Environmental law has seen unprecedented growth in the number of statutes promulgated and regulations drafted in terms thereof in the last 15 years, and keeping abreast of the latest developments in respect of environmental law is a tough task even for legal practitioners. But more than the development of the law has been the growth in public awareness regarding environmental issues.
One ordinarily requires an environmental authorisation prior to commencing an activity, but section 24G of the National Environmental Management Act (“NEMA”) allows a person or entity who has embarked on an activity without the necessary authorisation, to make that application after the activity has commenced. This section also allows the relevant authority to impose an administrative fine upon the entity which has embarked on the activity of up to an amount recently increased from R1 million to R5 million.
This section, however, has long been a contentious provision, because unless the authorities hand out hefty fines it is seen as a potential loophole which allows activities to take place without authorisation but with an option to regularise the activity after the commencement thereof, with only a fine to pay.
Section 24G is an unusual provision in terms of our law, but it is not the only one in NEMA, as section 43 allows for any person to appeal to the Minister in respect of a decision taken under a power delegated by him. Thus an administrative fine in terms of 24G is one such decision that could be taken on appeal by “any person”.
The wide ambit of this provision allows for those conscious and alert citizens and organisations to challenge the decisions taken by the relevant authorities under NEMA, and the Centre for Environmental Rights (“CER”), has recently done just that. It has sought to appeal a decision by the KwaZulu-Natal Department of Economic Development, Tourism and Environmental Affairs which imposed an administrative fine of R497,000.00 on Zululand Anthracite Colliery (Pty) Ltd in respect of a section 24G application. CER maintains that the fine was not sufficient on a number of grounds including the number of activities which would have required authorisation, the time period over which the offences took place, the impact that the activities have had on the environment and the seeming blatant disregard for the procedures relating to authorisations set down in NEMA.
The outcome of the appeal will be interesting, but of more general interest is that the issue of a fine may not be the end of the matter, and provided society stays alive to the avenues available to them, the law will give them recourse, provided it is effectively utilised. For those seeking to regularise their activities under section 24G, be warned: the fine, if seen as insufficient, will be challenged.
This article has been written by Patrick Forbes an Associate in the Litigation Department at Garlicke & Bousfield Inc.
For more information contact Patrick on 031 570 5421, email : firstname.lastname@example.org
NOTE: This information should not be regarded as legal advice and is merely provided for information purposes on various aspects of environmental law.