National Environmental Management Laws Amendment Bill: Department's responses to public submissions, clauses 8 to end

Meeting report

National Environmental Management Laws Amendment Bill [B13-2012]: Department of Environmental Affairs’ response to points raised during public hearings, from clause 8
The Department of Environmental Affairs (DEA or the Department) continued to present its responses to points raised during the public submissions on the National Environmental Management Laws Amendment Bill (NEMLA), from clause 8.

Clause 8: Amendment of section 24G (Rectification of unlawful commencement of activity)
The submission by the Centre for Environmental Rights (CER) noted its deep concern that this clause had the potential for unintended consequences. The penalty mechanism had created a system of perverse incentives, including the fact that a section 24G application was never refused and that effectively a mechanism was created for violators to buy themselves out of criminal prosecution.

The Chairperson asked if there were other aspects also under consideration that were not in this Bill.

Mr Ishaam Abader, Deputy Director-General: Legal, Authorisation and Enforcement, Department of Environmental Affairs, said the entire section would be reviewed, as it was causing the Department difficulty. He said the Department needed to find a solution to prevent the section from being abused and to address the unintended consequences.

The Chairperson noted that there were also other discussions about linking this section of the Act to emergency response situations. He felt that the whole of section 24G should be placed on the list of issues that needed a full review.

The Chairperson agreed with the Department, however, that CER was not reading the clause correctly. Its submission dealt with the section 24F(1)(b) under section 24G(1)(a).

The Chairperson then noted that CER had, in another part of its submission, noted its support for the proposed increase of administrative fines, in the new section 24G(2A), and asked why the increase was only to R5 million.

Mr Abader said the reason was to align this fine with other penalties in the Act.

Mr Mark Jardine, Director: Environmental Management, Capital Development and Support, Department of Environmental Affairs, noted that the administrative fine must be looked at in conjunction with prosecution.

The Chairperson suggested the inclusion of an unusual clause, that would specifically state that the levying of an administrative penalty, no matter how large, could affect the possibility of a referral for prosecution. Where there had been significant transgressions, it would only be in the most exceptional cases, and for very specific reasons, that a criminal investigation should not proceed. He asked what other options could be considered. He asked the Department to draft responses to both these options, for later consideration by the Committee.

Mr Abader read out another clause that reflected the suggestion of the Chairperson.

The Chairperson also felt this should be placed in the regulations or directives for the Minister. He also wanted the Department to look at how second offenders were treated.

Mr G Morgan (DA) felt there should be an automatic increase in administrative fines for second offenders.

The Chairperson asked what other restrictions could be placed on the large offenders. If such offenders were granted authorisation, this should only happen in the most exceptional of cases, and in a very restricted manner.

The Chairperson requested the Department to consider inserting something in the NEMLA that would require the Minister to pay quarterly or bi-annual visits to Parliament, to keep the Committee updated on all authorisations under this section.

Mr Morgan agreed, saying that this would enhance accountability. He did, however, question what mechanisms could be put in place to enable the Minister to get all the relevant information from the Member of the Executive Council (MEC) in those cases where the MEC was the competent authority.

The Chairperson said this could be included in the clause. It was possible to take the matter even further and require the Minister to create a register of all people granted authorisation, so that there was a concrete record. This would help track cases where people committed offences in different provinces. It could be stipulated that the Register be reported to Parliament every six months, and this would show that Parliament was watching and took authorisations seriously.

Mr Abader said this would be included in the Department’s resolutions.

The Chairperson said it was important to add accountability to the structure of the clause. Many of the submissions had suggested that there was insufficient accountability and that the system was being abused. The Department could review all it wanted, but this Bill would give Parliament stronger oversight. He suggested that the Department must, in its resolutions, refer to the implementation of the clause and the regulations, noting that whatever was in the legislation was merely a framework. He requested the Department, within six months after the commencement of the new Bill as an Act, to produce the draft regulations on section 24G, and insisted that the draft regulations must be brought to the Committee, for consultation, before being promulgated. This would allow the Department sufficient time to consult with MinMEC.

The Department noted that the submission of the Paper Manufacturing Association of South Africa (PAMSA), about the inclusion of the National Water Act in the amendment, could not be considered, as this matter fell under the Department of Water and not DEA.

The Chairperson questioned the Department’s response on the inclusion of other Acts, like the Waste Act and Air Quality Act, in terms of authorisation.

Mr Abader said there were specific processes for licences.

The Chairperson asked if the Department was happy that all its legislation was in order on this issue.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, Department of Environmental Affairs, said all the Environmental Impact Assessments (EIAs) were done under National Environmental Management Act (NEMA) and this applied even if the licences themselves were issued under other Acts. All relevant Acts for the sector needed to be read together.

The Chairperson noted then that NEMA did actually apply under this section to the Air Quality and Waste Acts. He also noted there was a difference between authorisation and a licence. He also questioned applicability of this section to the Coastal Zone Act and other pieces of legislation.

Ms Garlipp said that similarly, the processes followed under the Coastal Management Act were contained in NEMA.

The Chairperson suggested that a clarification was needed, in the resolutions, about the application of the NEMA processes to other pieces of legislation. It should be clearly explained that many of the submissions had relied upon an incorrect reading of section 24G incorrectly.

The Chairperson did not agree with the submission by Business Unity South Africa (BUSA) that those being prosecuted should not pay a fine, noting that this was a typical perspective of business, but the Committee was concerned with ensuring that prosecutions would take place, where appropriate.

The Chairperson questioned the procedure behind the fines.

Mr Jardine said there was a subcommittee of the Department’s Working Committee that dealt with the specifics of how fines were calculated.

The Chairperson said it was vital to have a proper procedure, to avoid court challenges to the fines. He suggested that the proper procedure for administrative fines should be clearly drafted and included in the Resolutions.

Mr Sibusiso Shabalala, Director: Law Reform, Department of Environmental Affairs, pointed out that Section 24(2A) outlined the determination of fines by the competent authority.

The Chairperson responded that whilst this indicated the authorisation, it did not outline exactly what procedure must be followed, and the setting out clearly of the procedure would allow the accused an opportunity to plead his/her case.

Mr Morgan said he had been worried that this clause was rather flimsy.

Mr Abader assured the Committee that a calculated, rather than arbitrary procedure was taken to determine the fine, and each was determined on the merits of the case. A court judgment previously had ruled that a solid procedure was followed. There were different processes for different developments.

The Chairperson said that whilst he heard what the Department said about the judgment, and it would help for the Committee to have sight of it, the Committee still felt that the reading of the whole clause was problematic, especially where it stated that decisions had to be taken by the competent authority before reaching the Minister. He said if the Minister was actually the competent authority, it would make no sense. He said it was important to spell this procedure out clearly. He also reminded the Department that the judgement was province-specific and so could not served as a precedent in another province.

Mr Morgan agreed, and was of the opinion that another judge could well have reached a different decision. He agreed it was important to state the considerations when determining an administrative fine, so that developers knew of this upfront.

The Chairperson added that spelling out the clause would put it on a more solid grounding. If this was not done, he feared, although he did not have any evidence, that there would be huge potential for corruption and wrong practices.

Mr Morgan was particularly concerned about the appeal authority, which was the MEC. He said the regulations should provide guidance on this matter, especially since the MEC was allowed to reduce a fine.

The Chairperson asked if the Minister or the MEC could change the fines. He did not see this power stipulated in the Act.

Mr Morgan said he had spoken to a Western Cape Departmental official on this point. 

The Chairperson said there was no power specified in the Act that the MEC may change fines, but whether or not this power was given had to be clearly stipulated in the regulations. He asked that the Department report back on this point, when presenting the draft regulations. He also asked the Department to explain whether executive authorities had any power in the determination of administrative fines. Finally, he reminded the Committee to provide a copy of the judgement.

The Chairperson moved on to the submission by the Western Cape Provincial Government (WCPG) on the application for rectification of non-listed activities, and noted that this point had already been discussed. The Committee basically agreed on the need for amendment, and wanted the Department to redraft the clause, including any broader wording that it may consider necessary.

The WCPG submission on the applicability of the Air Quality Act (AQA) to Section 24G authorisations had already been discussed and the Department would revert with an answer.

The Committee accepted the proposal by the WCPG to include the words “or continued”.

The submission of the WCPG on the lack of a definition for “emergency response situation” had already been discussed.

The Committee also agreed with the neater wording provided by Erasmus Attorneys, that payment of an administrative fine in terms of Section 24G was no defence to a charge in terms of Section 24F(2) of NEMA.

The Chairperson questioned why property was excluded in the reference to an emergency.

Mr Jardine said it was excluded in cases where people might be protecting property for purely commercial uses, rather than for the health and wellbeing of people and the environment.

The Chairperson said that making a link between this clause and clauses 24F and 30 would limit the abuse, and make it possible to include property and he would be prepared to entertain the possibility of property being included in a broader amendment. A final decision could be made on the proposal to include property when the Department presented a broader amendment including clause 24F and 30 emergencies.

The Chairperson noted that part of the submission by Erasmus Attorneys also related to the problematic wording of the proposals on section 24G. Many organisations had raised this point. He asked that when the Department prepared its Resolutions, it should go into some detail so that the matter was clarified.
He would be happy to include the amendments in that Resolution.

The Chairperson asked if, in practice, the two powers given to the Minister or competent authority were sufficient, in the case of pending authorisations.

Mr Jardine said that either a compliance notice could be used, or a criminal investigation could be commenced, or there could be an application for an interdict. This also included immediate seizure.

The Chairperson asked why the power for the Minister to order immediate seizure was being removed.

Mr Abader said it was explained under Clause 11, relating to Section 28 of the Act.

The Chairperson asked if the power to order rehabilitation was needed, or if it was explained somewhere else in the Act.

Clause 9: Amendment of section 24M (exemptions from applications of certain provisions)
The Committee noted the Department’s agreement with the submission by the WCPG on the problems in wording, which did not currently allow any discretion to the Minister or MEC around Environmental Management Programmes (EMPs).

The Chairperson did not agree with the submission by BUSA on the application for exemptions. He said it did not take away any other exemptions in the Act, and applied only to those pertaining to environmental authorisation.

The Members and Department discussed the ability of the Minister of Minerals to grant exemptions. This was not part of the amendment process, but the Chairperson asked that the Department nonetheless should come back with a response, and satisfy the Committee that no loophole had been created.

The Chairperson commented on the drafting style of the NEMLA Bill. He felt that many of the clauses included in the Bill should in fact be matters for the regulations.

The Committee noted the Department’s acceptance of the second submission by the WCPG on the problematic wording of section 24M(4). 

The Department noted that it had already responded to the submission by the Association of Cementitious Material Products (ACMP) on the issue of exemptions.

Clause 10: Amendment of section 24O (criteria to be taken into account by competent authorities when considering applications)
The Chairperson felt the clause should be split into two parts, although there was nothing wrong with the content.

The Chairperson said the State Law Advisors were still working on the issue of “state” and “organ of state” to clearly define what was being referred to, and for this reason the submission of the WCPG, in so far as it referred to “organ of state” including municipalities, would be flagged. The Department had been asked to look at the implications to other legislation of making a change to “organ of state” in the NEMLA Bill.

Clause 11: Amendment of section 28 (Duty of Care and remediation of environmental damage)
The Chairperson was of the view that BUSA’s submission was correct, and there were huge implications of extending the power to all organs of state. He was not convinced that this was right in principle.

Ms Garlipp agreed that this clause may be too widely worded. The Department needed to list the applicable organs of state in the schedule to the Act.

The Chairperson said that principle was fine, but questioned how the Department would give this power to municipalities, and asked if the Department even wanted municipalities to have this power.

Mr Jardine said this was included in anticipation of a plan for the Department to have authorities at a municipal level. The new wording would make sense from an administrative point of view, to prevent authorisations being sent to the head of department (HOD) of the provincial departments.

The Chairperson said that if the Department really wanted to give such powers to the municipality, then this should be set out specifically, in a separate clause, and it should also be stipulated exactly how much power the municipality would be given.

Mr J Skosana (ANC) agreed that a listing of certain municipalities would help to distinguish between those that had the capacity and those that did not.

The Chairperson said the Department needed to come back on this issue, in order to define the specific powers in specific clauses, and to specify what could be done with these powers.

Ms C Zikalala (IFP) said it was important not to forget about the refineries when looking at air quality.

The Chairperson asked the Department to look further into this question too.

The Chairperson noted that the Department had indicated its agreement to make a technical amendment and include the word “and”, as raised by the WCPG, and he had no problem with any of the technical issues raised.

The Chairperson reminded the Committee that the submission by the WCPG on Section 28A, relating to criminal liability, should be ignored, since the WCPG was commenting on the wording of the old Bill.

The other part of the submission relating to section 24G had already been answered.

The submission by Rand Water on “organ of state” was also already covered.

The Chairperson referred to the submission by Erasmus Attorneys on not deleting Section 28(12), and remarked that this was a meaningless clause that could not restrain judgments.

The Committee agreed with the submission by Paper Manufacturers Association of South Africa (PAMSA) on the implications that could arise from removing the word “significant”.

The Chairperson noted that most of the issues under Clause 11 dealt with the issue of “organs of state” and breaking up the power given to certain organs of state.

The Chairperson asked the Department to comment on the possible deletion of clause 28 (15 and 16) even though none of the public submissions had commented on this.

Ms Garlipp said the wording should be broken up, so that separate clauses were provided for separate topics.

Mr Jardine noted the word “significant” was very important.

The Chairperson felt that all offences should be moved to an offences clause, which made for easier reading of the legislation.

Ms Garlipp added that all other Acts were structured in this way but NEMA outlined the offences under section 24F.

The Chairperson noted that, but commented that NEMA should also follow the format of other legislation.

Clause 12: Insertion of section 28A (Criminal liability of certain persons)
The Chairperson noted the Committee’s view that the BUSA submission was incorrect. The submission by the WCPG, relating to the deletion of subsection (13) was based on the previous draft, as was the submission that non-compliance with a directive was no longer a criminal offence.

The submission on the escalation of penalties for repeat offenders, by Erasmus Attorneys, was accepted.

The Committee noted that the Department was looking into the alignment of offences.

Clause 13: Amendments to section 30 (emergency incidents)
The Chairperson noted the Department’s intention to move this clause to elsewhere in the Bill.

Clause 14: Amendment of section 31J (Powers of EMIs)
The Chairperson looked at the submission by the ACMP in relation to extending the powers to transport, and questioned the inclusion of the Air Quality Act (AQA).

Mr Jardine said the Bill did cover certain areas of air quality, and indicated where this was set out.

The Chairperson said that this was poor drafting that was not easy for the public to read.

The Chairperson asked where the case studies that some Members had requested were included, and the Department indicated the documents in which these were contained. These clarified the matter of “reasonable measures” and the issuing if directives.

The Chairperson said the document would stand over for later debate, given that Ms Frances Craigie, Acting Chief Director of Enforcement, Department of Environmental Affairs, was not available at this meeting.

Clause 15: Amendment to section 44 (Regulations)
The Chairperson noted this section should be looked at in conjunction with the document on human health.

The Chairperson questioned whether the word “production” should be included in the list of regulations.

The Department agreed that “production” could be added in.

The Chairperson referred to the submission by the ACMP on the harmonisation of the proposed amendment with international practice. He queried what other departments would be directly affected by the consultation process.

Ms Garlipp said all organs of state had to be consulted.

The Chairperson felt this was not good enough. He wanted the Department to give thorough consideration to what powers would be given to this Minister in terms of this amendment. He added that there was a need to consult all departments that were directly affected.

The Chairperson questioned why such powers were not stipulated in the Act, but would be outlined in the regulations, as he believed that this would have the effect of making the regulations ultra vires. He pointed out that this was a major power that was being given to the Minister.

Ms Garlipp responded that the power would be set out in the regulations.

The Chairperson understood that, but questioned what exact instrument the Minister could use to carry out this power. This power was substantial, and would have a huge impact on other departments. Whenever the power was exercised, it should be reported to Parliament. He suggested that the Department give consideration to some sort of public process, and asked how Parliament should respond on the issue. He was of the view that the Minister’s intention to exercise the power should be tabled, in Parliament, before it could take effect, so that the Committee could be informed of the instances in which the Minister had used this power.

Clause 17: Amendment of section 47D (Delivery of documents)
The Chairperson questioned how the Department could put the onus on a person to do something, pointing out that this clause related not to an offence, but simply to an administrative duty. He asked the Department to reconsider the clause.

Clause 18: Amendment of section 48 (State bound)
The Chairperson noted that the Committee was waiting on a legal opinion on this issue. He reminded Members that the problem was that the Department needed to be quite clear on who was to be prosecuted, and for what offences. He wanted comment on the feasibility of the option. He could not understand how a level of government could be prosecuted.

Ms Vuyokazi Ngcobozi, State Law Advisor, Office of the Chief State Law Advisor, alerted the Chairperson to the legal opinion included in the document folder (see attached documents)

The Chairperson said that he was not convinced by this opinion. He did not know of any cases where a level of government had been prosecuted.

Mr Morgan said this was currently happening with the Water Act, since the National Prosecuting Authority was currently prosecuting the water manager and five officials of a municipality in the Northern Free State consistently ignoring a pollution event, and avoiding remediation.

The Chairperson said the opinion did not help, as it just spoke to issues of legality.

Mr Morgan also added that in the case cited, it was the person of the municipal manager, and not the body of the municipality, who had been charged.

Ms P Ngema, Parliamentary Legal Advisor, said that if the matter was not explicitly expressed in legislation, everyone must comply with legislation. Officials who did not adhere to their duties could be charged with an offence.

The Chairperson understood this, and agreed with it in principle, but wanted more research done on this matter, and asked that the Department had to specify to which organs of State it would be applicable. He noted the comment of Mr Morgan on the case cited.

Mr Morgan said that there may even have been one or two Parliamentary questions raised, and he would pass any information that he had to the Chairperson.

The Chairperson raised a comment from Mr Erasmus that was not mentioned, relating to the appeal process.

Ms Garlipp said someone had to apply for a directive for appeal.

The Chairperson responded that this could bring the process to a standstill.

Proposed Amendments to the National Environmental Management Biodiversity Act, 2004
The Chairperson noted that there had been few public comments on the proposals for the Biodiversity Act, but asked the Department to go through the clauses that were mentioned.

Clause 34 of NEMLA: : Insertion of section 71A (Prohibition) to Biodiversity Act
The Chairperson asked if the submission by the CER was correct. The submission related to correlation between the regulations and the Bill, on the categories of invasive species.

Ms Magdel Boshoff, Deputy Director: Biodiversity Policy Development, Department of Environmental Affairs, said the CER’s submission was correct, but added that measures had been put in place to address the inadequacies. She noted that the species that would be immediately regulated were those subject to compulsory control, and that they would be managed in terms of species management programmes.

The Chairperson asked for this matter to be included in the Department’s Resolutions, and that it also be flagged as an item for review.

The Chairperson asked for a response of the Department to the CER submission on the use of the word “specimen”.

Ms Boshoff said this was linked to the point she had just made. She noted that the amendment aimed to give the Minister certain powers to regulate certain species but not others, and to exempt certain activities but regulate others. She said the intention was not to cover entire species.

The Chairperson said this matter should also be placed on the Resolutions.

The Chairperson agreed with the Department’s intention to insert “and subject to such conditions the Minister may specify in the notice”.

Clause 38: Amendment of section 85 (Establishment of Bioprospecting Fund)
The Chairperson asked if the Department was intending to dispute the matter, and asked why the Department needed this clause. He noted that the CER/Legal Resources Centre had suggested that this clause violated some constitutional principles.

Ms Laetitia Tshitwamutawni, Deputy Director: BABS, Department of Environmental Affairs, said the Department wanted to move away from referring to “traditional leaders” and had proposed alternative wording that instead referred to “stakeholders”. This would also cover the communities who did not fall under traditional leadership.

The Chairperson agreed with this wording, but said the Department should create a mechanism to deal with the possibility of the 30-day period not being met.

Clause 39: section 86 (Bioprospecting access and benefit-sharing exemption)
The Chairperson asked for the Department’s comment on the submission by Afriforum, which related to the over-utilisation of natural resources by rural communities.

Ms Tshitwamutawni said she did not agree with the submission and felt there was misunderstanding of the issues. Some matters fell outside the scope of Chapter 6. The Department wanted to exempt small businesses, but noted that this exemption did not mean non-compliance with other provisions.

Clause 42: Amendment of section 93 (Cancellation of permits)
The Department noted a submission by the CER that the Biodiversity Act should be taken even further to allow the Minister to refuse a permit where a person had been convicted of an offence under the Act.

Ms Boshoff said the Department agreed to this amendment, but did not have specific wording to propose at the moment. It was possible either to widen the wording of the current section 93 of the Biodiversity Act to deal with the issue, or to create a new section relating specifically to the refusal of permits, setting out the circumstances in which the Minister may refuse permits.

The Chairperson said he would leave it to the Department to bring a full amendment. He had no problem, in principle, with such an amendment.

Clause 46: Repeal of section 96 (Decisions)
The Department noted that it supported the submission by the CER relating to the procedure for appeals, and it was decided to put the matter in the Resolutions as an extra point.

The Committee noted its support for a redrafting of this clause.

Clause 47: Amendment of section 97 (Regulations)
The Chairperson noted a submission by The Endangered Wildlife Trust, raising concerns about the regulations relating to self-administration within the wildlife industry, and asked for comment.

Ms Boshoff said a definition for “self-administration” would be included in the Act, if necessary, and the Department was also hoping to clarify exactly who was referred to under “the wildlife industry”. She wanted to stress to the Committee that this did not involve self-regulation.  

The Chairperson said an explanation on this could be added to the Resolutions.

Clause 50: Amendment of section 102 (Penalties)
The Chairperson referred to a submission by the CER that there was lack of clarity as to why offences related to alien species had not been included in the “topping up of fines”. This, however, had been addressed by a proposal that the Department had made.

Air Quality Act: Air Quality Officer’s Forum
It was noted that WCPG had made a suggestion about incorporating an Atmospheric User Charge into the Air Quality Act, and asked if this would be done by way of a technical amendment. The Committee would be guided by the Department on this issue, and would not insist on the change if the Department did not feel it was warranted, but would equally be prepared to support a technical wording change.

Other issues
The Chairperson asked if there were any other matters the Department or Committee wanted to add.

Mr Morgan requested that the Committee look at the submission by the Department on the sentencing of wildlife crimes, as set out in one of the documents in the folder.

The Chairperson said this would be looked at during the course of discussions on Annexure A, at the next meeting.

The Chairperson said the Department had an enormous amount of work to do now. The Department would attend another meeting on the following Tuesday, 18 September, to look at Annexure A and the document referred to by Mr Morgan. The Chairperson asked the Department now to draft all the amendments that had been debated, and to present them to the Committee for discussion. The Chairperson noted there were major political and constitutional issues that need to be looked at and the Bill would definitely not be completed before the end of the year.

Two international agreements would also be considered at the meeting on 18 September, and on 19 September, the Committee would meet to discuss the National Water Resource Strategy.

The meeting was adjourned.