CLEARING THE AIR | Volume 2 - 4 of 8

Major changes to South Africa’s Environmental Legal Regime stemming from the National Environmental Management Laws Amendment Act

NEMBA Changes

Following the commencement of the majority of the sections in the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA4), a number of notable amendments to the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) have come into effect.

Firstly, it’s important to note that the definition of “control”, in relation to invasive species, has been substituted, and that the definitions for ‘’eradicate” and “well-being” have been inserted into section 1 of NEMBA – the definitions section. What hasn’t changed is that reading the definitions section (while it can be a little dry) still does less damage to one’s faith in humanity than reading the comments section on YouTube.

It is interesting to note that NEMLA4 has resulted in various amendments to NEMBA that relate to the well-being of animals. In this regard, section 2 of NEMBA has been amended by the inclusion of a sentence that states that it is an objective of the NEMBA to consider “the well-being of animals in the management, conservation and sustainable use thereof”. NEMLA4 also provides for the insertion of section 9A of NEMBA that deals with the prohibition of certain activities, and states that “the Minister may… prohibit any activity that may negatively impact on the well-being of an animal.”

Section 97 of NEMBA has also been amended to include section 97(aA) that states that the Minister may make Regulations on the well-being of an animal. Finally, section 101 of NEMBA (the offences provision) has been amended and it is now an offence if a person contravenes or fails to comply with a provision of a notice published in terms of section 9A of NEMBA.

NEMLA4 has also resulted in various noteworthy amendments to section 73 of NEMBA, that relates to the duty of care in respect of listed invasive species. Significantly, section 73(2)(a) has been deleted, which made it a requirement for a landowner to notify the competent authority, in writing, of listed invasive species occurring on the landowner’s land. Furthermore, section 73(2A) has been inserted that states that “[t]he Minister may prescribe circumstances under which a competent authority must be notified in writing of the presence or occurrence of a listed invasive species.” Therefore, written notification in respect of the presence / occurrence of a listed invasive species will need to be provided to the competent authority in prescribed circumstances only. This has been hailed by some as a major victory in the ongoing battle for invasive species’ right to privacy.

Various provisions under section 99 (the consultation section) and section 100 (the public participation section) of NEMBA have also been amended following the commencement of the relevant provisions of NEMLA4. Such amendments effectively provide the “MEC for Environmental Affairs” with powers in respect of consultation and public participation processes, that were previously only assigned to the Minister.