List Of Environmental Laws In South Africa

By | January 11, 2023
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List Of Environmental Laws In South Africa

Environmental law is a collective term encompassing aspects of the law that provide protection to the environment. A related but distinct set of regulatory regimes, now strongly influenced by environmental legal principles, focus on the management of specific natural resources, such as forests, minerals, or fisheries.

In this articles Dashboardlogins.com tries to answer the question by publishing the Environmental Laws In South Africa

Below are the Environmental Laws In South Africa

A Q&A guide to environment law in South Africa. This Q&A provides a high level overview of environment law in South Africa and looks at key practical issues including emissions to air and water, environmental impact assessments, waste, contaminated land, and environmental issues in transactions.

In addition, answers to questions can be compared across a number of jurisdictions to assist in the management of cross-border transactions (see Country Q&A Tool).

This Q&A is part of the multi-jurisdictional guide to environment. For a full list of jurisdictional Q&As visit www.practicallaw.com/environment-guide.

Environmental regulatory framework

1. What are the key pieces of environmental legislation and the regulatory authorities?

The Constitution of the Republic of South Africa 1996 (Constitution) is the all-encompassing statute. Section 24 of the Constitution sets out the right to an environment that is not harmful to health or wellbeing, and calls on the government to take legislative and other actions to:

  • Prevent pollution and ecological degradation.
  • Promote conservation.
  • Secure ecologically sustainable development.
  • Use natural resources while promoting justifiable economic and social development.

To this end, a number of key pieces of legislation (and relating regulations) have been enacted, including the:

  • Hazardous Substances Act No. 15 of 1989.
  • Mineral and Petroleum Resources Development Act No. 28 of 2002 (MPRDA).
  • National Environmental Management Act No. 107 of 1998 (NEMA).
  • National Environmental Management: Air Quality Act No. 39 of 2004 (NEM:AQA).
  • National Environmental Management: Biodiversity Act No. 10 of 2004 (NEM:BA).
  • National Environmental Management: Protected Areas Act No. 57 of 2003 (NEM:PAA).
  • National Environmental Management: Waste Act No. 59 of 2008 (NEM:WA).
  • National Water Act No. 36 of 1998 (NWA).

NEMA plays a crucial role in providing for co-operative environmental governance by:

  • Establishing principles for decision-making on matters affecting the environment.
  • Establishing institutions that will promote co-operative governance and procedures for co-ordinating environmental functions exercised by organs of state.
  • Providing for any matter connected with the above bullet points.

Key environmental regulatory authorities include the:

  • Department of Environmental Affairs (DEA).
  • Department of Mineral Resources (DMR).
  • Department of Water and Sanitation (DWS).

All spheres of government and all organs of state must co-operate, consult and support one another on matters involving or affecting the environment.

Regulatory enforcement

2. To what extent are environmental requirements enforced by regulators?

The Environmental Management Inspectorate (Inspectorate) is made up of environmental enforcement officials from national, provincial and municipal government departments, who are designated as either (Chapter 7, National Environmental Management Act No. 107 of 1998 (NEMA)):

  • Environmental Management Inspectors (EMIs) by the Minister of Environmental Affairs (and, in the case of Mining, by the Minister of Mineral Resources).
  • A Member of a Provincial Executive Council.

The EMIs are vested with wide ranging powers, which include to:

  • Investigate.
  • Inspect.
  • Enforce.
  • Administrate.

Notably, EMIs are vested with powers of search and seizure, and can seize evidence and contraband associated with criminal activity. A member of the South African Police Service has all the powers of an EMI in respect of an offence under NEMA or a specific environmental management act (section 310, NEMA). Therefore, EMIs work closely with the South African Police Services. EMIs cannot prosecute cases in the relevant court and are required to hand over cases to the National Prosecuting Authority for prosecution.

Aside from their policing powers, EMIs play an important role at an administrative level ensuring that individuals and entities are compliant, by issuing compliance notices and fines.

The environmental requirements are enforced by the relevant regulators.

Environmental NGOs

3. To what extent are environmental non-governmental organisations (NGOs) and other pressure groups active?

Local and international non-governmental organisations (NGOs) play an active role in environmental issues, and participate in legislative changes. While international environmental NGOs play a vital role in South Africa, local environmental NGOs tend to be centred towards issues most relevant to the South African and Sub-Saharan context.

The most active environmental NGOs in South Africa include:

  • The Centre for Environmental Rights.
  • The Federation for a Sustainable Environment.
  • BirdLife South Africa.
  • The Endangered Wildlife Trust.
  • The Wildlife and Environmental Society of Southern Africa.
  • Earth Life Africa.
  • The Escapement Environment Protection Group.
  • The Wonderfontein Action Group.
  • Conservation International.
  • Friends of the Earth.
  • Greenpeace International.

South Africa’s Environmental regime recognises that, to achieve its legislative and policy outcomes, support is needed from all stakeholders, including business, trade unions, communities and NGOs. South Africa has approved the National Framework for Sustainable Development (NFSD), which involves the business sector, government, NGOs, civil society, academia and other key role players collaborating on issues surrounding sustainable development. South Africa also promotes the idea of a “green economy”. There is a clear move towards a co-operative effort on the part of government, industry and NGOs to align their environmental concerns and to take proactive measures to achieve environmental goals.

Environmental permits

4. Is there an integrated permitting regime or are there separate environmental regimes for different types of emissions? Can companies apply for a single environmental permit for all activities on a site or do they have to apply for separate permits?

Integrated/separate permitting regime

South Africa does not have an integrated permitting system. The umbrella legislation governing pollution and environmental concerns is the National Environmental Management Act No. 107 of 1998 (NEMA) and companies must obtain environmental authorisations for listed activities under section 24 of NEMA. However, if a particular activity triggers provisions of other legislation, for example in relation to water or air pollution (see Questions 6 and 7), then separate licences are required.

In some cases, one can obtain an integrated permit, licence or authorisation for different uses or trigger events in relation to the same umbrella activity, within the relevant piece of legislation. For example, one need not obtain a separate water use licence for every water use that is triggered under the National Water Act No. 36 of 1998 (NWA). In addition, in relation to mining, the “One Environmental System” has recently been introduced.

Single/separate permits

Single/separate permits, licences and authorisations are required before undertaking a specific activity. For example:

  • A Water Use Licence under the NWA.
  • An Environmental Authorisation for listed activities under NEMA.
  • A Waste Management Licence under the National Environmental Management: Waste Act No. 59 of 2008 (NEM:WA).
  • An Atmospheric Emission Licence under the National Environmental Management: Air Quality Act No. 39 of 2004 (NEM:AQA).
  • A Biodiversity Permit under the National Environmental Management: Biodiversity Act No. 10 of 2004 (NEM:BA).
  • Permissions under the National Environmental Management: Protected Areas Act No. 57 of 2003 (NEM:PAA).

5. What is the framework for the integrated permitting regime?

There is no fully integrated permitting system.

Water pollution

6. What is the regulatory regime for water pollution (whether part of an integrated regime or separate)?

The government has a custodial position over the use, management, distribution and quality of South Africa’s water. The National Water Act No. 36 of 1998 (NWA) is the principal legislation. The government acts through the Minister of Water and Sanitation, who is the ultimate authority in respect of the lawful use and management of water resources. The NWA contains specific provisions relating to types of water use, when water use is permissible (with or without a licence) and lawful water uses (sections 21, 22 and 32, NWA).

Permits and regulator

Water use licences are issued by the Department of Water and Sanitation (DWS). Section 21 contains the water uses that require a water use licence. Certain of the uses listed in section 21 of the NWA are considered to be waste-discharge type water uses and the others non-waste-discharge type water uses. The fact that waste is listed as a water use activity requiring a water use licence under the NWA, does not mean that only one licence is required. There are separate trigger events under the National Environmental Management: Waste Act No. 59 of 2008 (NEM:WA) that may require separate permits/licencing.

If one activity or operation triggers more than one use, an Integrated Water Use Licence to cover all uses is available. A water use licence is required for:

  • Taking water from a water resource.
  • Storing water.
  • Impeding or diverting the flow of water in a watercourse.
  • Engaging in a stream flow reduction activity contemplated in section 36.
  • Engaging in a controlled activity (sections 37(1) and 38(1), NWA).
  • Discharging waste or water containing waste into a water resource through a pipe, canal, sewer, sea outfall or other conduit.
  • Disposing of waste in a manner which may detrimentally impact on a water resource.
  • Disposing in any manner of water which contains waste from, or which has been heated in, any industrial or power generation process.
  • Altering the bed, banks, course or characteristics of a watercourse.
  • Removing, discharging or disposing of water found underground if it is necessary for the efficient continuation of an activity, or for the safety of people.
  • Using water for recreational purposes.

Permit length is activity dependant and is determined by the administrative authority when the permit is granted and is provided for in the water use licence.

Prohibited activities

There is no finite list of prohibited activities under the NWA. One of the main aims of the NWA is to prevent or manage pollution, protect the environment and guard our water resources for future generations.

If an activity causes, has caused or is likely to cause pollution of a water resource, an owner of the relevant land, a person in control of the land or a person who occupies or uses the land must take all reasonable measures to prevent the pollution from occurring, continuing or recurring (section 19, NWA). Measures include:

  • Ceasing, modifying or controlling the offending activity.
  • Complying with any prescribed waste standard or management practice.
  • Inhibiting movement of pollutants.
  • Eliminating sources of pollution.
  • Remedying the effects of both the pollution and/or any disturbance to the bed and banks of a watercourse.

Directives/instructions can be issued requiring compliance with specified steps/measures.

Clean-up/compensation

The owner, occupier or person in control of land must remedy the effects of pollution and/or any disturbance to the bed or banks of a watercourse (section 19, NWA). The relevant regulator can issue directives and recover expenses incurred jointly and severally from:

  • The offending parties.
  • Any person who directly or indirectly contributed to or was responsible for the pollution.
  • A person who negligently failed to prevent the pollution.

Penalties

If a person commits and is found guilty of an offence under section 151(1) of the NWA (section 151(1), NWA):

  • A first offender is liable to a fine and/or imprisonment for a period not exceeding five years.
  • A second/subsequent offender is liable to a fine and/or imprisonment for a period not exceeding ten years.

The court can also grant an award for damages against the convicted offender to compensate another who has suffered harm, loss or damage (sections 152 and 153, NWA). A principal or employer can also be convicted for an offence committed by an employee or agent under section 154 of the NWA.

Air pollution

7. What is the regulatory regime for air pollution (whether part of an integrated regime or separate)?

The National Environmental Management: Air Quality Act No. 39 of 2004 (NEM:AQA) was enacted to manage and prevent pollution. Section 3 of NEM:AQA places a general duty on the state to protect and enhance the quality of air as part of its obligations under section 24 of the Constitution. The Atmospheric Pollution and Prevention Act 1995 continues to apply to offences committed before the National Environmental Laws Amendment Act 2009 came into effect.

Permits and regulator

The Minister of Environmental Affairs must, and an Member of the Executive Council: Air Quality Management of a particular province may, publish a list of activities that result in atmospheric emission which they reasonably believe may have a significant detrimental effect on the environment, by notice in the Government Gazette (section 21, NEM:AQA). Government Notice 893 of 22 November 2013 provides for minimum emission standards for the following categories:

  • Category 1: Combustion Installations.
  • Category 2: Petroleum Industry, the production of gaseous and liquid fuels as well as petrochemicals from crude oil, coal, gas or biomass.
  • Category 3: Carbonization and Coal Gasification.
  • Category 4: Metallurgical Industry.
  • Category 5: Mineral Processing, Storage and Handling.
  • Category 6: who Organic Chemicals Industry.
  • Category 7: Inorganic Chemicals Industry.
  • Category 8: Thermal Treatment of Hazardous and General Waste.
  • Category 9: Pulp and Paper Manufacturing Activities, including By-Products Recovery.
  • Category 10: Animal Matter Processing.

Anyone who undertakes any of the listed activities under these categories, or any other list applicable to a particular province, must obtain an atmospheric emissions licence (AEL) (section 22, NEM:AQA). In most cases, the AEL process is conducted in conjunction with the environmental impact assessment (EIA) process. Therefore, an applicant must apply for both an AEL and environmental authorisation under NEMA. The EIA process is not necessary where there is either a:

  • Transfer of an existing AEL to new owners (section 44, NEM:AQA).
  • Renewal of an existing AEL, where the renewal does not amend or vary the existing AEL (section 47, NEM:AQA).

Where there is a transfer or renewal of an existing AEL, only the AEL process and the Atmospheric Emission Licensing Authority is involved. In all other cases involving a listed activity, the EIA process applies and the Atmospheric Emission Licensing Authority and the Environmental Impact Assessment Competent Authority are both involved.

Permit length is activity dependant and is determined by the administrative authority when the permit is granted and is provided for in the AEL.

Prohibited activities

The listed activities published under section 21 of NEM:AQA set the minimum emission standards for various activities. A listed activity cannot be conducted without an AEL (section 22, NEM:AQA). Section 22A of NEM:AQA sets out the consequences of unlawful conduct of a listed activity that results in atmospheric emissions. It also provides for cases where one conducts activities resulting in atmospheric emissions without authorisation under NEM:AQA or the Atmospheric Pollution Prevention Act of 1995 (for activities that took place before NEM:AQA came into force). Licencing authorities can consider these applications, issue directives and consider the extent of compliance.

Acts or omissions in relation the following can be considered an offence (section 51, NEM:AQA):

  • Failing to comply with section 22 by conducting listed activities without a licence.
  • Manufacturing, selling or using any appliance, or conducting an activity declared as a controller emitter, without having complied with the standards established under section 24.
  • Manufacturing, selling or using a controlled fuel without having complied with the standards established under section 27.
  • Failure of an occupier of any premises to take reasonable steps to prevent any offensive odour caused by an activity conducted on the premises (section 35).
  • Failure to submit/implement a pollution prevention plan (section 29) or atmospheric impact report (section 30).
  • Failure to notify the Minister of Environmental Affairs as required by section 33.
  • Contravention/failure to comply with a condition of an AEL.
  • The supply of false/misleading information in an application for an AEL or its transfer, variation or renewal.
  • The supply of false/misleading information to an air quality officer.
  • Contravention/failure to comply with a condition subject to which an exception from a provision of the Act was granted.
  • Where a person conducting a listed activity emits air pollutants above the emission limits specified in an AEL.

Clean-up/compensation

All persons have a general duty to prevent pollution or degradation of the environment, or at the very least to minimise the impact and rectify it where possible (section 28, NEMA). The Director-General can issue directives or take measures it sees fit, and recover costs incurred from the parties involved. Offending parties can be required to clean up and provide compensation for their role in damaging the environment (section 28, NEMA).

Penalties

A person found guilty of an offence under section 51 of NEM:AQA is liable to (section 52, NEM:AQA):

  • For a first offence: a fine not exceeding ZAR5 million and/or imprisonment for a period not exceeding five years.
  • For a second/subsequent offence: a fine not exceeding ZAR10 million and/or imprisonment for a period not exceeding ten years.

In setting a fine, the relevant court must consider:

  • The severity of the offence and the impact on the environment.
  • Any monetary or other benefits the offender received as a result of the contravention.
  • The extent of the offender’s overall contribution to the pollution of the area under normal working conditions.

Climate change, renewable energy and energy efficiency

8. Are there any national targets or legal requirements for reducing greenhouse gas emissions, increasing the use of renewable energy (such as wind power) and/or increasing energy efficiency (for example in buildings and appliances)? Is there a national strategy on climate change, renewable energy and/or energy efficiency?

South Africa is not required to meet any internationally imposed targets and timetables for emission reduction under the Kyoto Protocol (which South Africa signed in July 2002). However, South Africa made a commitment to lower its greenhouse gas (GHG) emissions to 34% below expected levels by 2020 and 42% below current trends by 2025. This target may not be reached without financial and technological support by developed countries, and it has been argued that the South African socio-economic context takes priority over its other commitments. Despite challenges, South Africa acknowledges that is it a major contributor to carbon dioxide (CO2) emissions.

Article 12 of the Kyoto protocol provides for the clean development mechanism (CDM), which enables developed countries to earn certified emission reduction credits if they invest in projects to reduce GHG emissions in developing countries. South Africa enacted regulations under NEMA, establishing a designated national authority (DNA) to consider CDM applications.

Most recent developments include South Africa’s ratification of the Paris Agreement, the draft GHG Reporting Regulations published in June 2015, and the draft Pollution Prevention Plan Regulations and GHG Notice published in January 2016 declaring greenhouse gases as priority air pollutants.

The Paris Agreement, ratified by 195 signatory states, is an international collective arrangement to keep the increase in global average temperatures to below 2 degrees Celsius, and aims to limit temperature increase to 1.5 degrees Celsius. Although the agreement does not impose any legal obligations, it calls on signatory states to submit their national determined contribution (NDC) for review every five years. The intention is that each subsequent NDC is more ambitious than the previous one. Those submitted so far indicate that temperature increase would be limited, under the agreed aim. South Africa’s intended nationally determined contribution (INDC) shows that in the next 34 years the country will reach peak emission levels, then remain fairly stable for over a decade and then decline in its GHG emission by 2050.

The GHG Reporting Regulations seek to establish a single national reporting system for the reporting of GHG emissions. The reporting system will:

  • Assist in keeping record of emissions within South Africa.
  • Monitor progress overall so that South Africa can meet its obligations towards the United Framework Convention on Climate Change (see Question 9).

The GHG Reporting Regulations could assist greatly in improving the draft PPP Regulations. On 8 January 2016, the Minister of Environmental Affairs published a Notice of intention to declare GHGs as priority pollutants and to require certain polluters within certain categories to submit pollution prevention plans (PPPs) for approval under the draft PPP Regulations. The following GHGs are considered to be priority pollutants (Notice):

  • Carbon dioxide.
  • Methane.
  • Nitrous oxide.
  • Hydrofluorocarbons.
  • Perfluorocarbons.
  • Hexafluoride.

Persons involved in the following must submit PPPs (Annexure A, Notice):

  • Coal mining.
  • Production or refining of crude oil.
  • Production or processing of natural gas.
  • Cement production.
  • Glass production.
  • Ammonia production.
  • Nitric acid production.
  • Carbon black production.
  • Iron and steel production.
  • Ferro-alloys production.
  • Aluminium production.
  • Polymers production.
  • Pulp and paper production.
  • Electricity production (combustion of fossil fuels excluding use of back-up generators).

Where the above processes are undertaken as a primary activity or there is a direct emission of priority air pollutants in excess of 0.1 megatonnes (Mt) annually measured as carbon dioxide equivalents, a PPP must be submitted. The PPP Regulations set out the information that must be included in a PPP.

South Africa is also taking positive policy and legislative steps in relation to renewable energy. The Integrated Resource Plan 2010 to 2030, published under the Electricity Regulation Act No. 4 of 2006, seeks to increase the use of alternative energy sources to meet South Africa’s energy needs, such as:

  • Nuclear.
  • Coal.
  • Wind power.
  • Solar photovoltaic.
  • Concentrated solar.
  • Other generation sources.

9. Is your jurisdiction party to the United Nations Framework Convention on Climate Change (UNFCCC) and/or the Kyoto Protocol? How have the requirements under those international agreements been implemented?

South Africa acceded to the Kyoto Protocol in 2002 and ratified the UNFCCC in August 1997. However, South Africa is classified as a non-Annex I country, so there are no specific targets or timeframes. South Africa has committed to contributing towards the global effort to reduce GHG emissions.

10. What, if any, emissions/carbon trading schemes operate in your jurisdiction?

There are no emissions/carbon trading schemes operating in South Africa, but there has been investigation into implementing such a scheme.

Environmental impact assessments

11. Are there any requirements to carry out environmental impact assessments (EIAs) for certain types of projects?

Scope

South Africa has a comprehensive environmental impact assessment regime, governed by NEMA and its regulations. The latest regulations published in 2014, the Environmental Impact Assessment Regulations (GG No 38282), and listing notices 1, 2 and 3, supersede those that were initially published in 2010.

Before an environmental authorisation is granted, activities listed under NEMA require either a:

  • Basic assessment. A basic assessment report sets out environmental outcomes, impacts and residual risks of a proposed listed activity. The specific information that must be included in the report is set out in Appendix 1 to the Environmental Impact Assessment Regulations 2014.
  • A longer process involving an environmental impact report (EIR) and a scoping report. The purpose of a scoping report is to engage in a consultative process which requires:
    • identification of applicable policy and legislation, and a motivation for the proposed activity and its location;
    • considering alternatives through an impact and risk assessment and ranking process;
    • engaging in a detailed site selection process, taking into account the cumulative impacts on the preferred site;
    • identifying key issues in the assessment phase;
    • agreeing on the level of assessment to be undertaken and the methodology to be applied;
    • determining the expertise required and the extent of further consultation processes and identifying measures to avoid, manage or mitigate impacts; and
    • determining residual risks to be closely monitored.

The extent of the content required in a scoping report is set out in Appendix 2 to the Environmental Impact Assessment Regulations 2014.

The EIA process is undertaken in line with the approved plan of study for EIAs. It sets out the environmental impacts, mitigation and closure outcomes, and the residual risks associated with the proposed activity. The full extent of the objects and content of the EIA reports is set out in Appendix 3 to the Environmental Impact Assessment Regulations 2014.

The nature of the activity to be undertaken and the impacts on the environment (including, specifically, the extent to which they are known impacts) affects whether or not a basic assessment process or EIA process must be followed.

Permits and regulator

Environmental authorisations are issued by the Department of Environmental Affairs (DEA) and other permits may also be required through other regulators, depending on the activities involved. For example, if a Water Use Licence is required, this is issued by the Department of Water and Sanitation (DWS).

Penalties

Depending on the type of offence involved, a convicted person may be liable for a fine of up to ZAR10 million and/or ten years’ imprisonment (section 49A, NEMA). When setting a fine, the relevant court must consider:

  • The severity of the offence and the impact on the environment.
  • Any monetary or other benefits the offender received as a result of the contravention.
  • The extent of the offender’s overall contribution to the pollution of the area under normal working conditions.

Waste

12. What is the regulatory regime for waste?

Waste management is governed and regulated by NEM:WA. NEM:WA’s objectives are to reduce the amount of waste generated and, where waste is unavoidable, implement measures to recycle, re-use and treat waste in an environmentally friendly manner. The government has a duty to carry out these objectives (section 3, NEM: WA). NEM:WA’s provisions must be read with the provisions of NEMA and matters of interpretation and application must be considered with reference to section 2 of NEMA (section 5, NEM:WA) .

Schedule one of NEM:WA contains the listed waste management activities requiring a licence, and are divided into category A and B activities.

Category A activities are equivalent to those which require a basic assessment process under the Environmental Impact Assessment Regulations under NEMA, and include the following:

  • Storage and transfer of waste.
  • Recycling and recovery of waste.
  • Treatment of waste.
  • Disposal of waste on land.
  • Storage, treatment and processing of animal waste.
  • Expansion or decommissioning of facilities and associated structures and infrastructure.

Category B activities focus mainly on hazardous waste and are equivalent to those requiring an environmental impact assessment process under the Environmental Impact Assessment Regulations.

Permits and regulator

During the waste management licence (WML) application process, the licencing authority must consolidate the application and decision-making process with that of Chapter 5 of NEMA and other relevant legislation (section 44, NEM:WA). To facilitate co-ordination, the licencing authority can either:

  • Issue an integrated licence granting approval under NEM:WA and other legislation specified in the licence.
  • Consolidate individual authorisations issued under different legislation into one document, to track consistency.

An integrated licence is regarded as the integrated environmental authorisation contemplated in section24L of NEMA. Applications for WMLs are issued through the Department of Environmental Affairs (DEA) when waste is considered hazardous, and through provincial environmental departments when dealing with general waste.

Permit length is activity dependant and is determined by the administrative authority when the permit is granted and is provided for in the WML.

Prohibited activities

No waste management activity can be undertaken except in accordance with the requirements or standards imposed by the Minister of Environmental Affairs under section 19 (3) of NEM:WA for that activity, or a waste management licence has been issued in respect of that activity, if required (section 20, NEM:WA). Other provisions of NEM:WA also prohibit certain activities, such as unauthorised disposal under section 26 and littering under section 27.

Section 67 contains offences under NEM:WA, many of which are very similar to those outlined in Question 7. An added offence is outlined in subsection 2, In addition, a person controlling a vehicle or in a position to control a vehicle, used for the purpose of transporting waste to be offloaded, commits an offence if they (section 67(2), NEM:WA):

  • Fail to prevent, or intentionally or negligently cause, spillage or littering from the vehicle.
  • Dispose of waste at an unauthorised facility.
  • Fail to determine whether a facility is authorised to accept waste.
  • Fail to comply with a duty under section 25(4) of NEM:WA, which deals with the duties of a person transporting waste.

Operator criteria

Section 51 of NEM:WA provides the contents and scope of a WML. The WML may specify the financial arrangements a holder must make for remediating the work during the operation or the decommissioning of the waste management activity.

Special rules for certain waste

Hazardous waste is also governed by the Hazardous Substances Act. The Minister of Environmental Affairs can, by notice in the Government Gazette and with reference to the specific characteristics of a particular substance and its purpose, declare:

  • A substance to be a Group I or Group II hazardous substance.
  • Any electronic product to be a Group III hazardous substance.

For all three groups, a licence is required to sell, let, use, operate, apply, or install a substance or electrical equipment (section 3, Hazardous Substances Act).

Penalties

Various penalties may apply, depending on which subsection of section 67 of the Hazardous Substances Act has been violated:

  • A fine not exceeding ZAR10 million and/or imprisonment for a period not exceeding ten years (in addition to any award which may be imposed under NEMA).
  • A fine not exceeding ZAR5 million and/or imprisonment for a period not exceeding five years (in addition to any award which may be imposed under NEMA).
  • A fine of a relevant court’s determination and/or imprisonment for a period not exceeding six months.
  • If a convicted person persists with an act or omission that constituted an offence, or commits a continuing offence, they may be liable for a fine not exceeding ZAR1,000 and/or imprisonment not exceeding 20 days, in respect of each day they persist with the offending conduct.

When setting a fine, the relevant court must consider:

  • The severity of the offence and the impact on the environment.
  • Any monetary or other benefits the offender received as a result of the contravention.
  • The extent of the offender’s overall contribution to pollution of the area under normal working conditions.

Asbestos

13. What is the regulatory regime for asbestos in buildings?

Asbestos is regulated by the:

  • Occupational Health and Safety Act 85 of 1993, and the Asbestos Regulations GG 23108 of 10 February 2002 (Asbestos Regulations).
  • Environmental Conservation Act No. 73 of 1989 and the Regulations for the Prohibition of the Use, Manufacturing, Import and Export of Asbestos and Asbestos Containing Materials, GG 30904 of 2008 (Asbestos Prohibition Regulations).

Main obligations

The Asbestos Prohibition Regulations prohibit the:

  • Processing, packaging and repackaging of asbestos.
  • Manufacturing and distribution of asbestos and asbestos-containing materials.
  • Import to or export from South Africa of any asbestos and asbestos-containing materials.
  • Import of asbestos-containing waste into South Africa.

If the activities are registered with the Minister of Environmental Affairs, the following actions are not prohibited:

  • Importing asbestos or asbestos-containing material that is in transit between countries otherwise outside of the South Africa, unless any packaging or processing is to take place in the South Africa.
  • Importing asbestos for analysis or research, but without the intention to develop new uses for asbestos or asbestos-containing material.
  • Importing asbestos or asbestos waste from a state which is a member of the Southern African Development Community, for safe disposal at a site in which a permit has been issued under section 20 of the Environment Conservation Act No 73 of 1989.

The Asbestos Regulations govern cases of asbestos in the workplace, prohibiting an employer from placing any employees at risk. Further, the Asbestos Regulations govern cases where asbestos forms part of a building, plant or premises, providing that steps must be taken to identify the potential exposure of persons and control the situation. Demolition of buildings or removal of any asbestos can only be undertaken by an approved asbestos contractor.

Persons who undertake activities involving asbestos, that are not prohibited, must register these activities with the Minister of Environmental Affairs within 120 days of the Regulations coming into effect (Regulation 4, Asbestos Prohibition Regulations) (they came into effect on 28 March 2008). Part of the registration process includes an approved phase-out plan, which must identify the reasons for continuing to use the product and a time frame for the phase-out of the identified products, to be submitted to the Minister within one year of the Regulations coming into effect, and makes provision for a joint-phase out plan where suitable. The purpose of the phase-out plan is to fully investigate alternatives to asbestos and, if alternatives did not exist, provide reasons why they are not yet developed, what measures must be taken to develop alternatives and the time periods in which alternatives can replace the use of asbestos.

Asbestos must be disposed of strictly in accordance with section 20 of the Environmental Conservation Act and Regulation 20 of the Asbestos Regulations, and persons transporting asbestos must comply with standards set for transport and packaging in SANS 10228 and SANS 10229 (Regulation 6 and 7, Asbestos Prohibition Regulations).

Permits and regulator

The DEA is the regulator. No permits apply, but certain activities must be registered with the Minister of Environmental Affairs (see above, Main obligations).

Penalties

Failure to comply with the Asbestos Prohibition Regulations can result in a fine of up to ZAR100,000 and/or imprisonment for up to ten years. Further, a person who commits an offence under the Asbestos Prohibition Regulations can be fined up to three times the commercial value of anything in respect of which the offence was committed.

Depending on the nature and persistence of the offence, a person can be liable under the Environmental Conservation Act for a fine of up to ZAR10 million and/or imprisonment of up to ten years.

A person who commits an offence under the Asbestos Regulations can be liable for a fine not exceeding ZAR1,000 and/or imprisonment for up to 12 months. In the case of a continuing offence, a person can be liable for an additional fine of ZAR200 for each day the offence continues, or to additional imprisonment of one day for each day the offence continues. The additional period of imprisonment must not exceed 90 days.

Contaminated land

14. What is the regulatory regime for contaminated land?

Regulator and legislation

NEM:WA contains specific provisions applying to contaminated land. The Minister of Environmental Affairs (or an MEC), after consultation with the Minister of Water Affairs and Forestry or any other organ of state concerned, can identify areas of land on which high risk activities have been undertaken, causing contamination (or reasonably believed to have caused contamination). A number of consequences arise on that area being declared.

The regulators may call for a site assessment to be conducted. This includes information on whether or not the land is contaminated and, if it is, further information of the impact, movement, exposure, use of adjoining land and remedial steps to be taken. The provisions relating to contaminated land go so far as to allow for land to be deemed contaminated if there is a significant risk that contamination could occur or is foreseeable. The provisions of section 28 of NEMA place a general duty of care on all persons to prevent pollution or degradation of the environment, or at the very lease to minimise the impact and rectify where possible. Measures include ceasing, modifying or controlling the offending activity, investigating/assessing the impact on the environment, educating employees, inhibiting movement of pollutants and or otherwise containing them, eliminating sources of pollution and remedying the effects of pollution. The Director-General of Environmental Affairs, the Director-General of the DMR or a provincial head issue directives in this regard.

Investigation and clean-up

The provisions of NEM:WA authorise regulators to identify areas for a site assessment to be conducted. After due consideration of a site report, a remediation order can be issued which describes:

  • The persons responsible for the clean-up.
  • The land to which the order applies.
  • The nature of the contamination.
  • The measures to be taken to remediate and the standards which must be met.
  • The period for which the order must be complied with.
  • Any limitation imposed on the land.
  • Measures that must be taken to monitor or manage risk.
  • Any other prescribed matter.

Firstly, a regulator can issue directives to the effect that remedial measures must be undertaken (NEMA). If a person fails to comply with a directive, the Director-General of Environmental Affairs or a provincial head of department can take reasonable measures to remedy the situation, or apply to court. Following that, the Director-General of Environmental Affairs or a provincial head can recover those costs reasonably incurred from various parties involved, including a person who benefitted from the actions that were taken.

Penalties

See Questions 11 and 12.

15. Who is liable for the clean-up of contaminated land? Can this be excluded?

Liable party

The following parties are liable for the clean-up of pollution/contaminated land (section 28, NEMA):

  • A person who is responsible for or contributed to the pollution or degradation.
  • The owner of the land at the time the pollution occurred.
  • A person in control of the land or who had the right to use the land.
  • Any person who failed to prevent the pollution.

In relation to NEM:WA, see Question 14.

Liability cannot be excluded.

Owner/occupier liability

If the Minister of Environmental Affairs or Member of the Executive Council: Environmental Management determines a particular site to be contaminated, they can demand a site assessment (Chapter 4, NEM:WA). This can include directing the owner or person who is undertaking (or has undertaken) a high-risk activity to arrange a site assessment by an independent person, at their own cost. A report must then be submitted containing relevant information about the contamination (the minimum information required is contained in section 37(2)(b) of NEM:WA). The land may then be declared a remediation site and the Minister or MEC can make any remediation order to neutralise the risk. Even if a determination is made that the land is not contaminated, the Minister or MEC can direct that measures be taken to address and monitor any risk of contamination. Any remediation or control measures put in place are at the cost of the person against whom the order or directive is issued.

Previous owner/occupier liability

A remediation order can be amended if ownership of the land has been transferred and the new owner assumes responsibility for the remediation, or if new evidence warrants an amendment (Chapter 4, NEM:WA). If the current owner of land contaminated by a previous owner wants to avoid liability under NEM:WA, they must prove that they is not liable for the contamination and were not aware of it. If land is contaminated, no person can transfer the contaminated land without informing a potential acquirer of the contamination. Further, if the land is declared a contamination site, the Minister or MEC must be notified before any transfer. Previous owners can be held liable for contamination that took place before transfer.

Limitation of liability

To limit liability, a new owner must prove that they both:

  • Did not contaminate the land.
  • Were not made aware that the land was contaminated.

However, there is no limitation by agreement, so if a person is deemed liable under NEM:WA, they cannot rely on the provisions of an agreement to escape liability altogether (although one party can indemnify the other).

16. Can a lender incur liability for contaminated land and is it common for a lender to incur liability? What steps do lenders commonly take to minimise liability?

Lender liability

There is no specific provision for lender liability under any environmental legislation. However, a lender can be held liable for environmental clean-up under section 19 of the NWA and section 28 of NEMA if considered to be one of the persons in control of the land or premises on which the contamination occurred.

Minimising liability

A lender can limit its liability by conducting a due diligence investigation. In addition, specific attention must be paid to the finance agreement’s provisions relating to the “in control” requirement.

17. Can an individual bring legal action against a polluter, owner or occupier?

Any person can institute action in respect of any breach or threatened breach of any duty (barring a public duty owed by an organ of state) under any law, including in relation to licences, permission or authorisations granted under that law, where that duty is concerned with the protection of the environment (section 33, NEMA). An individual can institute a private prosecution, in the public interest, or in the interest of the protection of the environment.

Hydraulic fracturing

18. Is fracking being pursued or considered in your jurisdiction? If so, please describe the regulatory framework which applies to manage environmental risks.

Fracking is principally governed by the Regulations for Petroleum Exploration and Production GN R. 466 of 3 June 2015 (Fracking Regulations), read with the:

  • Mineral and Petroleum Resources Development Act No. 28 of 2002 (MPRDA).
  • Minerals and Petroleum Resources Development Regulations.
  • National Environmental Management Act No. 107 of 1998 (NEMA) and other environmental management acts.
  • Environmental Impact Assessment Regulations.
  • National Water Act No. 36 of 1998 (NWA) together with its regulations.

However, at present, there is a moratorium on the acceptance and/or finalisation of authorisation applications for shale gas exploration. The moratorium will remain in place until such time as the DEA has conducted a comprehensive study on the matter.

Environmental liability and asset/share transfers

19. In what circumstances can a buyer inherit pre-acquisition environmental liability in an asset sale/the sale of a company (share sale)?

Asset sale

A buyer is considered an owner or person in control of land, and can be liable for the costs of preventing, remediating or mitigating pollution caused by the seller. This is despite any contractual indemnities and warranties. One cannot avoid the statutory liability imposed generally on landowners and persons in control of land if they failed to take reasonable measures. Further, provision is made for the relevant authorities to claim for environ-mental harm from any person or entity that has benefited from the polluting activity, or for measures taken to prevent, mitigate or remedi-ate harm. Buyers in an asset sale can be considered to have benefitted in this context.

Share sale

Companies enjoy a separate legal personality. This allows for a company to benefit or attract liability separate from the individuals involved. A consequence of this is that the company’s environmental liability remains with the company being bought. New shareholders do not inherit pre-acquisition environmental liability when buying shares in the company. However, the provision allowing for relevant authorities to claim for environmental harm from any person or entity that has benefited from the polluting activity, or for measures taken to prevent, mitigate or remedi-ate harm (see above), can also apply in this case to all individuals involved in the share sale.

20. In what circumstances can a seller retain environmental liability after an asset sale/a share sale?

Asset sale

Any person responsible for harming the environment is liable (National Environmental Management Act No. 107 of 1998 (NEMA)). A seller cannot contract out of any civil and criminal liability towards the state, nor the statutory duties imposed on an owner under NEMA. The NEMA provisions apply retrospectively, so a seller remains liable for all pollution and environmental degradation that arose while they were landowner.

Share sale

A seller in a share sale remains jointly and severally liable with the entity being sold for any environmental obligations arising from the polluting activities or substances over which they exercised control. The regulator usually pursues the entity rather than the individuals themselves.

21. Does a seller have to disclose environmental information to the buyer in an asset sale/a share sale?

No person can transfer contaminated land without informing the person to whom that land is to be transferred of the contamination (and, in the case of a declaration as a remediation site, the Minister of Environmental Affairs or Member of the Executive Council: Environmental Affairs) (section 40, National Environmental Management: Waste Act No. 59 of 2008 (NEM:WA)). To ensure compliance, the Minister must notify the Registrar of Deeds appointed under the Deeds Registries Act No. 47 of 1937 of land which has been declared a remediation site. The Minister must also keep a national contaminated land register of investigation areas (section 41, NEM:WA). These provisions apply equally to sellers in asset and share sales.

22. Is environmental due diligence common in an asset sale/a share sale?

Scope

Environmental due diligence is common in both asset and share sales, for an investor to determine whether to go ahead with a transaction, limit or exclude risks, include warranties or negotiate on the purchase price. The scope of the due diligence depends on the size and nature of the transaction, activity to be undertaken, and asset itself. With the increased focus on climate change and a move towards a sustainable environment, due diligence plays a key role in determining levels of compliance and informs investors in relation to their approach to an asset and share sale going forward.

Types of assessment

The most common types of assessment are:

  • Phase 1 assessment. These aim to evaluate existing and potential environmental risks and the liabilities associated with them by doing the following:
    • background reviews;
    • database/record searches;
    • management interviews;
    • review of relevant documentation; and
    • review of a client’s communications with authorities.
  • Phase II assessment. These aim to take the phase I assessment further by verifying and determining the nature or scale of specific issues identified in the phase I assessment, by conducting a comprehensive study involving:
    • sampling and analysis; and
    • detailed investigation of remedial requirements.

Environmental consultants

Environmental consultants or environmental assessment practitioners (EAPs) are commonly used in the due diligence process. The Environmental Assessment Practitioners Association of South Africa (EAPSA) was established in 2011. Its purpose is to advance the quality of environmental assessment practice in South Africa by establishing, promoting and maintaining registration of Environmental Assessment Practitioners (section 24H, NEMA).

A letter of appointment for an EAP should address the following:

  • The practitioner’s qualifications.
  • The practitioner’s registration with the EAPSA.
  • The practitioner’s independence.
  • The qualifications of all staff undertaking the investigation.
  • Whether the investigation will be a phase I or phase II investigation.
  • Confidentiality clauses.
  • Time frames for completion..

23. Are environmental warranties and indemnities usually given and what issues do they usually cover in an asset sale/a share sale?

Contracts governing asset and share sales between the buyer and seller usually address warranties and indemnities. However, neither can contract out of any statutory liability imposed. The nature of warranties and indemnities depend on the activities to be undertaken or the nature of the asset to be sold.

24. Are there usually limits on environmental warranties and indemnities?

Limits on warranties and indemnities have been more common in the past few years. However, this depends on the nature of the transaction and impacts on the purchase price.

Reporting and auditing

25. Do regulators keep public registers of environmental information? What is the procedure for a third party to search those registers?

Public registers

A contaminated land register keeps information on (section 41, NEMWA):

  • Owners and users of investigation areas.
  • Location of investigation areas.
  • Nature and origin of contamination.
  • The urgency of the contamination and a time frame of remediation.
  • Monitoring of a risk area.
  • The status of remediation activities.
  • Restrictions that have be imposed.

Third party procedures

Persons can access public registers and environmental information, held by both the government and private institutions, on payment of a fee (Promotion of Access to Information Act No. 2 of 2000).

26. Do companies have to carry out environmental auditing? Do companies have to report information to the regulators and the public about environmental performance?

Environmental auditing

Holders of Environmental Authorisations (EAs) must ensure that compliance with the conditions of the EA and Environmental Management Program (EMPr)/closure plan is audited and that an environmental audit report is submitted to the competent authority for the period of their validity (Regulation 34, Environmental Impact Assessment Regulations).

The environmental audit report must:

  • State the findings on the level of compliance with provisions of the EA/EMPr/closure plan, and the ability of measures contained in the EMPr/closure plan to manage and mitigate environmental impacts.
  • Contain information contained in Appendix 7 to the Environmental Impact Assessment Regulations 2014.
  • Provide a determination on the ability of EMPrs/closure plans to manage and mitigate environmental impacts on an on-going basis and on closure of a facility, as well as the level of compliance with the provisions of and EA/EMPr/closure plan.

These environmental audits must be conducted and submitted at intervals contained in the EA. Where there are shortcomings revealed in either the level of compliance or mitigation of environmental impacts, a holder must submit recommendations to amend their EA/EMPr/closure plan in the report.

Reporting requirements

Holders of EAs/EMPrs/closure plans must ensure that, when making recommendations to amend shortcomings revealed by an audit, the recommendations are subjected to a public participation process (Regulation 34, Environmental Impact Assessment Regulations). The public participation process must be agreed to by the competent authority and sufficient enough to bring the proposed amendment to the attention of potential and registered interested and affected parties, including organs of state with jurisdiction. Further, within seven days of the submission of an environmental audit report, the holder must both:

  • Notify all potential and registered interested and affected parties of the submission of the report.
  • Make the report immediately available to anyone on request, or on a publicly accessible website.

27. Do companies have to report information to the regulators and the public about environmental incidents (such as water pollution and soil contamination)?

There are general obligations to report, under the relevant acts. Pollution by companies is usually regulated through permits and licences and the companies must act within the confines of these permits and licences. The permits and licences themselves govern the circumstances in which incidents must reported to regulators, as well as a general reporting of emissions.

28. What access powers do environmental regulators have to access a company?

See Question 2 for detail on Environmental Management Inspectors (EMIs).

Environmental insurance

29. What types of insurance cover are available for environmental damage or liability and what risks are usually covered? How easy is it to obtain environmental insurance and is it common in practice?

It is possible to obtain environmental insurance. However, it is not considered to be very affordable due to the vast risk that insurers expose themselves to and the difficulties in predicting the nature of environmental damage that might occur. Often, persons undertaking activities or operations that may affect the environment already have legislative obligations to make financial provision for potential damage to the environment (such as in the mining sector).

Types of environmental insurance include:

  • Environmental impairment liability policies.
  • Directors’ and officers’ liability insurance.
  • Rehabilitation liability insurance..

Environmental tax

30. What are the main environmental taxes in your jurisdiction?

The following taxes apply:

  • Carbon tax. This will be introduced in 2016/2017 at a rate of ZAR120 per tonne of CO2e.
  • Plastic bag levy. This is payable at 8 cents per bag. It is payable by manufacturers in South Africa of plastic carrier and flat bags.
  • Levy on incandescent light bulbs. This is payable at 600 cents per lamp. It is payable by the manufacturers, if the bulbs are manufactured for use in South Africa.
  • Motor vehicle carbon tax. This is payable at ZAR140 per g/km CO2 emissions exceeding 175g/km for double cabs, and ZAR100 per g/km CO2 emissions 120g/km for passenger motor vehicles. It is payable by the manufacturers of motor vehicles that produce CO2 emissions above a specified threshold, if manufactured for use in South Africa.
  • National fuel levy. This is payable at 255 cents per litre for fuel and 240 cents per litre for diesel. It is payable by the registered user of the electricity.
  • Electricity levy. This is payable at 3.5 cents per kW.h.

Reform

31. What proposals are there for significant reform (changes) or environmental law in your jurisdiction?

South Africa continuously reviews the environmental legislation in line with constitutional requirements, and other national and international obligations. The most notable change is the implementation of the “One Environmental System”, which is aimed at co-ordinating and streamlining the licencing process.

The regulatory authorities

Department of Environmental Affairs

Main activities. This Department issues Environmental Authorisations, as well as other permits and licences, and is responsible for monitoring, compliance and enforcement.

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