of-
(i) any living or dead animal, plant or other organism of an indigenous
(ii) any derivative of such animal, plant or other organism; or (iii) any genetic material of such animal, plant or other organism;
Provincial Gazette of that province;
on, bring into or introduce into the Republic; and
Republic;
species; 45
“indigenous species” means a species that occurs, or has historically occurred, naturally in a free state in nature within the borders of the Republic, but excludes a species that has been introduced in the Republic as a result of human activity; 50 “Institute” means the South African National Biodiversity Institute established in terms of section 10;
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“introduction”, in relation to a species, means the introduction by humans, whether deliberately or accidentally, of a species-to a place outside the natural range 01’ natural dispersal potential of that species; “introduction from the sea”, in relation to a specimen of any species, means the transportation into the Republic of a specimen taken from a marine environment 5 not under the jurisdiction of any state; “invasive species” means any species whose establishment and spread outside of its natural distribution range- (a) threaten ecosystems, habitats or other species or have demonstrable potential
(b) may result in economic or environmental harm or harm to human health; “issuing authority”, in relation to permits regulating the matters mentioned in section 87, means- (a) the Minister; or (b) an organ of state in the national, provincial or local sphere of government 15
designated by regulation in terms of section 97 as an issuing authority for permits of the kind in question;
to threaten ecosystems, habitats or other species; and 10
“listed ecosystem” means any ecosystem listed in terms of section 52( 1); “listed invasive species” means any invasive species listed in terms of section 70(1); 20 “listed threatened or protected species” means any species listed in terms of section 56( 1); “local community” means any community of people living or having rights or interests in a distinct geographical area; “management authority”, in relation to a protected area, means an authority to 25 whom the management of a protected area has been assigned; “MEC for Environmental Affairs” means a member of the Executive Council of a province who is responsible for the conservation of biodiversity in the province; “migratory species” means the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant 30 proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries; “Minister” means the Cabinet member responsible for national environmental management; “municipality” means a municipality established in terms of the Local Govern- 35 ment: Municipal Structures Act, 1998 (Act No. 117 of 1998); “national botanical garden” means land declared or regarded as having been declared as a national botanical garden in terms of section 33, and includes any land declared in terms of section 33 as part of an existing botanical garden; “National Environmental Management Act” means the National Environmen- 40 tal Management Act, 1998 (Act No. 107 of 1998); “national environmental management principles” means the principles referred to in section 7; “non-detriment findings” means the determination of the non-detrimental impact of an action on the survival of a species in the wild; 45 “organ of state” has the meaning assigned to it in section 239 of the Constitution; “permit” means a permit issued in terms of Chapter 7; “prescribe” means prescribe by regulation in terms of section 97; “protected area” means a protected area defined in the Protected Areas Act; “Protected Areas Act” means the National Environmental Management: Pro- 50 tected Areas Act, 2003;
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“protected ecosystem” means any ecosystem listed as a protected ecosystem in terms of section 52(2); “protected species” means any species listed as a protected species in terms of section 56; “Public Finance Management Act” means the Public Finance Management Act, 5 1999 (Act No. 1 of 1999);
means the export from the Republic of a specimen of a listed threatened or protected species previously imported into the Republic; “restricted activity’:, 10 (a ) in relation to a specimen of a listed threatened or protected species, means-
(i:l hunting, catching, capturing or killing any living specimen of a listed threatened or protected species by any means, method or device whatsoever, including searching, pursuing, driving, lying in wait, luring, alluring, discharging a missile or injuring with intent to hunt, catch, 15 capture or kill any such specimen;
(ii)l gathering, collecting or plucking any specimen of a listed threatened or protected species;
(iii) picking parts of, or cutting, chopping off, uprooting, damaging or destroying, any specimen of a listed threatened or protected species; 20
(iv) importing into the Republic, including introducing from the sea, any specimen of a listed threatened or protected species;
(v) exporting from the Republic, including re-exporting from the Republic, any specimen of a listed threatened or protected species;
(vi) having in possession or exercising physical control over any specimen of 25 a listed threatened or protected species;
(vii) growing, breeding or in any other way propagating any specimen of a listed threatened or protected species, or causing it to multiply;
(viii) conveying, moving or otherwise translocating any specimen of a listed threatened or protected species; 30
(ix) selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of a listed threatened or protected species; or
(x) any other prescribed activity which involves a specimen of a listed threatened or protected species; and 35
(b) in relation to a specimen of an alien species or listed invasive species, means- (i) importing into the Republic, including introducing from the sea, any
(ii) having in possession or exercising physical control over any specimen of 40
(iii) growing, breeding or in any other way propagating any specimen of an
(iv) conveying, moving or otherwise translocating any specimen of an alien
66 re-export”, in relation to a specimen of a listed threatened or protected species,
specimen of an alien or listed invasive species;
an alien or listed invasive species;
alien or listed invasive species, or causing it to multiply;
or listed invasive species; 45
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(vl selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of an alien or listed invasive species; or
(vi), any other prescribed activity which involves a specimen of an alien or listed invasive species; 5
“species” means a kind of animal, plant or other organism that does not normally interbreed with individuals of another kind, and includes any sub-species, cultivar, variety, geographic race, strain, hybrid or geographically separate population;
(a ) any living or deag animal, plant or other organism; 10 (6) a seed, egg, gamete or propagule crr part of an animal, plant or other organism
capable of propagation or reproduction or in any way transferring genetic traits;
66 specimen” means-
(c) any derivative of any animal, plant or other organism; or (d) any goods which- 15
(i) contain a derivative of an animal, plant or other organism; or (ii) from an accompanying document, from the packaging or mark or label,
or from any other indications, appear to be or to contain a derivative of an animal, plant or other organism;
“stakeholder” means- 20 (a ) a person, an organ of state or a community contemplated in section 82( l)(a);
(b) an indigenous community contemplated in section 82( l)(b); “subordinate legislation”, in relation to this Act, means- (a ) any regulation made in terms of section 97; or 25 (b) any notice published in terms of section 9, 33, 34, 40(1), 42(2), 43(3), 46(2),
52(1), 53(1), 55,56(1), 57(2), 58, 66(1), 67(1), 68,70(1), 72, 86(1) or 100(1) “sustainable”, in relation to the use of a biological resource, means the use of such resource in a way and at a rate that- ( a ) would not lead to its long-term decline; 30 (b) would not disrupt the ecological integrity of the ecosystem in which it occurs;
(c) would ensure its continued use to meet the needs and aspirations of present
“this Act” includes any subordinate legislation issued in terms of a provision of 35 this Act; “threatening process” means a process which threatens, or may threaten- ( a ) the :;urvival, abundance or evolutionary development of an indigenous species
(b) the (ecological integrity of an ecosystem, 40 and includes any process identified in terms of section 53 as a threatening process; “vulnerable ecosystem” means any ecosystem listed as a vulnerable ecosystem in terms of section 52(2); “vulnerable species” means any indigenous species listed as a vulnerable species in terms o f section 56. 45
(2;) In this Act, words or expressions derived from words or expressions defined in subsection (1) have corresponding meanings unless the context indicates that another meaning is intended.
or
and
and future generations of people;
or e’cological community; or
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i ic t No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004
Objectives of Act
2. The objectives of this Act are- ~ ~ ~-
(a) within the framework of the National Environmental Management Act, to pro vide for- (i) the management and conservation of biological diversity within the 5
(ii) the use of indigenous biological resources in a sustainable manner; and iiii) the fair and equitable sharing among stakeholders of benefits arising
(b ) to give effect to‘ ratified international agreements relating to biodiversity 10
(c) to provide for co-operative governance in biodiversity management and
(d) to provide for a South African National Biodiversity Institute to assist in
Republic and of the components of such biological diversity;
from bioprosgecting involving indigenous biological resources;
which are binding on the Republic;
conservation; and
achieving the objectives of this Act. 15
State’s trusteeship of biological diversity
3. In fulfilling the rights contained in section 24 of the Constitution, the state through
(a ) manage, conserve and sustain South Africa’s biodiversity and its components
Ib) implement this Act to achieve the progressive realisation of those rights.
its organs that implement legislation applicable to biodiversity, must-
and genetic resources; and 20
Application of Act
4. (1) This Act applies- (a ) in the Republic, including-
(i) its territorial waters, exclusive economic zone and continental shelf 25 described in the Maritime Zones Act, 1994 (Act No. 15 of 1994); and
(ii) the Prince Edward Islands referred to in the Prince Edward Islands Act, 1948 (Act No. 43 of 1948); and
(b ) to human activity affecting South Africa’s biological diversity and its components. 30
(2) This Act binds all organs of state- fa) in the national and local spheres of government; and (b) in the provincial sphere of government, subject to section 146 of the
Constitution.
Application of international agreements 35
5. This Act gives effect to ratified international agreements affecting biodiversity to which South Africa is a party, and which bind the Republic.
Application of other biodiversity legislation
6. (1 j This Act must be read with any applicable provisions of the National
(2) Chapter 4 of the National Environmental Management Act applies to the Environmental Management Act. 40
resolution of conflicts arising from the implementation of this Act.
National environmental management principles
7. The application of this Act must be guided by the national environmental management principles set out in section 2 of the National Environmental Management 45 Act.
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Conflicts with other legislation
8. (1) In the event of any conflict between a section of this Act and- (a) other national legislation in force immediately prior to the date of commence-
ment of this Act, the section of this Act prevails if the conflict specifically concerns the management of biodiversity or indigenous biological resources; 5
(b) provincial legislation, the conflict must be resolved in terms of section 146 of the Constitution; and
(c) a municipal by-law, the section of this Act prevails. (2) In the event of any cgnflict between subordinate legislation issued in terms of this
Act and- , 10 (a) an Act of Parliament, the Act of Parliament prevails; (6 ) provincial legislation, the conflict must be resolved in terms of section 146 of
(c) a municipal by-law, the subordinate legislation issued in terms of this Act
(3) For the proper application of subsection (2)(b) the Minister must, in terms of section 146(6) of the Constitution, submit all subordinate legislation issued in terms of this Act which affects provinces to the National Council of Provinces for approval.
the Constitution; and
prevails. 15
Norms and standards
9. (1) The Minister may, by notice in the Guzette- 20 la) issue norms and standards for the achievement of any of the objectives of this
Act., including for the- (i) management and conservation of South Africa’s biological diversity and
its components; (ii) restriction of activities which impact on biodiversity and its components; 25
(bj set indicators to measure compliance with those norms and standards; and (c) amend any notice issued in terms of paragraph (a) or (b).
(2) (a) Before publishing a notice in terms of subsection (l), the Minister must follow
(bj A consultative process referred to in paragraph (a ) need not apply to a 30
(3) Norms and standards may apply-
a consultative process in accordance with sections 99 and 100.
non-substantial change to the notice.
(a ) nationwide; (b ) in a specific area only; or (cj to a specific category of biodiversity only. 35
(a) different areas; or (bj different categories of biodiversity.
(4) Different norms and standards may be issued for-
CHAPTER 2
SOUTH AFRICAN NATIONAL BIODIVERSITY INSTITUTE 40
Part 1
Establishment, powers and duties of Imtitute
Establishment
10. (1) The South African National Biodiversity Institute is established by this Act. (2) The Institute is a juristic person. 45
Functions
11. (1) The Institute- (a ) must monitor and report regularly to the Minister on-
(i) the status of the Republic’s biodiversity;
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Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004
(ii) the conservation status of all listed threatened or protected species and
(iii) the status of all listed invasive species; must monitor and report regularly to the Minister on the impacts of any genetically modified organism that has been released into the environment, including the impact on non-target organisms and ecological processes, indigenous biological resources and the biological diversity of species used for agriculture; may act as an advisory and consultative body on matters relating to biodiversity to ogans of state and other biodiversity stakeholders; must coordinate‘and promote the taxonomy of South Africa’s biodiversity; must manage, control and maintain all national botanical gardens; may establish, manage, control and maintain- (i) herbaria; and
(ii) collections of dead animals that may exist; must establish facilities for horticulture display, environmental education, visitor amenities and research; must establish, maintain. protect and preserve collections of plants in national botanical gardens and in herbaria; may establish, maintain, protect and preserve collections of animals and micro-organisms in appropriate enclosures; must collect, generate, process, coordinate and disseminate information about biodiversity and the sustainable use of indigenous biological resources, and establish and maintain databases in this regard; may allow, regulate or prohibit access by the public to national botanical gardens, herbaria and other places under the control of the Institute, and supply plants, information, meals or refreshments or render other services to visitors; may undertake and promote research on indigenous biodiversity and the sustainable use of indigenous biological resources; may coordinate and implement programmes for- (i) the rehabilitation of ecosystems; and
(ii) the prevention, control or eradication of listed invasive species; may coordinate programmes to involve civil society in- (i) the conservation and sustainable use of indigenous biological resources;
(ii) the rehabilitation of ecosystems; on the Minister’s request, must assist him or her in the performance of duties and the exercise of powers assigned to the Minister in terms of this Act; on the Minister’s request, must advise him or her on any matter regulated in terms of this Act, including-
listed ecosystems; and
and
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(i) the implementation of this Act and any international agreements
(ii) the identification of bioregions and the contents of any bioregional plans; (iii) other aspects of biodiversity planning; 45 (iv) the management and conservation of biological diversity; and (v) the sustainable use of indigenous biological resources;
management of, and development in, national protected areas: and
(i) assigned to it in terms of this Act; or (ii) as may be prescribed.
affecting biodiversity which are binding on the Republic;
(9) on the Minister’s request, must advise him or her on the declaration and
( r ) must perform any other duties- so
(2) When the Institute in terms of subsection (1) gives advice on a scientific matter, it may consult any appropriate organ of state or other institution which has expertise in that matter. 55
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General powers
12. The Institute may for the purpose of performing its duties- (a ) appoint its .own staff, subject to section 29; (b ) obtain, by agreement, the. services of any person, including any organ of state,
(c) acquire or dispose of any right in or to movable or immovable property, or hire
(d) open and operate its own bank accounts; ( e ) establish a comp-my which has as its object the production and supply of
for theperformance of any specific act, task or assignment; 5
or let any property;
goods or the rendering of service9 on behalf of the Institute, subject to the LO Public Finance Management Act;
(f) inv'est any of its money, subject to section 32; (g) borrow money, subject to section 66 of the Public Finance Management Act; (h) chasge fees-
(i) for access to national botanical gardens, herbaria and other places under 15 its control;
(ii) for any work performed or services rendered by it, except for any such work performed or services rendered in terms of section l l ( l ) (m), (n) or
(iii) for access to the results of, or to other information in connection with, 20 (0); or
any research performed by it; (i) collect royalties resulting from any discoveries, inventions or computer
( j ) insure itself against- programmes;
(i) any loss, damage or risk; or 25 (ii) any liability it may incur in the application of this Act;
( k ) perform legal acts, including acts in association with, or on behalf of, any other person or organ of state; and
( l ) institute or defend any legal action.
Part 2 30
Governing board, composition and membership
Composition
13. (1) The Institute is governed by a Board consisting of- (a ) not fewer than seven and not more than nine members appointed in terms of
(b) the Director-General or an official of the Department designated by the
( c ) the Chief Executive Officer of the Institute. (2) The Minister-
( a ) must determine the number of members to be appointed in terms of subsection 40 (l)(a); and
(b) may alter the number determined in terms of paragraph (a) , but a reduction in the number may be effected only when a vacancy in the Board occurs.
(3) The Board takes all decisions in the performance of the duties and exercise of powers of the Institute, except- 45
(a ) those decisions taken in consequence of a delegation in terms of section 27; or (b) where the Public Finance Management Act provides otherwise.
section 15; 35
Director-General; and
Qualifications
14. (1) A m'ember of the Board must- (a) be a fit and proper person to hold office as a member; and 50 (17) have appropriate qualifications and experience in the field of biodiversity.
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(2) The following persons are disqualified from becoming or remaining a member of
( a ) A person holding office as a member of Parliament, a provincial legislature or
(0 ) a person who has been removed from office in terms of section 21. 5
the Board:
a mu.nicipalcounci1; or
Appointment procedure
15. (1) Whenever it is necessary to appoint members of the Board referred to in
( a ) through advertisements in the media circulating nationally and in each of the
( b ) compile a list of the names of persons nominated, setting out the prescribed
(2) Any nomination made pursuant to an advertisement in terms of subsection (l)(a)
section 13( l)(a), the Minist? must-
provinces, invite nominations for appointment as such a member; and 1 0
particulars of each individual nominee.
must be supported by- (a ) the personal details of the nominee; 1s (b ) nomrnee’s qualifications or experience; and (c) any other information that may be prescribed.
(a ) the nzquired number of persons from the list compiled in terms of subsection
(b) if such list is inadequate, any suitable person. (4) When making appointments the Minister must-
(a) consult the MECs for Environmental Affairs; and (b) have regard to the need for appointing persons to promote representivity.
(3) The Minister must, subject to subsection (4), appoint-
(l)(b); and 20
( 5 ) Appointments must be made in such a way that the Board is composed of persons 25 covering a broad range of appropriate expertise in the field of biodiversity.
Chairperson
16. (1) Whenever necessary the Minister must appoint a member of the Board as the
(2) The Cha.irperson is appointed for a period which is determined by the Minister 30 Chairperson of the Board.
which may, in the case of a member referred to in section 13( l)(a), not extend beyond the period of his or her term as a member.
(3) The Minister may appoint a member of the Board as acting chairperson of the Board if-
(‘a) the Chairperson is absent for a substantial period; or 35 (‘b) the appointment of a Chairperson is pending.
Term of office
17. Members of the Board referred to in section 13(1)(u)- ( a ) are appointed for a period of three years or, if section 22(2) applies, for a term
(b) on completion of that term, are eligible for reappointment for one additional
(c) may have their appointment in terms of paragraph (a ) or (b) extended by the
determined in terms of that section; 40
term of three years; and
Minister for a specific period not exceeding one year.
Conditions of appointment 45
18. (1) The Minister must determine the conditions of employment of members of the Board referred to in section 13( l)(a).
( 2 ) (a ) The Minister may, with the concurrence of the Minister of Finance, determine the terms and conditions of employment of members of the Board who are not in the employment of the Government. 50
(b) Their remuneration and allowances are paid by the Institute. (3) (a ) Members who are in the employ of the Government are not entitled to
remuneration and allowances, but must be compensated for out of pocket expenses by the Institute.
(hj Such members are appointed on a part-time basis. 55
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Act No. 10,2004 NATIONAL EhVIRONIvENTAL MANAGEMENT: BIODIVERSITY ACT. 2004
Conduct of members
19. (1 ) A member of the Board- ( a ) must perform the duties of office in good faith and without favour or
prejudice; (b) must disclose to the Board any personal or private business interest that that S
member, or any spouse, partner or close family member of that Board member, may have in any matter before the Board, and must withdraw from the proceedings of the Board when that matter is considered, unless the Board decides that the2nterest of that Board member in the matter is trivial or irrelevant;
(c) may not use the position, privileges or knowledge of a member for private gain or to improperly benefit another person; and
(d) may not act in any other way that compromises the credibility, impartiality, independence or integrity of the Institute.
\
10
(2) A member of the Board who contravenes or fails to comply with subsection (1) is 15 guilty of misconduct.
Termination of membership
20. (1 ) A member of the Board refelred to in section 13( l)(a) ceases to be a member when that person-
( a ) is no longer ligible in terms of section 14 tobe a member; 20 (b) resigns; or (c) is removed from office in terms of section 21.
(2) A member may resign only by giving at least three months’ written notice to the Minister, but the Minister may accept a shorter period in a specific case.
Removal from office 25
21. (1) The Minister may remove a member of the Board referred to in section 13( ] ) ( a ) from office, but only on the ground of-
( a ) misconduct, incapacity or incompetence; (b) absence from three consecutive meetings of the Board without the prior
(c) insolvency; or (d) conviction of a criminal offence without the option of a fine.
permission of the Board except on good cause shown; 30
(2) A member of the Board may be removed from office on the ground of misconduct or incompetence only after a finding to that effect has been made by a board of inquiry appointed by the Minister. 35
(3) The Minister may suspend a member under investigation in terms of this section.
Filling of vacancies
22. ( I ) A vacancy in the Board is filled- (a ) in the case of a vacating Chairperson, by appointing another member in terms
(b ) in the case of a vacating member referred to in section 13(l)(a), by following
( 2 ) A person appointed to fill a vacancy holds office for the remaining portion of the
of section 16( 1) as the Chairperson; and 40
the procedure set out in section 15.
term of the vacating Chairperson or member.
Part 3
Operating procedures of Board
Meetings
45
23. (1) The Chairperson of the Board decides when and where the Board meets, but a majority of the members may request the Chairperson in writing to convene a Board meeting at a time and place set out in the request. so
34 No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004
Act No. 10.2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004
(2) The Chairperson presides at meetings of the Board, but if the Chairperson is absent from a meeting, the members present must elect another member to preside at the meeting.
Procedures
24. (1) The Board may determine its own procedures subject to the provisions of this 5
(2) The Board must keep records of its proceedings and of decisions taken. Act.
i
Quorum and decisions
25. (1) A majority of the members of the Board serving at any relevant time constitutes a qu rum for a meeting of the Board. I. 0
(2) A matter before the Board is decided by the votes of a majority of the members present at the meeting.
(3) If on any matter before the Board there is an equality of votes, the member presiding at the meeting must exercise a casting vote in addition to that person’s vote as a member. 15
Committees
26. (1) The Board may establish one or more committees to assist it in the
(2) When appointing members to a committee, the Board is not restricted to members
(3) The Board-
performance o f its duties or the exercise of its powers.
of the Board. 20
(a) must determine the duties of a committee; (b) mur;t appoint a chairperson and other members of the committee; (c) may remove a member of a committee from office at any time, taking into
account the provisions of the Promotion of Administrative Justice Act, 2000 25 (Act No. 3 of 2000); and
(d) must determine a working procedure of a committee. (4) The Board may dissolve a committee at any time. ( 5 ) (a) Section 18 read with the necessary change as the context may require, applies
(bj A staff member of the Institute appointed to a committee serves on the committee to the terms and conditions of employment of committee m mbers. 30
subject to the terms and conditions of that person’s employment.
Delegation of powers and duties
27. (1) When necessary for the proper performance of its duties, the Board may, subject to subsection ( 2 ) , delegate ny of its powers or duties to- 35
( a ) a member of the Board; (b) a committee referred to in section 26; or ( c ) a staff member of the Institute.
(a ) The appointment or reappointment of a person as the Chief Executive Officer 40
(b) the determination of the terms and conditions of service of the Chief
I C ) the determination of an employment policy in terms of section 29(1); and (d) the setting of financial limits in terms of section 29(2)(a) or (3). 45
(a) is subject to any limitations, conditions and directions that the Board may
(0) must be in writing; (c) does not divest the Board of the responsibility concerning the exercise of the SO
(d) does not prevent the exercise of the delegated power or the carrying out of the
(4) The Board may confirm, vary or revoke any decision taken in consequence of a
(2) The following powers and duties may not be delegated by the Board:
in terms of section 28(1) or (2);
Executive Officer in terms of section 28(3);
(3) A delegation in terms of subsection (1)-
impose;
delegated power or the performance of the delegated duty; and
delegated duty by the Board.
delegation in terms of this section, subject to any rights that may have accrued to a 55 person as a result of the decision.
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Part 4
Adnzinistration of Institute
Appointment of Chief Executive Officer
28. (1) The Board, acting with the concurrence of the Minister, must appoint a person with appropriate qualifications and experience as the Chief Executive Officer of the 5 Institute.
( 2 ) The Chief Executive 0fficer-- (0) is appointed for a term not exceeding five years; and (b) may be reappointed by the Board with the concurrence of the Minister, but
(3) The Chief Executive Officer is employed subject to such terms and conditions of employment as the Board may determine in accordance with a policy approved by the Minister with the concurrence of the Cabinet member responsible for finance.
only for one additional term not exceeding five years. 10
(4) The Chief Executive Officer-- (a) is responsible for the management of the Institute; 15 (b) must perform such duties and may exercise such powers as the Board may
delegate to him or her; and ( c ) must report to the Board on aspects of management, the performance of duties
and the exercise of powers, at such times or intervals and in such manner, as the Board may determine. 20
( 5 ) (a) The Chairperson of the Board may appoint another employee of the Institute
(i) the Chief Executive Officer if for any reason absent or unable to perform his
(ii) there is a vacancy in the office of the Chief Executive Officer. 25
(i) has the powers and duties of the Chief Executive Officer; and (ii) is employed subject to such terms and conditions of employment as the
Chairperson may determine in accordance with the policy referred to in subsection (3). 30
as acting Chief Executive Officer for a period not exceeding six months, whenever-
or her duties; or
(b) Whilst acting as Chief Executive Officer, such employee-
Employment of staff
29. (1) The Board, acting with the concurrence of the Minister, must determine an
(2) The Chief Executive Officer-- employment policy for the Institute.
(a) within the financial limits set by the Board, must determine a staff 35
(b) may appoint persons in posts on the staff establishment. establishment necessary for the work of the Institute; and
(3:) An employee of the Institute is employed subject to the terms and conditions of employment determined by the Chief Executive Officer in accordance with the employment policy of, and within the financial limits set by, the Board. 40
(4) (a) A person in the service of another organ of state may be seconded to the Institute by agreement between the Chief Executive Officer and such organ of state.
(h ) Persons seconded to the Institute perform their duties under the supervision of the Chief Executive Officer.
( 5 ) A person in the service of the Institute may, with the consent of that person, be 45 seconded to another organ of state by agreement between the Chief Executive Officer and such organ of state.
Part 5
Financial matters
Financial accountability 50
30. The Institute is a public entity for the purposes of the Public Finance Management Act, and must comply with the provisions of that Act.
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Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT BIODIVERSITY ACT. 2004
Funding
31. The funds of the Institute consist of- (a) income derived by it from the performance of its duties and the exercise of its
(b) money appropriated by Parliament; S (c) grants received from organs of state; id) voluntary contributions, donations and bequests; ( e ) money borrowed in terms of section 12(g); I f ) income derived from investments referred to in sections 32; and Ig) money derived Fom any other ,source, subject o the Public Finance 10
powers;
Management Act.
Investments
32. The Institute may invest any of its funds not immediately required- (a ) subject toany investment policy that may be prescribed in terms of section 7
jb) in such a manner that the Minister may approve. (4) of the Public Finan e M agement Act; and IS
Part 6
National botanical gardens
Declaration
33. (1) The Minister, acting with the approval of the Cabinet member responsible for 20 the administration of the land in question may, by notice in the Gazette, declare any state land described in the notice as a-
(a ) national botanical garden; or (b) part of an existing national botanical garden.
(2) The Minister, acting in accordance with an agreement with the owner of the land 25 described in that agreement may, by notice in the Gazette declare that land as a-
(a ) national botanical garden; or (6 ) part of an existing national botanical garden.
(3) A notice in terms of subsection ( ] ) ( a ) or (2) (a) must assign a name to the national botanical garden. 30
(4) The sites described in Schedule 1 to the Forest Act, 1984 (Act No.122 of 1984), must be regarded as having been declared as national botanical gardens in terms of this section.
Amendment or withdrawal of declarations
34. (1) The Minister may, by notice in the Gazette- 35 (a ) amend or withdraw a notice referred to in section 33, subject to subsection (2);
(h) amend the name assigned to a national botanical garden. or
(2) The declaration of state land as a national botanical garden, or part of an existing national botanical garden, may not be withdrawn and a part of a national botanical 40 garden on state land may not be excluded from it except by resolution of each House of Parliament.
Part 7
General
Minister’s supervisory powers 45
35. (1 ) The Minister-
duties; ( a ) must monitor the exercise and performance by the Institute of its powers and
40 No. 26136 GOVERNMENT GAZETTE, 7 JUNE 2004
Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004
(b) may set norms and standards for the exercise and performance by the Institute
(c) may issue directives to the Institute on policy, planning, strategy and
(d) must determine limits on fees charged by the Institute in the exercise and 5
( e ) may identify land for new botanical gardens and extensions to existing
(2) The Institute must exercise its powers and perform its duties subject to any norms
of its powers and duties;
procedural issues to ensure its effective and efficient functioning;
performance of its powers and duties; and
botanical gardens.
and standards, directives and determinations issued by the Minister in terms of 10 subsection (1).
Absence of functional Board
36. In the event of absence of a functional Board, the powers and duties of the Board revert to the Minister who, in such a case, must exercise those powers and perform those duties until the Board is functional again. 15
CHAPTER 3
BIODIVERSITY PLANNING AND MONITORING
Purpose of Chapter
37. The purpose of this Chapter is to- ( a ) provide for int grated and co-ordinated biodiversity planning; 20 (b) provide for monitoring the conservation status of various components of
(c) promote biodiversity research. South Africa's biodiversity; and
Part 1
Biodiversity planning 25
National biodiversity framework
38. (1) The Minister- ( a ) must prepare and adopt a national biodiversity framework within three years
(b) must monitori plementation of the framework; 30 ( e ) must review the framework at least every five years; and (d) may, when necessary, amend the framework.
of the date on which this Act takes effect;
(2) The Minister must, by notice in the Gazette, publish the national biodiversity framework and each amendment of the framework.
Contents of national biodiversity framework 35
39. (1) The national biodiversity framework must- ( a ) provide for an integrated, co-ordinated and uniform approach to biodiversity
management by organs of state in all spheres of government, non- governmental organisations, the private sector, local communities, other stakeholders and the public; 40
(i) this Act; (ii) the national environmental management principles; and
(iii) any relevant international agreements binding on the Republic;
protected areas; and
in Southern Africa.
(b) be consistent with-
I C ) identify priority areas for conservation action and the stablishment of 45
(d l reflect regional co-operation on issues concerning biodiversity management
(2) The national biodiversity framework may determine norms and standards for provincial and municipal environmental conservation plans. 50
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Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004
Bioregions and bioregional plans ~~ ~
40. (1) The Minister or the MEC for environmental affairs in a province may, by
(a ) determine a geographic region as a bioregion for the purposes of this Act if notice in the Gazette-
that region contains whole or several nested ecosystems and is characterised 5 by its landforms, vegetation cover, human culture and history; and
biodiversity in such region. ('b) publish a plan for the management of biodiversity and the components of
(2) The Minister may deteyine a region as a bioregion and publish a bioregional plan for that region either- ' 1 0
(a ) on own initiative but after consulting the MEC for Environmental Affairs in
(b) at the request of a province or municipality. the relevant province; or
(3) The MEC for environmental affairs may determine a region as a bioregion and publish a bioregional plan for that region only with the concurrence of the Minister. 15
(4) Any person or organ of state may, on the request of the Minister or MEC for Environmental,Affairs, assist in the preparation of a bioregional plan.
(5) The Minister- ( a ) may enter into an agreement with a neighbouring country to secure the
( b ) must submit to Parliament a copy of any agreement entered into in terms of effective implementation of the plan; and 20
paragraph (a).
Contents of bioregional plans
41. A bioregional plan must- ( a ) contain measures for the effective management of biodiversity and the 25
(b) provide for monitoring of the plan: and (c) be consistent with-
components of biodiversity in the region;
(i) this Act; (ii) the national environmental management principles; 30
(iii) the national biodiversity framework; and (iv) any relevant international agreements binding on the Republic.
Review and amendment of bioregional plans
42. (1) The Minister or the MEC for Environmental Affairs in the relevant province, as may be appropriate, must review a bioregional plan published in terms of section 35 40(l)(b) at least every five years, and assess compliance with the plan and the extent to which its objectives are being met.
(2) The Minister or MEC for Environmental Affairs may, when necessary, by notice in the Gazette, amend a bioregional plan or the boundaries of the bioregion.
(3) The MEC for Environmental Affairs may amend a bioregional plan or the 40 boundaries of the bioregion only with the concurrence of the Minister.
Biodiversity management plans
43. (1) Any person. organisation or organ of state desiring to contribute to biodiversity management may submit to the Minister for his or her approval a draft management plan for- 45
(a) an ecosystem- ( i ) listed in terms of section 52; or
(ii) which is not listed in terms of section 52 but which does warrant special
(b) an indigenous species- 50 conservation attention;
(i) listed in terms of section 56; or
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Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004
(ii) which is not listed in terms of section 56 but which does warrant special
(c) a migratory species to give effect to the Republic’s obligations in terms of an conservation attention; or
international. agreement binding on the Republic. (2) Before approving a draft biodiversity management plan, the Minister must 5
identify a suitable person, organisation or organ of state which is willing to be responsible for the implementation of the plan.
(3) The Minister must- (a) publish by notice in the Gazette a biodiversity management plan approved in
(b ) determine the manier of implementation of the plan; and (c) assign responsibility for the implementation of the plan to the person,
terms of subsection (1); 1 0
organisation or organ of state identified in terms of subsection (2).
Biodiversity management agreements
44. The Minister may enter into a biodiversity management agreement with the 15 person, organisation or organ of state identified in terms of section 43(2), or any other suitable person, organisation or organ of state, regarding the implementation of a biodiversity management plan, or any aspect of it.
Contents of biodiversity management plans
45. A biodiversity managementpl must- 20 (a) be aimed at ensuring the long-term survival in nature of the species or
( b j provide for the responsible person, organisation or organ of state to monitor
(c) be consistent with- 25
ecosystem to which the plan relates;
and report on progress with implementation of the plan; and
( i ) this Act; (ii) the national environmental management principles;
(iii) the national biodiversity framework; (iv) any applicable bioregional plan; (v) any plans issued in terms of Chapter 3 of the National Environmental 30
(vi) any municipal integrated development plan; (vii) any other plans prepared in terms of national or provincial legislation that
(viii) any relevant international greements binding on the Republic. 35
Management Act;
is affected; and
Review and amendment of biodiversity management plans
46. (1) The Minister must review a biodiversity management plan published in terms of section 43(3) at least every five years, and assess compliance with the plan and the extent to which its objectives are being met.
organisation or organ of state, may by notice in the Gazette amend a biodiversity management plan published in terms of section 43(3).
(2) The Minister, either on own initiative or on request by an interested person, 40
(3) Before amending a biodiversity management plan, the Minister must consult- (a) any person, organisation or organ of state implementing the plan; and jhj any organ of state whose activities are affected by the implementation of the 45
plan.
Consultation
47. (1) Before adopting or approving a national biodiversity framework, a bioregional plan or a biodiversity management plan, or any amendment to such a plan, the Minister must follow a consultative process in accordance with sections 99 and 100. 50
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Act No. 10.2004 NATIONAL EN’IRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004
(2) Before adopting a bioregional plan, or any amendment to such a plan, the MEC for Environmental Affairs in the relevant province must follow a consultative process in accordance with sections 99 and 100.
Part 2
Co-ordination and alignment of plans, monitoring and research 5
Co-ordination and alignment of biodiversity plans
48. (1) The national biodsersity framework, a bioregional plan and a biodiversity
(0 ) any environmental implementation or environmental management plans management plan prepared in terms of this Chapter may not be in conflict with-
prepared in terms of Chapter 3 of the National Environmental Management 10 Act;
(b) any integrated development plans adopted by municipalities in terms of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);
(c) any spatial development frameworks in terms of legislation regulating land- use management, land development and spatial planning administered by the 1.5 Cabinet member responsible for land affairs; and
affected. (d) any other plans prepared in terms of national or provincial legislation that are
(2) An organ of state that must prepare an environmental implementation or environmental management plan in terms of Chapter 3 of the National Environmental 20 Management Act, and a municipality that must adopt an integrated development plan in tenns of the Local Government: Municipal Systems Act, 2000, must-
( a ) align its plan with the national biodiversity framework and any applicable bioregional plan;
( b ) incorporate into that plan those provisions of the national biodiversity 25 framework or a bioregional plan that specifically apply to it; and
(c) demonstrate in its plan how the national biodiversity framework and any applicable bioregional plan may be implemented by that organ of state or municipality.
(3 ) The Institute may- 30 ( L E ) assist the Minister and others involved in the preparation of the national
biodiversity framework, a bioregional plan or a biodiversity management plan to comply with subsection (1); and
( b ) make recommendations to organs of states or municipalities referred to in subsection (2) to align their plans referred to in that subsection with the 35 national biodiversity framework and any applicable bioregional plan.
Monitoring
49. (1) The Minister must for the purposes of this Chapter designate monitoring mechanisms and set indicators to determine-
(a ) the conservation status of various components of South Africa’s biodiversity; 40
(b) any negative and positive trends affecting the conservation status of the
(2) The Minister may require any person, organisation or organ of state involved in terms of subsection (1) in monitoring the matters referred to in that subsection to report 4.5 regularly to the Minister on the results of such monitoring measured ab oainst the predetermined indicators.
and
various components.
(3) The Minister must- (a ) annually report to Parliament on the information submitted to the Minister in
(bj make such information publicly available. terms of subsection (2); and 50
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Act No. 10,2004- NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004
Research
50. (1) The Minister must promote research done by the Ins itute and other institutions on biodiversity conservation, including the sustainable use, pr6tection and conservation of indigenous biological resources.
(2) Research on biodiversity conservation may i clude- 5 ( a ) the collection and analysis of information about-
(i) the conservation status of the various components of biodiversity; (ii) negative and positive trends affecting the conservation status of various
(iii) threatening processes or activities likely to impact on biodiversity 10 components; and
conservation; ( b ) the assessment of strategies and techniques for biodiversity conservation; (c) the determination of biodiversity conservation needs and priorities; and (d) the sustainable use, protection and conservation of indigenous biological
resources. 15
CHAPTER 4
THREATENED OR PROTECTED ECOSYSTEMS AND SPECIES
Purpose of Chapter
51. The purpose of this Chapter is to- ( a ) provide for the protection of ecosystems that are threatened or in need of 20
(h ) provide for the protection of species that are threatened or in need of
(c) give effect to the Republic’s obligations under international agreements
((1) ensure that the utilisation of biodiversity is managed in an ecologically
protection to ensure the maintenance of their ecological integrity;
protection to ensure their survival in the wild;
regulating international trade in specimens of endangered species; and 25
sustainable way.
Part 3
Protection of threatened or protected ecosystems
Ecosystems that are threatened or in need of protection 30
52. (1) (a) The Minister may, by notice in the Gazette, publish a national list of ecosystems that are threatened and in need of protection.
(b) An MEC for environmental affairs in a province may, by notice in the Gazette, publish a provincial list of ecosystems in the province that are threatened and in need of protection. 35
(2) The following categories of ecosystems may be listed in terms of subsection (1): ( a ) critically endangered ecosystems, being ecosystems that have undergone
severe degradation of ecological structure, function or composition as a result of human intervention and are subject to an extremely high risk of irreversible transformation; 40
(b) endangered ecosystems, being ecosystems that have undergone degradation of ecological structure, function or composition as a result of human intervention, although they are not critically endangered ecosystems;
(c) vulnerable ecosystems, being ecosystems that have a high risk of undergoing significant degradation of ecological structure, function or composition as a 45
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Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004
result of human intervention, although they are not critically endangered ecosystems or endangered ecosystems; and
(d) protected ecosystems, being ecosystems that are of high conservation value or of high national or provincial importance, although they are not listed in terms of paragraphs (a), (b) or (c).
(3) ,4 list referred to in subsection ( 1) must describe in sufficient detail the location of each ecosystem on the list.
(4) The Minister and the MEC for environmental affairs in a relevant province, respectively, must at least every five years review any national or provincial list published by the Minister or MEC in terms of subsection (1).
(5) An MEC may publish o? amend a provincial list only with the concurrence of the Minister.
5
10
Threatening processes in listed ecosystems
53. (1 j The Minister may, by notice in the Gazette, identify any process or activity in a listed ecosystem as a threatening process. 15
(2) A threatening process identified in terms of subsection (1) must be regarded as a specified activity contemplated in section 24(2)(b) of the National Environmental Management Act and a listed ecosystem must be regarded as an area identified for the purpose of that section.
Certain plans to take into account in protection of listed ecosystems 20
54. An organ of state that must prepare an environmental implementation or environmental management plan in terms of Chapter 3 of the National Environmental Management Act, and a municipality that must adopt an integrated development plan i terms of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), must take into account the need for the protection of listed ecosystems. 25
Amendment of notices
55. The Minister or the MEC for Environmental Affairs in any relevant province may, by notice in the Gazette, amend or repeal any notice published by him or her in terms of section 52(1) or 53(1).
Part 2 30
Protection of threatened or protected species
Listing of species that are threatened or in need of national protection
56. (1 j The Minister may, by notice in the Gazette, publish a list of- (a ) critically endangered species, being any indigenous pecies facing an
extremely high risk of extinction in the wild in the immediate future; 35 (b) endangered species, being any indigenous species facing a high risk of
extinction in the wild in the near future, although they are not a critically endangered species;
(c) vulnerable species, being any indigenous species facing an extremely high
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Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004
risk of extinction in the wild in the medium-term future, although they are not a critically endangered species or an endangered species; and
(d) protected species, being any species which are of such high conservation value or national importance that they require national protection, although they are not listed in terms of paragraph (a), (b) or (c). 5
(2) The Minister must review the lists published in terms of subsection (1) at least every five years.
Restricted activities involving listed threatened or protected species
57. (1) A person may not c&fry out a restrictd activity involving a specimen of a listed
(2) The Minister may, by notice in the Gazette, prohibit the carrying out of any
(a) which is of a nature that may negatively impact on the survival of a listed
(b) which is specified in the notice, 1s
threatened or protected species without a permit issued in terms of Chapter 7. 10
activity-
threatened or protected species; and
or prohibit the carrying out of such activity without a permit issued in terms of Chapter 7.
(3) Subsection (1) does not apply in respect of a specimen of a listed threatened or protected species conveyed from outside the Republic in transit through the Republic to a destination outside the Republic, provided that such transit through the Republic takes 20 place under the control of an environmental management inspector.
Amendment of notices
58. The Minister may by notice in the Gazette amend or repeal any notice published in terms of section 55(1) or 56(2).
Part 3 25
Trade in listed threatened or protected species
Functions of Minister
59. The Minister- must monitor- (i) compliance with section 57(1) insofar as trade in specimens of listed 30
threatened or protected species is concerned; and (ii) compliance in the Republic with an international agreement regulating
international trade in specimens of endangered species which is binding on the Republic;
must consult the scientific authority on issues relating to trade in specimens of 3.5 endangered species regulated by such an international agreement; must prepare and submit reports and documents in accordance with the Republic’s obligations in terms of such an international agreement; may provide administrative and technical support services and advice to organs of state to ensure the effective implementation and enforcement in the 40 Republic of such an international agreement; may make information and documentation relating to such an international agreement publicly available; and may prescribe asystem for the registration of institutions, ranching operations, nurseries, captive breeding operations and other facilities. 45
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Establishment of scientific authority
60. (1) The Minister must establish a scientific authority for purpose of assisting in regulating and restricting the trade in specimens of listed threatened or protected species.
proper functioning of the scientific authority.
Functions of scientific authority
(2) The Institute must provide logistical, administrative and financial support for the 5
I: ) The scientific authority must-- ' r'
monitor in the Republic the legal and illegal trade in specimens of listed threatened or protected species; 1 0 advise the Minister and any other interested organs of state on the matters that it monitors; make recommendations to an issuing authority on applications for pennits referred to in section 57(1) or (2); make. non-detriment findings on the impact of actions relating to the 15 international trade in specimens of listed threatened or protected species: advise the Minister on- (i) the registration of ranching operations, nurseries, captive breeding
(ii) whether an operation or facility meets the criteria for producing species 20
(iii) the choice of a rescue centre or other facility for the disposal of forfeited
(iv) any amendments to a notice published in terms of section 56(1) or 57(2); (v) the nomenclatur of species; or 25
(vi) any other matter of a specialised nature; assist the Minister or an environmental management inspector in the identification of specimens for the purpose of enforcing the provisions of this Act; issue certificates in which the identification of a specimen is verified as being 30 taxonomically accurate; perform any other function that may be- (i) prescribed; or
(ii) delegated to it by the Minister in terms of section 47D of the National
deal with any other matter necessary for, or reasonably incidental to, its powers and duties.
operations and other facilities;
considered to be bred in captivity or artificially propagated;
specimens;
Environmental Management Act; and 35
(2) In performing its duties, the scientific authority must- ( L E ) base its findings, recommendations and advice on a scientific and professional
review of available information; and 40 ( b j consult, when necessary, organs of state, the private sector, non-governmental
organisations, local communities and other stakeholders before making any findings or recommendations or giving any advice.
Annual non-detriment findings
62. (1) The scientific authority must publish in the Gazette any annual non-detriment 45 findings on trade in specimens of listed threatened or protected species in accordance with an international agreement regulating international trade in specimens of listed threatened or protected species which is binding on the Republic.
(2) Any interim findings of the scientific authority must be published in the Gazette for public nformation within 30 days after the decision has been made. 50
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Part 4
General provisions
Consultation
63. (1) Before publishing a notice in terms of section 52( l), 53( l), 56( 1) or 57(2), or amending or repealing such a notice in terms of section 55 or 58, the Minister must 5 follow a consultative process in accordance with sections 99 and 100.
(2) Before publishing a nqice in terms of section 52(1), or amending or repealing such a notice in terms of section 55, the MECYor environmental affairs in the relevant province must follow a consultative process in accordance with sections 99 and 100.
CHAPTER 5 10
SPECES AND ORGANISMS POSING POTENTIAL THREATS TO BIODIVERSITY
Purposes of Chapter
64. (1) The purpose of this Chapter is- ( L E ) to prevent the unauthorized introduction and spread of alien species and 15
invasive species to ecosystems and habitats where they do not naturally occur; (6) to manage and control alien species and invasive species to prevent or
minimize harm to the environment and to biodiversity in particular; (c) to eradicate alien species and invasive species from ecosystems and habitats
where theymaa m such cosystems or habitats; and 20 (d) to ensure that environmental assessments for purposes of permits in terms of
the Genetically Modified Organisms Act, 1997 (Act No. 15 of 1997), are conducted in appropriate cases in accordance with Chapter 5 of the National Environmental Management Act.
(2) For the purpose of this Chapter, “specimen” has the meaning assigned to it in 25 paragraphs (a) and (b) of the definition of “specimen” in section l(1).
Part 1
Alien species
Restricted activities involving alien species
65. (1) A person may not carry out a restricted activity involving a specimen of an 30
(2) A permit referred to in subsection (1) may be issued only after a prescribed alien species without a permit issued in terms of Chapter 7.
assessment of risks and potential impacts on biodiversity is carried out.
Exemptions
66. (1) The Minister may, by notice in the Gazette, exempt from the provisions of 35 section 65-
( a ) any alien species specified in the notice; or (b) any alien species of a category specified in the notice.
(2) Any person may carry out a restricted activity involving a specimen of an
(3) The Minister must regularly review a notice published in terms of subsection (1). exempted alien species without a permit entioned in section 65(1). 40
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Restricted activities involving certain alien species totally prohibited
67. (1) The Minister may, by notice in the Gazette, publish alist of those alien species
(2) Aperson may not carry out any restricted activity involving a specimen of an alien
(3) The Minister must regularly review a list published in terms of subsection (1).
in respect of which a permit mentioned in section 65( 1) may not be issued.
species publi h d in terms of subsection (1). 5
Amendment of notices J
68. The Minister may, by notice in the Gazette, amend or repeal any notice published in terms of section 66( 1) or 67( 1).
Duty of care relating to alien species 10
69. (1) A person authorised by permit, in terms of section 65( l), to carry out a
(a) comply with the conditions under which the permit has been issued; and (b ) take all required steps to prevent or minimise harm to biodiversity.
restricted activity involving a specimen of an alien species must-
(2) A competent authority may, in writing, direct any person who has failed to comply 15 with subsection (I), or who has contravened section 65(1) or 67(2), to take such steps-
(a) as may be necessary to remedy any harm to biodiversity caused by the actions
(b) as may be specified in the directive. of that person; and
(3) If that person fails to comply with a directive issued in terms of subsection (2), the 20 competent authority may-
(a ) implement the directive; and (17) recover from that person all costs incurred by the competent authority in
implementing the directive. (4) Should an alien species establish itself in nature as an invasive species because of 25
the actions of a specific person, a competent authority may hold that person liable for any costs incurred in the control and eradication of that species.
Part 2
Invasive species
List of invasive species 30
70. (1) (a) The Minister must within 24 months of the date on which this section takes effect, by notice in the Gazette, publish a national list of invasive species in respect of which this Chapter must be applied nationally.
(b ) The MEC for environmental affairs in a province may, by notice in the Gazette, publish a provincial list of invasive species in respect of which this Chapter must be 35 applied in the province.
(2) The Minister or the MEC for environmental affairs in a relevant province must regularly review the national list or any provincial list published in terms of subsection (1), as may be appropriate.
terms of subsection (1) or (2) with the concurrence of the Minister. (3) An MEC for Environmental Affairs may only publish or amend a provincial list in 40
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Restricted activities involving listed invasive species
71. (1) Aperson may not carry out a restricted activity involving a specimen of a listed
(2) A permit referred to in subsection (1) may be issued only after a prescribed invasive species without a permit issued in terms of Chapter 7.
assessment of risks and potential impacts on biodiversity is carried out.
Amendment of notices
5
72. The Minister or the M_EC for environmental affairs in any relevant province may, by notice in the Gazette, amend or repeal any notice published by him or her in terms of section 70 (1).
Duty of care relating to listed invasive species 10
73. (1) A person authorised by permit in terms of section 7 1 (1 j to carry out a restricted activity involving a specimen of a listed invasive species must take all the required steps to prevent or minimise harm to biodiversity.
( 2 ) A person who is the owner of land on which a listed invasive species occurs must- 1s
(a) notify any relevant competent authority, in writing, of the listed invasive
(b) take steps to control and eradicate the listed invasive species and to prevent it
(c) take all the required steps to prevent or minimise harm to biodiversity. 20
species occurring on that land;
from spreading; and
(3) A competent authority may, in writing, direct any person who has failed to comply with subsection (1) or (2), or who has contravened section 71(1), to take such steps-
(a ) as may be necessary to remedy any harm to biodiversity caused by- (i) the actions of that person; or (ii) the occurrence of the listed invasive species on land of which that person 25
is the owner; and (b) as may be specified in the directive.
(4) If that person fails to comply with a directive issued in terms of subsection (3j, a competent authority may-
(a) implement the directive; and 30 (b ) recover all costs reasonably incurred by a competent authority in implement-
ing the directive- (ij from that person; or (ii) proportionally from that person and any other person who benefited from
implementation of the directive. 35
Requests to competent authorities to issue directives
74. (1) Any person may request a competent authority, in writing, to issue a directive in terms of section 73(3).
(2) A competent authority must reply to the request, in writing, within 30 days of receipt of the request. 40
(3) Should a competent authority fail to respond to the request within the stated period or refuses the request, the person who made the request may apply to a court for an order directing that competent authority to issue the directive.
Control and eradication of listed invasive species
75. (1) Control and eradication of a listed invasive species must be carried out by 45 means of methods that are appropriate for the species concerned and the environment in which it occurs.
3
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(2) Any action taken to control and eradicate a listed invasive species must be executed with caution and in a manner that may cause the least possible harm to biodiversity and damage to the environment.
(3) The methods employed to control and eradicate a listed invasive species must also be directed at the offspring, propagating material and re-growth of such invasive species 5 in order to prevent such species from producing offspring, forming seed, regenerating or re-establishing itself in any manner.
(4) The Minister must ensure the coordination and implementation of programmes for the prevention, control or eradication of invasive species.
(5 ) The Minister may esgblish an entity consisting of public servants to coordinate 10 and implement programmes for the prevention, control or eradication of invasive species.
Invasive species control plans of organs of state
76. (1) The management authority of a protected area preparing a management plan for the area in terms of the Protected Areas Act must incorporate into the management 15 plan an invasive species control and eradication strategy.
(2) (a) All organs of state in all spheres of government must prepare an invasive species monitoring, control and eradication plan for land under their control, as part of their environmental plans in accordance with section 11 of the National Environmental Management Act. 20
(b) The invasive species monitoring. control and eradication plans of municipalities must be part of their integrated development plans.
(3) The Minister may request the Institute to assist municipalities in performing their duties in terms of subsection (2).
(4) An invasive species monitoring, control and eradication plan must include- 25 (a ) a detailed list and description of any listed invasive species occurring on the
(b) a description of the parts of that land that are infested with such listed invasive
(c) an assessment of the extent of such infestation; 30 (d) a status report on the efficacy of previous control and eradication measures; (e) the current measures to monitor, control and eradicate such invasive species;
cf) measurable indicators of progress and success, and indications of when the
relevant land;
species;
and
control plan is to be completed. 35
Invasive species status reports
77. (1) The management authority of a protected area must a regular intervals prepare and submit to the Minister or the MEC for Environmental Affairs in the province a report on the status of any listed invasive species that occurs in that area.
(2) A status report must include- 40 (a) a detailed list and description of all listed invasive species that occur in the
(‘b) a detailed description of the parts of the area that are infested with listed
(‘c) an assessment of the extent of such infestation; and 45 (‘d) a report on the efficacy of previous control and eradication measures.
protected area;
invasive species;
Part 3
Other threats
Genetically modified organisms
78. (1) If the Minister has reason to believe that the release of a genetically modified 50 organism into the environment under a permit applied for in terms of the Genetically
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Modified Organisms Act, 1997 (Act No. 15 of 1997), may pose a threat to any indigenous species or the environmenl, no permit for such release may be issued in terms of that Act unless an environmental assessment has been conducted in accordance with Chapter 5 of the‘National Environmental Management Act as if such release were a listed activity contemplated in that Chapter. 5
(2) The Minister must convey his or her belief referred to in subsection (1) to the authority issuing permits in terms of the Genetically Modified Organisms Act, 1997, before the application for the relevant permit is decided.
(3) For the purposes of subsection (1) “release” means trial release or general release as defined insection 1 oft@ Genetically Modified Organisms Act, 1997. 10
\
Part 4
General provisions
Consultation
79. (1) Before publishing a notice in terms of section 66(1), 67(1) or 70(1), or amending or repealing such a notice in terms of section 68 or 72, the Minister must 15 follow a consultative process in accordance with sections 99 and 100.
(2 ) Before publishing a notice in terms of section 70(1), or amending or repealing such a notice in terms of section 72, the MEC for environmental affairs in the relevant province must follow a consultative process in accordance with sections 99 and 100.
CHAPTER 6 20
BIOPROSPECTING, ACCESS AND BENEFIT-SHARING
Purpose and application of Chapter
80. (1) The purpose of this Chapter is- (a ) to regulate bioprospecting involving indigenous biological resources; ( b ) to regulate the export from the Republic of indigenous biological resources for 25
the purpose of bioprospecting or any other kind of research; and (c) to provide for a fair and equitable sharing by stakeholders in benefits arising
from bioprospecting involving indigenous biological resources. (2) In this Chapter-
“indigenous biological resources”-- 30 (a) includes-
(0
(ii)
(iii)
any indigenous biological resources as defined in paragraph (b) of the definition of “indigenous biological resource” in section 1, whether gathered from the wild or accessed from any other source, including any animals, plants or other organisms of an indigenous species cultivated, 35 bred or kept in captivity or cultivated or altered in any way by means of biotechnology; any cultivar, variety, strain, derivative, hybrid or fertile version of any indigenous species or of any animals, plants or other organisms referred to in subparagraph (i); and 40 any exotic animals, plants or other organisms, whether gathered from the wild or accessed from any other source which, through the use of biotechnology, have been altered with any genetic material or chemical
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compound found in any indigenous species or any animals, plants or other organisms referred to in subparagraph (i) or (ii); but
(b) excludes- (i) geneticmaterial of human origin;
(ii) any exotic animals, plants or other organisms, other than exotic animals, S
(iii) indigenous biological resources listed in terms of the International Treaty plants or other organisms referred to in paragraph (u,)(iii); and
on Plant Genetic Resources for Food and Agriculture.
Permits C’ \
81. (1) No person may, without apermit issued in terms of Chapter 7- 10 (a) engage in bioprospecting involving any indigenous biological resources; or (b) export from the Republic any indigenous biological resources for the purpose
(2) Before any application for a permit referred to in subsection (1) may be considered by a relevant issuing authority, the applicant must at the request of the issuing authority, 15 disclose to the issuing authority all information concerning the proposed bioprospecting and the indigenous biological resources to be used for such bioprospecting that is relevant for a proper consideration of the application.
Certain interests to be protected before permits are issued
of bioprospecting or any other kind of research.
82. (1) Before a permit referred to in section SI ( l)(a) or (b) is issued, the issuing 20 authority considering the application for the permit must in accordance with this section protect any interests any of the following stakeholders may have in the proposed bioprospecting project:
(a ) A person, including any organ of state or community, providing or giving access to the indigenous biological resources to which the application relates; 25 and
(i) whose traditional uses of the indigenous biological resources to which the application relates have initiated or will contribute to or form part of the proposed bioprospecting; or 30
(ii) whose knowledge of or discoveries about the indigenous biological resources to which the application relates are to be used for the proposed bioprospecting.
(2) If a stakeholder has an interest as set out in subsection ( l ) (a ) , an issuing authority may issue a permit only if- 3s
(b) an indigenous community-
the applicant has disclosed all material information relating to the relevant bioprospecting to the stakeholder and on the basis of that disclosure has obtained the prior consent of the stakeholder for the provision of or access to such resources; the applicant and the stak holder hav entered into- 40 (i) a material transfer agreement that regulates the provision of or access to
such resources; and (ii) a benefit-sharing agreement that provides for sharing by the stakeholder
in any future benefits that may be derived from the relevant bioprospecting; and 45
the Minister has in terms of sections 83(2) and 84(2) approved such benefit-sharing and material transfer agreements.
(3) If a stakeholder has an interest as set out insubsection (l)(b), an issuing authority may issue a permit only if-
( a ) the applicant has disclosed all material information relating to the relevant SO bioprospecting to the stakeholder and on the basis of that disclosure has obtained the prior consent of the stakeholder to use any of the stakeholder’s
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knowledge of or discoveries about he indigenous biological resources for the proposed bioprospecting;
(‘b) the applicant and the stakeholder have ntered into a benefit-sharing agreement tylat provides for sharing by the stakeholder in any future benefits that may be derived from the relevant bioprospecting; and
(c) the Minister has in terms of section 83(2) approved such benefit-sharing agreement.
(4) An issuing authority-
5
(a) may engage the applicant and stakeholder on the terms and conditions of a benefit-sharing or-material transfer agreement;
{b) may facilitate negotiations between’the applicant and stakeholder and ensure that those negotiations are conducted on an equal footing;
(c) on request by the Minister, must ensure that any benefit-sharing arrangement agreed upon between the applicant and stakeholder is fair and equitable;
(dl may make recommendations to the Minister; and ( e ) must perform any other functions that may be prescribed.
10
15
Benefit-sharing agreements
83. (1) A benefit-sharing agreement must- (a) be in a prescribed format; (‘b) specify- 20
(i) the type of indigenous biological resources to which the relevant
(ii) the area or source from which the indigenous biological resources are to
iiii) the quantity of indigenous biological resources that is to be collected or 25
(iv) any traditional uses of the indigenous biological resources by an
(v) the present potential uses of the indigenous biological resources;
bioprospecting relates;
be collected or obtained;
obtained;
indigenous community; and
( c ) name the parties to the benefit-sharing ag eement; 30 (d) set out the manner in which and the extent to which the indigenous biological
resources are to be utilised or exploited for purposes of such bioprospecting; (e) set out the manner in which and the extent to which the stakeholder will share
in any benefits that may arise from such bioprospecting; ( f i provide for aegular eview of the agreement by the parties as the 35
bioprospecting progresses; and (g) comply with any other matters that may be prescribed.
{a) must be submitted to the Minister for approval; and (b) does not take effect unless approved by the Minister.
(2) A benefit-sharing agreement or any amendment to such an agreement-
40
Material transfer agreements
84. (1) A material transfer agreement must- (a ) be in a prescribed format; (b ) specify-
particulars of the provider, and the xporter or recipient, of the 45 indigenous biological resources; the type of indigenous biological resources to be provided or to be given access to; the area or source from which the indigenous biological resources are to be collected, obtained or provided; 50 the quantity of indigenous biological resources that is to be provided, collected, obtained or exported; the purpose for which such indigenous biological resources are to be exported; the present potential uses of the indigenous biological resources; and 55
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(vii) conditions under which the recipient may provide any such indigenous biological resources, or their progeny, to a third party.
(2) A material transfer agreement or any amendment to such an agreement- (a) must be submitted to the Minister for approval; and (b) does not take effect unless approved by the Minister. 5
Establishment of Bioprospecting Trust Fund
85. ( I 1 A Bioprospecting Trust Fund is established into which all moneys arising from benefit-sharing agreementspd material transfer agreements, and due to stakeholders, must be paid, and from which all payments to: or for the benefit of, stakeholders must be made.
(2) All money paid into the bioprospecting trust fund is trust money within the meaning of section 13(l)(fl(ii) of the Public Finance Management Act.
(3) The Director-General-
10
(a ) must manage the Fund in the prescribed manner; and (b) is accountable for the money in the Fund in terms of the Public Finance 1.5
Management Act.
Exemptions
86. (I) The Minister may by notice in the Guzette- (a) declare that this Chapter does not apply to indigenous biological resources
specified in the notice or to an activity relating to such indigenous biological 20 resources; and
(b) amend or withdraw a notice referred to in paragraph (a). (2) Before publishing a notice in terms of subsection (1) the Minister must follow a
consultative process in accordance with sections 99 and 100.
CHAPTER 7 25
PERMITS
Purpose of Chapter
87. The purpose of this Chapter is to provide for the regulation of the issuing of permits authorising-
( a ) restricted activities involving specime s of- 30 (i) listed threatened or protected species in terms of section 57(1);
(ii) alien species in terms of section 6.5(1); or (iiij listed invasive species in terms of section 71( 1 j;
( 6 ) activities regulated in terms of a notice published in terms of section .57(2); (c) bioprospecting involving indigenous biological resources in terms of section 35
(d) the export of indigenous biological resources for bioprospecting or any other 81(1); or
type of research in terms of section 8 1 (1 j.
Part 1
Permit system 40
Application for permits
88. (1) A person may apply for a permit by lodging an application on the prescribed
(2) An issuing authority may-
the application;
form to the authority.
(a) request the applicant to furnish any additional information before it considers 4.5
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(b) require the applicant to comply with such reasonable conditions as it may
(c) issue a permit unconditionally or issue it subject to conditions; or (d) refuse a permit.
impose before it grants the application;
(3) A decision of the issuing authority to issue or refuse a pennit or to issue it subject 5 to conditions, must be consistent with-
(a) the applicable provisions of this Act; (b) the national environmental management principles; (c) the national biodiversity framework; (d) any other elevant,plans adopted or approved in terms of Chapter 3; 10 ( e ) any applicable international agreefients binding on the Republic; u) the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000); (g) any requirements that may be prescribed.
(4) If compulsory conditions are prescribed for any kmd of permit, an issuing authority may not issue a permit of that kind other than subject to those conditions. 15
(5) If an application is rejected, the issuing authority must give reasons for the decision in writing to the applicant.
Risk assessments and expert evidence
89. Before issuing a permit, the issuing authority may in writing require the applicant to furnish it, at the applicant’s expense, with such independent risk assessment or expert 20 evidence as the issuing authority may determine.
Permits
90. (1) A permi- (a) must specify-
(i) the purpose for which it is issued; 25 (ii) the period for which it will remain valid; and
(iii) any other matters that may be prescribed; (b) may be issued on conditions specified in the permit; and (c) must be in the form and contain such other particulars as may be prescribed.
(2) A permit issued in terms of section 91 does not absolve the holder or any other 30 person from complying with the provisions of any other applicable law.
Additional requirements relating to alien and invasive species
91. An issuing authority may issue a permit for a restricted activity involving a specimen of an alien species or of a listed invasive species only if-
(a) adequate procedures have been followed by the applicant to assess the risks 35
(b) the relevant species has been found to have negligible or no invasive potential; (c) the benefits of allowing the activity are significantly greater than the costs
associated with preventing or emedying any resultant damage to the environment or biodiversity; and 40
(d) it is satisfied that adequate measures have been taken by the applicant to prevent the escape and spread of the species.
and potential impacts associated with the restricted activity;
Integrated permits
92. (1) If the carrying out of an activity mentioned in section 90 is also regulated in terms of other law, the authority empowered under that other law to authorise that 45
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activity and the issuing authority empowered under this Act to issue permits in respect of that activity may-
(a ) exercise their respective powers jointly; and (b) issue a single integrated permit instead of a separate permit and authorisation.
the activity in question if that authority is designated in terms of this Act also as an issuing authority for permits in respect of that activity.
(3) An integrated permit may be issued only if-
(2) An authority empowered under that other law may issue an integrated permit for 5
(a) the relevant provisions of this Act and that other law have been complied with;
(b) the permit specifies the- \ and r' 10
(i) provisions in terms of which it has been issued; and (ii) authority or authorities that have issued it.
Cancellation of permits
93. An issuing authority which issued a permit may cancel the permit if- 15 (a ) the permit was issued as a result of misleading or false representations by the
(6) the applicant or permit holder has contravened or failed to comply with- applicant or a person acting on behalf of the applicant; or
(i) any condition of the permit; (ii) any provision of this Act or other law governing the permitted activity; or 20
(iii) any foreign law governing the permitted activity.
Part 2
Appeals
Appeals to be lodged with Minister
94. (1) An applicant who feels aggrieved by the decision of an issuing authority in 25 terms of section 88(2)(c) or (d), or a permit holder whose permit has been cancelled in terms of section 93, may lodge with the Minister an appeal against the decision within 30 days after having been informed of the decision.
(2) The Minister must either- ( a ) consider and decide the appeal; 30 (b) redirect the appeal to the MEC for Environmental Affairs in the relevant
(c) designate a panel of persons to consider and decide the appeal. province to consider and decide the appeal; or
(3) An appeal does not suspend the decision against which t e appeal is lodged unless the Minister, MEC for Environmental Affairs or appeal panel considering the appeal 35 directs otherwise.
Appeal panels
95. (1) If the Minister decides that the appeal must be considered and decided by an appeal panel, the Minister must designate-
(a) a number of persons with appropriate knowledge as members of the panel; 40
(b) one of the panel members as the presiding member. and
(2) The presiding member of the appeal panel decides when and where the panel
(3) An appeal panel must- 45 meets.
(a) consider and decide the appeal in accordance with a prescribed procedure; and (b) keep a record of its proceedings and decisions.
Decisions
96. (1) The Minister, MEC for Environmental Affairs or appeal panel considering an appeal may- 50
~ ~~ ~
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( a ) either uphold or refuse the appeal; and (b) when upholding or refusing the appeal, make such other orders as may be
appropriate. (2) If the appeal is upheld against-
(a) a refusal to issue a permit, the Minister, MEC for Environmental Affairs or 5 appeal panel may issue the permit unconditionally or subject to conditions;
(b) a condition subject to which the permit was issued, the Minister, MEC for Environmental Affairs or appeal panel may withdraw or amend the condition; or
(c) the cancellation ofa permit, the Minister, MEC for Environmental Affairs or 10 appeal panel may restore the permif.
CHAPTER 8
ADMINISTRATION OF ACT
Part 1
Regulations 15
Regulations by Minister
97. (1) The Minister may make regulations relating t o - (a) the monitoring of compliance with and enforcement of norms and standards
referred to in section 9; the designation of organs of state which may be issuing authorities for 20 permits referred to in section 57(1) or (2); the facilitation of the implementation and enforcement of section 57( 1) or any notice published in terms of section 57(2); the carrying out of a restricted activity involving a specimen of a listed threatened or protected species; 25 the facilitation of the implementation and enforcement of an interna- tional agreement regulating international trade in specimens of listed threatened or protected species which is binding on the Republic; the minimising of the threat to the survival in the wild of a listed threatened or protected species; 30 the minimising of the threat to the ecological integrity of a listed ecosystem; the composition and operating procedure of the scientific authority; or the ecologically sustainable utilization of biodiversity; the designation of organs of state which may be issuing authorities for 35 permits referred to in section 67( 1) or 7 1 (1); the designation of organs of state which may be competent authorities for implementing and enforcing the provisions of this Chapter; the facilitation of the implementation and enforcement of section 65, 67 or 71; 40 the prescription of compulsory conditions for any permit issued in terms of section 65(1) or 71(1); the assessment of risks and potential impacts on biodiversity of restricted activities involving specimens of alien species or of listed invasive species; and 45 the control and eradication of listed invasive sDecies:
(d) biosafety and the environment; ( e ) (i) the designation of organs of state that may be issuing authorities for
permits referred to in section 81:
benefit-sharing agreements and material transfer agreements;
material transfer agreements; and
(ii) the form and contents of, and the requirements and criteria for, 50
(iii) moneys payable in connection with benefit-sharing agreements and
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the administration of the Bioprospecting Trust Fund; the conditions subject to which issuing authorities may issue permits in terms of this Act; the procedure to be followed and the fees to'be paid in connection with the lodging a d consideration of applications for permits; 5 the powers of issuing authorities when considering and deciding such applications; the conditions with which applicants must comply before or after the lodging of their applications; appropriateeonsultation processes; 10 the authorities whose consent is required before permits may be issued; the factors that must be taken into account when deciding applications; the circumstances in which applications must be refused or may be approved; the form and contents of permits; 15 the conditions on which permits must be issued, or guidelines for determining conditions on which permits may be issued; methods, procedures and conditions of enforcing compliance with the conditions of a permit; the giving of security in respect of any obligation that may arise from 20 carrying out a restricted activity authorised by a permit, and the form of such security; the period of validity of permits; the transferability of permits; the duties of the permit hold s; and 25 the procedure to be followed and the fees to be paid in connection with the iodging and consideration of appeals;
(8 ) any other matter that may be prescribed in terms of this Act; and (h) any other matter that may be necessary to facilitate the implementation of this
(2) Any regulation with direct fiscal implications may be made only with the concurrence of the Minister of Finance.
(3) Before publishing any regulations in terms of subsection (l), or any amendment to the regulations, the Minister must follow a consultative process in accordance with sections 99 and 00. 35
(4) Subsection (3) need not be applied to a non-substantial change to the regulations.
Act. 30
General
98. (1) Regulations made in terms of section 97 may- (a) restrict or prohibit any act either absolutely or conditionally; (0 ) apply- 40
(i) generally throughout the Republic or a province, as the case may be, or
(ii) generally to all persons or only to a specified category of persons; (iii) generally with respect to all species or only to a specified species or
(iv) generally with respect to all permits or appeals or only to a specified
only in a specified area or category of areas;
category of species; or 45
category of permits or appeals; or ( c ) differentiate between different-
(i) areas or categories of areas; (ii) persons or categories of persons; 50 (iii) species or categories of species; or (iv) categories of permits or appeals.
(2) Regulations made in tefms of section 97 may provide that any person who cuntravenes or fails to comply with a provision thereof is guilty of an offence and liable on conviction to- ss
(a) imprisonment for a period not exceeding five years; (b) an appropriate fine; or ('c) both a fine and such imprisonment.
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Part 2
Consultation process
Consultation
99. (1) Before exercising a power which, in terms of a provision of this Act, must be exercised in accordance with this section and section 100, the Minister must follow an 5 appropriate consultative process in the circumstances.
(2) The Minister must, in_terms of subsection (1)- (a) consult all Cabinet members whoseareas of responsibility may be affected by
the exercise of the power; (b ) in accordance with the principles of co-operative governance set out in 10
Chapter 3 of the Constitution, consult the MEC for Environmental Affairs of each province that may be affected by the exercise of the power; and
(c) allow public participation in the process in accordance with section 100.
Public participation
100. (1) The Minister must give notice of the proposed exercise of the power referred 15 to in section 99-
(a) in the Gazette; and (b) in at least one newspaper distributed nationally, or if the exercise of the power
may affect only a specific area, in at least one newspaper distributed in that area. 20
(2) The notice must- (a) invite members of the public to submit to the Minister, within 30 days of
publication of the notice in the Gazette, written representations on, or objections to, the proposed exercise of the power; and
(b) contain sufficient information to enable members of the public to submit 25 meaningful representations or objections.
(3) The Minister may in appropriate circumstances allow any interested person or community to present oral representations or objections to the Minister or a person designated by the Minister.
received or presented before exercising the power. (4) The Minister must give due consideration to all representations or objections 30
CHAPTER 9
OFFENCES AND PENALTIES
Offences
101. (1) A person is guilty of an offence if that person contravenes or fails to comply 35 with a provision of-
(a) section 57(1), 65(1), 67(2), 71(1) or 81(1); (b) a notice published in terms of section 57(2); or (c) a directive issued in terms of section 69(2) or 73(3).
( a ) contravenes or fails to comply with a provision of section 69(1) or 73(1); (b ) performs the activity for which the permit was issued otherwise than in
( c ) permits or allows any other person to do, or to omit to do, anything which is
(2) A person who is the holder of a permit is guilty of an offence if that person- 40
accordance with any conditions subject to which the permit was issued; or
an offence in terms of paragraph (a) or (b). 45 (3) A person is guilty of an offence if that person-
(a) fraudulently alters any permit; ( b ) fabricates or forges any document for the purpose of passing it as a permit; ( c ) passes, uses, alters or has in his or her possession any altered or false
document purporti g to be a permit; or 50
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(d) knowingly makes any false statement or report for the purpose of obtaining a permit.
Penalties
102. (1) A person convicted of an oflence in terms of section 101 is liable to a fine, or to imprisonment for a period not exceeding five years, or to both fine and such 5 imprisonment.
(2) A fine in terms of subsection (1) may not exceed- (a) an amount prescqbed in terms of the Adjustment of Fines Act, 1991 (Act No.
101 of 1991); or (b) if a person is convicted of an offence involving a specimen of a listed 10
threatened or protected species, an amount determined in terms of paragraph (a ) or which is equal to three times the commercial value of the specimen in respect of which the offence was committed, whichever is the greater.
CHAPTER 10
MISCELLANEOUS 15
Repeal of Act 122 of 1984
103. The Forest Act, 1984 (Act No. 122 of 1984), is repealed by this Act.
Savings
104. (1) Anything done in terms of the Forest Act, 1984 (Act No. 122 of 1984), which may or must be done in terms of this Act must be regarded as having been done in terms 20 of this Act.
100 of this Act was- (2) A person who immediately before the repeal of the Forest Act, 1984, by section
a member of the board of the National Botanical Institute, becomes a member of the Board of the South African National Biodiversity Institute and remains 25 such a member until the Minister appoints the members of the Board in terms of section 15; the chief executive officer of the National Botanical Institute becomes the acting chief executive officer of the South African National Biodiversity Institute and remains the acting chief executive officer until the Board 30 appoints a person as the chief executive officer of the Institute in terms of section 29; and all employees of the National Botanical Institute, including its chief executive officer, must be regarded as having been appointed in terms of section 30 as employees of the South African National Biodiversity Institute subject to the 35 same conditions of services which applied to them immediately before the repeal of the Forest Act, 1984.
(3) Subsection (2)(c) does not affect pension, leave and other benefits which accrued to employees referred to in that subsection before the repeal of the Forest Act, 1984, and such benefits must be respected as if there was no break in their service and no change 40 of employer.
(4) As from the date of repeal of the Forest Act, 198” (a) all assets and liabilities and all rights and obligations of the National Botanical
Institute are vested in the South African National Biodiversity Institute; and (b ) any balance in the National Botanical Institute Fund referred to in section 64 45
of that Act must be paid to the South African National Biodiversity Institute.
Existing bioprospecting projects
105. (1) Any party involved at the commencement of Chapter 6 in a bioprospecting project which concerns any interests to be protected in terms of section 82, may despite
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that section continue with the project pending the negotiation and entry into force of an appropriate benefit-sharing agreement in terms of that Chapter.
(2) Subsection (1) lapses one year after Chapter 6 takes effect.
Short title and commencement
106. This Act is called the National Environmental Management: Biodiversity Act, 5 2004, and takes effect on a date determined by the President by proclamation in the Gazette.
c