Major changes to South Africa’s Environmental Legal Regime stemming from the National Environmental Management Laws Amendment Act
As with the other Specific Environmental Management Acts already discussed in our ‘Clearing the Air’ series, the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA4) has resulted in various amendments to provisions under the National Environmental Management: Air Quality Act 39 of 2004(NEMAQA). In this regard, it’s important to note that section 57 of NEMLA4 (which relates to the insertion of section 47A of NEMAQA – which is not to be confused with Namakwa, a portion of the Succulent Karoo) was excluded from the sections that came into operation on 30 June 2023. Accordingly, the provisions related to the revocation or suspension of atmospheric emission licences (AELs) still have not yet come into effect – like over-the-counter sleeping pills.
Most significantly, section 22A of NEMAQA, which sets out the consequences of unlawfully conducting listed activities resulting in atmospheric emissions, has been substituted. Going forward, section 22A(1) will require a licensing authority to fine the applicant an amount not exceeding R10 million before considering an application for an AEL, where the applicant unlawfully commenced with a listed activity.
It is also important to note that, as a result of the insertion of section 36(2A), where a listed activity falls within the boundaries of more than one metropolitan municipality, more than one district municipality, or both a metropolitan and district municipality, a provincial organ of state must be regarded as the licensing authority. Which only goes to prove – as parents living in a garden cottage on their adult child’s property soon learn – how important it is to understand boundaries.
Finally, section 53 of NEMAQA has been amended by the deletion of section 53(k). Therefore, it is no longer stated that the Minister may make regulations related to “appeals against decisions of officials in the performance of their functions in terms of the regulations”.