National Environmental Management Amendment Laws Bill [B13-2012]: Public Hearings Day 2

Water and Sanitation

21 August 2012
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

On the second day of the public hearings on the National Environmental Laws Amendment Bill, the Committee heard submissions from Rand Water, the Association of Cementitious Material Products (ACMP) and the Paper Manufacturers Association of South Africa (PAMSA). Rand Water’s submission commented, in respect of amendments to sections 11 of the overarching National Environmental Management Act (NEMA), that more clarity was needed on the timeframes for submission of plans by organs of state. It agreed with the extended timeframes for preparation of environmental implementation plans. The Chairperson commented that it did not make sense to have retrospective changes. Rand Water also wanted more clarity on the proposed amendments to section 28, and what was included in “relevant organ of state”. The Department of Environmental Affairs (DEA) responded that the idea was to cover enforcement powers of municipalities and SANParks, but the Committee questioned why municipalities were not required to submit plans. Considerable debate followed Rand Water’s statement that it might also be considered an organ of state as it had “powers” that it must be consulted prior to developments being undertaken. The Chairperson asked both Rand Water and the DEA to confirm under which legislation any powers were conferred, and whether all water boards should have this power. 

The Association of Cementitious Material Producers (ACMP) suggested the need for further definitions around the Environmental Implementation Plans. It also commented on the adjustment of timeframes for plans, but felt that they should be submitted every two, and not every five years, and that the provinces should bear responsibility for approval of plans. The Chairperson commented that the Accounting Officer of the DEA was the Director General, but asked for a report on whether the provinces were complying with submission of the plans. ACMP suggested that Metropolitan and District Municipalities should also have obligations for environmental outlook reports, and better harmonisation overall was needed. The Chairperson added that other state entities’ obligations must also be considered. ACMP asked for clarity on definitions of “waste protocol”. It asked that the power of the Minister be extended to restrict or prohibit developments in specified geographical areas, to cover both sensitive and degraded environments. It would prefer, instead of the Minister being given powers to take decision instead of the MEC, that the DEA should rather exercise stronger oversight and ensure that delayed applications were monitored properly. ACMP called for provisions that defined when a substance was deemed to have assumed waste status. It asked that the DEA should review the wording around exemptions from authorisations. The Chairperson commented on the process of authorisations and exemptions, and thought greater clarity was needed.  ACMP as worried that the issuing of directives to cease activities could have unintended consequences, which could then result in further environmental damage, and recommended an extension of the scope. The DEA countered that some issues were being dealt with in a review of the Air Quality Act, and the Committee pleaded that it be apprised of exactly what work was being undertaken, to avoid piecemeal amendments and delays. ACMP requested that provisions around regulation of products with harmful effects be brought in line with best practice. It also called for clarity on whether local government was bound by the provisions.

The Paper Manufacturers Association of South Africa (PAMSA) thought that all activities that required authorisation, and were unlawfully commenced under any specific Act, should be open to rectification. It thought that exemptions should be permitted, where an equivalent authorisation process was required for the same activity, to avoid duplication. Directives to cease activities had to be carefully weighed up against consequences related to the society and economy, in  joint operations. It suggested that pre-directive processes should be legislated for in the environmental legislation, although the Chairperson commented that they were covered under the Promotion of Administrative Justice Act. It was felt that unintended consequences could follow from unclear language in the amendments to section 28(4). PAMSA felt that “significant pollution” should be mentioned, under section 28A, and raised some possible duplications in the wording of that section. Finally, it felt that the power of regulation should be limited, again to avoid duplications in other legislation. The Chairperson asked for more clarity on the issue of rectification and this led to a debate between the PAMSA representative and the DEA as to whether the EIA and licensing processes were the same, and whether there were conflicts across the pieces of legislation, until the Chairperson ruled that it was not appropriate to debate it at this meeting. The DEA was asked to formulate responses to the submissions, and Rand Water was asked to prepare a memorandum on the legislative backing for its position, and what this meant, in practice. It was noted that three more submissions would be heard on 28 August.

Meeting report

National Environmental Management Amendment Laws Bill: Public Hearings Day 2
Rand Water submission

Ms Zama Nkabinde, Legal Advisor, Rand Water, highlighting the changes proposed to section 11 of the National Environmental Management Act (NEMA), as set out in clause 2 of the Bill. She said Rand Water agreed with the increased time frames for the preparation of environmental implementation plans. The problem was that timeframes for the submission of plans by organs of state was not identified, and this needed clarity.

The Chairperson asked when it was intended that the Bill on this point come into effect. When he was notified that the date identified was 29 January 1999, he commented that he thought it made no sense to retrospectively change a law.

Ms Nkabinde turned to the changes proposed to section 28, and noted that Rand Water sought clarity around what was exactly meant by the term “relevant organ of state”, to avoid any ambiguity.

The Chairperson interjected to state that he was less concerned with the inclusion of “relevant”, than with  the inclusion of other organs of state in this section.

Ms Francis Craigie, Acting Chief Director: Enforcement, Department of Environmental Affairs, said that it would be possible for the Department (DEA) to define this better. She explained that the idea was to cover the enforcement powers of some municipalities and South African National Parks (SANParks) to prevent the unnecessary referral to provincial and national officials. However, this would be clarified.

The Chairperson said he could not understand why the Minister would give up her power in this manner. He also did not understand how municipalities could be given this power without having to submit plans. He noted that the comments of Rand Water on Section 28 were justified.

Ms Nkabinde added that Rand Water could be considered as an organ of state, because it had powers, pointing out that when municipalities made decisions on developments and plans around the Vaal River, they needed to consult Rand Water for approval first.

The Chairperson thought that it was good to clarify the issue of organ of state. However, he personally (although other Members might differ) did not think that an exception for Rand Water should be made.

Ms M Wenger (DA) said that, whilst she might be suspected of bias, as she came from the Vaal River area, she did think that the powers exercised by Rand Water in the Vaal area were commendable, and she supported its submission on that point.

The Chairperson said that if Ms Wenger supported that point then she must also be in support of all other water boards having this power.

Ms D Tsotetsi (ANC) wanted clarity on the correlation between Rand Water and the by-laws of municipalities in the Vaal River district.

Ms Nkabinde replied that Rand Water needed to give approval for development plans before any developments were permitted to take place. Rand Water worked with municipalities in the Vaal River area.

The Chairperson was very surprised to hear that Rand Water was given this power. He wanted to know in what laws these powers were contained.

Mr Ishaam Abader, Deputy Director-General: Legal, Authorisations and Enforcement, DEA, said the power was derived from Spatial Development Plans (SDPs) and Integrated Development Plans (IDPs).

The Chairperson said SDPs and IDPs could not give Rand Water these powers of authorisation.

Adv Linda Garlipp, Chief Director of Legal Services for the Department, said that the mandate was originally derived from the Physical Planning Act and the Vaal River Development Plan.

Mr Abader said Rand Water would have to check on this. He explained that it was similar to the processes of the DEA, in that consultations must beheld, and in fact the power probably did not lie with Rand Water, but with the municipality, only once there had been approval.

The Chairperson noted that plans themselves could not ascribe such powers, and the powers must be given in terms of legislation. He asked Rand Water to check on this point and report back urgently.

The Chairperson asked for details of the relationship between Rand Water and the DEA.

Ms Nkabinde said it was a good relationship but difficulties did occur at times.

The Chairperson made it clear that he was seriously concerned if this power existed. Only governments that were accountable to the people could make these types of decisions, and not service provider entities.

Mr Abader read out the section of the Physical Planning Act that covered the power of Rand Water.

The Chairperson again asked that Rand Water to check the exact legislation from which it derived the power, and said that this was needed before its submission could be further considered. He thanked Rand Water for taking the time to make this submission.

The Chairperson asked the State and Parliamentary legal advisors how far they were in preparing the opinion he had requested at the previous meeting, and noted their response that they were in the process of finalising the opinion.

Association of Cementitious Material Producers (ACMP) submission
Dr Dhiraj Rama, Executive Director, Association of Cementitious Material Producers, noted that, in the first place, the Association (ACMP) was proposing the need for additional definitions in relation to the amendments to Environmental Implementation Plans (EIPs).

He added that ACMP also wanted clarity around the amendment to adjust the timeframes for the preparation of EIPs and Environmental Management Plans. He felt these plans should be submitted every two years, and not every five years as proposed in the amendments. He also felt the Provinces, and not the national Department, as suggested in the amendments, was responsible for the approval of EIPs. This was particularly important in relation to accountability.

The Chairperson suggested that Dr Rama look at the Public Service Act for clarity on accountability. That explained that the Accounting Officer for a department was the Director General, who was liable. However, he called for a report from the DEA on the compliance of provinces and departments in submitting these plans under section 11.

Dr Rama then turned to the issue of environmental outlook reports. ACMP submitted that this obligation should be extended to Metropolitan and District Municipalities under the level of local government. He also wanted the DEA to look into all the reports that needed to be submitted, and create better harmonisation around their submission.

The Chairperson agreed with the point of extending the obligations to local government. He added that the DEA should look also into other entities, like Sasol, Eskom and Transnet, and their obligation under this section. He could not understand how municipalities were excluded from the overall framework of obligation, yet were given powers in certain sections of the legislation.

Dr Rama continued with the submission, calling for clarity and the criteria attached to “non-listed” activities, under norms and standards. He also wanted the Department to expand “waste protocol” to be adopted as a resource under norms and standards”.

Adv Garlipp said this fell under the Waste Management Act.

Dr Rama elaborated by explaining that ACMP saw a problem around the definition.

The Chairperson asked the DEA to check on this point and respond.

Dr Rama continued with the submission,  noting that ACMP was asking that the power of the Minister be extended to restrict or prohibit developments in specified geographical areas, to cover both sensitive and degraded environments. He felt the focus should also be placed on degraded environments to discourage housing developments in and around the degraded specified geographical areas.

Dr Rama said that, in relation to the amendment that would allow the Minister to take a decision, in place of the MEC, under certain circumstances, DEA needed to create processes rather to eliminate any possible delay that might give rise to a situation where the Minister was to take over. He suggested that an oversight role be created, with internal triggers to monitor delayed applications, or a web-based database, to facilitate decision making.

The Chairperson said there could be technical limitations to these recommendations but they could be considered.

ACMP then dealt with the legal clarity on the applicability of Section 24G to the unlawful commencement of a waste management activity. Dr Rama said a provision should be included to clarify when a substance was deemed to have assumed waste status, to protect the illegal commencement or undertaking of a waste activity. 

Dr Rama next turned to the issue of exemptions from authorisation. ACMP recommended exemptions should be allowed in some instances. He felt the DEA needed to review the text and wording very carefully, and to rethink their approach in this area.

The Chairperson reiterated a point that he had made previously and said he did not see why people sought exemptions, without first seeking authorisation or complying with the law in the first place. He felt that exemptions should be excluded, saying that it was a long process, if people could just seek authorisation at the outset.

Dr Rama looked at the provision relating to the duty of care and remedying of environmental damage. He noted that the issuing of directives to cease activities could have unintended consequences, which could then result in further environmental damage.

The Chairperson noted that this concern was covered in the previous clause, which outlined the procedure of the DEA before seizure.

ACMP then recommended an extension of the scope to take action in the case of transport. This was especially so, given that vehicle exhaust emissions had been identified as a major source of pollution and a greenhouse gas (GHG) emitter. 

The Chairperson remarked that this may fall under the ambit of another Act, and not the Act currently under review.

Ms Craigie said this issue fell under the Air Quality Control Act.

Mr Abader said that the Air Quality Control Act was being looked into at the moment, and he would take this suggestion forward to the relevant people.

The Chairperson asked if amendments were becoming a never-ending process of the DEA. He said that there was great difficulty in looking at legislative amendments in this way, and asked that the DEA prepare a memorandum setting out exactly what processes of review it was undertaking.

Mr Abader added there was a Waste Act, to deal specifically with waste issues, and an Air Quality Control Act, to deal with air issues. Neither of these matters was covered under the general umbrella Act of NEMA.

The Chairperson noted he was not averse to making relevantly uncontroversial amendments to other Acts, but the problem lay with having to wait on the DEA to complete all the other processes with which it was currently involved.

Dr Rama then turned to the amendments that made provision to regulate products that had a detrimental effect on the environment. He recommended that the provision be harmonised with international best practice, to avoid conflict and any negative implications for trade.

The Chairperson thought the bigger issue was whether this major power should not be put in the Act itself. He said the regulations could be challenged if there was not something specifically included in the Act.

Dr Rama said that ACMP supported the provision added on delivery of documents, but also recommended that a reference to electronic or technical communication be included.

The Chairperson said this could not be included in legislation.

Dr Rama finally highlighted section 48, which outlined that the NEMA legislation bound the State, with no exceptions. He wanted clarity on whether this included local government, specifically Municipal and District Municipal Accounting Officers.

The Chairperson noted that good suggestions were raised in the submission, and thanked Dr Rama. He said the issue around the changing of the definition around waste would be flagged, as it was similar to a comment made on the previous day by Business Unity South Africa.

Paper Manufacturers Association of South Africa (PAMSA) submission
Ms Terry Winstanley, Attorney representing Paper Manufacturers Association of South Africa, noted PAMSA’s general support for the Bill. However, she would outline some concerns. Firstly, she raised the issue of rectification, and suggested that it would be appropriate that all activities that required authorisation, and were unlawfully commenced under any specific environmental management act, be open to rectification for consistency.

Ms Winstanley turned to the issue of exemptions, and noted the amendment to remove exemptions was inflexible. She suggested that exemptions be permitted where an equivalent authorisation process was required for the same activity, to avoid duplication.

She said that PAMSA felt that the directive to cease an activity, operation or undertaking, under the sections dealing with Duty of Care, should be allowed in exceptional situations. She added that many operations were integrated and so consequences related to the society and economy must be weighed up against the possible environmental impact. PAMSA recommended that pre-directive processes must be embodied in law, to allow parties to make representations before a decision was taken.

The Chairperson noted that this issue had been raised previously. He highlighted the previous clauses, that spoke to pre-directive measures and processes before cessation occurred. He added that the manner in which this must be done was regulated under the Promotion of Administrative Justice Act.

Ms Winstanley sought clarity on the changes to section 28(4), which outlined the power of issuing directives by “an administrative head of any relevant organ of state”. She said this could have unintended consequences and could be misconstrued.

The Chairperson agreed, but explained that the Department was attempting to make reference to local government, in this particular section.

Ms Winstanley turned to the issue of criminal liability. PAMSA was calling for the insertion of “significant pollution” under section 28A. She explained that the insertion of this phrase would result in greater consistency with the subsection it sought to enforce. She also raised a concern with issues of duplication between the main body of section 28A and subsections (14) and (15).

The Chairperson said the view of the DEA would be sought on this point.

Ms Winstanley said the last submission by PAMSA dealt with the power of regulation of prohibition, control, sale, distribution, import or export of products under section 44. She said the power of regulation should be limited so as not to duplicate processes or activities of regulation in other legislation.

The Chairperson asked for more clarity on the issue of rectification. He wanted to know if there were other pieces of legislation where authorisation was needed, that did not have a rectification clause.

Ms Craigie answered that the Air Quality Act did not have a rectification process similar to section 24G, but there were other process in that Act that addressed rectification processes.

Mr Abader added all the special environmental management legislation needed to be catered for, but slightly different procedures were needed for each individual Act.

Adv Garlipp said there were certain cases where it was unnecessary to include these processes and they were not applicable as they did not follow the same process.

Ms Winstanley disagreed, saying that in her opinion, the Environmental Impact Assessment (EIA) and licensing processes were exactly the same. She questioned why unlawfulness was treated differently under different categories of law, when in the normal course, it should be treated in the same way. She said the process for rectification was different to the process of EIAs. The EIA process was prospective in character and questioned the thoughts of the public. She added that bad behaviour should be treated in a similar, prospective way, and not in a retrospective way, and this was the merit of rectification processes.

The Chairperson wanted the Department’s comments on the view that EIAs and rectification were also needed for air quality.

Adv Garlipp said the first authorisation process fell under NEMA, and the second process fell under the Air Quality Act.

Mr Abader added that a distinction between the processes of authorisation was needed.

Ms Winstanley said that was a different point. She requested that the Committee take heed of her point, as it was critical.

The Chairperson interjected and said he would not stand for a debate between PAMSA and the Department at this meeting. Any further concerns that Ms Winstanley had could be raised with the Department at another stage, but it was not appropriate to debate them in front of the Committee.

The Chairperson asked the Department to formulate proper responses to all the issues flagged.

Continuation of Rand Water submission points
The Chairperson then returned to the Rand Water submission, and asked Rand Water if it had answers to the questions about authority that he had asked earlier in the meeting.

Ms Nkabinde said the power of Rand Water around catchment services was found in section 32 of the Water Services Act.

The Chairperson wanted to know how “catchment services” were defined, and asked that this issue be checked.

Ms Nkabinde said that “catchment services” essentially covered managing the area around the Vaal River. She added that Rand Water needed to be consulted on developmental plans.

The Chairperson said the need to hold consultation was not a power. He called for a short memorandum from Rand Water in which it should outline exactly where the “power” that it claimed to have was enumerated, and asked also what, for practical purposes, this meant.

Ms Gail Andrews, Manager: Environmental Authorisation and Rehabilitation, Rand Water, added that the power was contained in a guideline.

The Chairperson said guidelines had no legal effect, so the guideline could not give Rand Water a legislative power, reiterating that this power could be conferred only by an Act or another legal instrument. He urged that the memorandum be submitted soon, as the Committee would begin to debate the submissions in the following week.

The Chairperson noted that this morning’s submissions had been useful, and the DEA must now prepare its responses, by the following Wednesday. The final three submissions would be heard on 28 August.

The meeting was adjourned

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