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Environmental legislation

Introduction

Often, environmental issues are assumed to be “green issues”, only relating to natural resources like animals and plants. In reality, a “triple bottom line” concept must be considered when understanding the environment, i.e. ecological, economic and social aspects. It is only through the interaction of these three aspects that the real environment can be accurately determined and understood.

Ecological aspects include plants, animals, water, air and soil while social issues are related to human interaction, and include issues such as education, traffic, noise impacts, poverty and visual impacts. Economic issues include capital outlay, returns on investments and employment opportunities.

The concept of environmental sustainability strives to draw these three aspects of our environment together to ensure that the needs of future generations can be guaranteed, while ensuring that the environment is safeguarded.

This page is included on this website for two reasons:
 
  1. Farmers can get into trouble when they are not familiar with environmental issues.
  2. As mentioned on the biodiversity page, any national conservation strategy needs to take account of the important role of farmers in conservation.

Environmental legislation

South Africa is governed by a number of legislative provisions relating to the environment, and these include both national and international laws.

 

INTERNATIONAL ENVIRONMENTAL CONVENTIONS include:

 

Locally, our NATIONAL LEGISLATION pertaining to the environment includes the following:

Under the Constitution of South Africa (108 of 1996), everyone has the right to have the environment protected by legislative or other means to:

  • prevent ecological degradation and pollution;
  • promote conservation; and
  • secure ecologically sustainable development and use of natural resources.

The National Environmental Management Act (107 of 1998) (NEMA) is the overarching environmental legislation in South Africa and deals with a number of issues including:

  • Sustainable development – taking into account social, economic and environmental factors in all planning and decision making.
  • Disturbances of eco-systems and loss of biodiversity must be avoided or mitigated and there must be a “duty of care” to prevent significant pollution and environmental degradation.
  • The “Polluter Pays Principle” states that the cost of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment.
  • There are set procedures for the investigation, assessment and communication of any activity requiring environmental authorisation.

Under Section 24 of the NEMA, specific legislation in terms of the Environmental Impact Assessment (EIA) Regulations is included.

The National Environmental Management Act: Waste Act (NEMWA; Act 59 of 2008) and its Amendment Act (NEMLAA; 26 of 2014) is South Africa’s promulgated legislation relating to the storage, reuse, recycling, recovery, treatment and disposal of hazardous and general waste, including animal waste. Amongst other things, this has implications for people interested on biogas ventures. NEMLAA increases the liability of company directors for environmental damage.

The intention of the National Water Act (Act 36 of 1998) is to protect South Africa’s water resources and associated ecosystems and their biological diversity. See “Water” on Agribook.Digital.

The intention of the Conservation of Agricultural Resources Act (43 of 1983) is to control the over-utilisation of South Africa’s natural agricultural resources, and maintaining the production potential of land. The conservation of soil and water resources and natural vegetation is promoted through the prevention and control of erosion, protection of surface and groundwater, and the prevention of the silting of dams and pollution of water. Combating of weeds and invader plants is covered by Amended Regulations 15 and 16 of the Act, which were promulgated on 30 March 2001. See the “Invasive Alien Species” page.

The purpose of the National Veld and Forest Fire Act (101 of 1998) is to prevent and combat veld, forest and mountain fires throughout South Africa. See the “Fire” page.

The National Forests Act (84 of 1998) is designed to protect and promote sustainable use of forests for environmental, economic, educational, recreational, cultural, health and spiritual purposes.

The purpose of the Natural Heritage Resources Act (25 of 1999) is to protect South Africa’s natural and cultural heritage. This may include the protection of a landscape, natural features and objects or places of cultural significance, historical importance and archaeological / geological value. According to the Act, all buildings older than 60 years may not be altered in any way without authorisation from the Provincial Heritage Authority (e.g. KZN Amafa).

The intention of The National Environmental Management: Biodiversity Act (10 of 2004) is to protect species and ecosystems and promote the sustainable use of indigenous biological resources. This Act establishes the South African National Biodiversity Institute (SANBI), which may co-ordinate the implementation of programmes for the rehabilitation of ecosystems.

The intention of the National Environmental Management: Protected Areas Act (57 of 2003) is to protect and conserve ecologically viable areas and their natural landscapes. Kinds of protected areas are:

  • game reserves, nature reserves and protected environments
  • World Heritage Sites
  • specially protected forest areas
  • mountain catchment areas

Landowners are encouraged to place land under formal protection/conservation, and to encourage this, rates rebates are available to landowners who do so.

The Mountain Catchments Areas Act (63 of 1970) seeks to provide for the conservation, use, management and control of land situated in mountain catchment areas.

 

Other Acts and Legislation:

Provincial and local government legislation may have specific relevance to particular instances within their jurisdictions. These must be considered on a case by case basis.

Environmental Impact Assessment (EIA) regulations

Under Section 24 of the NEMA, Environmental Impact Assessment (EIA) Regulations have been promulgated under Government Notice (GN) R 543 (2010), and these specify certain Listed Activities for which either a Basic Assessment (GN R 544 and R 546) or a Scoping and Environmental Impact Assessment (GNR 545) is required.

There are several Listed Activities which are applicable to proposed developments or improvements within the agricultural sector. These include activities related to livestock production (stock units, slaughter facilities), packsheds, fuel storage, effluent ponds, removal of indigenous vegetation through ploughing, establishment of bridges / weirs, water extraction and storage in dams, composting and waste management, release of genetically-modified organisms and the subdivision of land.

Under GN R 546, certain Listed Activities would trigger the need for a Basic Assessment to be carried out, due to the location of the site within specified Geographical Areas. These include sites outside urban areas, in Protected Areas, Conservancies or Biosphere Reserves, within 5km of a Nature Reserve or within 10km of a World Heritage Site, in sensitive areas identified in terms of a Environmental Management Framework, in critical biodiversity areas, or in areas zoned for open space or conservation use. The types of Listed Activities for these areas include: construction of reservoirs, erecting masts or towers for telecommunication; the construction of roads or aircraft landing strips, the clearance of indigenous vegetation; the construction of storage facilities for dangerous goods.

The following Listed Activities under GN R 545 would require a Scoping and EIA process to be conducted:

  • Part 16: The physical alteration of virgin soil to agriculture, or afforestation for the purposes of commercial tree, timber or wood production of 100ha or more; and
  • Part 19: The construction of a dam where the highest part of the dam wall, as measured from the outside toe of the wall to the highest part of the wall, is 5m or higher or where the high-water mark of the dam covers an area of 10ha or more.

It should be noted that there may be additional Listed Activities specific to agriculture, which are not listed above. It should also be noted that additional Listed Activities for aquaculture and the production of finfish, crustaceans, reptiles, amphibians, molluscs and aquatic plants are specified in the EIA Regulations. Environmental assessments are also required for the expansion of agricultural facilities, according to certain thresholds.

Should any of the above be “triggered” by a proposed activity on a farm, then under GN R 543 of 2010, the applicant is required to appoint an independent Environmental Assessment Practitioner (EAP) to conduct the environmental authorisation process (Basic Assessment or Scoping and EIA) on behalf of the applicant.

As of February 2022, all practicing EAPs must by law be registered with the Environmental Assessment Practitioners Association of South Africa (EAPASA).

Environmental Monitoring and Auditing

Environmental Compliance Monitoring

A requirement of the environmental authorisation process most often includes the compilation of an Environmental Management Programme (EMPr). This document contains guidelines to ensure that all activities associated with the proposed development are carried out in an environmentally responsible and acceptable manner, e.g. safe storage of hazardous chemicals, sensible siting of ablution facilities, effective control of workers activities, implementation of methods to reduce soil erosion and compliance with health and safety issues.

An EMPr is a legally-binding document that contains guidelines with which building contractors and / or applicants must comply, and that must be strictly implemented and regularly monitored. If this is done, it is likely that the majority of the potentially adverse impacts can be minimised or prevented. The EMPr should be based on the principles of the NEMA as well as the recommendations made in the preceding Basic Assessment Report or the Scoping and EIA Reports.

The EMPr specifies management objectives and the roles and responsibilities of management personnel on site. The EMPr also includes specific mitigation measures for the entire duration of the development, namely the following stages:

  • planning and design
  • pre-construction and construction activities
  • operation of the activity
  • rehabilitation of the environment
  • closure (where relevant)

The EMP should be used as a framework for environmental compliance monitoring and reporting. In order to effectively monitor compliance with the EMP, an Environmental Control Officer (ECO) should be appointed by the applicant. The ECO will conduct regular inspections of the site or facility to ensure that activities are being responsibly undertaken, in line with the guidelines set out in the EMP. Should non-compliance occur, the ECO will bring this to the attention of the relevant authority, who will instruct the necessary remediation procedure or prosecute, if necessary.

Environmental permits

Aside from the procedural requirements of the EIA process, certain activities also require specific permits to be granted, prior to commencing with the activity.

For example, the planting of timber plantations is classified as a “stream flow reduction activity”, thus requires a permit to be issued by the Department of Water & Sanitation (DWS). Similarly, construction of a road or causeway over a stream or river would also require a water use license application, as this activity could divert or impede the flow of water in a watercourse. More information on water use registering and licensing can be found on DWS’s website – www.dws.gov.za.

Some proposed activities may result in protected tree species being damaged or destroyed. In such cases, a permit is required to be submitted to the Department of Forestry, Fisheries and the Environment (DFFE) prior to undertaking such an activity. The list of protected trees can be found on the DFFE website, www.dffe.gov.za  (find the forestry option under “Branches”).

Should the release of atmospheric emissions be a part of the proposed activity, a permit in terms of the Atmospheric Pollution Prevention Act would be required, in order to obtain authorisation to release certain emissions.

 

 

 Auditing / Certification

Auditing of specific industries according to a set industry standard is often a requirement in order to be able to export agricultural produce to certain overseas markets. For example, GLOBALG.A.P. is based on the concept of Good Agricultural Practice (GAP) and is recognised as an international benchmark or standard that is applicable to a variety of products, including plant and livestock production, plant propagation and feed manufacturing.

 

Other standards exist within the agricultural sector, such as the Forest Stewardship Council (FSC), which is a certification system applicable to forest management, and ensures that all FSC-accredited timber is produced in an environmentally sustainable manner.

 

These types of audits often require regular self-audits followed by less frequent audits by independent certification bodies. The concept of standards and auditing systems is usually one of self-improvement towards achieving specific and attainable goals; however, non-compliance can result in losing accreditation, resulting in a reduction in market opportunities.

 

For more information, see the “Food safety and traceability” page.

Role players

Find the many role players listed on the “Biodiversity and ecosystems services” page.

 

Government

Find the different contact details listed under “Regulatory Compliance and Sector Monitoring” at www.dffe.gov.za.

Role players

Note: Click to expand the headings below. To get a free listing on our website like the ones below, visit here for more information or place your order here. Disclaimer: The role player listings are not vetted by this website.

 
ENS Africa – www.ensafrica.com
Cliffe Dekker Hofmeyr – https://www.cliffedekkerhofmeyr.com/en/africa/
MacRobert Attorneys – www.macrobert.co.za
GCS Water & Environmental Consultants – www.gcs-sa.biz
Environmental Law Association – https://elasa.co.za
Environmental Assessment Practitioners Association of South Africa (EAPASA) – https://eapasa.org
NWJ Environmental Consulting – www.facebook.com/nwjenviroconsulting/
Carin Bosman Sustainable Solutions – https://cbosss.com
JMA Consulting – www.jmaconsult.co.za
GCS Water & Environmental Consultants – www.gcs-sa.biz
Centre for Environmental Rights – http://cer.org.za
Conservation at Work – https://conservationatwork.co.za Website includes a summary of environmental legislation nationally and specific to the Western Cape.

Websites and publications

Refer to the websites listed earlier, and also to this heading on the “Biodiversity and ecosystems services” page.

Find the Sustainability Initiative of South Africa (SIZA) web page on environmental legislation at https://siza.co.za/environmental-legislation.

Download the SIZA “Guidance on South African Legislation” document, available on the same website.

Van der Linde M. & Feris L. (Eds.) 2010. Compendium of South African Environmental Legislation. Pretoria: Pretoria University Law Press. Available at www.pulp.up.ac.za/legal-compilations/compendium-of-south-african-environmental-legislation

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