National Environmental Management Act


Published: 1998-11-27

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National Environmental Management Act [No. 107 of 1998]
I I OF SOUTH AFRICA
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REPUBLIEK VAN SUID-AFRIKA
Registered at the Post Ofice as a Newspaper AS ‘n Nuusblad by die Poskantoor Geregistreer
CAPE TOWN, 27 NOVEMBER 1998 VOL. 401 No. 19519
~APSTAD, 27 NOVEMBER 1998
OmICE OF THE PRESIDENT I MNTOOR VAN DIE PRESIDENT No. 1540. 27 November 1998 No. 1540.
It is hereby notified that the President has assented to the Hierby word bekend gemaak dat die following Act which is hereby published for general keuring geheg het aan die onderstaande information:— algemene inligting gepubliseer word:—
No. 107 of 1998: National Environmental Management Act, No. 107 van 1998: Wet op Nasionale 1998. 1998.
27 November 1998
President sy goed- Wet wat hierby ter
Omgewingsbestuur,
-— —... . . . . —....–- . . . . . . . - .-—.—.—— .
~ No. 19519 GOVERNMENT GwE~, 27 NOVEMBER 1998
Act No. 107, 1998 NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998
(English text signed by the President. ) (Assented to 19 November 1998. ) . . . ...7.. . ‘. ~ .---- -, . .
.. ---- ,’
ACT To provide for co-operative, environmental governance by establishing principles for decision-making on matters affecting the environment, institutions that will promote co-operative governance and procedures for co-ordinating environmenhl functions exercised by organs of stite; and to provide for matters connected therewith.
PREA~LE
WHEREAS many inhabitants of South Africa live in an environment that is harmful to their health and well-being:
everyone has the right to an environment that is not harmful to his or her health or well-being;
the State must respect, protect, promote and fulfil the social, economic and environmental rights of everyone and strive to meet the basic needs of previously disadvantaged communities;
inequality in the distribution of wealth and resources, and the resultant poverty, are among the important causes as well as the results of environmentally harmful practices;
sustainable development requires the integration of social, economic and environmental factors in the planning. implementation and evaluation of decisions to ensure that development serves present and future generations;
everyone has the right to have the environment protected, for the benefit of present and future generations. throu&h reasonable legislative and other measures that—
prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development:
the environment is a functional area of concurrent national and provincial legislative competence, and all spheres of government and all organs of state must co-operate with, consult and support one another;
AND WHEREAS it is desirable— that the law develops a framework for integrating good environmental manage- ment into all development activities; that the law shou~d promote certainty witi regard to decision-mting by organs of state on matters affecting the environment; that the law should establish principles guiding the exercise of functions affecting the environment; that the law should ensure that organs of state maintain the principles guiding the exercise of functions affecting the environment; that the law should establish procedures and institutions to facilitate and promote co-operative government and intergovernmental relations; that the law should esmblish procedures and institutions to facilitate and promote public participation in environmental govemmce; that the law should be enforced by the State and that the law should facilitate the enforcement of environmental laws by civiI society;
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Act No. 107, 1998 NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998
IT IS NOW ENACTED by the Parliament of the Republicfollows:— TABLE OF CONTENTS
1. Definitions
CHAPTER 1
of South Africa, as
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NATIONAL ENVIRONMENTAL MANAGEMENT PRINCIPLES
?-. Principles
CHAPTER 2
INSTITUTIONS
Part 1: National Environmental Advisoq Forum
3, Establishment. objects and functions of Forum 4. Composition 5. Conditions of appointment 6. Functioning of Forum
Part 2: Committee for Environmental Co-ordination
7. Establishment. objects and functions of Committee 8. Composition of Committee 9. Meetings of Committee, sub-committees and worhng groups 10. Report of Committee
CHAPTER 3
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PROCEDURES FOR CO-0PERAT~7E GOVERNANCE
11. Environmental implementation plans and management plans 12, Purpose and objects of environmental implementation and management plans 13. Content of environmental implementation plans 14, Content of environmental management plans 25
15. Submission. scrutiny and adoption 16. Compliance with environmental implementation and mana&ement plans
CHAPTER 4
FAIR DECISION-MAKING AND CONFLICT MANAGEMENT
17. Reference to conciliation 30 18. . Conciliation 19. Arbitration ~o, Investigation 21, Appointment of panel and remuneration ~~, Relevant considerations, report and designated officer 35
CHAPTER 5
INTEGRATED ENVIRONMENTAL MANAGEMENT
23. General objectives 24, Implementation
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Act No. 107, 1998 NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998
CHAPTER 6
INTERNATIONAL OBLIGATIONS AND AGREEMENTS
25. 26. 27.
28. ?9 ;0:
31. 32. 33, 34.
Incorporation of international environmental instruments Reports Application
CHAPTER 7
COMPLIANCE AND ENFORCEMENT
Part 1: Environmental hazards
Duty of care and remediation of environmental damage Protection of workers refusing to do environmentally hazardous work Control of emergency incidents
Part 2: Information, enforcement and compltince
Access to environmental information and protection of whistleblowers Legal standing to enforce environmental laws Private prosecution Criminal proceedings
CHAPTER 8
ENVIRONMENTAL MANAGEMENT CO-OPERATION AGREEMENTS
35,
36. 37, 38. 39. 40. 41. 42. 43. 44. 45. 46. 47.
48. 49. 50, 51. 52. 53.
Conclusion of agreements
CHAPTER 9
ADMINISTRATION OF ACT
Expropriation Reservation Intervention in litigation Agreements Appointment of employees on contract Assignment Delegation Appeal to Minister Regulations in general Regulations for management co-operation agreements Model environmental management bylaws Procedure for making regulations
CHAPTER 10
GENERAL AND TRANSITIONAL PROVISIONS
State bound Limitation of liability Repeal of laws Savings Short title Commencement
SCHEDULES
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Act No. 107, 1998 NATIONAL ENVIRONMENTAL M~AGEMENT ACT, 1998
Definitions
1. ( 1 ) In this Act. unless the context requires otherwise_ (i)
(ii)
(iii)
(iv)
(Y)
(vi)
(\’ii)
(viii)
(ix)
(x)
(xi)
(xii )
(xiii)
(xi\)
(xv )
(x\i)
(xvii) (xviii)
(xix)
(xx) (xxi)
(xxii) (xxiii) (xxiv)
‘activ ities.’ when used in Chapter 5 means policies. projects: (ii) ‘. Agenda 21.. means the document b> that name
programmed. plans and
adopted at the United 5 Nations Conference of Environment and Development he~d in Rio de Janeiro. Brazil in June 1992: (i) “best practicable environmental option’. means the Option that provides the most benefit or causes the least damage to the environment as a whole. at a cost acceptable to society. in the long term as wel] as in the short term; (iv) “commercially confidential information.’ means commercial information. the disclosure of which would prejudice to an unreasonable degree the commer- cial interests of the holder: Provided that details of emlsslon levels and waste products must not be considered to be commercially confidential notwith- standing any provision of this Act or any other law; (iv) “Committee” means the Committee for Environmental Co-ordination re- ferred to in section 7: (xv) .’community ’. means any group of persons or a part of such a group who share common interests. and who regard themselves as a community; (x) “Constitution” means the Constitution of the Republic of South Africa. 1996 (Act No. 108 of 1996): (xii) “Department.. means the Department of Environmental Affairs and Tourism: (v) “Director-General.. means the Director-General of Environmental Affairs and Tourism: (vi) “ecosystem.’ means a dynamic system of plant. animal and micro-organism communities and their non-living environment interacting as a functional unit: (vii) “environment.’ means the surroundings within which humans exist and that are made up of— (i) the land. water and atmosphere of the earth:
(ii) micro-organisms, plant and animal life: (iii) any part or combination of (i) and (ii) and the interrelationships among
and between them: and (iv) the physical. chemical, aesthetic and cultural properties and conditions
of the foregoing that influence human health and well-being: (xix) “environmental implementation plan.. means an implementation plan re- ferred to in section 11: (xxii) “environmental management co-operation agreement.. means an agreement referred to in section 35(1): (xxi) “environmental management plan.. means a management plan referred to in section 11: (xx) ‘financial year.’ means a period commencing on 1 April of any year and ending on 31 March of the following year: (viiil .’Forum” means the National Environmental Advisory Forum referred to in section 3; (ix) ‘hazard.. means a source of or exposure to danger: (xi) “international environmental instrument’. means any international agree- ment. declaration, resolution, convention or protocol which relates to the management of the environment; (xiv) “MEC.’ means the Member of the Executive Council to whom the Premier has assigned the performance in the province of the functions entrusted to a MEC by or under such a provision: (xvi) “Minister’. means the Minister of Environmental Affairs and Tourism: (xvii) “national department’. means a department of State within the national sphere of government: (xviii) “organ of state” means organ of state as defined in the Constitution: (xxvii) “person” includes a juristic person; (xxiii) “pollution’. means any change in the environment caused by— (i) substances;
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60 (ii) radioactive or other waves; or (iii) noise, odours, dust or heat.
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(xxv) (xxvi)
(xxvii) (xxviii)
(xxix)
(xxx)
emitted from any activity, including the storage or treatment of waste or substances, construction and the provision of services, whether engaged in by any person or an organ of state, where that change has an adverse effect on human health or well-being or on the composition. resilience and productivity of natural or managed ecosystems, or on materials useful to people, or will have such an effect in the future; (iii) “prescribe” means prescribe by regulation in the Gazet/e; (xxx) “provincial head of department” means the head of the provincial department responsible for environmental affairs; (xxiv) “regulation” means a regulation made under this Act; (xxv) “state land” means land which vests in the national or a provincial government, and includes land below the high water mark and the Admiralty Reserve. but excludes land belonging to a local authority; (xxvi) ‘sustainable development” means the integration of social, economic and environmental factors into planning, implementation and decision-mting so as to ensure that development serves present and future generations; (xxviii) “this Act’. includes the schedules, and regulations and any notice issued under the Act. (xiii)
(~) Words defived from the word or terns defined have corresponding meanings, unless the context indicates otherwise.
(3) A reasonable interpretation of a provision which is consistent with the purpose of this Act must be preferred over an alternative interpretation which is not consistent with the purpose of this Act.
(4) Neither— (a) a reference to a duty to consult specific persons or authorities, nor (b) the absence of any reference in this Act to a duty to consult or give a hearing,
exempts the official or authority exercising a power or performing a function from the duty to act fairly.
CHAPTER 1
NATIONAL ENVIRONMENTAL MANAGEMENT PRINCWLES
Principles
2. ( 1 ) The principles set out in this section apply throughout the Republic to the actions of all organs of state that mav si.~nlficantl~ affect the environment and—
(u)
(b)
(c)
(d)
(e)
.- shall apply alongside all other appropriate and relevant considerations, including the State’s responsibility to respect, protect, promote and fulfil the social and economic rights in Chapter 2 of the Constitution and in particular the basic needs of categories of persons disadvantaged by unfair discrimina- tion; serve as the general framework within which environmental management and implementation plans must be formulated: serve as guidelines by reference to which any organ of state must exercise any function when taking any decision in terms of this Act or any statutory provision concerning the protection of the environment; serve as principles by reference to which a conciliator appointed under this Act must make recommendations; and guide the interpretation. administration and implementation of this Act, and any other law concerned with the protection or management of the environment.
(2) Environmental management must place people and their needs at the forefront of its concern, and serve their physical. psychological, developmental, cultural and social interests equitably.
(3) Development must be socially, environmentally and economically sustainable. (4) (a) Sustainable development requires the consideration of all relevant factors
including the following: (i) That the disturbance of ecosystems and loss of biological diversity are
avoided, or, where they cannot be altogether avoided, are minimised and remedied:
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Act No. 107, 1998 NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998
(ii)
(iii )
(iv)
(v)
(vi)
(vii)
(viii)
that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied; that the disturbance of landscapes and sites that constitute the nation’s cultural heritage is avoided, or where it cannot be altogether avoided, is minimised and remedied; that waste is avoided. or where it cannot be altogether avoided, minimised and re-used or recycled where possible and otherwise disposed of in a responsible manner; that the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource; that the development. use and exploitation of renewable resources and the ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised; that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; and that negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented. are minimised and remedied.
(b) Environmental management must be integrated. acknowledging that all elements of the environment are linked and interrelated, and it must take into account the effects of decisions on all aspects of the environment and all people in the environment by pursuing the selection of the best practicable en~’lronmental option.
(c) Environmental justice must be pursued so that adverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvmtaged persons.
(d) Equitable access to environmental resources, benefits and services to meet basic human needs and ensure human well-being must be pursued and special measures may be taken to ensure access thereto by categories of persons disadvantaged by unfair discrimination.
(e) Responsibility for the environmental health and safety consequences of a policy, programme, project, product. process. service or activity exists throu&hout its life cycle.
(f) The pa~iclpation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding. skills and capacity necessa~ for achieving equitable and effective participation. and participation by vulnerable and disadvantaged persons must be ensured.
(g) Decisions must t~e into account the interests. needs and values of all interested and affected parties, and this includes recognizing all forms of knowledge. including traditional and ordinary knowledge.
(/7) Community wellbeing and empowerment must be promoted through environ- mental education, the raising of environmental awareness, the sharing of knowledge and experience and other appropriate means.
(i) The social. economic and environmental impacts of activities, including disadvantages and benefits. must be considered. assessed and evaluated. and decisions must be appropriate in the light of such consideration and assessment.
Q) The right of workers to refuse work that is harmful to human health or the environment and to be informed of dangers must be respected and protected.
(k) Decisions must be taken in m open and transparent manner, and access to information must be provided in accordance with the law.
(1) There must be intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment.
(m) Actual or potential conflicts of interest between organs of state should be resolved through conflict resolution procedures.
(n) Global and international responsibilities relating to the environment must be discharged in the national interest.
(o) The environment is held in public trust for the people. the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage.
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Act No. 107, 1998 NATIONAL ENVIRONMENTAL MANAGEMENT Am, 1998
(p) The costs of remedying pollution, environmental de~a~tion ~d consequent adverse health effects and of preventing, controlling or mififis~g fufier pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment.
(q) The vital role of women and youth in environment~ m~agement and development must be recognised and their full ptilclpation therein must be promoted.
(r) Sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores, estuaries, wetlands. and similar systems require specific attention in manage- ment and planning procedures, especially where they are subject to signific~t human resource usage and development pressure.
CHAPTER 2
INSTITUTIONS
Part 1: National Environmental Advisoq Forum
Establishment, objects and functions of National Environmental Advisory Forum
3. ( 1 ) The National Environmental Advisory Forum is hereby established. (2) The object of the Forum is t~
(a) inform the Minister of the views of st~eholders regarding the application of the principles set out in section 2: and
(b) advise the Minister on— (i) any matter concerning environmental management and governance and
specifically the setting and achievement of objectives and priorities for environmental governance; and
(ii) appropriate methods of monitoring compliance with the principles set out in section 2.
(3) The Forum may. on its own initiative and after consultation with the Director-General. draw the Minister’s attention to any matter concerning environmental management requiring attention, and the Minister may refer matters for consideration by the Forum.
Composition
4. (1) The Forum consists of at least 12 but not more than 15 members appointed by the Minister.
(~) The Minister appoints persons who represent st&eholders, and persons who have experience, expertise or stills necess~ to enable the Forum to carry out its functions: Provided that the Minister must t~e into account the desirability of appointing women, youth and persons disadvantaged by unfair discrimination and ensuring representation of vulnerable and disadvantaged persons.
(3) Before persons contemplated in subsection (2) are appointed. the Minister must—
(a) invite nominations from organised labour, organised business, non-gover- nmental organisations and community-based organisations in a manner that he or she may consider appropriate, and invite nominations from others by notice in the Gazette. at least two nationally distributed newspapers, appropriate local newspapers and on the radio specifying a period within which nominations must be submitted;
(b) stipulate in such notice, the procedure to be adopted regarding such nominations; and
(c) consult with— (i) the MECS; and
(ii) the Committees of the National Assembly and the National Council of Provinces that scrutinise environmental affairs.
(4) The Minister appoints the chairperson of the Forum. (5) (a) Each member of the Forum designates, with the concurrence of the Minister
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16 No. 19519 GOVERNMENT GuE~, 27 NOVEMBER 1998
Act No. 107, 1998 NAmONAL ENVIRONMENTAL MANAGEH ACT. 1998
and the organisation or person who nominated him or her, ~ alternate to t~e his or her place if he or she is unable to attend a meeting of the Forum.
(b) The Minister may appoint a replacement for a member who vacates his or her ornce in terms of section 5(3), and the Minister may invite nofinatlons from the sector or organisation that nominated such member.
(6) The replacement must serve for the balance of the term of tie person he or she replaces.
Conditions of appointment to Forum
5. (1) A member of the Forum holds ornce for a period of two years. (2) At the expiry of his or her term of ornce a member may be appointed for one
further term. (3) A member or replacement member of the Forum must vacate his or her office if—
(a) the Minister at any time terminates such term of office for good reason: (b) he or she can no longer perform his or her duties on the Forum; (c) he or she is convicted of a criminal offence, involving dishonesty, ad is
sentenced to imprisonment without the option of a fine; (d) he or she is absent from more than two consecutive meetings of the Forum
without the leave of the chairperson: or (e) he or she resigns by way of written notice to the Minister.
(4) Members of the Forum and members of a committee of the Forum may be paid such remuneration and allowances for their services as the Minister may determine with the concurrence of the Minister of Finance.
(5) If any member of the Forum or his or her spouse has a director indirect financial interest in any matter before the Forum, he or she shall disclose such interest and may not take part in any discussion regarding such matter.
Functioning of Forum
6. (1) The Minister must— (a) lay down rules for the functioning of the Forum, including—
(i) by publication in the Gazette, a constitution for the Forum which may contain provisions relating t+ (au) advice on matters related to Chapter 6; (bb) participation in meetings relating to international environmental
matters; (cc) subcommittees and working groups of the Forum;
(ii) the manner and timing of reports by the Forum; and (iii) consultation with the Director-General;
(b) with the concurrence of the Minister of Finance make available funds for the functioning of the Forum for purposes other than the payment of remuneration referred to in section 5(4), from— (i) money appropriated by Parliament for this purpose; and
(ii) funds obtained from donations or grants. (2) The Director General may—
(a) designate as many officers and employees as he or she may deem necessary to assist the Forum in the performance of its work; and
(b) engage persons on contract to assist the Forum in the performance of its work. (3) The Minister must present an annual report to Parliament on the work of the
Forum, including the following: (a) the work plan for the next year: (b) information and recommendations submitted: and (c) financial report and budget.
(4) The meetings of the Forum must be open to the public and all documents considered or produced by the Forum must be available for inspection by the public.
Part 2: Committee for Environmental Co-ordination
Establishment, objects and functions of Committee
7. (1) The Committee for Environmental Co-ordination is hereby established.
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Act No. 107, 1998 NATtONAL ENVIRONMENTAL MANAGEMENT ACT, 1998
(2) The object of the Committee is to promote the integration and co-ordination of environmental functions by the relevant organs of state. and in particular to promote the achievement of the purpose and objectives of environmental implementation plans and environmental management plans as set out in section 12.
(3) The functions of the Committee shall include the following: (a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
scrutinizing, reporting and making recommendations ~n the environmental implementation plans submitted to it in accordance with section 15; investigating and making recommendations regarding the assignment and delegation of functions between organs of state under this Actor any other law affecting the environment and regarding the practical working arrangements, including memoranda of understanding. between the organs of state repre- sented by members and other organs of state: investigating and recommendin& the establishment of mechanisms in each province. with the concumence of the MEC. for providing a single point in the province for the receipt of applications for authorisations, licences and similar permissions required for activities under legal provisions concerned with the protection of the environment where such authorisations, licences or permissions are required from more than one organ of state, and procedures for the co-ordinated consideration of such applications by the organs of state concerned; making recommendations to co-ordinate the application of integrated environmental management as contemplated in Chapter 5, including co- operation in environmental assessment procedures and requirements and making determinations regarding the prevention of duplication of efforts as contemplated in section 24(4): making recommendations aimed at securing compliance with the principles set out in section 2 and national norms and standards contemplated in section 146(2)(b)(i) of the Constitution: making recommendations regarding the harmonisation of the environmental functions of all relevant national departments and spheres of government: advising the Minister on providing ~Guidelines for the preparation of environmental management plans and environmental implementation plans: and endeavoring to ensure compliance with the principle set out in section 2(2) by making appropriate recommendations. requiring reports from its members and advisin& government on law reform.
Composition of Committee
8. (1) The Committee comprises: the Director-General: Environmental Affairs and Tourism, who acts as(a)
(b) (c) (d) (e) V) (g) (h) (i) (j) (k)
(1)
(m)
chairperson; the Director-General: Water Affairs and Forestry: the Director-General: Minerals and Ener&y; the Director-General: Land Affairs; the Director-General: Constitutional Development: the Director-General: Housing; the Director-General: Agriculture: the Director-General: Health; the Director-General: Labour: the Director-General: Arts, Culture, Science and Technology; the provincial heads of department appointed by the Minister with the concurrence of the MEC: a representative of the national organisation recognised in terms of section 2 of the Organised Local Government Act. 1997 (Act No. 52 of 1997). appointed by the Minister with the concurrence of that organisation; and any other Director-General appointed by the Minister with the concurrence of
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(2) (a) The Committee may co-opt persons to assist it in carryin& out its functions. (b) The Committee may invite persons to attend its meetings and to assist it in
carrying out its functions.
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(3) In making the appointments as contemplated in subsection (2)(u), the Committee must give due consideration to representation of the local sphere of government.
(4) Every member of the Committee referred to in subsection (l), must appoint an alternate member with the necessary authority from his or her department or provincial government. 5
(5) The dtemate member appointed under subsection (4) must act in such member’s absence or inability to act as member of the Committee.
Meetings of Comtittee, subcommittees and working groups
9. (1) The Committee meets at least four times a year. (2) The Director-General deterrnines—
(a) the procedure for convening meetings of the Committee: (b) the quorum for meetin&s; (c) procedures at meetings; and (d) records the Committee must keep.
(3) The Director-General furnishes the Minister with copies of the minutes of all 15 meetings, within three weeks of such meetings.
(4) The Committee may establish ad hoc and permanent subcommittees to assist the Committee in the performance of its functions, and such subcommittees may include persons who need not necesswily be members of the Committee.
(5) The Committee may establish ad hoc working groups to assist a subcommittee in 20 the performance of its functions, and such working groups may include persons who need not necessarily be members of the subcommittee.
(6) Every subcommittee established in terms of subsection (4) must report at each meeting of the Committee on its own activities as well as those of any working groups established in terms of subsection (5) to assist the subcommittee. 25
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Report of Committee
10. (1) The Committee presents an annual report on its activities to the Minister on the following:
(a) the work of the Committee and the work plan for the next year; (b) comments submitted to the Director-General on the environmental implemen- 30
tation and environmental management plans received; (c) recommendations made in respect of environmental implementation and
environmental management plans received: (d) recommendations made in order to secure compliance with the principles set
out in section 2 and national norms and standards; 35 (e) law reform undertaken and proposed by organs of state represented on the
Committee; ~) compliance with environmental implementation and management plans by
municipalities; and (g) anY other matter relevant to the co-ordination of policies, plans and 40
programmed that may affect the environment. (2) At the request of members of the public. the Committee must make copies
available of the report contemplated in subsection (1). (3) The Minister must present an annual report to Parliament on the work of the
Committee, including the matters listed in subsection (1). 45
CHAPTER 3
PROCEDURES FOR CO-OPERATIVE GOVERNANCE
Environmen~l implementation plans and management plans
11. (1) Every national department listed in Schedule 1 as exercising functions which may affect the environment and every province must prepare an environmental 50 implementation plan within one year of the promulgation of this Act and at least every four years thereafter.
(2) Every national department listed in Schedule 2 as exercising functions involving the management of the environment must prepare an environmental management plan within one year of the promulgation of this Act and at least every four years thereafter. 55
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(3) Every national department that is listed in both Schedule 1 and Schedule 2 may prepare a consolidated environmental implementation and management plan.
(4) Every organ of state referred to in subsections (1) and (2) must, in its preparation of an environmental implementation plan or environmental management plan, and before submitting such plan take into consideration every other environmental implementation plan and environmental management plan already adopted with a view to achievin& consistency among such plans.
(5) The Minister may by notice in the Gazef~e— (a) extend the date for the submission of any environmental implementation plans
and environmental management plans for periods not exceeding 12 months; (b) on application by any organ of state, or on his or her own initiative with the
agreement of the relevant Minister where it concerns a national department. and after consultation with the Committee, amend Schedules 1 and 2.
(6) The Director-General must, at the request of a national department or province assist with the preparation of an environmental implementation plan.
(7) The preparation of environmental implementation plans and environmental management plans may consist of the assembly of information or plans compiled for other puWoses and may form part of any other process or procedure.
(8) The Minister may issue guidelines to assist provinces and national departments in the preparation of environmental implementation and environmental management plans.
Purpose and objects of environmental implementation plans and environmental management plans
12. The purpose of environmental implementation and management plans is tti (a/ co-ordinate and harmonise the environmental policies, plans, programmed
and decisions of the various national departments that exercise functions that may affect the environment or are entrusted with powers and duties aimed at the achievement. promotion. and protection of a sustainable environment, and of provincial and local spheres of government, in order t~ (i) minimise the duplication of procedures and functions; and
(ii ) promote consistency in the exercise of functions that may affect the environment;
(b) give effect to the principle of co-operative government in Chapter 3 of the Constitution;
(r) secure the protection of the environment across the country as a whole: (d) prevent unreasonable actions by provinces in respect of the environment that
are prejudicial to the economic or health interests of other provinces or the country as a whole; and
(e) enable the Minister to monitor the achievement. promotion, and protection of a sustainable environment.
Content of environmental implementation plans
13. ( (a
(b
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) Every environmental implementation plan must contain: a description of policies, plans and programmed that may significantly affect the environment; a description of the manner in which the relevant national de~artment or 45,, provinc~ will ensure that the policies, plans and programmed r~ferred to in paragraph (a) will comply with the principles set out in section 2 as well as any national norms and standards as envisaged under section 146(2)(b)(i) of the Constitution and set out by the Minister, or by any other Minister, which have as their objective the achievement, promotion, and protection of the 50 environment;
(c) a description of the manner in which the relevant national department or province will ensure that its functions are exercised so as to ensure compliance with relevant legislative provisions. including the principles set out in section 2, and any national norms and standards envisaged under 55 section 146(2)(b)(i) of the Constitution and set out by the Minister, or by any other Minister, which have as their objective the achievement, promotion, and protection of the environment; and
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(d) recommendations for the promotion of the objectives and plans for the implementation of the procedures and regulations referred to in Chapter 5.
(2) The Minister may. after consultation with the Committee, make regulations for the purpose of giving effect to subsections (1)(b) and (c),
Content of environmental management plans
14. Everv environmental management plan must conttin— ([1)
(b)
(cl
(d)
(e)
(f)
(g)
a description of the functions e~ercised by the relevant department in respect of the environment; a description of environmental norms and standards, including norms and standards contemplated in section 146(2)(b)(i) of the Constitution, set or applied b! the relevant department; a description of the policies, plans and programmed of the relevant department that are designed [o ensure compliance with its policies by other organs of state and persons: a description of priorities regarding compliance with the relevant depart- ments policies by other organs of state and persons; a description of the extent of compliance with the rele~ant departments policies by other organs of state and persons; a description of arrangements for co-operation with other national depart- ments and spheres of government. including any existing or proposed memorandti of understanding entered into, or delegation or assignment of powers to other organs of state. with a bearing on environmental management: and proposals for the promotion of the objec[ii’es and plans for the implementation of the procedure: and regulations referred to in Chapter 5. -
Submission, scrutiny and adoption of environmental implementation plans and environmental management plans
lj. ( 1 ) Ever) environmental implementation plan and eve~ environmental manage- men[ plan must be submitted to the Committee by a date to be set by the Minister.
(2) ((l) The Committee scrutinises ever> environmental implementation plan and either recommends adoption of such plan or reports to the Minister as well as every other Minister responsible for a department which is represented on the Committee and every Provincial Premier concerned on the extent to which the environmental implementation plan concerned fails to compl> with-
(i) the principles in section 2: (ii) the purpose and objectives of environmental implementation plans; or
(iii ) any relevant environmental management plan. and specifies changes needed in the environmental implementation plan concerned.
(1~) If the Committee recommends adoption of an environmental implementation plan. then the relevant organ of state must adopt and publish its plan in tbe rele~ant Ga:ett[ within 90 days of such approval and the plan becomes effective from the date of such publication,
(3) An! difference or disagreement between the Committee and a national department regarding either a failure to submit or the content of an environmental implementation plan may. if it cannot be resolved by agreement between the parties concerned. be referred by the Director-General for determination by the Minister in consultation with the Ministers responsible for the Department of Land Affairs. Department of Water Affairs and Forest~. Department of Minerals and Energy and Department of Constitutional Development.
(4) An) difference or disagreement between the Committee and a province regarding either a failure to submit or the content of an environmental implementation plan may, if it cannot be resolved b~ agreement between the parties concerned, be referred by the Director-General to concdiation in accordance with Chapter 4 and if such conciliation fails. or where the Director-General does not refer the dispute to conciliation, to the Minister with a request for intervention in accordance with section 100 of the Constitution: Provided that such disputes shall be dealt with in accordance with the act contemplated in section 41 (2) of the Constitution, once promulgated.
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(5) A national department which has submitted an environmental management plan must adop[ and publish its plan in the Gazette within 90 days of such submission and the plan becomes effective from the date of such publication.
(6) The exercise of functions by organs of state may not be delayed or postponed on account of—
(a)
(b) (c)
(d)
((’)
the failure of any organ of state to submit an environmental implementation plan; the scrutiny of any environmental implementation plan by the Committee; the amendment of any environmental implementation plan following scrutiny of the plan by the Committee; any difference or disagreement regarding any environmental implementation plan and the resolution of that difference or disagreement; or the failure of any organ of state to adopt and publish its environmental implementation or mana&ement plan.
Compliance with environmental implementation plans and environmental man- agement plans
16. ( 1 ) (a) Every organ of state must exercise every function it may have, or that has been assigned or delegated to it, by or under any law, and that may significantly affect the protection of the environment. substantially in accordance with the environmental implementation plan or the environmental management plan prepared. submitted and tidopted by that organ of state in accordance with this Chapter: Provided that any substtintial deviation from an environmental management plan or environmental implementation plan must be reported forthwith to the Director-General and the Committee.
(/?J Every organ of state must report annually within four months of the end of its financial year on the implementation of its adopted environmental management plan or enl’ironmental implementation plan to the Director-General and the Committee.
(c) The Minister may, after consultation with the Committee, recommend to any or:~n of state which has not submitted and adopted an environmental implementation plan or environmental management plan, that it comply with a specified provision of an adopted environmental implementation plan or submitted environmental management plan.
(2) The Director-General monitors compliance with environmental implementation plans and environmental management plans and may—
([{)
(17)
take any steps or make any inquiries he or she deems fit in order to determine if environmental implementation plans and environmental management plans are being complied with by organs of state: and if. as a result of any steps taken or inquir}’ made under paragraph (a). he or she is of the opinion th-at an enviro-nmental implementa~ion plan and an environmental management plan is not substantially being complied with. serve a written notice on the organ of state concerned, calling on it to take such specified steps as the Director-General considers necessary to remedy the failure of compliance.
(3 J (a) Within 30 days of the receipt of a notice contemplated in subsection (2)(6). an organ of state must respond to the notice in writing setting out any—
(i) objections to the notice; (ii) steps that will be taken to remedy failures of compliance: or
(iii) other information that the organ of state considers reIevant to the notice. (b) After considering the representations from the organ of state and any other
relevant information, the Director-General must within 30 days of receiving a response referred to in paragraph (a) issue a final notice—
(i) confirming, amending or canceling the notice referred to in subsection (2)(b): (ii ) specify steps and a time period within which steps must be taken to remedy
the failure of compliance. (cJ If, after compliance with the provisions of paragraphs (a) and (b) there still
remains a difference or disagreement between the organs of state and the Director- General, the organ of state may request the Mitister to refer any difference or disagreement between itself and the Director-General regarding compliance with an environmental implementation plan, or the steps necessary to remedy a failure of compliance, to conciliation in accordance with Chapter 4.
(d) Where an organ of state does not submit any difference or disagreement to conciliation in accordance with paragraph (c), or if conciliation fails to resolve the
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matter, the Director-General may within 60 days of the final notice referred to in paragraph (b) if the matter has not been submitted to conciliation, or within 30 days of the date of conciliation, as the case may be—
(i)
(ii)
(iii)
where the organ of State belongs to the provincial sphere of government, request the Minister to intervene in accordance with section 100 of the Constitution: Provided that such a difference or disagreement must be dealt with in accordance with the Act contemplated in section 41 (2) of the Constitution once promulgated; where the organ of State belongs to the local sphere of government, request the MEC to intervene in accordance with section 139 of the Constitution: Provided that such a difference or disagreement must be dealt with in accordance with the Act contemplated in section 41(2) of the Constitution once promulgated: or where the organ of state belongs to the national sphere of government refer the matter for determination by the Minister in consultation with the Ministers responsible for the Department of Land Affairs. Department of Water Affairs and Forestry. Department of Minerals and Energy and Department of Constitutional Development.
(4) Each pro~rincial government must ensure that— (a) the relevant provincial environmental implementation plan is complied with
by each municipality within its province and for this purpose the provisions of subsections (2) and (3) must apply W)ith the necessag changes: and
(b) municipalities adhere to the relevant environmental implementation and management plans. and the principles contained in section 2 in the preparation of any policy. programme or plan. including the establishment of integrated development plans and land development objectives
(5) The Director-General must keep a record of all environmental implementation plans and environmental management plans. relevant agreements between organs of state and any reports submitted under subsection (1)(b): and such Plans. rePofls and ~greements must be available for inspection by the public.
CHAPTER 4
FAIR DECISION-MAKING AND CONFLICT MANAGEMENT
Reference to conciliation
17. ( 1 ) Any Minister. MEC or Municipal Council— (a) where a difference or disagreement arises concerning the exercise of any of its
functions which may significantly affect the environment. or (l)) before whom an appeal arising from a difference or disagreement regarding
the protection of the environment is brought under any law. may. before reaching a decision. consider the desirability! of first referring the matter to conciliation and—
(i)
(ii)
must if he. she or it considers conciliation appropriate either— (aa) refer the matter to the Director-General for conciliation under this Act: or (/71~) appoint a conciliator on the conditions, including time-limits, that he. she
or it may determine: or (cc) where a conciliation or mediation process is provided for under any other
relevant law administered by such Minister, MEC or Municipal Council. refer the matter for mediation or conciliation under such other law: or
if he, she or it considers conciliation inappropriate or if conciliation has failed. make a decision: Provided that the prov~s’ions of section 4 of the Development Facilitation Act, 1995 (Act No. 67 of 1995), shall prevail in respect of decisions in terms of that Act and laws contemplated in subsection 1(c) thereof.
(2) Anyone may request the Minister, a MEC or Municipal Council to appoint a facilitator to call and conduct meetings of interested and affected parties with the purpose of reaching agreement to refer a difference or disagreement to conciliation in terms of this Act, and the Minister, MEC or Municipal Council may, subject to section 22. appoint a facilitator and determine the manner in which the facilitator must carry out his or her tasks, including time-limits.
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(3) A court or tribunal hearing a dispute regarding the protection of the environment may order the parties to submit the dispute to a conciliator appointed by the Director-General in terms of this Act and suspend the proceedings pending the outcome of the conciliation.
Conciliation
18. (1) Where a matter has been referred to conciliation in terms of this Act. the Director-General may, on the conditions, including time-limits, that he or she may determine, appoint a conciliator acceptable to the parties to assist in resolving a difference or disagreement: Provided that if the parties to the difference or disagreement do not reach agreement on the person to be appointed, the Director-General may appoint a person who has adequate experience in or knowledge of conciliation of environmental disputes.
(2) A conciliator appointed in terms of this Act must attempt to resolve the matter— (a) by obtaining such information whether documentary or oral as is relevant to
the resolution of the difference or disagreement: (b) by mediating the difference or disagreement: (c) by making recommendations to the parties to the difference or disagreement:
or (d) in any other manner that he or she considers appropriate.
(3) In carrying out his or her functions. a conciliator appointed in terms of this Act must take into account the principles contained in section 2.
(4) A conciliator may keep or cause to be kept. whether in writing or by mechanical or electronic means, a permanent record of all or part of the proceedin&s relating to the conciliation of a matter.
(5) Where such record has been kept. any member of the public may obtain a readable copy of the record upon payment of a fee as approved by Treasury.
(6) Where conciliation does not resolve the matter, a conciliator may enquire of the parties whether they wish to refer the matter to arbitration and may with their concurrence endeavour to draft terms of reference for such arbitration.
(7) (a) The conciliator must submit a report to the Director-General, the parties and the person who referred the matter for conciliation. setting out the result of his or her conciliation. and indicating whether or not an agreement has been reached.
(b) In the event of no agreement having been reached. the report ma) contain his or her recommendations and reasons therefor.
(c) Where relevant. the report must contain the conciliator’s comments on the conduct of the parties.
(d) The report and any agreement reached as a result of the conciliation must be available for inspection by the public and any member of the public may obtain a copy thereof upon payment of a fee as approved by Treasury.
(8) The Director-General may from time to time with the concurrence of the Minister of Finance, appoint persons or organisations with relevant knowledge or expertise to provide conciliation and mediation services.
Arbitration
19. ( 1 ) A difference or disagreement regarding the protection of the environment may be referred to arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).
(2) Where a dispute or disagreement referred to in subsection (1) is referred to arbitration the parties thereto may appoint as arbitrator a person from the panel of arbitrators established in terms of section 21.
Investigation
20. The Minister may at any time appoint one or more persons to assist either him or her or. after consultation with a Municipal Council or MEC or another national Minister, to assist such a Municipal Council or MEC or another national Minister in the evaluation of a matter relating to the protection of the environment by obtaining such information, whether documentary or oral, as is relevant to such evaluation and to that end—
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(a)
(b)
(c)
the Minister may by notice in the Gazette give such person or persons the powers of a Commission of Inquiry under the Commissions Act, 1947 (Act No. 8 of 1947); the Minister may make rules by notice in the Ga:etre for the conduct of the inquiry: Provided that the decision of the inquiry and the reasons therefor 5 must be reduced to writing; the Director-General must designate. subject to the provisions of the Public Service Act, 1994 (Proclamation No. 103 of 1994), as many officers and employees of the Department as may be necessary to assist such person and any work may be perfomed by a person other than such officer or employee at the remuneration and allowances which the Minister with the concurrence of the Minister of Finance may determine.
Appointment of panel and remuneration
21. (1) The Minister may, with the concurrence of the Minister of Finance, determine remuneration and allowances. either in general or in an) particular case. to be paid from money appropriated by Parliament for that purpose to any person or persons appointed in terms of this Act to render facilitation, conciliation. arbitration or investigation services, who are not in the full-time employment of the State.
(2) The Minister may create a panel or panels of persons from which appointment of facilitators and arbitrators in terms of this Act may be made, or contracts entered into in terms of this Act.
(3) The Minister may, pending the establishment of a panel or panels in terms of subsection (2), adopt the panel established in terms of section 31 ( 1 ) of the Land Reform (Labour Tenants) Act, 1996 (Act No. 3 of 1996).
Relevant considerations, report and designated oficer
22. ( 1 ) Decisions under this Act concerning the reference of a difference or disagreement to conciliation, the appointment of a conciliator, the appointment of a facilitator, the appointment of persons to conduct investigations, and the conditions of such appointment, must be made taking into account—
(a) the desirability of resolving differences and disagreements speedily and cheaply;
(b) the desirability of givin& indigent persons access to conflict resolution measures in the interest of the protection of the environment:
(c) the desirability of improving the quality of decision-makin& by giving interested and affected persons the opportunity to bring relevant information to the decision-making process;
(d) any represen~tions made by persons interested in the matter; and (e) such other considerations relating to the public interest as may be relevant.
(2) (a) The Director-General shall keep a record and prepare an annual report on environmental conflict management for submission to the Committee and the Forum. for the purpose of evaluating compliance and conflict management measures in respect of errk’ironmental laws.
(b) The record and report refereed to in paragraph (a) may include the following: (i) Proceedings under this chapter, including reports of conciliators and
agreements reached; (ii) proceedings under Chapter 7, including complaints, charges and judgments; (iii) proceedings under other laws listed in Schedule 3: (iv) proceedings by the Human Rights Commission and the Public Protector.
(c) The Director-General shall designate an officer to provide information to the public on appropriate dispute resolution mechanisms for referral of disputes and complaints.
(d) The reports, records and agreements referred to in this subsection must be available for inspection by the public.
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Act No. 107, 1998 NATtONAL ENVIRONMENTAL MANAGEMENT ACT. 1998
CHAPTER 5
INTEGRATED ENVIRONMENTAL MANAGEMENT
General objectives
23. (1) The purpose of this Chapter is to promote the application of appropriate environmental management tools in order to ensure the integrated environmental management of activities,
(2) The general objective of integrated environmental management is t~ (a)
(b)
(c)
(d)
(e)
(f)
promote the integration of the principles of environ-mental management set out in section 2 into the making of all decisions which may have a significant effect on the environment: identify, predict and evaluate the actual and potential impact on the environment. socio-economic conditions and cultural heritage. the risks and consequences and alternatives and options for mitigation of activities, with a view to minimizing negative impacts. maximizing benefits. and promoting compliance with the principles of environmental management set out in section 2; ensure that the effects of activities on the environment receive adequate consideration before actions are taken in connection with them; ensure adequate and appropriate opportunity for public participation in decisions that may affect the environment; ensure the consideration of environmental attributes in management and decision-making which may have a significant effect on the environment; and identify and employ the modes of environmental management best suited to ensuring that a particular activity is pursued in accordance with the principles of environmental management set out in section 2.
(3) The Director-General must ~oordinate the activities of organs of state referred to in section 24(1) and assist them in giving effect to the objectives of this section and such assistance may include training, the publication of manuals and guidelines and the co-ordination of procedures.
Implementation
24. ( 1 ) In order to give effect to the general objectives of integrated environmental management laid down in this Chapter. the potential impact on—
(a) the environment; (b) soclo-economic conditions: and (c) the cultural heritage,
of activities that require authorisation or permission by law and which may significantly affect the environment, must be considered. investigated and assessed prior to their implementation and reported to the organ of state charged by law with authorizing. permitting, or otherwise allowing the implementation of an activity.
(2) The Minister may with the concurrence of the MEC. and every MEC may with the concurrence of the Minister. in the prescribed manner—
(a)
(b)
(c)
(d)
(e)
identify activities which may not be commenced without prior authorisation from the Minister or MEC: identify geographical areas in which specified activities may not be commenced without prior authorisation from the Minister or MEC and specify such activities: make regulations in accordance with subsections (3) and (4) in respect of such authorisations: identify existing authorised and permitted activities which must be consid- ered, assessed, evaluated and reported on; and prepare compilations of information and maps that specify the attributes of the environment in particular geographical areas, including the sensitivity, extent, interrelationship and significance of such attributes which must be taken into account by every organ of state charged by law with authorisin&, permitting or otherwise tilowing tie implementation of a new activity, or with considering, assessing and evaluating an existing activity:
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Provided that where authorisation for an activity falls under the jurisdiction of another Minister, a decision in respect of paragraph (a) or (b) must be taken in consultation with such other Minister.
(3) (a) The investigation, assessment and communication of the potential impact of activities contemplated in subsection ( 1 ) must take place in accordance with procedures complying with subsection (7).
(b) Every Minister and MEC responsible for an organ of state that is charged by law with authorizing, permitting, or otherwise allowing an activity contemplated in subsection (1) may prescribe regulations laying down the procedures to be followed and the report to be prepared for the purpose of compliance with paragraph (a).
(c) Any regulations made in terms of this subsection or any other law that contemplates the assessment of the potential environmental impact of activities must, notwithstanding any other law, comply with subsection (7).
(d) This section does not affect the validity of any law contemplated in paragraph (c) that is in force at the commencement of this Act. including the provisions and regulations referred to in section 50(2): Provided that paragraph (a) must nevertheless be complied with.
(4) Before any regulations are prescribed under this section or any other law that contemplates the assessment of the potential environmental impact of activities. and notwithstanding such other law—
(a) a Minister or MEC must submit a draft of such regulations to the Committee; (b) the Committee must within 30 days of the receipt of such draft regulations—
(i) determine whether the draft regulations would bring about a duplication of effort by persons initiating activities contemplated in subsection ( 1 ) in the investigation and assessment of the potential impacts of activities that require authorisation or permission from more than one organ of state: and
(11) approve the draft regulations unless they would bring about such a duplication of effort: or
(iii ) specify amendments to be made to such draft regulations in order to avoid such a duplication of effort:
(c) a Minister or MEC must— (i) where such draft regulations have been approved by the Committee.
follow the procedure prescribed in section 47: or (ii) give etiect to the amendments specified b! the co~nmittee. and thereafter
follow the procedure prescribed in section 47. (5) Compliance with the procedure laid down by a Minister or MEC does not remove
the need to obtain authorisation for that activity from any other organ of state charged by law with authorizing. permitting or otherwise allowing the implementation of the activity.
(6) The Minister may make regulations in accordance with subsections (3) and (4) stipulating the procedure to be followed and the report to be prepared in investigating. assessing and communicating potential impacts for the purpose of complying with subsection ( 1 ) where—
(a) the activity will affect the interest of more than one province or traverse international boundaries;
(b) the activity will affect compliance with obligations resting on the Republic under customary or conventional international law: or
(c) an activity contemplated in subsection (1) is not dealt with in regulations made under subsection (3).
(7) Procedures for the investigation, assessment and communication of the potential impact of activities must. as a minimum, ensure the following:
(u) Investigation of the environment likely to be significantly affected by the proposed activity and alternatives thereto:
(b) investigation of the potential impact. including cumulative effects, of the activity and its alternatives on the environment, socio-economic conditions and cultural heritage, and assessment of the significance of that potential impact;
(c) investigation of mitigation measures to keep adverse impacts to a minimum, as well as the option of not implementing the activity;
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(d)
(e)
V)
(g)
(h)
(;)
public information and participation, independent review and conflict resolution in all phases of the investigation and assessment of impacts; reporting on gaps in knowledge. the adequacy of predictive methods and underlying assumptions, and uncertainties encountered in compiling the required information; 5 investigation and formulation of arrangements for the monitoring and management of impacts, and the assessment of the effectiveness of such arrangements after their implementation; co-ordination and co-operation between organs of state in the consideration of assessments where an activity falls under the jurisdiction of more than one 10 organ of state; that the findings and recommendations flowing from such investigation, and the general objectives of inte&rated environmental management laid down in this Act and the principles of environmental management set out in section 2 are taken into account in any decision made by an organ of state in relation to 15 the proposed policy, pro&ramme. plan or project; and that environmental attributes identified in the compilation of information and
20
maps as contemplated in subsection (2)(e) are considered.
CHAPTER 6
INTERNATIONAL OBLIGATIONS AND AGREEMENTS
Incorporation of international environmenbl instruments
2j. ( 1 ) Where the Republic is not yet bound by an international environmental instrument, the Minister may make a recommendation to Cabinet and Parliament reg~ding accession to and ratification of an lntemational environmental instrument. which may deal with the following: 25
(u) (b) (c) (d) (e) (.fj (g)
(h) (i) (j) (k)
Available resources to ensure implementation; views of interested and affected parties; benefits [o the Republic; disadvantages to the Republic; the estimated date when the instrument is to come into effect; 30 the estimated date when the instrument will become binding on the Republic: the minimum number of states required to sign the instrument in order for it to come into effect; the respective responsibilities of all national departments involved; the potential impact of accession on national parties; 35 reservations to be made, if any: and any other matter which in the opinion of the Minister is relevant.
(2) Where the Republic is a party to an international environmental instr~ment the Minister. after compliance with the provisions of section 231(2) and (3) of the Constitution, may publish the provisions of the international environmental instrument 40 in the Gazette and any amendment or addition to such instrument.
(3) The Minister may introduce legislation in Parliament or make such regulations as may be necessary for giving effect to an international environmental instrument to which the Republic is a party. and such legislation and regulations may deal with infer aliu the following— 45
(a) (b)
(c)
(d)
(e)
f)
the co-ordination of the implementation of the instrument; the allocation of responsibilities in terms of the instrument, including those of other organs of state; the gatherin& of information, including for the purposes of compiling and updating reports required in terms of the instrument and for submission to 50 Parliament; the dissemination of information related to the instrument and reports from international meetings; initiatives and steps regarding research. education, training, awareness raisin& and capacity building; 55 ensuring public participation;
40 No. 19519 GOVERN~~ G~~, 27 NOVWBER 1998
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(g) implementation of and compliance with the provisions of the instrument, including the creation of offences and the prescription of penalties where applicable; and
(h) any other matter necessary to give effect to the instrument. (4) The Minister may prior to a recommendation referred to in subsection (1), publish
a notice in the Gazetre, stating his or her intention to make such recommendation and inviting written comments.
Reports
26. (1) The Minister must report to Parliament once a year regarding international environmental instruments for which he or she is responsible and such report may include details on—
(a) participation in international meetin&s concerning international environmen- tal instruments;
(b) progress in implementing international environmental instruments to which the Republic is a party;
(c) preparations undertaken in respect of international instruments to which the Republic is likely to become a party;
(d) initiatives and negotiations within the region of Southern Africa: (e) the efficacy of co-ordination mechanisms; and (~) legislative measures that have been taken and the time frames within which it
is envisaged that their objectives will be achieved. (2) (a) The Minister must initiate an Annual Performance Report on Sustainable
Development to meet the government’s commitment to Agenda 21, (/7) (i) The Annual Performance Report must cover all relevant acti~’ities of all
national departments and spheres of government. (ii) All relevant organs of state must provide information to the Minister by a date to
be determined by the Minister for the purposes of the report referred to in paragraph (a) and this may consist of an assembly of information compiled for other purposes.
(c) The Minister may appoint persons as he or she considers necessar~ to act as a Secretariat to ensure preparation of the report.
(d) The purpose of the report shall be t~ (i) provide an audit and a report of the government’s performance in respect of
Agenda ~ 1 ; (ii) review procedures for co-ordinating policies and budgets to meet the
objectives of Agenda 21: and (iii) review progress on a public educational progrme to support the objectives
of Agenda 21.
Application
27. (1) This Chapter applies to any international environmental instrument whether the Republic became a party to it before or after the coming into force of this Act.
(2) The provisions of any international environmental instrument published in accordance with this section are evidence of the contents of the international en~ironmental instrument in any proceedings or matter in which the provisions of the instrument come into question.
CHAPTER 7
COMPLMNCE. ENFORCEMENT AND PROTECTION
Part 1: Environmental hazards
Duty of care and remediation of environmental damage
28. (1) Every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the
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environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment.
(2) Without limiting the generality of the duty in subsection (1), the persons on whom subsection (1) imposes an obligation to take reasonable measures. include an owner of land or premises, a person in control of land or premises or a person who has a right to 5 use the land or premises on which or in which—
(a) any activity or process is or was performed or undertaken; or (b) any other situation exists,
which causes. has caused or is likely to cause significant pollution or degradation of the environment. 10
(3) The measures required in terns of subsection (1) may include measures (P (a) investigate, assess and evaluate the impact on the environment: (b) inform and educate employees about the environmental risks of their work
and the manner in which their tasks must be performed in order to avoid causing significant pollution or degradation of the environment: 15
(c) cease, modify or control any act, activity or process causing the pollution or degradation;
(d) contain or prevent the movement of pollutants or the causant of degradation: (e) eliminate any source of the pollution or degradation: or (f) remedy the effects of the pollution or degradation. ~o
(4) The Director-General or a provincial head of department may, after consultation with any other organ of state concerned and after having given adequate opportunity to affected persons to inform him or her of their relevant interests. direct any person who fails to take the measures required under subsection (1) t~
(a) investigate. evaluate and assess the impact of specific activities and report 25 thereon:
(b) commence taking specific reasonable measures before a given date; (c) diligently continue with those measures; and (d) complete them before a specified reasonable date:
Provided that the Director-General or a provincial head of department may. if urgent 30 action is necessary for the protection of the environment. issue such directive. and consult and give such opportunity to inform as soon thereafter as is reasonable.
(5) The Director-General or a provincial head of department, when considering any measure or time period envisaged in subsection (4), must have regard to the following:
(a) the principles set out in section 2: 35 (b) the provisions of any adopted environmental management plan or environ-
mental implementation plan: (c) the severity of any impact on the environment and the costs of the measures
being considered: (d) any measures proposed b> the person on whom measures are to be imposed: 40 (e) the desirability of the State fulfilling its role as custodian holding the
environment in public trust for the people: (j) any other relevant factors.
(6) If a person required under this Act to undertake rehabilitation or other remedial work on the land of another. reasonably requires access to. use of or a limitation on use 45 of that land in order to effect rehabilitation or remedial work. but is unable to acquire it on reasonable terms. the Minister may—
(a) expropriate the necessary rights in respect of that land for the benefit of the person undertaking the rehabilitation or remedial work. who will then be vested with the expropriated rights: and 50
(b) recover from the person for whose benefit the expropriation was effected all costs incurred.
(7) Should a person fail to comply, or inadequately comply. with a directive under subsection (4), the Director-General or provincial head of department may take reasonable measures to remedy the situation. 55
(8) Subject to subsection (9), the Director-General or provincial head of department may recover all costs incurred as a result of it acting under subsection (7) from any or all of the following persons—
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(a) any person who is or was responsible for. or who directly or indirectly contributed to, the pollution or degradation or the potential pollution or degradation:
(b) the owner of the land at the time when the pollution or degradation or the potential for pollution or degradation occurred. or that owner’s successor in 5 title;
(c) the person in control of the land or any person who has or had a right to use the land at the time when— (i) the activity or the process is or was performed or undertaken: or
(ii) the situation came about: or 10 (d) any person who negligently failed to prevent—
(i) the activity or the process being performed or undertaken: or (ii) the situation from coming about:
Provided that such person failed to take the measures required of him or her under subsection ( 1 ). 15
(9) The Director-General or prokfincial head of department may in respect of the recover! of costs under subsection (8). claim proportionally from any other person who benefited from the measures undertaken under subsection (7).
( 10) The costs claimed under subsections (6). (8) and (9) must be reasonable and may include. without being limited to. labour. administrative and overhead costs. ~o
(11 ) If more than one person is liable under subsection (8). the liability must be apportioned among the persons concerned according to the degree to which each was responsible for the harm to the environment resulting from their respective failures to take the measures required under subsections ( I ) and (4).
(12 ) Any person may. after giving the Director-Genem] or provincial head of 2S department 30 days’ notice. apply to a competent court for an order directing the Director-General or any provincial head of depanment to take any of the steps listed in subsection (4) if the Director-General or provincial head of department fails to inform such person in writing that he or she has directed a person contemplated in subsection (8) to take one of those steps. and the provisions of section 32(2) and (3) shall apply to 30 such proceedings with the necessan changes.
(13) When considering arty application in terms of subsection (12). the court must take into account the factors set out in subsection (5).
Protection of workers refusing to do environmentally hazardous work
29. (1) Notwithstanding the provisions of an} other la~. no person is civilly or 35 criminally liable or may be dismissed, disciplined. prejudiced or harassed on account of having refused to perform an! work if the person in good faith and reasonably believed at the time of the refusal that the performance of the work would result in an imminent and serious threat to the environment.
(2) An employee U)ho has refused to perform work in terms of subsection ( 1 ) must as 40 soon thereafter as is reasonably practicable notify the employer either personally or through a representative that he or she has refused to perform work and give the reason for the refusal.
(3) Subsection (1) applies whether or not the person refusing to work has used or exhausted any other applicable external or internal procedure or otherwise remedied the 45 matter concerned.
(4) No person may advantage or promise to advantage any person for not exercising his or her right in terms of subsection (1).
(5) No person may threaten to take any action contemplated by subsection (1) against a person because that person has exercised or intends to exercise his or her right in terms 50 of subsection (1).
Control of emergency incidents
30. (1) In this section— (a) “incident” means an unexpected sudden occurrence. including a major
emission, fire or explosion leading to serious danger to the public or 55
46 No. 19519 GOVERNWNT GHE~. 27 NOVEMBER 1998
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potentially serious pollution of or detriment to the environment. whether immediate or delayed.
(b) “responsible person.. includes any person wh~ (i) is responsible for the incident;
(ii) owns any hazardous substance involved in the incident; or 5 (iii ) was in control of any hazardous substance involved in the incident at the
time of the incident; (c) .’relevant authority” means—
(i) a municipality with jurisdiction over the area in which an incident occurs: 10
(ii ) a provincial head of department or any other provincial official designated for that purpose by the MEC in a province in which an incident occurs:
(iii) the Director-General: (i~ ) any other Director-General of a national department. 15
(2) Where this section authorises a relevant authority to take any steps. such steps may only be taken by—
(a) the person referred to in subsection ( 1 )(c)(iv ) if no steps have been taken by any of the other persons listed in subsection ( 1 )(c):
(b) the person referred to in subsection (1 )(c)(iii) if no steps have been taken by 20 any of the persons listed in subsection (1)(c)(i) and (c)(ii):
(c) the person referred to in subsection ( 1 )(c)(ii) if no steps have been taken by the person listed in subsection (1)(c)(i):
Pro\rided that any relevant authority may nevertheless take such steps if it is necessary to do so in the circumstances and no other person referred to in subsection ( 1 )(c) has yet 25 taken such steps.
(3) The responsible person or. where the incident occurred in the course of that persons employment. his or her employer must forthwith after knowledge of the incident. report through the most effective means reasonably avaiiabie-
(fl ) ([?1 (CJ (d)
the nature ~f the incident: 30 any risks posed by the incident to public health. safety and property; the toxicity of substances or by-products released by the incident; and anv steps that should be taken in order to avoid or minimise the effects of the in~ident on public health and the environment t- (i) the Director-General: 35
(ii ) the South African Police Sen’ices and the relevant fire prevention service:
(iii) the relevant provincial head of department or municipality: and (iv) all persons whose health may be affected by the incident.
(4) The responsible person or. where the incident occurred in the course of that 40 person.~ employment. his or her employer. must. as soon as reasonably practicable after knowledge of the incident—
(a) -
(b) (c) (d)
take all reasonable measures to contain and minimise the effects of the incident. including its effects on the environment and any risks posed by the incident to the health. safety and property of persons; 45 undertake clean-up procedures: remedy the effects of the incident: assess the immediate and long-term effects of the incident on the environment and public health:
(5) The responsible person or, where the incident occurred in the course of that 50 persons employment. his or her employer. must. within 14 days of the incident, report to the Director-General. provincial head of department and municipality such information as is available to enable an initial evaluation of the incident, including—
(a) (b)
(c) (d)
the nature of the incident; the substances involved and an estimation of the quantity released and their 55 possible acute effect on persons and the environment and data needed to assess these effects; initial measures taken to minimise impacts: causes of the incident, whether direct or indirect. including equipment, technology. system. or management failure; and 60
48 No. 19519 GOVERNMENT GHE~. 27 NOVEMBER 1998
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(e) measures taken and to be taken to avoid a recurrence of such incident. (6) A relevant authority may direct the responsible person to undertake specific
measures within a specific time to fulfil his or her obligations under subsections (4) and (5): Provided that the relevant authority must. when considering any such measure or time period. have regard to the following:
(a) (b)
(c)
(d)
(e)
the principles set out in section 2; the severity of any impact on the environment as a result of the incident and the costs of the measures bein& considered; any measures already taken or proposed by the person on whom measures are to be imposed, if applicable: the desirability of the state fulfilling its role as custodian holding the environment in public trust for the people: any other relevant factors.
(7) A verb~l directive must be confirmed in writing at the earliest opportunity. which must be within seven days.
(8) Should— (a) the responsible person fail to comply, or inadequately comply with a directive
under subsection (6): (b) there be uncertainty as to who the responsible person is: or (c) there be an immediate risk of serious danger to the public or potentially
serious detriment to the environment. d relevant authority may take the measures it considers necessa~ to—
(i) contain and minimise tbe effects of the incident: (ii ) undertake clean-up procedures: and
(iii) remedy the effects of the incident. (9) A relevant authority may claim reimbursement of all reasonable costs incurred by
it in terms of subsection (8) from every responsible person jointly and severally. ( 10) A rele~’ant authority which has taken steps under subsections (6) or (8) must. as
soon as reasonably prdcticab]e. prepare comprehensive reports on the incident. which reports must be made available through the most effective means reasonably available t o—
(aj the public: (b J the Director-Generdl: (c) the South African Police Services and the relevant fire prevention service; (d) the rele~’ant provincial head of department or municipality: and (c ~ all persons who may be affected by the incident.
Part 2: Information, enforcement and compliance
Access to environmental information and protection of whistle-blowers
31. ( 1 ) Access to information held by the State is governed by the statute contemplated under section 32(2) of the Constitution: Provided that pending the promulgation of such statute. the following provisions shall apply:
(a)
(b)
(c)
every person is entitled to have access to information held by the State and organs of state which relates to the implementation of this Act and any other law affecting the environment. and to the state of the environment and actual and future threats to the environment, including any emissions to water. air or soil and the production. handling. transportation, treatment, storage and disposal of hazardous waste and substances; organs of state are entitled to have access to information relatin& to the state of the environment and actual and future threats to the environment, including any emissions to water. air or soil and the production, handling, transporta- tion, treatment. storage and disposal of hazardous waste held by any person where that information is necessary to enable such organs of state to carry out their duties in terms of the provisions of this Act or any other law concerned with the protection of the environment or the use of natural resources; a request for information contemplated in paragraph (a) can be refused only:
5
10
15
~o
25
30
35
40
4s
50
55
50 No. 19519 GOVERNMENT G=~, 27 NOVEMBER 1998
Act No. 107, 1998 NATIONAL ENVIRONMENTAL MANAGEME~ ACT, 1998
(i)
(ii)
(iii ) (iv)
(v)
if the request is manifestly unreasonable or formulated in too general a manner; if the public order or national security would be negatively affected by the supply of the information; or for the reasonable protection of commercially confidential information; 5 if the granting of information endangers or further endangers the protection of the environment; and for the reasonable protection of personal privacy.
(2) Subject to subsection (3), the Minister may make r~gulat~ons regarding access by members of the public to privately held information relating to the implementation of 10 this Act and any other law concerned with the protection of the environment and may to this end prescribe the manner in which such information must be kept: Provided that such regulations are reasonable and justifiable in an open and democratic society based on human dignity. equality and freedom.
(~) The Minister must take into account— 15 (a) the principles set out in section 2: (b) the provisions of subsection (1 )(c): (c) the provisions of international law and foreign law: and (d) any other relevant considerations,
(4) Notwithstanding the provisions of any other law, no person is civilly or criminally 20 liable or may be dismissed, disciplined. prejudiced or harassed on account of having disclosed any information, if the person in good faith reasonably believed at the time of the disclosure that he or she was disclosing evidence of an environmental risk and the disclosure was made in accordance with subsection (5):
(5) Subsection (4) applies only if the person concemed— 25 (a) disclosed the information concerned tti
(i) (ii)
(iii) (i\) (v)
(vi)
a committee of Parliament or of a provincial legislature: an or&an of state responsible for protecting any aspect of the environment or emergency services; the Public Protector the Human Rights Commission: any attorney-general or his or her successor: more than one of the bodies or persons referred to in subpmagraphs (i) to
30
(v): (b) disclosed the information concerned to one or more news media and on clear 35
and convincing grounds believed at the time of the disclosure— (i) that the disclosure was necessary to avert an imminent and serious threat
to the environment, to ensure that the threat to the environment was properly and timeously investigated or to protect himself or herself against serious or irreparable harm from reprisals; or 40
(ii ) giving due weight to the importance of open. accountable and participatory administration, that the public interest in disclosure of the information clearly outweighed any need for non-disclosure;
(c) disclosed the information concerned substantially in accordance with any applicable external or internal procedure. other than the procedure contem- 45 plated in paragraph (a) or (b), for reportin& or otherwise remedying the matter concerned; or
(d) disclosed information which, before the time of the disclosure of the information, had become available to the public, whether in the Republic or elsewhere. 50
(6) Subsection (4) applies whether or not the person disclosing the information concerned has used or exhausted any other applicable external or internal procedure to report or otherwise remedy the matter concerned.
(7) No person may advantage or promise to advantage any person for not exercising his or her right in terms of subsection (4). 55
(8) No person may threaten to take any action contemplated by subsection (4) against a person because that person has exercised or intends to exercise his or her right in terms of subsection (4).
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Legal smnding to enforce environmental laws
32. (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, or any other statutory provision concerned with the protection of the environment or the use of natural resources—
(a) in that person’s or group of persons own interest; (b) in the interest of, or on behalf of, a person who is. for practical reasons, unable
to institute such proceedings: (c) in the interest of or on behalf of a group or class of persons whose interests are
affected; (d) in the public interest; and (e) in the interest of protectin& the environment.
(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 or any other statutory provision concerned with the protection of the en\7ironment 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.
(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 Actor any other statutory provision concerned with the protection of the environment, a court may on application—
(a) award costs on an appropriate scale to any person or persons entitled to practise as advocate or attorney in the Republic who provided free legal assistance or representation to such person or group in the preparation for or conduct of the proceedings: and
(b) order that the party against whom the relief is granted pay to the person or group concerned any reasonable costs incurred by such person or &roup in the investigation of the matter and its preparation for the proceedings.
Private prosecution
33. ( 1 ) Any person may— (a) in the public interest: or (b) in the interest of the protection of the environment,
institute and conduct a prosecution in respect of any breach or threatened breach of any duty. other than a public duty resting on an organ of state, in any national or provincial legislation or municipal bylaw, or any regulation. Iicence, permission or authorisation issued in terms of such legislation, where that duty is concerned with the protection of the environment and the breach of that dut~ is an offence.
(2) The provisions of sections 9 to 17 of the Criminal Procedure Act, 1977 (Act51 of 1977) applicable to a prosecution instituted and conducted under section 8 of that Act must apply to a prosecution instituted and conducted under subsection ( 1): Provided that if—
(a)
(b]
(c)
the person prosecutin& prit’ately does so through a person entitled to practise as an advocate or an attorney in the Republic: the person prosecuting privately has given written notice to the appropriate public prosecutor that he or she intends to do so; and the public prosecutor has not. within 28 days of receipt of such notice. stated in writing that he or she intends to prosecute the alleged offence, (i) the person prosecuting privately shall not be required to produce a
certificate issued by the Attorney-General stating that he or she has refused to prosecute the accused: and
(ii) the person prosecuting privately shall not be required to provide security for such action.
5
30
35
40
4j
50
54 No. 19519 GOVEWMENT G~~, 27 NOVEMBER 1998
Act No. 107, 1998 NATIONAL EhWIRONMENTAL MANAGEMENT ACT, 1998
(3) The court may order a person convicted upon a private prosecution brought under subsection ( 1 ) to pay the costs and expenses of the prosecution, including the costs of any appeal against such conviction or any sentence.
(4) The accused may be granted an order for costs against the person prosecuting privately, if the charge against the accused is dismissed or the accused is acquitted or a 5 decision in favour of the accused is given on appeal and the court finds either:
(a) that the person instituting and conducting the private prosecution did not act out of a concern for the public interest or the protection of the environment: or
(h) that such prosecution was unfounded, trivial or vexatious. (5) When a private prosecution is instituted in accordance with the provisions of this 10
Act. the Attorney-General is barred from prosecuting except with the leave of the court concerned.
Criminal proceedings
34. (1) Whenever any person is convicted of an offence under any provision listed in Schedule 3 and it appears that such person has by that offence caused loss or damage to any organ of state or other person, including the cost incurred or likely to be incurred by an organ of state in rehabilitating the environment or preventing damage to the environment. the court may in the same proceedings at the written request of the Minister or other organ of state or other person concerned, and in the presence of the convicted person, inquire summarily and without pleadings into the amount of the 10SS or damage so caused.
(2) Upon proof of such amount, the court may give judgement therefor in favour of the organ of state or other person concerned against the convicted person. md such judgemen[ shall be of the same force and effect and be executable in the same manner as if it had been given in a civil action duly instituted before a competent court.
(3) Whenever any person is convicted of an offence under any provision listed in Schedule 3 the court convicting such person may summarily enquire into and assess the monetary value of any advantage gained or likely to be gained by such person in consequence of that offence, and. in addition to any other punishment imposed in respect of that offence, the court may order the award of damages or compensation or a fine equal to the amount so assessed.
(4) Whenever any person is convicted of an offence under any provision listed in Schedule 3 the court convicting such person may, upon application by the public prosecutor or another organ of state, order such person to pay the reasonable costs incurred by the public prosecutor and the organ of state concerned in the investigation and prosecution of the offence.
(5) Whenever any manager. agent or employee does or omits to do an act which it had been his or her task to do or to refrain from doing on behalf of the employer and which would be an offence under any provision listed in Schedule 3 for the employer to do or omit to do, and the act or omission of the manager, agent or employee occurred because the employer failed to take all reasonable steps to prevent the act or omission in question, then the employer shall be guilty of the said offence and, save that no pentity other than a fine may be imposed if a conviction is based on this sub-section, liable on conviction to the penalty specified in the relevant law, includin& an order under subsections (2). (3) and (4), and proof of such act or omission by a manager, agent or employee shall constitute prima facie evidence that the employer is guilty under this subsection.
(6) Whenever any manager, agent or employee does or omits to do an act which it had been his or her task to do or to refrain from doing on behalf of the employer and which would be an offence under any provision listed in Schedule 3 for the employer to do or omit to do. he or she shall be liable to be convicted and sentenced in respect thereof as if he or she were the employer.
56 No. 19519 GOVERNMENT G&E~, 27 NOVEMBER 1998
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(7) Any person who is or was a director of a firm at tie time of the commission by that firm of an offence under any provision listed in Schedule 3 shall himself or herself be guilty of the said offence and liable on conviction to the penalty specified in the relevant law, including an order under subsection (2),(3) and (4). if the offence in question resulted from the failure of the director to t&e all reasonable steps that were necessary 5 under the circumstances to prevent the commission of tie offence: Provided that proof of the said offence by the firm shall constitute prima facie evidence that the director is guilty under this subsection.
(8) Any such manager, agent, employee or director may be so convicted and sentenced in addition to the employer or firm.
(9}~ subsection (7) and (8)— 10
“firm” shall mean a body incorporated by or in terms of any law as well as a partnership: and
(b) “director” shall mean a member of the board. executive committee, or other managin& body of a corporate body and. in the case of a close corporation. a 15 member of that close corporation or in the case of a partnership, a member of that partnership.
(10) (a) The Minister may amend Part (a) of Schedule 3 by regulation. (b) An MEC may amend Part (b) of Schedule 3 in respect of the province of his or her
jurisdiction by regulation. 20
CHAPTER 8
ENVIRONMENTAL MANAGEMENT CO-OPERATION AGREEMENTS
Conclusion of agreemenk
3j. ( 1 ) The Minister and every MEC and municipality, may enter into environmental management co-operation agreements with any person or community for the purpose of 25 promoting compliance with the principles laid down in this Act.
(2) Environmental management co-operation agreements must— (a) only be entered into with the agreement of—
(i) every organ of state which has jurisdiction over an) activity to which such environmental management co-operation agreement relates; 30
(ii) the Minister and the MEC concerned; (b) only be entered into after compliance with such procedures for public
participation as may be prescribed by the Minister: and (c) comply with such regulations as may be prescribed under section 45.
(3) Environmental management co-operation agreements may contain— 35 (a) an undertting by the person or community concerned to improve on the
standards laid down by law for the protection of the environment which are applicable to the subject matter of the agreement;
(b) a set of measurable targets for fulfilling the undertting in (a). including dates for the achievement of such targets: and 40
(c) provision for— (i) periodic monitoring and reporting of performance against targets:
(ii) independent verification of reports: (iii) regular independent monitorin& and inspections: (iv) verifiable indicators of compliance with any targets, norms and standards 45
laid down in the agreement as well as any obligations laid down by law; (d) the measures to be t~en in the event of non-compliance with commitments in
the agreement, including where appropriate penalties for non-compliance and the provision of incentives to the person or community.
58 No. 19519 GOVERNMENT G=~, 27 NOVEMBER 1998
Act No. 107, 1998 NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998
C~PTER 9
ADMINISTRATION OF ACT
Expropriation
36. (1) The Minister may purchase or, subject to compensation, expropriate any property for environmental or any other purpose under this Act. if that purpose is a 5 public purpose or is in the public interest: Provided that the Minister must consult the Minister of Minerals and Energy before any mineral rights are expropriated.
(2) The Expropriation Act, 1975 (Act No. 63 of 1975) applies to all expropriations under this Act and any reference to the Minister of Public Works in that Act must be read as a reference to the Minister for purposes of such expropriation. 10
(3) Notwithstanding the provisions of subsection (2). the amount of compensation and the time and manner of payment must be determined in accordance with section 25 (3) of the Constitution, and the owner of the property in question must be given a hearing before any property is expropriated.
Reservation 15
37. The Minister may reserve State land with the consent of the Minister authorised to dispose of the land. and after consultation with any other Minister concerned. for environmental or other purposes in terms of this Act. if that purpose is a public purpose or is in the public interest.
Intervention in litigation
38. The Minister may intervene in litigation before a court in any matter under this Act.
Agreemenh
39. The Director-General may enter into agreements with organs of state in order to fulfil his or her responsibilities. 25
Appointment of employees on contract
40. ( 1 ) The Director-General may appoint employees on contract outside the provisions of the Public Service Act. 1994 (Proclamation No 103 of 1994). when this is necessary to carry out the functions of the Department.
(2) The Director-General must. from time to time. and after consultation with the 30 Dep~ment of Public Service and Administration, determine the conditions of employment of such employees.
(3) Such employees must be remunerated from money appropriated for that purpose by Parliament.
Assignment of powers 35
41. ( 1 ) In this section “assignment.. means an assignment as contemplated in section 99 of the Constitution.
(2) The Minister must record all assignments referred to in subsection (l) in a Schedule to this Act and may amend that Schedule.
Delegation 40
42. (1) The Minister may delegate a power, function or duty vested in him or her t~ (a) a named officer of the Department: or (b) the holder of an office in the Department or, after consultation with the
relevant Minister or MEC, the holder of an office of any other national department, provincial administration or municipality. 45
60 No. 19519 GOVERN~NT GUE~, 27 NOVEMBER 1998
Act No. 107, 1998 NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998
(2) A delegation referred to in subsection (1 )— (a) must be in writing; (b) may be made subject to conditions; (c) does not prevent the exercise of the power, function or duty by the Minister
himself or herselfi and 5 (d) may be withdrawn by the Minister,
(3) The Director-General may delegate a power, function or duty vested in him or her by or under this Act te
(a) a named officer of the Department; (b) the holder of an office in tie Department: or 10 (c) after consultation with a provincial head of department, an officer 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. (5) A delegation referred to in subsection (3) and the permission referred to in 15
subsection (4)— (a) must be in writing: (b) may be made subject to conditions: (c) does not prevent the exercise of the power. function or duty by the
Director-General himself or herself and ~o
(d) may be withdrawn by the Director-General.
Appeal to Minister
43. ( 1 ) Any affected person may appeal to the Minister against a decision taken by any person acting under a power delegated b! the Minister under this Act.
(2) An appeal under subsection ( 1 ) must be noted and must be dealt with in the 25 manner prescribed.
Regulations in general
44. ( 1 ) The Minister ma! make regulations— (a) dealing with any matter which under this Act must be dealt with by regulation:
and 30 (b) generally. to carry out the purposes and the provisions of this Act.
(2) The Minister may make different regulations under this Act in respect of different acti~fities. provinces. geographical areas and owners or classes of owners of land.
(3) The Minister may by regulation provide that infringements of certain regulations constitute criminal offences and prescribe penalties for such offences. 35
Regulations for management co-operation agreements
4j. (1) The Minister may make regulations conceming— (a) procedures for the conclusion of environmental management co-operation
agreements. which must include procedures for public participation: (b) the duration of agreements: 40 (c) requirements relating to the furnishing of information: (d) general conditions and prohibitions: (e) reporting procedures: (f) monitoring and inspection.
(2) An MEC or municipal council may substitute his or her or its own regulations or 45 bylaws. as the case may be, for the regulations issued by the Minister under subsection ( 1 ) above: Prol)ided that such provincial regulations or municipal bylaws must cover the matters enumerated in subsection (1), and comply with the principles laid down in this Act.
Model environmental management bylaws 50
46. (1) The Minister may make model bylaws aimed at establishing measures for the
62 No. 19519 GOVERNMENT GHE~, 27 NOVEMBER 1998
Act No. 107, 1998 NATIONAL ENVIRONME~AL MANAGEMENT ACT. 1998
management of environmental impacts of arty development within the jurisdiction of a municipality, which may be adopted by a municipality as municipal bylaws.
(2) Any municipality may request the Director-General to assist it with the preparation of byIaws on matters fiecting the environment and the Director-General may not unreasonably refuse such a request.
(3) The Director-General may institute programmed to assist municipalities with the preparation of bylaws for the purposes of implementing this Act.
(4) The purpose of the model bylaws referred to in subsection (1) must be t~ (a) (b)
(c)
rniti~ate adverse environmental impacts; facilitate the implementation of decisions taken, and conditions imposed as a result of the authorisation of new activities and developments, or through the setting of norms and standards in respect of existin& activit ies and developments; and ensure effective environmental management and conservation of resources and impacts within the jurisdiction of a municipality in co-operation with other organs of state.
(5) The model bylaws referred to in subsection (l) must include measures for environmental management, which may include—
(a) auditing. monitoring and ensuring compliance: and (b) reporting requirements and the furnishing of information.
Procedure for making regulations
47. ( 1 ) Before m~ing any regulations under this Act. a Minister or MEC must— (a) publish a notice in the relevant Ga:erte—
(i) setting out the draft regulations: and (ii ) inviting written comments to be submitted on the proposed regulations
within a specified period mentioned in the notice: and (b) consider all comments received in accordance with paragraph (a)(ii).
(2) The Minister must. within 30 days after promulgating and publishing any regulations under this Act. table the regulations in the National Assembly and the National Council of Provinces, and an MEC must so table the regulations in the relevant provincial legislature or. if Parliament or the provincial legislature is then not in session. within 30 days after the beginning of the next ensuing session of Parliament or the provincial legislature.
(3) In considering regulations— (a) tabled in the National Assembly. a committee of the National Assembly must
consider and report to the National Assembly; (b) tabled in the National Council of Provinces, a committee of the National
Council of Provinces must consider and report to the National Council of Provinces; and
(c) tabled in a provincial legislature, a committee of that provincial legislature must consider and report to the provincial legislature.
whether the regulations— (i) are consistent with the purposes of this Act;
(ii) are within the powers conferred by this Act: (iii ) are consistent with the Constitution; and (iv) create offences and prescribe penalties for such offences that are appropriate
and acceptable. (4) The National Council of Provinces may by resolution reject the regulations within
30 days after they have been tabled in the National Council of Provinces, and such rejection must be referred to the National Assembly for consideration.
(5) (a) The National Assembly, after considering any rejection of a regulation by the National Council of Provinces; and
(b) the relevant provincial legislature, may by resolution within 60 days after they have been tabled disapprove of the regulations. and may suspend its disapproval for any period and on any conditions to allow the Minister or MEC to correct a defect.
5
10
15
20
25
30
35
40
45
50
55
M No. 19519 GOVERNMENT G=E~, 27 NOVEMBER 1998
Act No. 107, 1998 NATIONAL ENVIRONMENTAL MANAGEME~ ACT. 1998
(6) If the National Assembly or provincial legislature disapproves of any regulation, the regulation lapses, but without affecting—
(a) the validity of anything done in terms of the regulation before it lapsed; or (b) a right or privilege acquired or an obligation or liability incurred before it
lapsed. 5
CHAPTER 10
GENERAL AND TRANSITIONAL PROVISIONS
State bound
48. This Act is binding on the State except in so far as any criminal liabilit! is concerned. 10
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 Act: or (b) the failure to exercise any power. or perform any function or duty under this
Act. 15 unless the exercise of or failure to exercise the power. or performance or failure to perform the dut!’ was unlawful. negligent or in bad faith.
Repeal of laws
50. (1) Sections 2.3.4.5.6.7, 8.9.10.11.12.13.14. !4A, 14B. 14C. lj, 27Aand 38 of the Environment Conservation Act. 1989 (Act No, 73 of 1989). are hereby 20 repealed.
(~) Sections ~]. ~~ and 26 of the Ert\ironment Conservation Act, 1989 (Act No. 73 of 1989) and the notices and regulations issued pursuant to sections 21 and 22 and in force on the commencement date of this Act are repealed with effect from a date to be published by the Minister in the Ga:etre. which date may not be earlier than the date on 25 which regulations or notices made or issued under section 24 of this Act are promulgated and the Minister is satisfied that the regulations and notices under sections 2 I and 22 have become redundant.
Savings
jl. Anything done or deemed to have been done under a provision repealed by this 30 Act—
(a) remains valid to the extent that it is consistent with this Act until anything done under this Act overrides it: and
(b) subject to paragraph (a) is considered to be an action under the corresponding provision of this Act. 35
Short title
52. This Act is called the National Environmental Management Act. 1998.
Commencement
j3. This Act comes into operation on a date fixed by the President in the Gazette.
.—.. . . ..—
66 No. 19519 GO~RNMENT G=~, 27 NOVE~ER 1998
Act No. 107, 1998 NA~ONAL ENVIRONMENTAL MANAGE~~ ACT, 1998
SCHEDULE 1
Section 11(1)
National departments exercising functions which may affect the environment
* Department of Environmental Affairs and Tourism * Department of Land Affairs * Department of Agriculture * Department of Housing * Department of Trade and Industry * Depmment of Water Affairs and Forestry * Department of Transport * Department of Defence
. . . . 7
68 No. 19519 GOVERNMENT G~, 27 NOVEMBER 1998
Act No. 107, 1998 NATIONAL ENVIRONME~AL MANAGEMENT ACT. 1998
SCHEDULE 2
Section 11(2)
National departments exercising functions that involve the management of the environment
* Department of Environmental Affairs and Tourism * Department of Water Affairs and Forestry * Department of Minerals and Energy * Department of Land Affairs * Department of Health * Department of Labour
A—- - .- -
70 No. 19519 g G O V E R GAZETTE 27 NOVEMBER 1998
Act No. 107.1998 NATIONAL ENVIRONMENTAL MANAGEMENT ACT. 1998
SCHEDULE 3
(Section 34)
Part (a): National Legislation
No. and year of law Short title Relevant provisions
Act No. 36 of 1947 Fertilizers. Farm Feeds, Agricultural Section 18( I )(l) in so far as it Remedies and Stock Remedies relates to contraventions of sec-
tions 7 and 7bis
Act No. 71 of 1962 Animal Protect ion Sections 2(1) and 2A
Act No. 45 of 1965 Atmospheric Pollution Prevention Section 9
Act No 15 of 1973 Hazardous Substances Section 19(1 )(a) and (b) in so far as it relates to contraventions of sections 3 and 3A
Act No. 57 Of 1976 National Parks Section 24( 1 )(b)
A c t No. 63 of 1976 Mountain Catchment Areas Section I 4 in so far as it re la tes to contraventions of section 3
Act No. 63 of 1977 Health Section 27
Act No. 73 of 1980 Dumping at Sea Control Sections 2( 1 )(a) and 2( I )(b )
A c t No 6 of 1980 Marine Pollution (Control and Civ i l Section 2( I ) Liability
Act No 43 of 1983 Conservation of Agricultural Sections 6 and 7 Resources
A c t No. 2 of 1 9 8 6 Marine Pollution Prevention of Section 3A Pollution from Ships
Act No. 73 of 1989 Environment Conserv ation Section 29(2)(a) a n d (4)
Act No. 18 of 1998 Marine Living Resources Section 58( I ) in so far as it relates to contraventions of sections 43(2). 45. and 47. and section 58(2) in so far as it relates t o contraventions o f international conserv ation and management measures
Act No 36 Of 1 9 9 8 N ational W a t e r Section 151(i) and (j)
72 No. 19519 GOVERNMENT GAZETTE, 27 NOVEMBER 1998
Act No. 107, 1998 NATIONAL ENVIRONMENTAL Management ACT, 1998
Part (b): Provincial Legislation
No. and year of law Short title Relevant provisions
Ordinance No. 8 of 1969 Orange Free State Conservation Section 40( I ) ( a ) in so far as i t relates to contraventions of sec- tions 2(3). 14(2). 15(a). 16(a) and 33
Ordinance No. 9 of 1969 Orange Free State Townships Section 40(1 )(a)(ii)
Ordinance No. 15 of 1974 Natal Nature Conservation Section 55 in so far as it relates to section 37(1), to section 49 in respect of specially protected game and to section 51 in respect of specially protected game. section 109 in so far as It relates to section 101. t o section 102 and to section 104 section 154 in so far as it
I relates to section 152; section 185 I in so far as it relates to section 183. and section 208 in so f a r as it relates to section 194 and to sec- tion 200
Ordinance No. 19 of 1974 Cape Nature and Environmental Section 86(1) in so far as it relates Conserv ation to contraventions of sections 26.
41(l) (b)(ii) and (c)-(e,). 52(a ), 57(a ), 58(b) and 62(I)
Ordinance No. 12 of 1983 Transvaal Nature Conservation Sections 16A. 42.84.96 and 98
Ordinance No. 15 o f 1985 Cape Land Use Planning Section 46( I ) in so far as it relates to sections 23(I) and 39(2)
Ordinance No. 15 of 1986 Transvaal Town Planning and Town- Sections 42, 93 and 115 ships
Act No. 5 of 1998 KwaZulu Natal Planning and Devel- Section 48 opment
Act No. 29 of 1992 KwaZulu Nature Conservation Section 67 in so far as it relates t o sections 59( 1 ). 59(2), 60( I ) and 62( I): section 86 in s o f a r as it relates to sections 76. 77 and 82: and section 110 in so far as it relates to section 109

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