Civil Engineering August 2022 | Vol 30 No 7

Civil Engineering August 2022 11 contraveners of being prosecuted for the underlying criminal offence. Section 24G gives contraveners of NEMA and the National Environmental Management: Waste Act of 2008 (NEMWA) the opportunity to apply for after-the-fact rectification of the unlawful commencement or continuation of listed activities under NEMA and NEMWA. The legislature amended section 24G in 2008 and 2013 respectively to tighten the risk associated with these applications and deter the abuse of these provisions. The most recent proposed changes to section 24G by NEMLA IV follow the same trend. In terms of NEMLA IV, it is proposed that the applicable competent authority must – as opposed to may – direct the contravener to immediately cease its un- lawful activities, pending a decision on the rectification application, except if there are reasonable grounds to believe that the cessation will result in serious harm to the environment. This small change in wording may appear insignificant, but stopping a contravener’s operations may have an enormous, if not disastrous, financial ef- fect on its business. When multi-million- rand projects are at stake, the stoppage of operations (either in construction or operation), could cause costs to skyrocket. Developers would be wise to conduct proper due diligences to check what authorisations are required for a project and then ensure that the applications they submit are robust and cover all listed activities required. NEMLA IV will also require contra- veners to undertake appropriate public participation to bring their unlawful conduct to the attention of interested and affected parties and give them a reason- able opportunity to comment on the application. These proposed amendments are in line with the legislature’s intention to tighten the rectification process. NEMLA IV will extend the scope of section 24G rectification applications. “Successors in title” and “persons in control” of land on which a listed activity under NEMA or NEMWA has been unlawfully commenced will be permitted to submit a rectification application. Currently, only the guilty person who carried out the unlawful activity without the required environmental authorisation or waste management licence can apply. The proposed changes will empower successors in title, such as the purchaser of a business, to clean up any historic irregularities that it may have inherited from the previous owner. Unfortunately, this imminent amend- ment does not incentivise innocent suc- cessors in title to clean up someone else’s unlawful conduct. Innocent successors will remain vulnerable to having opera- tions shut down while the rectification ap- plication is being processed (which seems unfair) and to paying administrative fines. It is unfortunate that exemptions were not included in NEMLA IV for successors, to encourage clean-up operations. The maximum administrative fine will also be increased from ZAR 5 million to ZAR 10 million. NEMLA IV proposes to overhaul sec- tion 22A of NEMAQA in the same way as described above, for listed activities under the Air Quality Act. Notably, however, it has not extended the scope of section 22A applications to include “successors in title” and “persons in control” of land. The largely welcome changes to be introduced by NEMLA IV to NEMA sec- tion 24G, and NEMAQA section 22A, are a continuation of the legislature’s attempt to tighten the rectification process to combat abuse. OTHER CHANGES In addition to tightening rectification processes, NEMLA IV will bring about the following important changes: Management of residue stockpiles and deposits: Residue stockpiles and residue deposits will be excluded from NEMWA and will therefore no longer be regarded as waste for which a waste management licence is required. Instead, residue stockpiles and deposits will be regulated in terms of the provisions of NEMA. Expanded enforcement powers: Municipal managers will be empowered to issue NEMA section 28(4) directives for contravention of the duty of care obliga- tions. Designated environmental mineral and petroleum inspectors will also be able to issue section 31L compliance notices. These proposed changes are likely to see an increase in administrative enforcement action. Changes to financial provisioning (FP): The changes to FP will pave the way for the much-anticipated final replace- ment FP Regulations under NEMA. The definition of “financial provision” will be amended to refer specifically to a “holder” (i.e. a person to whom a right/permit has been granted in terms of the Mineral and Petroleum Resources Development Act of 2002 (MPRDA)), a holder of an old order right (as defined under the MPRDA) and an applicant (i.e. any person who has submitted an application for an envi- ronmental authorisation under NEMA). This change will clarify that the NEMA FP requirements apply to both new ap- plicants and holders of EAs for mining activities since the OES came into force, as well as historical holders who have now transitioned to the NEMA system under the OES. The new definition will make it clear that the State should not bear the financial burden of rehabilitation, closure and post-closure activities – which should be covered by the aforementioned catego- ries of persons. Section 24P will apply generally to the remediation of environmental damage in specific instances which can be prescribed by the Minister of Environment, Forestry and Fisheries (Environment Minister) (or MEC in concurrence with the Environment Minister). When such in- stances have been prescribed, the FP must be ‘determined’ before an EA is issued. A new section 24PA will be introduced to specifically regulate FP requirements for mining. Failure to comply with certain requirements under section 24P or 24PA will become criminal offences under NEMA and will constitute Schedule 3 offences for which directors’ liability may be imposed. Changes in competency of the Minerals Minister : The Minister of Mineral Resources and Energy (Minerals Minister) will have less power when the NEMLA Act is signed into law. For example, section 48 of the National Environmental Management: Protected Areas Act of 2003 currently prohibits commercial prospecting, mining, explora- tion, or production from being under- taken in a protected environment without the permission of the Environment Minister and the Cabinet member re- sponsible for minerals and energy affairs. In terms of the Act, the decision to allow mining etc. in a protected environment will fall within the exclusive competence of the Environment Minister. Written permission will no longer have to be obtained from the Minerals Minister.