CLEARING THE AIR | Volume 2 - 7 of 8

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

NEMWA CHANGES

The commencement of the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA4) resulted in amendments to certain provisions to the National Environmental Management Waste Act 59 of 2008 (NEMWA). For instance, NEMLA4 amends sections 1, 36, 37, 38, 41, 43, 52, 54, 67, 71, 74, 75, 76, 77 (no these are not Lotto numbers, sad face emoji); repeals Schedule 3; and substitutes the expression ‘Minister of Water Affairs and Forestry’, whenever it occurs, with the expression ‘Minister responsible for water affairs’.

A number of changes to the definitions in Section 1 of NEMWA have been made by NEMLA4. Notably, the definitions for ‘building and demolition waste’, ‘business waste’, ‘domestic waste’, ‘general waste’, ‘hazardous waste’, ‘inert waste’, ‘recovery’, ‘residue stockpile’ and ‘residue deposit’ have been included in the definitions section of NEMWA, as these definitions were previously found in the repealed Schedule 3. The definitions for ‘associated structures and infrastructure’ and ‘recovery’ have also been amended.

In relation to the contaminated land provisions under NEMWA, subsection 36(5) has been amended by the replacement of the wording ‘significantly contaminated’ with the wording ‘likely to be contaminated’. Therefore, the section now reads: “an owner of the land that is likely to be contaminated, or a person who undertakes an activity that caused the land to be contaminated, must notify the Minister and MEC of that contamination as soon as that person becomes aware, of that contamination”. In this regard, the notification and investigation requirements have been extended to circumstances where land is “likely to be contaminated”. Furthermore, amendments to Sections 37, 38 and 41 of the NEMWA have been made, which relate to the requirements for consequences of identification and notification of investigation areas, the consideration of site assessment reports and the national contaminated land register.

In order to provide further clarification on the relevant licensing authority where the waste management activity is a mining activity as defined in the National Environmental Management Act 107 of 1998, section 43 of the NEMWA has been amended. As such, where the waste management activity is a mining activity the Minister responsible for mineral resources is the relevant licensing authority.

In relation to the transfer of waste management licences, section 52 has been amended to reflect that the ‘licensing authority’ is the authority for transfer of waste management licences, and no longer the Minister or MEC as the authority in this regard.

Section 54 has been amended to include the payment of a prescribed processing fee when applying for a variation to a waste management licence.

Section 67 has been amended to include that it is an offence when a person contravenes any provision in a norm or standard established in terms of the NEMWA.

Section 71 has been amended to reduce the maximum imprisonment penalty from 15 years to 5 years, and to specify the fine amount, in relation to Regulations made in terms of sections 69 and 70 of NEMWA. In this regard, the fine is not to exceed five million rand, and in the case of a second or subsequent conviction, the fine is not to exceed R10 million or imprisonment for a period not exceeding 10 years or in both instances to both a fine and such imprisonment.

Sections 74, 75, 76 and 77 have been amended to provide for further clarification on the requirements relating to exemption applications.

The most notable change to NEMWA is that Schedule 3 has been repealed by the NEMLA4 and as mentioned above, some of the definitions included therein are now included into section 1 of the NEMWA.

The Constitutional Court, in its judgment dated 26 June 2023, found that the provisions contained in sections 61(c), (j) and (k) of the NEMLA4, to be unconstitutional and invalid as Parliament had failed to comply with its constitutional obligation to facilitate sufficient public involvement during the consideration of these provisions. These sections contain an amended definition of the term “waste” as well as newly introduced associated definitions for the terms “commercial value” and “trade in” and do not form part of the provisions that came into effect on 30 June 2023. The current definition of “waste” as contained in the NEMWA remains in force and if Parliament wishes to proceed with these provisions, the public must be afforded an opportunity to provide inputs and comments thereon.