National Environmental Management Amendment Act [No. 46 of 2003]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 464 Cape Town 13 February 2004 No. 26018
THE PRESIDENCY No. 175 13 February 2004
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 46 of 2003: National Environmental Management Amendment Act, 2003.

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Act No. 46,2003 NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT ACT. 200:3
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments.
(English text signed by the President. ) (Assented to 9 February 2004.)
ACT To amend the National Environmental Management Act, 1998, so as to define certain expressions; to provide for the administration and enforcement of certain national environmental management laws; and to provide for matters connected therewith.
B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:- Amendment of section 1 of Act 107 of 1998
1. Section 1 of the National Environmental Management Act, 1998 (hereinafter referred to as the principal Act), is hereby amended by the insertion- 5
(a) after the definition of “Agenda 21” of the following definition: ‘‘ ‘aircraft’ means an airborne craft of any type whatsoever, whether self-propelled or not, and includes a hovercraft;”;
(b) after the definition of “Constitution” of the following definition: ‘‘ ‘delegation’, in relation to a duty, includes an instruction to perform 10 the duty;”;
(c) after the definition of “environmental management cooperation agreement”
“ ‘environmental management inspector’ means a person designated as an environmental management inspector in terms of section 31B or 15
~ 31C;”; (d) after the definition of “regulation” of the following definition:
“ ‘specific environmental management Acts’ means-
of the following definition:
(i) the National Environmental Management: and
2003, (ii) the National Environmental Management: Protected Areas Act,
and includes any regulations or other subordinate legislation made in terms of any of those Acts;”; and
(e) after the definition of “this Act” of the following definition: “ ‘vessel’ means any waterborne craft i f any kind, whether self- propelled or not, but does not include any moored floating structure that is not used as a means of transporting anything by water.”.
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Amendment of heading to Part 1 of Chapter 7 of Act 107 of 1998
2. Part 1 of Chapter 7 of the principal Act is hereby amended by the substitution for the heading of the following heading:
“Part 1
Environmental hazards, access to information and protection of whistleblowers”.
Deletion of heading after section 30 of Act 107 of 1998
3. The following heading after section 30 of the principal Act is hereby deleted:
“[Part 2
Information, enforcement and compliance]”.
Insertion of Part in Chapter 7 of Act 107 of 1998
4. The following Part is hereby inserted in Chapter 7 of the principal Act after section 31:
“Part 2
Application and enforcement of Act and specijic environmental management Acts
Application
31A. (1) This Part applies to the enforcement of this Act and the specific environmental management Acts.
(2) In this Part, unless inconsistent with the context, a word or expression to which a meaning has been assigned in a specific environmental management Act has, in relation to the administration or enforcement of that Act, the meaning assigned to it in that Act.
(3) For the purposes of this Part, Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 5 1 of 1977): is deemed to include an offence committed in terms of this Act or a specific environmental manapement Act.
Designation of environmental management inspectors by Minister
31B. (1) The Minister mav-
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(a) designate as an environmental management inspector, any staff I member of-
(i) the Department; or (ii) any other organ of state; and
(b) at any time withdraw a designation made in terms of paragraph (a).
agreement between the Minister and the relevant organ of state.
Designation of environmental management inspectors by MEC
(2) A designation in terms of subsection (l)(a)(ii) may only be made by
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31C. (1) An MEC may- (a) designate as an environmental management inspector, any staff
member of- (i) . the department responsible for environmental management in
(ii) any other provincial organ of state; or (iii) any municipality in the province; and
the province;
(b) at any time withdraw a designation made in terms of paragraph (a).
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(2) A designation in terms of subsection (l)(a)(ii) or (iii) may only be made by agreement between the relevant MEC and the relevant provincial organ of state or municipality.
Mandates
31D. (1) When designating a person as an environmental management inspector, the Minister or MEC must, subject to subsection (2), determine whether the person concerned is designated for the enforcement of- (a) this Act; (b) a specific environmental management Act; (c) specific provisions of this Act or a specific environmental manage-
(d) this Act and all specific environmental management Acts; or (e) any combination of those Acts or provisions of those Acts.
(2) An MEC may designate a person as an environmental management inspector for the enforcement of only those provisions of this Act or any specific environmental management Act- (a) which are administered by the MEC or a provincial organ of state; or (b) in respect of which the MEC or a provincial organ of state exercises or
(3) A person designated as an environmental management inspector may exercise any of the powers given to environmental management inspectors
. in terms of this Act that are necessary for the inspector's mandate in terms of subsection (1) and that may be specified by the Minister or MEC by notice in writing to the inspector.
ment Act;
performs assigned or delegated powers or duties.
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Prescribed standards 25
31E. (1) The Minister may prescribe- (a) qualification criteria for environmental (b) training that must be completed by environmental management
inspectors. (2) The Minister may only prescribe
subsection (1) after consultation with the Minister responsible for safety and security.
Proof of designation
31F. (1) A prescribed identity card must be issued to each person designated as an environmental management inspector.
(2) When exercising any powers or performing any duties in t rms of this Act or a specific environmental management Act, an environmental management inspector must, on demand by a member of the public, produce the identity card and the notice issued to the inspector in terms of section 31D(3).
Functions of inspectors
31G. (1) An environmental management inspector within his or her mandate in terms of section 31D- (a) must monitor and enforce compliance with a law for which he or she
(b) may investigate any act or omission in respect of which there is a has been designated in terms of that section;
reasonable suspicion that it might constitute-- (i) an offence in terms of such law;
(ii) a breach of such law; or (iii) a breach of a term or condition of a permit, authorisation or
other instrument issued in terms of such law.
(a ) must carry out his or her duties and exercise his or her powers- (2) An environmental management inspector-
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(i) in accordance with any instructions issued by the Minister or
(ii) subject to any limitations and in accordance with any
(b) may be accompanied by an interpreter or any other person whose
(c) must exercise his or her powers in a way that minimises any damage
MEC, as the case may be; a:ld
procedures that may be prescribed; and
assistance may reasonably be required;
to, loss or deterioration of any premises or thing.
General powers
31H. (1) An environmental management inspector, within his or her mandate in terms of section 31D, may-
question a person about any act br omission in respect of which there is a reasonable suspicion that it might constitute-
(i) an offence in terms of a law for which that inspector has been designated in terms of that section;
(ii) a breach of such law; or (iii) a breach of a term or condition of a permit, authorisation 01
issue a written notice to a person who refuses to answer questions in terms of paragraph (a), requiring that person to answer questions put to him or her in terms of that paragraph; inspect, or question a person about, any document, book or record 01 any written or electronic information-
(i) which may be relevant for the purpose of paragraph (a); or (ii) to which this Act or a specific environmental management Act
copy. or make extracts from, any document, book or record or any written or electronic information referred to in paragraph (c), or remove such document, book, record or written or electronic information in order to make copies or extracts; require a person to produce or deliver to , a place specified by the inspector, any document, book or record or any written or electronic information referred to in paragraph (c) for hspection; inspect, question a person about, and if necessary remove any specimen, article, substance or other item which, on reasonable suspicion, may have been used in-
(i) committing an offence in terms of the law for which that inspector has been designated in ternls of section 31D;
(ii) breaching such law; or (iii) breaching a term or condition of a permit, authorisation or
other instrument issued in terms of such law; take photographs or make audio-visual recordings of anything or any person that is relevant for the purposes of an investigation; dig or bore into the soil; take samples; remove any waste or other matter deposited or discharged in contravention of the law for which that inspector has been designated in terms of section 31D or a term or condition of a permit, authorisation or other instrument issued in terms of such law; or
other instrument issued in terms of such law;
relates;
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(k) carry out any other prescribed duty not inconsistent with this Act and any other duty that may be prescribed in terms of a specific environmental management Act.
(2) A written notice issued in terms of subsection (l)(b) must be in the prescribed format and must require a person to answer specified questions either orally or in writing, and either alone or in the presence of a witness, and may require that questions are answered under oath or affirmation.
(3 j A person who receives a written notice in terms of subsection ( l ) (b) , must answer all questions put to him or her truthfully and to the best of his or her ability, notwithstanding that an an:Swer might incriminate him or her, but any answer that incriminates such person may not be used against him or her in any subsequent criminal proceedings for an ffence in terms of this Act or a specific environmental management Act.
(a) provide a receipt for- (4) An environmental management inspector must-
(ij any document, book, record or written or electronic informa-
(iij any specimen, article, substance or other item removed in
(b) return anything removed within a reasonable period or, subject to section 34D, at the conclusion of any relevant criminal proceedings.
( 5 ) In addition to the powers set out in this Part, an environmental management inspector, within his or her mandate in terms of section 3 lD, has all the powers assigned in terms of Chapters 2, 5 , 7 and 8 of the Criminal Procedure Act, 1977, to a police official who is not a commis- sioned officer.
tion removed in terms of subsection (l)(d); or
terms of subsection (1)lf); and
Seizure of items
311. (1) The provisions of sections 30 to 34 of the Criminal Procedure Act, 1977, apply to the disposal of anything seized in terms of this Part, subject to such modifications as the coni.ext may require.
(2) When an item is seized in term:; of this Part, the environmental management inspector may request the person who was in control of the item immediately before the seizure of the item, to take it to a place designated by the inspector, and if the pe.rson refuses to take the item to the designated place, the inspector may do so.
(3) In order to safeguard a vehicle, vessel or airc aft that has been seized, the environmental management inspector may immobilise it by removing a Part.
(4) An item seized in terms of this section, including a part of a vehicle, vessel or aircraft referred to in subsection (3), must be kept in such a way that it is secured against damage.
(a) in the case of a specimen of a threatened or protected species or alien species being imported into the Republic, at the port of entry, request the person responsible for the import that person’s agent, to produce the original copies of the import permit, together with such other documentation as may be required; and
(b) in the case of a specimen of a threatened or protected species, being exported or re-exported from the Re:public, at the port of exit, request the person responsible for the export or re-export or that person’s agent to produce the original copy of the export or re-export permit, together with such other documentation as may be required.
( 5 ) An environmental management inspector may-
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Powers to stop, enter and search vehicles, vessels and aircraft
315. (1) An environmental management inspector, within his or her mandate in terms of section 31D, may, without a warrant, enter and search any vehicle, vessel or aircraft, or search any pack-animal, on reasonable suspicion that that vehicle, vessel, aircraft or pack-animal- (a) is being or has been used, or contains or conveys anything which is
(i) an offence in terms of the law for which that inspector has been designated in terms of section 31D; or
(ii) a breach of such law or a term or condition of a permit, authorisation or other instrument issued in terms of such law; or
(b) contains or conveys a thing which may serve as evidence of such offence or breach.
(2) An environmental management inspector may, without a warrant, seize anything contained in or on any vehicle, vessel, aircraft or pack-animal that may be used as evidence in the prosecution of any person for an offence in terms of this Act or a specific environmental management Act.
(3) The provisions of section 3 1 I apply to anything seized in terms of subsection (2), subject to such modifications as the context may require.
(4) An environmental management inspector may, for the purpose of implementing subsection (1). at any time. and without a warrant- (a) order the driver of a vehicle or vessel to stop, or the pilot of an aircraft
(b) if necessary and possible, force the driver or pilot to stop or land, as the
( 5 ) An environmental management inspector may exercise on or in respect of such vehicle, vessel or aircraft any of the powers mentioned in section 31H.
(6) An environmental management inspector may apply to the National or Provincial Commissioner of Police for written authorisation in terms of section 13(8) of the South African Police Service Act, 1995 (Act No. 68 of 1995), to establish a roadblock or a checkpoint.
(7) An environmental management inspector has, within his or her mandate in terms of section 3 1 D, all the powers of a member of the South African Police Service in terms of section 13(8) of the South African Police Service Act, 1995.
being or has been used, to commit-
to land; or
case may be.
Routine inspections
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31K. (1) An environmental management inspector, within his or her 40 mandate in terms of section 3 lD, and subiect to subsection (2), may, at any 1 reasonable time, without a warrant, enter and inspect any building, land or premises for the purposes of ascertaining compliance with- (a) the legislation for which that inspector has been designated in terms of
(b) a term or condition of a permit, authorisation or other instrument
(2) An environmental management inspector, within his or her mandate in terms of section 3 lD, may, with a warrant obtained in terms of ubsection (3), but subject to subsection (4), enter and inspect any residential premises for the purposes of ascertaining compliance with-- (a) the legislation for which that inspector has been designated in terms of
(bj a term or condition of a permit, authorisation or other instrument
(3) A magistrate may issue a warrant contemplat1-d in subsection (2) only on written application by an environmental management inspector setting
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section 31D; or
issued in terms of such legislation.
section 31D; or
issued in terms of such legislation.
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out under oath or affirmation that it is necessary to enter and inspect the specified residential premises for the purposes of ascertaining compliance with the Acts for which that inspector has been designated in terms of section 31D.
(4) An environmental management inspector may in terms of subsection (2) enter and inspect any residential premises without a warrant, but only if- (a) the person in control of the premises consents to the entry and
inspection; or (b) there are reasonable grounds to believe that a warrant would on
application be issued, but that the delay that may be caused by applying for a warrant would defeat he object of the entry or inspection.
(5) While carrying out a routine inspection, an environmental manage- ment inspector may seize anything in or on any business or residential premises or land that may be used as evidence in the prosecution of any person for an offence in terms of this Act or a specific environmental management Act.
(6) The provisions of section 311 apply to anything seized in terms of subsection (5), subject to such modifications as the context may require.
(7) An environmental management inspector may exercise on such business or residential premises or land a.ny of the powers mentioned in section 3 1H.
Power to issue compliance notices
31L. ( I ) An environmental management inspector, within his or her mandate in terms of section 31D, may issue a compliance notice in the prescribed form and following aprescribed procedure if there are reasonable grounds for believing that a person has not complied- (a) with a provision of the law for which that inspector has been
(b) with a term or condition of a permit, authorisation or other instrument designated in terms of section 31D; or
issued in terms of such law. (2) A compliance notice must set out-
(a ) details of the conduct constituting non-compliance; (b) any steps the person must take and the period within which those steps
(c) any thing which the person may not do, and the period during which
(d) the procedure to be followed in lodging an objection to the compliance
(3) An environmental management inspector may, on good cause shown, vary a compliance notice and extend the period within which the person must comply with the notice.
(4) A person who receives a compliance notice must comply with that notice within the time period stated in thl- notice unless the Minister or MEC has agreed to suspend the operation of the compliance notice in terms of subsection (5).
(5) A person who receives a compliance notice and who wishes to lodge an objection in terms of section 31M may make representations to the Minister or MEC, as the case may be, to suspend the operation of the compliance notice pending finalisation of the objection.
Objections to compliance notice
must be taken;
the person may not do it; and
notice with the Minister or MEC, as the case may be.
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31M. (1) Any person who receives section 3 1L may object to the notice by to the Minister or MEC. as the case may notice, or within such longer period as the Minister or MEC may determine.
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(2) After considering any representations made in terms of subsection (1) and any other relevant information, the Minister or MEC, as the case may be- (a ) may confirm, modify or cancel a notice or any part of a notice; and ib) must specify the period within which the person who received the
notice must comply with any part of the notice that is confirmed or modified.
Failure to comply with compliance notice
31N. (1) A person who fails to comply with a compliance notice commits an offence.
(2) If a person fails to comply with acompliance notice, the environmental management inspector must report the non-compliance to the Minister or MEC, as the case may be, and the Minister or MEC may- (a) revoke or vary the relevant permit, authorisation or other instrument
(b ) take any necessary steps and recover the costs of doing so from the
(c) report the matter to a Director of Public Prosecutions.
Powers of South African Police Service members
which is the subject of the compliance notice;
person who failed to comply; and
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all the powers of an environmental management inspector in terms of this Part excluding the power to conduct routine inspections in terms of section 31K and the power to issue and enforce compliance notices in terms of sections 31L to 310.
(2) Notwithstanding subsection (l) , the Minister or MEC, as the case may be, may, with the concurrence of the Minister responsible for safety and security, by written notice to a member of the South African Police Service, assign to that member all the powers contemplated in sections 3 1K to 3 10.
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Duty to produce documents
31P. Any person to whom a permit, licence, permission, certificate! authorisation or any other document has heen issued in terms of this Act or a specific environmental management Act, must produce that document at the request of an environmental management inspector. 35
Confidentiality
31Q. (1) It is an offence for any person to disclose information about any other person if that information was accluired while xercising or
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performing any power or duty in terms -of this Act or a spccific environmental management Act, except-- (a ) if the information is disclosed in compliance with the provisions of
(b ) if the person is ordered to disclose tbe information by a court; (c) if the information is disclosed to enable a person to perform a function
in terms of this Act or a specific environmental management Act; or (d) for the purposes of the administration of justice.
(2) A person convicted of an offence in terms of this section is liable to a fine or imprisonment for a period not exceeding one year or to both a fine and such imprisonment.”.
any law;
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Insertion of heading before section 32 of Act 107 of 1998
5. The following heading is hereby inserted in the principal Act before section 32:
“Part 3
Judicial matters”.
Amendment of section 32 of Act 107 of 1998
6. Section 32 of the principal Act is hereby amended by- (a) the substitution in subsection (1) for the words preceding paragraph (a , of the
“(1) Any person or group of persons may seek appropriate relief in respect of any breach or threatened breach of any provision of this Act, including a principle contained in Chapter 1, o r o f any provision of a specific environmental management AcL or of’ any other statutory provision concerned with the protection of the environment or the use of natural resources-”;
following words:
(b) the substitution for subsection (2) of the following subsection: “(2) A court may decide not to award costs against a person who, or
group of persons which, fails to secure the relief sought in respect of any breach or threatened breach of any provision [including a principle] of this Act, including a principle contained in Chapter 1, or of any provision of a specific environmental management Act, or @ any other statutory provision concerned with the protection of the environment or the use of natural resources, if the court is of the opinion that the person or group of persons acted reasonably out of a concern for the public interest or in the interest of protecting the environment and had made due efforts to use other means reasonably available for obtaining the relief sought.”; and
(c) the substitution in subsection (3) for the words preceding paragraph (a) of the
“(3) Where a person or group of persons secures the relief sought in respect of any breach or threatened breach of any provision of this Act, or of any provision of a specific environmental management Act, or of any other statutory provision concerned with the protection of the environment, a court may on application--”.
following words:
Insertion of sections 34A to 34G in Act 107 of 1998
7. The following sections are hereby inserted in the principal Act after section 34:
“Offences relating to environmental management inspectors
34A. (1) A person is guilty of an offence if that pe,rson- ( a ) hinders or interferes with an environmental management inspector in
(b) pretends to be an environmental management inspector, or the
(c) furnishes false or misleading informat.ion when complying with a
(d) fails to comply with a request of an environmental management
(2) A person convicted of an offence in telms of subsection (1) is liable to a fine or to imprisonment for a period not #exceeding one year or to both a fine and such imprisonment.
the execution of that inspector’s official duties;
interpreter or assistant of such an inspector;
request of an environmental management inspector; or
inspector.
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Award of part of fine recovered to informant
34B. (1) A court which imposes a fine for an offence in terms of this Act or a specific environmental management Act may order that a sum of not more than one-fourth of the fine be paid to the person whose evidence led to the conviction or who assisted in bringing the offender to justice.
(2) A person in the service of an organ of state or engaged in the implementation of this Act or a specific environmental management Act is not entitled to such an award.
Cancellation of permits
34C. (1) The court convicting a person of an offence in terms of this Act or a specific environmental management Act may-- (a) withdraw any permit or other authorisation issued in terms of this Act
or a specific environmental management Act to that person, if the rights conferred by the permit or authorisation were abused by that person;
(6) disqualify that person from obtaining a permit or other authorisation for a period not exceeding five years;
(c) issue an order that all competent authorities authorised to issue permits or other authorisations be notified of any disqualification in terms of paragraph (b).
Forfeiture of items
34D. (1) The court convicting a person of an offence in terms of this Act may declare any item including but not limited to any specimen, container, vehicle, vessel, aircraft or document that was used for the purpose of or in connection with the commission of the offence and was seized under the provisions of this Part. to be forfeited to the State.
(2) The provisions of section 35 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), apply to the forfeiture of any item in terms of subsection (l), subject to such modifications as the context may require.
(3) The Minister must ensure that any specimen forfeited to the State in terms of subsection (1) is- (a) repatriated to the country of export or origin as appropriate, at the
expense of the person convicted of the offence involving that specimen;
(b) deposited in an appropriate institution, collection or museum, if- (i) the specimen is clearly marked as a seized specimen; and
(ii) the person convicted of the offence does not benefit or gain from such deposit; or
(c) otherwise disposed of in an appropriate manner.
Treatment of seized live specimens
34E. Pending the institution of any criminal proceedings in terms of this Act or a specific environmental management Act or the resolution of such proceedings, a live specimen that has been ,seized in terms of this Part must be deposited with a suitable institution, rescue centre or facility which is able and willing to house and properly care for it.
Security for release of vehicles, vessels or aircraft
34F. (1) If a vehicle, vessel or aircraft is seized in terms of this Act and is kept for the purposes of criminal proceedings, the owner or agent of the 1
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owner may at any time apply to a court for the release of the vehicle, vessel or aircraft.
(2) A court may order the release of the vehicle, vessel or aircraft on the provision of security determined by the court.
(3) The amount of the security must at least be equal to the sum of- (a) the market value of the vehicle, vessel or aircraft; (b) the maximum fine that a court may impose for the alleged offence; and (c) costs and expenses incurred or reasonably foreseen to be incurred by
the State in connection with prosecuting the offence and recoverable in terms of this Act.
(4) If the court is satisfied that there are circumstances which warrant a lesser amount of security, it may order the release of the vehicle, vessel or aircraft subject to the provision of security for such lesser amount.
Admission of guilt fines
34G. (1 ) The Minister may by regulation specify offences in terms of this Act or a specific environmental management Act in respect of which alleged offenders may pay a prescribed admission of guilt fine instead of being tried by a court for the offence.
(2) An environmental management inspector who has reason to believe that a person has committed an offence specified in terms of subsection (1) may issue to the alleged offender a written notice referred to in section 56 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).
(3) The amount of the fine stipulated in the notice referred to in subsection (2) may not exceed the amoun1:- (a) prescribed for the offence; and (b) which a court would presumably have imposed in the circumstances.
(4) The provisions of sections 56,57 and 57A of the Criminal Procedure Act, 1977, apply subject to such modifications as the context may require, to written notices and admission of guilt fines referred to in this section.”.
Substitution of heading to Chapter 9 of Act 107 of X998
8. The following heading is hereby substituted for rhe heading to Chapter 9 of the principal Act:
“CHAPTER 9
ADMINISTRATION OF ACT AND SPECIFIC ENVIRONMENTAL MANAGEMENT ACTS,”.
Substitution of section 42 of Act 107 of 1998
9. The following section is hereby substituted for section 42 of the principal Act:
“Delegation of powers and duties by Minister and Director-General
42. (1) The Minister may delegate a power[, function] or duty vested in him or her in terms of this Act or a specific (environmental management Act to- (a ) [a named officer of the Department; or] & Director-General; (b) [the holder of an oftice in the Department or, after consultation
with the relevant Minister or MEC, the holder of an office of any
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other national department, provincial administration or munici- pality.] an MEC, by agreement with the M E C ;
(c) the management authority of a protected area; or (d) any organ of state, by agreement with that organ of state.
(a ) must be in writing; (b) may be made subject to conditions; (c) does not prevent the exercise of the power[, function] or the
performance of the duty by the Minis1:er himself or herself; [and] (d) may include the power to subdelegate& 10
(2) A delegation referred o in subsection (1)- 5
- ( e ) may be withdrawn by the Minister. (2A) The Minister must give notice in the Gazette of any delegation of a
power or duty to an MEC, the management authority of a protected area or an organ of state.
consequence of a delegation or subdelegation in terms of this section, subject to any rights that may have accrued to a person as a result of the decision.
(2C) The Minister may not delegate a power or duty vested in the Minister in terms of this Act or a specific environmental management Act- 20 (a) to make regulations; (b) to publish notices in the Gazette; ( c ) to appoint a member of a board or committee; or (d) to expropriate private land.
vested in him or her by or under this Act o r s p e c i f i c environmental management Act to- [(a) a named officer of the Department;] [@)](a) the holder of an office in the Department; or [(c)](b) after consultation with a provincial head of department, an officer 30
(2B) The Minister may confirm, vary or revoke any decision taken in 15
(3) The Director-General may delegate a power[, function] or duty 25
in a provincial administration or municipality. (4) The Director-General may permit a person to whom a power[,
function] or duty has been delegated by the Director-General to delegate further that power[, function] or duty.
to in subsection (4)- (a ) must be in writing; (b) may be subject to conditions: (c) [does] & not prevent the exercise of the power[, function] or
(5) A delegation referred to in subsection (3) and the permission referred 35
performance of the duty by the Director-General himself or herself; 40 and
(d) may be withdrawn by the Director-General.’’ .
Insertion of section 42A in Act 107 of 1998
10. The following section is hereby inserted in the principal Act after section 42:
“Delegation of powers by MEC 45
or delegated to the MEC in terms of this Act or a s- 42A. ( I ) The MEC of a province may delegate a power or dut vested in
management Act to- ( a ) the head of that MEC’s department: (b) the management authority of a provincial or local protected area: (c) a municipality, by agreement with the municipality; or (d) any provincial organ of state, by agreement with that organ of state.
(a ) must be in writing: (b) may be made subject to conditions;
(2) A delegation in terms of subsection (1)-
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Act No. 46,2003 NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT ACT, 2003
(c) does not prevent the exercise of the power or the performance of the
(d) may include the power to subdelegatls; and ( e ) may be withdrawn by the MEC.
consequence of a delegation or subdelegation in terms of this section, subject to any rights that may have accrued to a person as a result of the decision.
(4) The MEC may not delegate a power or duty vested in the MEC in terms of this Act or a specific environmental management Act- 10 (a) to make regulations; (b) to publish notices in the Gazette; (c) to appoint a member of a board or committee; or (d) to expropriate private land.”.
duty by the MEC personally;
(3) The MEC may confirm, vary or revoke any decision taken in 5
Insertion of sections 47A to 47D in Act 107 of 1998 15
11. The following sections are hereby inserted in the principal Act after section 47:
“Regulations, legal documents and steps valid under certain circum- stances
47A. (1) A regulation or notice, or an authorisation, permit or other document, made or issued in terms of this Act or a specific environmental management Act-
20
(a ) but which does not comply with any procedural requirement of the relevant Act, is nevertheless valid if the non-compliance is not material and does not prejudice any person;
(b) may be amended or replaced without following aprocedural 25 requirement of the relevant Act if-
(i) the purpose is to correct an error; and (ii) the correction does not change the rights and duties of any
(2) The failure to take any steps in terms of this Act or a specific 30 person materially.
environmental management Act as a prerequisite for any decision or action does not invalidate the decision or action if the failure- (a) is not material; (b) does not prejudice any person; and (c) is not procedurally unfair. 35
Consultation
47B. When in terms of this Act or a specific environmental management Act the Minister or an MEC is required to consult any person or organ of state, such consultation is regarded as having been satisfied if a formal written notification of intention to act has been made to that person or organ of state and no response has been received within a reasonable time.
Extension of time periods
47C. The Minister or an MEC may extend, or condone a failure by a person to comply with, a period in terms of this Act or a specific
40
environmental management Act, except a period which binds the Minister 45 or MEC.
28 No. 26018 GOVEFNMENT GAZETTE, 13 FEBRUARY 2004
Act No. 46,2003 NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT ACT, 2003
Delivery of documents
47D. (1) A notice or other document in terms of this Act or a specific environmental management Act may be issued to a person- ( a ) by delivering it by hand; (b) by sending it by registered mail- 5
(i) to that person’s business or residential address; or (ii) in the case of a juristic person, to its registered address or
(c) where an address is unknown despite reasonable enquiry, by publish- principal place of business; or
ing it once in the Gazette and once in a local newspaper circulating in 10 the area of that person’s last known residential or business address.
(2) A notice or other document issued in terms of subsection ( l ) ( b ) or (c) must be regarded as having come to the notice of the person, unless the contrary is proved.”.
Substitution of section 49 of Act 107 of 1998 15
12. The following section is hereby substituted for section 49 of the principal Act:
“Limitation of liability
49. Neither the State nor any other person is liable for any damage or loss caused by- (a ) the exercise of any power or the performance of any duty under this 20
Act or any specific environmental management Act; or (b) the failure to exercise any power, or ,perform any [function or] duty
under this Act or any specific environmental management Act, unless the exercise of or failure to exercise the power, or performance of or failure to perform the duty was unlawful, negligent or in bad faith.”. 25
Substitution of long title of Act 107 of 1998
13. The following long title is hereby substituted for tbe long title of the principal Act:
“To provide for co-operative environmental governance by establish- ing principles for decision-making on matters affecting the environ- ment, institutions that will promote cooperative governance and 30 procedures for co-ordinating environmental functions exercised by organs of state; to provide for certain aspects of the administration and enforcement of other environmental management laws; and to provide for matters connected therewith.”.
Short title and commencemen 35
14. This Act is called the National Environmental Management Amendment Act, 2003, and takes effect on a date determined by the President by proclamation in the Gazette.