CLEARING THE AIR | Volume 2 - 3 of 8

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

NEMPAA CHANGES

The National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA4) has introduced a number of amendments to the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA). The most notable amendments to sections 48, 57 and 89 of NEMPAA are discussed below.

Firstly, section 48 of NEMPAA is concerned (justifiably, for the most part) with prospecting and mining activities in protected areas. In this regard, it is notable that sections 48(1), 48(1)(b), 48(2), 48(3) and 48(4) have been substituted and sections 48(5) and 48(6) have been added. Significantly, section 48(5)(a) provides that, when the Minister is exercising his power to determine whether to grant written permission for mining activities in a protected environment, there are certain listed requirements that the Minister must consider, and section 48(5)(b) sets out what the Minister may take into account in this regard. A quick analogy to make that distinction clearer: an astronaut must consider how much oxygen they have before going on a spacewalk, and they mayconsider not venturing into deep space at all.

Anyhoo. Section 48(6) provides that the Minister may request additional information before making the decision to grant the aforementioned written permission. It is imperative that the amendments to section 48 are taken into account in respect of any proposed prospecting and mining activities in protected areas.

Section 57(1) of NEMPAA sets out the composition of the South African National Parks (“SAN Parks”). NEMLA4 has amended section 57(1)(c) by including reference to the “Chief Financial Officer” in the description of the composition of the SAN Parks board. Whether the board’s composition is any good remains to be heard. There’s nothing out on TikTok yet.

Lastly, NEMLA4 has amended section 89 of NEMPAA (the offences and penalties provision). Notably, the amendment to section 89(1)(a) removes section 49A(5)(b) and adds section 48A(1) (relating to restriction of activities in marine protected areas) to the list of sections that, if not complied with, will result in an offence being committed. Furthermore, section 55(2)(fA) has also been removed from the list under section 89(1)(a), however, it has been added under section 89(1)(e). Therefore, in terms of section 89(1)(e), an offence is committed when a guilty party “contravenes or fails to comply with a rule made in terms of section 55(2)(fA)”. Such rules relate to traffic rules in national parks, special nature reserves etc. Maybe this’ll finally deter duikers from jaywalking willy-nilly anywhere they damn well please. One can dream…