CLEARING THE AIR | Major changes expected to South Africa’s Environmental Legal Regime stemming from NEMLA4 - #4of8

The amendments brought about by the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA4) will result in inter alia (boom! One more for luck) the following notable amendments to the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA). 

Firstly, and important to note, the definition of “control” will be substituted and the definitions for ‘’eradicate” and “well-being” will be inserted into section 1 of NEMBA – the definitions section. 

NEMLA4 will result in various amendments to NEMBA that relate to the well-being of animals. In this regard, section 2 of NEMBA will be amended by the inclusion of a sentence that provides that it is an objective of the Act 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.” Similarly, section 97 of NEMBA is amended to include section 97(aA) that states that the Minister may make Regulations on the well-being of an animal.

This is, in our opinion, to be roundly applauded. Animals not only deserve our protection, but many of them also struggle to type using a regular keyboard, which makes drafting their own Regulations difficult.

NEMLA4 will also result in various interesting amendments to section 73, which relates to the duty of care in respect of listed invasive species. Significantly, section 73(2)(a), 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, will be deleted. Furthermore, section 73(2A) will be 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 Minister only in prescribed circumstances.

Finally, NEMLA4 will have the effect of amending various provisions under section 99 (the consultation section) and section 100 (the public participation section) of NEMBA. 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. Sharing power is often a good thing; it’d be nice if Eskom could follow suit…