Laws Regulating Environmental Management and Protection

Various laws regulate the protection of the environment in South Africa.

The Constitution of the Republic of South Africa, 1996 (Constitution), which is the supreme law, enshrines the right of all South Africans to an environment that is not harmful to health or well-being and to have this right protected, for the benefit of present and future generations through reasonable legislative and other measures. 

Various national, provincial and local level laws reflect these legislative measures. The national framework environmental legislation is the National Environmental Management Act, 1998 (NEMA) which must be read together with the “specific environmental management acts” (SEMAs), namely:

• the National Environmental Management – Air Quality Act, 2004 (NEMAQA);
• the National Environmental Management Biodiversity Act, 2004 (NEMBA);
• the National Environmental Management – Integrated Coastal Management Act, 2008 (ICMA);
• the National Environmental Management – Protected Areas Act, 2003 (NEMPAA);
• the National Environmental Management – Waste Act, 2008 (NEMWA); and
• the National Water Act, 1998 (NWA).

Although the long-awaited National Environmental Management Laws Amendment Act, 2022 (NEMAA) was finally enacted in June 2022, its date of commencement is yet to be proclaimed. Once effective, it will introduce significant changes to both NEMA and a number of the SEMAs, including NEMAQA and NEMWA.   

Environmental and heritage resource protections are also found in the following:

• the Mineral and Petroleum Resources Development Act, 2002;
• the National Forests Act, 1998 (National Forests Act); and
• the National Heritage Resources Act, 1999.

Principles Governing Environmental Management

Many of the key principles governing the regulation of the environment are aligned with international environmental legal principles. These principles, which are incorporated into Section 2 of NEMA, apply to the actions of all organs of state that may significantly affect the environment and serve as guidelines by reference to which any organ of state must exercise any function when taking any decision in terms of NEMA or any other statutory provision concerning the protection of the environment. 

The NEMA Section 2 principles require that:

• environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably;
• development must be socially, environmentally and economically sustainable;
• sustainable development requires the consideration of all relevant factors;
• environmental management must be integrated and the best practicable environmental option for development must be selected in decision-making;
• there must be equitable access to environmental resources, benefits and services to meet basic human needs and ensure human well-being; and
• the participation of interested and affected parties in decision-making must be promoted.

Environmental matters are a concurrent competence of national and provincial government, which means that both these tiers of government may make law. However, air pollution, water and sanitation limited to potable water supply systems and domestic waste water and sewage disposal systems are areas also regulated at local government level. This means that local municipalities may publish local by-laws relating to these matters.     

At a national level, the key regulatory bodies responsible for enforcement of environmental laws include:

• the Department of Forestry, Fisheries and Environment (DFFE);
• the Department of Mineral Resources and Energy (DMRE);
• the Department of Water and Sanitation (DWS);
• the Environmental Management Inspectorate, comprised of officials designated as Environmental Management Inspectors (EMIs) by either the Minister of Forestry, Fisheries and Environment, the Minister of Water and Sanitation, or (in the case of mining) the Minister of Mineral Resources and Energy – provincially, a member of the Provincial Executive Council to whom the Premier has assigned responsibility for environmental affairs may also designate EMIs;
• the South African Heritage Resources Agency (SAHRA);
• the Department of Agriculture, Land Reform and Development; and
• the South African Police Service (SAPS), in relation to criminal enforcement.

As environmental matters are a concurrent national and provincial competence, provincial departments of environment are also established for each of the nine provinces. 

Mining and water are areas of exclusive national competence; at a provincial level, the functions of these departments are carried out by regional offices.

Significantly, once the NEMAA comes into effect, municipal managers will also have certain administrative enforcement powers.   

Compliance and Enforcement Powers under NEMA

NEMA, as the framework legislation, establishes the powers and functions of the EMIs. Depending on their appointments and mandates, EMIs may take enforcement action in relation to matters regulated under NEMA and the SEMAs. Under the NEMAA, once effective, EMIs will also be appointed for any provincial Acts that substantively deal with environmental management.     

Powers of EMIs in Relation to Breaches of Environmental Laws or Permits and Environmental Incidents

Under NEMA, and depending on their grade and designation, EMIs are vested with the power to:

• monitor and enforce compliance with NEMA and SEMAs, including through issuing compliance notices;
• conduct routine inspections without a warrant, including the power to enter and inspect any building, land or premises;
• investigate any act or omission where there is a reasonable suspicion that it might constitute a breach of, or offence under, NEMA and the SEMAs, or a breach of any term or condition of a permit issued under those laws;
• inspect sites and records in relation to an investigation;
• question persons in relation to an investigation;
• take samples;
• search and seize items related to offences under NEMA and the SEMAs; and
• stop, enter and search vehicles, vessels and aircraft.

Members of the SAPS have all the powers of EMIs in relation to offences under NEMA and the SEMAs (excluding the powers to conduct routine inspections and issue and enforce compliance notices).

Administrative Notices

A Grade 1 EMI (ie, an EMI with the highest designation) may issue compliance notices if the EMI has reasonable grounds for believing a person has not complied with a law or authorisation issued under that law. An EMI may also issue directives to take certain measures, including investigating environmental impacts or ceasing certain activities if a person has caused or may cause significant pollution or degradation. Generally, unless urgent action is necessary for the protection of the environment, a person to whom a pre-compliance notice or pre-directive is intended to be issued will be afforded an opportunity to make representations before the notice or directive is issued in final form.

In addition, in certain instances and usually following an opportunity to make representations, licences or authorisations may be revoked, suspended, or withdrawn.       

Offences

It is an offence not only to hinder or interfere with an EMI in the execution of their duties, but also to furnish false or misleading information to an EMI.

Depending on the nature of a project, environmental permits, authorisations, licences, etc, may be required under NEMA and the SEMAs, and in some instances, also under provincial and local laws. Typically, these will be required prior to commencement of any activities, including vegetation clearance, and it is an offence to commence an activity which requires a permit without that permit being in place. 

The most common authorisations are those required under NEMA, NEMWA, NEMAQA and the NWA.

Environmental Authorisations

Under NEMA, environmental authorisations (EAs) must be issued by the competent authority (either national or provincial) prior to the commencement of any activities listed under that Act. Examples of activities listed under NEMA which trigger the need for an EA include:

• indigenous vegetation clearance beyond certain thresholds;
• construction of facilities:
1. for the storage and handling of dangerous goods beyond certain thresholds; or
2. within close proximity to a watercourse; and
• mining, prospecting or other extractive activities.   

Applications for EAs must generally be made to the provincial departments of environment, save for those specified instances for which these applications have been reserved for the Minister of Forestry, Fisheries and Environment – in which case the application will be submitted to the national department. In addition, the DMRE, and not the DFFE (or its provincial counterpart), is the competent authority for applications for EAs relating to prospecting or mining activities. 

Process to Obtain an EA

Applications for EAs are regulated under NEMA as read with the Environmental Impact Assessment Regulations, 2014 (EIA Regulations) and Listing Notices published thereunder. Three Listing Notices have been published which identify activities that require an EA. Depending on which listed activities a project will trigger, an applicant for an EA must either follow a shorter basic assessment report process (BAR) or a longer scoping and environmental impact assessment report process (S&EIA). These applications require an applicant to appoint an independent, registered environmental assessment practitioner who must conduct the impact assessment and facilitate the public participation process. 

The shorter BAR usually applies to those activities which are likely to have a lesser environmental impact. From application to decision, the maximum prescribed timeframe for a BAR, which includes one 30-day public participation period, is 337 days. 

The longer S&EIA applies to activities that are considered likely to have a greater environmental impact. From application to decision, the maximum regulated timeframe for an S&EIA, including decision-making, is 456 days. This includes provision for two 30-day public participation periods. 

Significantly, the EIA Regulations provide that an application lapses if an applicant fails to meet any of the prescribed timeframes, unless an extension has been granted to it in writing. 

Water Use Licences

Water use licences (WULs) or other forms of entitlements to use water (in the form of the registration of a general authorisation or existing lawful use) are required for water uses listed under Section 21 of the NWA. To reduce the licensing burden, for less significant uses, it may be possible to use water for certain reasonable domestic purposes, or under a registered general authorisation water use. 

Listed water uses include: abstractive water use; storing water; impeding or diverting the flow of water in a watercourse; altering the bed, banks, course or characteristics of a watercourse; and disposing of waste in a manner which may detrimentally impact on a water resource. 

Applications must be made to the DWS. 

Process to Obtain a WUL

The application process to obtain a WUL is regulated under Part 7 of the NWA or, for integrated WULs, the Water Use Licence Application and Appeals Regulations, 2017 published under the NWA. Public participation is required.

Under the Water Use Licence Application and Appeals Regulations, 2017, integrated WUL applications must be decided in 300 days. Although the Regulations provide timeframes, in practice, there are often delays.

Other Environmental Permits

Similar to EAs under NEMA, a waste management licence (WML) must be obtained prior to undertaking any waste management activities listed under NEMWA. Frequently, an application for a WML will be made simultaneously with an application for an EA. The application processes for a WML must, as far as possible, be integrated with the EA application.

The process to obtain a WML, whether it be BAR or S&EIA, will depend on the category of waste management activities triggered by a project.

Category C waste management activities are activities which, subject to thresholds, require registration rather than licensing, and are regulated by national norms and standards. These include, for example, the National Norms and Standards for the Storage of Waste and the National Norms and Standards for Organic Waste Composting.     

Atmospheric emission licences (AEL) – which are preceded by provisional AELs for new activities – are issued by district or local licensing authorities and must be obtained prior to commissioning the activity for which the licence is obtained. The requirement to obtain an AEL is a listed activity which requires an EA under NEMA. The EA must therefore be obtained prior to commencing the activity and the AEL must be in place prior to commissioning the activity. Applicants must, immediately after the submission of the AEL application to the licensing authority, take appropriate steps to bring the application to the attention of relevant organs of state, interested persons and the public. Ordinarily, this is done by way of an advertisement in an appropriate newspaper. 

Other environmental permits may also be required depending on the location and nature of a project. These include potential permits under NEMBA, licences under the National Forests Act or permission under NEMPAA. Additional permits may also be required under provincial or local by-laws. 

Right to Appeal Decisions of the Competent Authority in Relation to Environmental Permits

Any person may appeal a decision taken by a person to whom a power has been delegated by the Minister of Forestry, Fisheries and Environment, or an MEC under NEMA or any SEMA. Appeals against decisions taken by the DMRE under NEMA are appealable to the Minister of Forestry, Fisheries and Environment. 

The appeal process is prescribed in the National Appeal Regulations, 2014, published under NEMA. Importantly, appeals must be lodged within 20 calendar days of a decision having been communicated to an applicant or to interested and affected parties.   

Appeals under these Regulations are available in relation to decisions taken under, among others, NEMA, NEMWA and NEMBA. 

Significantly, an appeal submitted under NEMA suspends an environmental authorisation, exemption, directive or any other decision. There is provision for certain parts or provisions of a directive not to be suspended, however. Once effective, NEMLAA will expressly provide that directives and other administrative enforcement notices aimed at addressing significant harm to the environment will not be suspended by virtue of an appeal.   

There are two separate appeal processes available under the NWA – both require that an appeal must be lodged within 30 days. For integrated WULs, an appeal is available under the Water Use Licence Application and Appeals Regulations, 2017, to persons who objected to an application and who are aggrieved by a decision of the responsible authority. 

Separately, an appeal is available to the Water Tribunal under the NWA in relation to, among others, directives or a decision to issue a WUL. Again, an appeal is only available to a person who had timeously lodged a written objection to the application. Appeals to the Water Tribunal suspend the decision which is the subject of the appeal.   

Unless it is a decision taken by the Minister of Forestry, Fisheries and Environment (or their delegate) appeals against AELs must be made under the Municipal Systems Act, 2000. However, once it is in effect, NEMLAA will provide that any person may appeal against a decision made by the licensing authority, in the case of municipalities, to the municipal council. 

Finally, there is a right to take administrative actions, including decisions, on judicial review (ordinarily once all internal remedies, including appeals, have been exhausted) under the Promotion of Administrative Justice Act, 2000. Judicial reviews must be launched within 180 days of the decision which is the subject of review.     

Civil, criminal and administrative liability may be imposed on various persons, including operators, polluters, landowners or others for environmental damage or breaches of environmental law. Individual liability is possible. 

Criminal Liability

Specific criminal offences are listed under NEMA and the other SEMAs. Over and above offences relating to, among others, a failure to obtain or comply with conditions of authorisations, it is an offence to unlawfully or negligently commit any act or omission which causes significant pollution or degradation of the environment. The equivalent offence under the NWA relates to the pollution of a water resource (rather than significant pollution).

As discussed below, Schedule 3 to NEMA lists multiple offences under NEMA and the SEMAs for which certain individuals, including directors, may be held personally liable. Significantly, in the case of directors, proof of an offence by a firm (ie, a body incorporated in terms of any law) will be prima facie evidence that the director is guilty and failed to take all reasonable steps necessary under the circumstances to prevent the commission of the offence.     

Criminal offences are ordinarily prosecuted by the National Prosecuting Authority. However, NEMA also makes provision for private prosecutions in the public interest or the interest of the protection of the environment.

The penalties for conviction of offences under NEMA and its SEMAs range from the imposition of fines (which may be up to ZAR10 million in the case of first offences) and/or imprisonment for up to ten years (in some instances). 

Civil Liability

NEMA specifically provides that any person or group of persons may seek appropriate relief in respect of any breach or threatened breach of a provision of NEMA (or a SEMA or provision of law concerned with the protection of the environment):

• in their own interest;
• in the interests of a person who is unable to institute the proceedings;
• in the interests of a group or class of persons;
• in the public interest; and
• in the interest of protecting the environment.

It is also worth mentioning that, upon conviction of a Schedule 3 offence, a court may summarily enquire into damages caused to any person and order that such damages be paid to that person as if it were in a civil action. 

In addition, under South African laws of delict (tort), operators, polluters, landowners and other persons whose conduct/omission results in harm to a third party may be held civilly liable for the damages arising from that harm.

Administrative Liability

As discussed above, an EMI may issue an administrative enforcement notice in the form of a compliance notice to a party who has (or is suspected of) contravening NEMA or a SEMA (including an authorisation issued thereunder). Similarly, an EMI may issue a directive to a party who has or is reasonably suspected of causing significant pollution or degradation of the environment. In both instances, a party will be given an opportunity to make representations prior to the issue of the final notice or directive unless circumstances justify otherwise. It is an offence to fail to comply with a compliance notice or directive.   

In addition, to address situations where there has been a failure to obtain authorisation prior to commencement of activities, it is possible to make application for those authorisations retrospectively. Section 24G of NEMA therefore allows a person who has conducted an activity without an EA or WML to apply to rectify the non-compliance. Similar provision is included under Section 22A of NEMAQA in relation to AELs and provisional AELs. 

Once effective, NEMAA will amend section 24G of NEMA to allow such applications to be made by persons in control of, or who are successors in title to, land on which NEMA-listed or NEMWA-listed activities have been unlawfully commenced. In addition, the authority will be obliged to require an applicant to immediately cease the activity pending a decision, except if there are reasonable grounds to believe the cessation will result in serious harm to the environment. NEMAA will also amend section 22A of NEMAQA to align it with section 24G of NEMA.       

Where a rectification application is submitted, the competent authorities are mandated to impose administrative fines for the failure to comply with the relevant Act, up to a maximum of ZAR10 million. An application of this nature does not, however, prevent criminal proceedings. 

New landowners may be held liable for the remediation costs associated with historical contamination. 

Liability for Environmental Degradation or Pollution

Under Section 28 of NEMA, any person who causes (or may cause) significant environmental pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring. 

The primary duty to take these measures ordinarily falls on the party that causes (or may cause) that damage, but NEMA also specifically includes:

• the owner of the land;
• a person in control of land; or
• a person who has the right to use the land (responsible person).

NEMA was amended in 2009 to specifically incorporate provision for retrospective liability. Therefore, the duty contained in Section 28 of NEMA will apply to significant pollution or degradation that occurred before the commencement of the Act, arises or is likely to arise at a different time from the actual activity that caused the contamination, or arises through an act or activity of a person that results in a change to pre-existing contamination.

Part 8 of NEMWA, which is discussed below, also regulates contaminated land and may result in orders to remediate contaminated land. 

Directives to Take Reasonable Measures

If a responsible person fails to take reasonable measures to prevent, mitigate or remediate significant environmental pollution or degradation, a competent authority may issue a directive requiring that person to take those measures. If the directive is not complied with, the competent authority may undertake the required remediation and recover the costs of such from, among others:

• the person responsible for the pollution or degradation; and
• the owner of the land at the time of the incident or that owner’s successor-in-title.

Costs may also be recovered proportionally from any other person who benefitted from the remedial measures taken by the competent authorities. This could include a current or purchasing landowner. 

Similar provisions exist in the NWA in relation to pollution of a water resource, although the significance threshold is much lower. 

It is not possible to contract out of statutory liability. Ordinarily, contractual arrangements may provide indemnities which seek to protect the parties from possible claims under environmental law.  However, this will not prevent a competent authority from seeking recourse against either party. 

Emergency Incidents

Separate provisions regulate emergency incidents. For purposes of those provisions, responsible persons include persons responsible for the incident, a person who owns any hazardous substance involved in the incident or a person who was in control of any hazardous substance involved in the incident. The provisions require reporting and clean-up. 

Criminal Liability

It is an offence to unlawfully and intentionally or negligently commit any act or omission which causes or is likely to cause significant pollution to – or which detrimentally affects or may detrimentally affect – the environment. A similar offence is provided under the NWA in relation to polluting water resources, although there is no significance threshold.

Where an employer fails to take reasonable steps to prevent an act or omission by its agent, manager or employees, criminal liability may be imposed on that employer.

A manager, agent or employee may also be personally liable for certain offences where it was that person's responsibility to act, or refrain from acting to the extent that their action or omission resulted in an offence by the employer.

Directors may also be criminally liable for offences conducted by the company where that director failed to take all reasonable steps necessary in the circumstances to prevent the commission of the offence by the company. There is a presumption of director liability inasmuch as proof of an offence by a company will constitute prima facie evidence that the director is guilty. 

Civil Liability

See 4.1 Key Types of Liability.

It is also noteworthy that under NEMA’s provisions regulating an environmental management programme, the directors of a company or members of a close corporation may be jointly and severally liable for any negative impact on the environment, whether advertently or inadvertently caused. 

Possible Defences to Criminal and Civil Liability

Provided the relevant statute does not impose strict liability, the ordinary defences which may be available under criminal law will apply. In addition, NEMA specifically provides that it is defence to a criminal charge to show that an unauthorised activity was commenced or continued in response to an incident or emergency situation so as to protect human life, property or the environment. It will need to be demonstrated that the response was proportionate in the circumstances. 

Corporate entities are considered “persons” under NEMA and the SEMAs. Thus, they are equally “persons” for purposes of enforcement action.

However, as mentioned in 5.2 Types of Liability and Key Defences, the corporate veil may be pierced in certain circumstances, inasmuch as NEMA provides for director and other individual liability in certain circumstances.

Although it is yet to be definitively confirmed by the South African courts, the provisions of NEMA are considered broad enough to incorporate shareholder liability. This is because NEMA provides for the recovery of remedial costs incurred by an authority from, among others, persons who indirectly contributed to the pollution or degradation, persons in control of land or persons who benefitted from the measures taken. Similar provisions are included in the NWA. 

As discussed in 5.2 Types of Liability and Key Defences, directors of an entity may be held liable for the Schedule 3 offences conducted by that entity where the director failed to take reasonable steps to prevent that offence from occurring. Schedule 3 offences include all offences under NEMA and the more serious offences under the SEMAs. There is a presumption of director liability, inasmuch as proof of an offence by a company will constitute prima facie evidence that the director is guilty. 

It is also noteworthy that under NEMA’s provisions regulating an environmental management programme, the directors of a company or members of a close corporation may be jointly and severally liable for any negative impact on the environment, whether advertently or inadvertently caused. 

It is generally not possible to insure against regulatory fines and penalties in South Africa, as this would be regarded as being contrary to public policy. 

Broader environmental insurance is discussed in 10.2 Environmental Insurance.

South Africa does not have legislation akin to the Comprehensive Environmental Response, Compensation and Liability Act that exists in the USA. As is the case with shareholder liability, the potential for lender liability exists under NEMA, but this has not yet been definitively confirmed by the South African courts. Liability may arise as a consequence of foreclosure (and associated ownership of property) and in scenarios where an authority takes remedial measures, in circumstances where costs are recovered from parties who had direct or indirect control or who benefitted from measures taken. The risk may, for example, be greater in scenarios where a lender takes equity. 

As indicated in 8.1 Financial Institutions/Lender Liability, there is no equivalent protection afforded to lenders as is the case in the USA.

Lender protections will largely depend on ensuring adequate protections are incorporated into transactional and financing documents.

As set out in 4.1 Key Types of Liability, civil claims may be instituted in relation to environmental damage caused by breaches of environmental laws. Such claims may be brought under the South African law of delict (tort). Upon conviction of a Schedule 3 offence, a court may also summarily inquire into damages caused to the environment and make a civil order in relation thereto. 

In addition, NEMA provides locus standi to persons seeking appropriate relief in respect of a breach or threatened breach of a provision of NEMA (or a SEMA or provision of law concerned with the protection of the environment). In this regard, persons may act in their own interest, in the interests of a person who is unable to institute the proceedings, in the interests of a group or class of persons, in the public interest, and in the interest of protecting the environment.

As a general proposition, South African courts do not grant exemplary or punitive damages against a defendant as this is considered to be against public policy. A court will only award a plaintiff damages for the loss that they have proved that they have suffered. 

However, on conviction of a Schedule 3 offence, a court may summarily enquire and assess the monetary value of any advantage gained or likely to be gained by a person as a consequence of the offence and in addition to any other penalty, order damages or compensation or a fine equal to the amount so assessed. This is aligned with the provisions of the Prevention of Organised Crime Act, 1998.   

Section 38(C) of the Constitution permits anyone acting as a member of, or in the interests of, a group or class of persons to approach a competent court in order to seek the appropriate relief. By way of example, an agreement to compensate former gold miners suffering from lung-related diseases was recently reached following a class action. 

In addition, as mentioned in 4.1 Key Types of Liability and9.1 Civil Claims, NEMA specifically provides, among other things, for a person or group of persons to institute action on behalf of a class or persons seeking appropriate relief in respect of any breach or threatened breach of a provision of NEMA (or a SEMA or provision of law concerned with the protection of the environment).

South Africa’s courts have played an active role in entrenching the Constitutional right to an environment that is not harmful to health or well-being and there are therefore multiple useful precedent-setting judgments. These include the following.

• Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others 2007 (10) BCLR 1059 (CC) – in this decision, the Constitutional Court confirmed the interrelationship between the protection of the environment and socio-economic development. Specifically, it confirmed that sustainable development requires a balance between environmental protection and socio-economic development.
• High Change Investments (Pty) Limited v Cape Produce Co (Pty) Limited trading as Pelts Products and others 2004 (2) SA 393 (EDC) – in this decision, the court confirmed that the significance threshold (when assessing a breach of the NEMA duty of care) requires a “considerable measure of subjective import”.
• Company Secretary of Arcelormittal South Africa v Vaal Environmental Justice Alliance [2014] ZASCA 184 – in this decision, the Supreme Court confirmed the right of third-party access to information to protect the environment.
• Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] 2 All SA 519 (GP) – the court remitted a decision by the Minister of Environmental Affairs (now the Minister of Forestry, Fisheries and Environment) back to the competent authority on the basis that no climate change impact assessment had been conducted as part of the environmental impact assessment process. 
• Groundwork Trust & Vukani Environmental Justice Alliance Movement in Action v Minister of Environmental Affairs and Others (39724/2019) – the court declared that the poor air quality in the Highveld Priority Area breaches the residents’ right to an environment that is not harmful to health and wellbeing, and confirmed that the Minister of Environmental Affairs has a duty to prescribe regulations to implement and enforce the Air Quality Management Plan for the area.   
• Christian John Adams & Others v Minister of Mineral Resources and Energy & Others (West Coast Seismic Survey) (1306/22) – the court noted the failure to consult small scale fishers prejudiced their rights to equality, food, livelihood and culture. 

Contractual indemnities are often used between parties to transfer or apportion liability for environmental incidents or breaches of environmental laws. However, as these arrangements are not binding on regulators, statutory liability cannot be excluded.

Environmental insurance is available in South Africa, although it is not widely used. Among others, the following insurance is available:

• remediation insurance in relation to the insured's property or other land, water and biodiversity;
• sudden and accidental, and gradual pollution; and
• products pollution liability.

In relation to prospecting and mining activities, financial guarantees must be in place prior to the award of a prospecting or mining right. This provides a “quasi-insurance” to the state which aims to ensure that any rehabilitation or remediation which is not carried out by the licensee after the closure of an operation is funded and, if necessary, may be conducted by the state. The Financial Provisioning Regulations, 2015, published under NEMA are currently subject to amendment, and the deadline to comply with these Regulations has once again been extended to 19 September 2023. 

It is also noted that NEMA does make provision for regulations to be published in relation to other activities although this has not yet been done.

NEMAA will amend the existing provisions relating to financial provisioning, including the addition of a new section 24PA. Specifically, financial provision made for latent environmental impacts or residual environmental impacts, including the pumping and treatment of extraneous and polluted water, will need to be transferred to the Minister responsible for mineral resources upon the issuing of a closure certificate.     

Under Part 8 of NEMWA, an owner of land that is significantly contaminated, or a person who undertakes an activity that causes the land to be significantly contaminated, must notify the DFFE as soon as that person becomes aware of the contamination.

In addition, the authorities (being the Minster of Environment, Forestry and Fisheries or a provincial member of the Executive Council) may, after consultation with the Minister of Water and Sanitation and any other organ of state concerned, identify investigation areas where:

• a high-risk activity is taking or has taken place that is likely to result in contamination; or
• the authority has reasonable grounds to believe is contaminated.

Site Assessments

Following notification by the owner, or after land has been declared an investigation site, the authorities may:

• cause a site assessment to be conducted; or
• direct the owner of the investigation site or person conducting the high-risk activity to cause an independent site assessment to be conducted at that person's cost and submit that report to the authorities. 

After considering a site assessment the authorities may, in consultation with the Minister of Water and Sanitation and any other concerned organ of state, decide whether the investigation site is contaminated or not. If the land is considered to be contaminated, the authorities may determine that:

• the site must be remediated urgently or within a specific period and declare the site a remediation site, in which case a remediation order will be issued; or 
• measures to monitor and manage any risks at an investigation site must be implemented, in which case a monitoring order will be issued.

Remediation sites are listed on the contaminated land register. 

Transfer of Contaminated Land and Remediation Sites

No person may transfer contaminated land without informing the person to whom that land is transferred that it is contaminated. In the case of remediation sites, the Minister of Forestry, Fisheries and Environment must also be notified of the transfer. 

International Commitments

In 2011, South Africa published the National Climate Change Response Policy which confirms its commitment to make a fair contribution to the global effort to stabilise greenhouse gas concentrations in the atmosphere.

Having been a signatory to the Kyoto Protocol previously, on 1 November 2016, South Africa ratified the Paris Agreement. As required by Article 4 of the Paris Agreement, South Africa submitted its Low Emission Development Strategy 2050 in February 2020. 

National Measures

The Carbon Tax Act came into effect on 1 June 2019. Informed by the “polluter pays” principle, the Act imposes a tax on the carbon dioxide (CO₂) equivalent of greenhouse gas emissions. Initially, it applies only to Scope 1 emissions, but the Act provides for various emission allowances.

The draft National Climate Change Bill, which was first published for comment on 8 June 2018, has yet to be formally promulgated. However, in September 2021, South Africa’s cabinet approved submission of the Bill to Parliament. In essence, the Bill aims to support an effective climate change response and to enable a just transition to a climate resilient and lower carbon economy in the context of an environmentally sustainable development framework. 

Pending finalisation of the Bill, NEMAQA is being used as a mechanism to require greenhouse gas related reporting under the National Greenhouse Gas Emission Reporting Regulations (as amended) and emission reduction (or pollution prevention) plans from heavy emitting industries under the National Pollution Prevention Plan Regulations, both published under that Act. 

Following the decision in Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] 2 All SA 519 (GP), the Minister of Forestry, Fisheries and Environment has published a draft guideline which requires that climate change impact assessments must be conducted for EA, WML and AEL applications, where appropriate. 

Ahead of COP26, South Africa approved the revised Nationally Determined Contribution target range for submission to the United Nations Framework Convention on Climate Change in September 2021. The range has been revised for 2025 to 398 from 510, and for 2030 to 350-420 metric tonnes of CO₂ equivalent.

In addition, pending finalisation of the Climate Change Bill which will require sectoral emission targets and, at a company level, carbon budgets, companies are required to submit reduction plans under the Pollution Prevention Plan Regulations. 

Asbestos is regulated primarily under:

• the Regulations for the Prohibition of the Use, Manufacturing, Import and Export of Asbestos and Asbestos Containing Materials, 2008, published under the Environment Conservation Act, 1989, which has largely been replaced by NEMA (Asbestos Prohibition Regulations); and
• the Asbestos Abatement Regulations, 2020, published under the Occupational Health and Safety Act, 1993 (Asbestos Abatement Regulations). 

Asbestos Prohibition Regulations

The Asbestos Prohibition Regulations prohibit the acquisition, processing, packaging and repackaging of asbestos or asbestos-containing materials. These Regulations also prohibit the import or export of asbestos or asbestos containing material (including waste) subject to certain exceptions (eg, it is possible to import asbestos or asbestos-containing material from a state which is a member of the Southern African Development Community for safe disposal). 

Asbestos Abatement Regulations

The Asbestos Abatement Regulations apply to every employer who may expose persons to asbestos dust in the workplace. Among other things, these regulations require an employer to:

• ensure, as far as reasonably practicable, that all asbestos-containing material at a workplace is identified and that an inventory of such material is maintained; and
• conduct asbestos risk assessments and prepare an asbestos management plan if asbestos-containing material is identified at a workplace.

The Asbestos Abatement Regulations also:

• set out the obligations of persons exposed to asbestos;
• require the Chief Director of Provincial Operations to be notified of work involving asbestos or asbestos-containing materials;
• require air monitoring of the concentration of airborne fibres if certain work is carried out (eg, repair or encapsulation of asbestos in cement products where surface preparation is or is not required); and
• require the establishment and maintenance of a system of medical surveillance in certain instances.

NEMWA is the key national legislation governing general and hazardous waste in South Africa. The objectives of NEMWA include:

• minimising the consumption of natural resources;
• avoiding and minimising the generation of waste;
• reducing, re-using and recycling and recovering waste;
• treating and safely disposing of waste (as a last resort); and
• preventing pollution and ecological degradation. 

There are three categories of listed waste management activities under NEMWA. Persons conducting activities listed under Category A (such as treatment of general waste subject to a maximum of 100 tonnes) and Category B (such as disposal of any quantity of hazardous waste to land) of NEMWA must obtain WML prior to commencing those activities; these are discussed in 3.2 Environmental Permits. Category C activities, which have less significant impacts, do not trigger the need for a WML. However, persons conducting Category C activities (such as storage of general waste up to 100mᵌ and hazardous waste up to 80mᵌ) must comply with national norms and standards published by the Minister of Forestry, Fisheries and Environment. 

Radioactive waste is regulated under the Hazardous Substances Act, 1973, the National Nuclear Regulator Act, 1999 and the Nuclear Energy Act, 1999. In addition, NEMWA specifically excludes explosives waste from its ambit. 

A number of norms and standards regulations have been published under NEMWA to give effect to its objects. These include the National Norms and Standards for Disposal of Waste to Landfill which imposed timeframes to phase out the disposal of certain waste to landfill (such as liquid waste) and National Norms and Standards for Organic Waste Composting. 

NEMWA specifically provides for extended producer responsibility (EPR) and empowers the Minister of Forestry, Fisheries and Environment to identify a product or class of product to which EPR applies. Mandatory EPR currently applies to:

• certain electrical and electronic equipment (GN 1185, GG 43880);
• certain lighting (GN 1186, GG 43881); and
• certain paper, packaging and some single-use products (GN 1187, GG 43882).

The Extended Producer Responsibly Regulations, 2020, published under NEMWA came into effect on 5 May 2021. Their stated purpose is, among others, to provide a framework for the development and associated implementation of extended producer schemes. 

The EPR Regulations require producers to:

• collect, record and submit data to the South African Waste Information System;
• conduct a life cycle assessment of its products, in terms of the applicable standards, within three years of the implementation of the EPR Scheme;
• consider changes in the production process of a product to bring about more environmentally friendly products, the prevention of waste and a reduction in toxicity in the post-consumer stage;
• keep records of the quantity of the products on the market, their generated waste, and the collection, sorting, recycling and recovery of the waste arising from the products; and
• implement mandatory take-back of its products at the end of the life cycle.

Under the notices published under the Extended Producer Regulations for lighting and electrical and electronic equipment sectors, mandatory take back will be required within one year of the date of implementation or of joining an extended producer responsibility scheme. 

In addition, under Section 59 of the Consumer Protection Act, 2008, where national legislation prohibits the disposal of goods into a common waste collection system (eg, as general waste), suppliers, producers, importers and distributors of those goods must accept the return of those goods for safe disposal.

Environmental Incidents

NEMA

Section 30 of NEMA obliges a responsible person, or their employer, to report an environmental incident “forthwith after knowledge of the incident” to the competent authorities (including the SAPS and fire prevention service) and all persons whose health may be affected by the incident. 

An “incident” refers to an “unexpected, sudden and uncontrolled release of a hazardous substance, including from a major emission, fire or explosion, that causes, has caused or may cause significant harm to the environment, human life or property”.

A “responsible person” is defined to include the person:

• responsible for the incident;
• who owns any hazardous substance involved in the incident; and
• who was in control of any hazardous substances involved in the incident. 

The DFFE published the Guidelines on the Administration of Incidents on 1 April 2020. 

NWA

Similar reporting provisions are included under Section 20 of the NWA, although they are somewhat broader. Responsible persons also include any other person involved in the incident or with knowledge of the incident. An “incident” under the NWA, however, refers to any event or accident in which a substance pollutes or has the potential to pollute a water resource or has, or is likely to have, a detrimental effect on a water resource.

A responsible person must report an incident to the relevant authorities as soon as reasonably practicable after becoming aware of the incident.

Other reporting obligations

Licences and authorisations such as AELs, WMLs and EAs often also include conditions which require that incidents, and in some instances, non-compliances, are reported. 

Contaminated land

As discussed in 11.1 Key Laws Governing Contaminated Land, an owner of land that is significantly contaminated, or a person undertaking activities which caused land to be significantly contaminated is obliged to report that contamination to the relevant authorities upon becoming aware of the contamination.

The right to access to information is protected under the Constitution. This right is given effect under the Promotion of Access to Information Act, 2000 (PAIA). Under PAIA, a member of the public (requestor) must be given access to environmental information held by a public authority or body if the following applies.

• The requestor complies with the procedural requirements under PAIA.
• Access is not refused on any basis set out under PAIA (eg, if the disclosure will result in unreasonable disclosure of personal information about a third party or if the record contains trade secrets). The mandatory protections against disclosures may not apply in circumstances where the information relates to the results of any products or environmental testing that would reveal a serious public safety or environmental risk. 

A requester does not ordinarily need to provide reasons for a request for information from a public body. 

NEMA specifically identifies that to achieve sustainable development (a principle regulating environmental protection – see 1.1 Key Environmental Protection Policies and Laws) access to information must be provided in accordance with the law. 

Specifically, Section 46 of PAIA provides that an information officer of a public body must grant access to a public record, the disclosure of which would reveal an imminent and serious public safety or environmental risk. 

There are no specific statutory obligations under NEMA or the SEMAs on corporations to disclose environmental information in annual reports, although there is significant civil society pressure on corporations to do so. Increasingly, it is also expected that listed companies disclose information in their reports to shareholders. 

Reporting is required under the National Greenhouse Gas Emission Reporting Regulations, the National Atmospheric Emission Reporting Regulations and the National Waste Information Regulations. 

Specific disclosures are required in certain circumstances, such as in relation to environmental incidents under NEMA (see 15.1 Self-Reporting Requirements) and the identification – and transfer – of contaminated land under NEMWA (see 11.1 Key Laws Governing Contaminated Land).

Reporting of certain information is often required under conditions imposed by EAs, WMLs or AELs. For example, holders of environmental permits may be required to submit annual reports to the competent authorities on compliance with certain aspects of their licences. 

Both technical and legal environmental due diligences are typically conducted on M&A, finance and property transactions in South Africa.

Environmental due diligence exercises are common in both sale and purchase of share and asset transactions. These are ordinarily conducted so that investors may ascertain whether:

• to proceed with the transaction on the basis of the level of environmental risk;
• any indemnities and warranties must be included in the transaction documents; or
• an adjustment in the purchase price is required.

Often, environmental due diligence begins as a desktop assessment which considers reports, audits, correspondence with competent authorities and interviews with employees.

If significant or material concerns or risks arise from the initial due diligence, further studies may be recommended to be conducted by technical specialists, including site investigations, to assess the identified risks in greater detail.

It is increasingly common for both the seller and the purchaser to conduct a due diligence on the other, including in relation to its ability to meet any environmental commitments that are made as part of the transaction. 

There is no general obligation under either NEMA or the specific environmental management Acts for a seller to disclose general environmental information.

However, as mentioned in 11.1 Key Laws Governing Contaminated Land, in transactions that involve the transfer of contaminated land, the purchaser must be notified that the land is contaminated. 

A number of environmental taxes and levies have been introduced over the years. These are administered under the Customs and Excise Act, 1964, and include:

• plastic bag levies;
• electricity generation levies;
• tyre levies;
• environmental level on electric filament lamps;
• a motor vehicle CO₂ emission levy; and
• a carbon tax, under the Carbon Tax Act, 2019.

In addition, there are certain environmental allowances which act as incentives. These are incorporated into the Income Tax Act, 1962, and include accelerated depreciation allowances for equipment used in the production of renewable energy and deductions relating to energy-efficiency savings.