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| South Africa NATIONAL LEGISLATION OVERVIEWS  |
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National
Environmental Management Laws Amendment Act, No. 2 of 2022
NOTE: Assented to and published in English, with alternative copy in Afrikaans, except for the following languages used for titles, text- and engrossment text: s40 to s42 (Xhosa/Xhosa/Xhosa), s43 to s53 (NSotho/NSotho/NSotho), s54 to s58 (Zulu/Zulu/Zulu), s59 to s60 (Xhosa/Xhosa/Xhosa), s61 to s63 (NSotho/NSotho/NSotho), s64 (NSotho/SSotho/NSotho(* s65 (SSotho/SSotho/NSotho)*, s66 (SSotho/SSotho/NSotho)*, s67 to s84 (NSotho/NSotho/NSotho),
NOTE: Assented to and published in English, with alternative copy in Afrikaans, except for the following languages used for titles, text- and engrossment text: s40 to s42 (Xhosa/Xhosa/Xhosa), s43 to s53 (NSotho/NSotho/NSotho), s54 to s58 (Zulu/Zulu/Zulu), s59 to s60 (Xhosa/Xhosa/Xhosa), s61 to s63 (NSotho/NSotho/NSotho), s64 (NSotho/SSotho/NSotho(* s65 (SSotho/SSotho/NSotho)*, s66 (SSotho/SSotho/NSotho)*, s67 to s84 (NSotho/NSotho/NSotho),
Long title
To amend the-
x
National Environmental Management Act, 1998, so as to correct the
citation to the definition of "Constitution’’; to add new definitions
of "audit’’, "black’’, "environmental management instrument’’,
"indigenous knowledge practitioner’’, "latent environmental impacts’’,
"mining activity’’ and "mitigate’’, "municipal council’’,
"municipality’’, "municipal manager’’, "rehabilitate’’; to correct the
definition of "environmental mineral resources inspector’’; to provide
clarity to the definition of "financial provision’’; to add a new
environmental management principle promoting diversity in the sector;
to provide clarity on what an environmental management instrument is;
to use the term environmental management instrument consistently in the
Act, to remove a duplicated provision for making regulations for laying
down the procedures for the adoption of environmental management
instruments; to provide for a register and making available the
register of all environmental management instruments adopted in terms
of the Act; to provide clarity that the Minister responsible for
mineral resources is responsible for mining activities as defined; to
clarify that the MEC can be regarded as the competent authority for
processing environmental authorisation applications for national
priorities in the event that Cabinet has identified that the Minister
should be the competent authority, when there is agreement between the
Minister and the relevant MEC; to provide for agreement between the
Minister, Minister responsible for mineral resources or MEC regarding
processing of environmental authorisation applications; to provide for
simultaneous submission of the National Environmental Management Act
and specific environment management Act applications for purposes of
the one environmental system; to provide for simultaneous submission of
National Environmental Management Act and specific environmental
management Act applications in order to enable integrated environmental
authorisations; to provide for a trigger for the simultaneous
submission of National Environmental Management Act or specific
environmental management Act applications after acceptance of an
application in terms of the Mineral and Petroleum Resources Development
Act, 2002; to provide clarity that a successor in title or person who
controls the land upon which an unlawful activity has been commenced,
undertaken or conducted may also lodge a section 24G application
relating to an environmental authorisation or a waste management
licence; to increase the maximum amount payable for a section 24G
administrative fine; to empower the Minister to prescribe the
information that must be contained in an environmental management
programme; to provide clarity on consultation to be undertaken and to
enable an environmental assessment practitioner to undertake the
consultation with an organ of state on applications for environmental
authorisation; to provide clarity on what is to be audited in relation
to financial provisioning; to provide the Minister with the power to
prescribe instances for which financial provisioning is required; to
provide clarity that an applicant or holder of an environmental
authorisation, holder and holder of an old order right relating to
mining activities must provide financial provision for progressive
rehabilitation, mitigation, decommissioning, mine closure and the
management of postclosure environmental impacts; to identify the
vehicles which must be used when providing the financial provision; to
allow the Minister responsible for mineral resources or Minister
responsible for water affairs access to the financial provision to
undertake rehabilitation if the holder of an environmental
authorisation for a mining activity, holder or holder of an old order
right fails to do so; to make it clear that the financial provision may
only be used for the purposes of progressive rehabilitation,
decommissioning, closure and post-closure activities as prescribed; to
allow for periods for review of the financial provision and the
publication of the review decision to be prescribed; to make it a
compulsory requirement for the rehabilitation which can be undertaken
annually to be undertaken; to provide for the Minister responsible for
mineral resources in consultation with the Minister and the Minister
responsible for water affairs to approve an annual drawdown of funds as
prescribed for rehabilitation purposes within a certain timeframe
before decommissioning and closure; to require the transfer of
financial provision to the Minister responsible for mineral resources
on the issuing of a closure certificate; to require the Minister
responsible for mineral resources to access funds, on the issuing of a
closure certificate, provided for the rehabilitation of latent
environmental impacts in the case where the vehicle is insurance; to
include the holder of an environmental authorisation for a mining
activity, holder and holder of an old order right and owner of works,
under the provisions related to environmental liability and the
requirement to plan, manage and implement mine closure procedures; to
provide clarity that residue stockpiles and residue deposits must be
managed in terms of this Act; to provide clarity that a section 28(4)
directive may also be issued to an owner of the land, a person in
control of the land or a person that has a right to use the land in
question; to empower a municipal manager to issue section 28(4)
directives; to empower the Minister responsible for mineral resources
to designate environmental mineral and petroleum inspectors from an
organ of state that executes regulatory functions; to empower an MEC to
designate environmental management inspectors to undertake compliance
and enforcement actions in respect of provincial environmental
legislation; to empower the Minister to prescribe a Code of Conduct for
environmental management inspectors and environmental mineral and
petroleum inspectors; to provide alignment between the powers and
duties of environmental mineral and petroleum inspectors and
environmental management inspectors and the training they are required
to attend prior to designation; to provide clarity that the conducting
of a "search’’ is not the primary purpose of an environmental
management inspector undertaking a routine inspection; to empower an
environmental management inspector to detain an item for further
analysis or verification for purposes of determining compliance or not
with applicable legal requirements; to provide clarity that the
Minister’s power to develop regulations on admission of guilt fines
contextualises the related provisions of the Criminal Procedure Act,
1977; to empower the Minister responsible for mineral resources, the
Minister responsible for water affairs and a municipal manager to
delegate functions and duties in terms of this Act; to provide clarity
on circumstances in which an appeal against a directive or other
administrative enforcement notice that is aimed at addressing
significant harm to the environment does not automatically suspend it;
to provide clarity that an appeal or objection against a directive or
compliance notice must be lodged at the appropriate appeal or objection
authority; to correct references and cross-references to offences and
penalties; to make failure to comply with certain financial
provisioning requirements an offence and to update the list of offences
and penalties; and to clarify that prospecting, exploration and
production operations form part of the one environmental system
agreement;
x National Environmental Management: Protected Areas Act, 2003, so as to provide for the Chief Financial Officer of the South African National Parks to be a member of the Board; to provide for the criteria under which a section 48 permission may be issued or rejected; and to create a new offence for non-compliance with section 48A which prohibits certain activities in marine protected areas; to rectify incorrect references to offences;
x National Environmental Management: Biodiversity Act, 2004, so as to provide clarity on the definition of "control’’ and to insert definitions of "eradicate’’ and "well-being’’; to ensure that indigenous biological resources are used sustainably; to ensure that certain species remain in State custody despite escape from a protected area; to empower the Minister to prohibit certain activities that may negatively impact on the well-being of an animal; to provide for the Chief Financial Officer of the South African National Biodiversity Institute to be a member of the Board; to provide clarity on measures to be undertaken to eradicate listed invasive species; to provide clarity on the steps, actions or methods to be undertaken to either control or eradicate listed invasive species; and to ensure that the MECs responsible for environmental affairs follow the consultation process set out in sections 99 and 100 before exercising a power in terms of a provision under the Act;
x National Environmental Management: Air Quality Act, 2004, so as to provide the Minister with discretion to establish the National Air Quality Advisory Committee; to provide clarity on the consequences of unlawful commencement of a listed activity; to provide clarity that a provincial organ of state is the licensing authority where a listed activity falls within the boundaries of more than one metropolitan municipality or more than one district municipality or both a metropolitan and district municipality; to provide for textual amendment to section 36(5)(d); and to provide for revocation or suspension of an atmospheric emission licence;
x National Environmental Management: Integrated Coastal Management Act, 2008, so as to allow for the removal of structures erected prior to commencement of the Act and to repeal Chapter 9 in order to align appeals with section 43 of the National Environmental Management Act, 1998;
x National Environmental Management: Waste Act, 2008, so as to move all definitions from Schedule 3 to section 1; to provide for textual amendment to the definitions of "residue deposits’’, "residue stockpiles’’ and "waste’’; to add definitions for "commercial value’’ and "trade in’’ as it relates to the definition of "waste’’; to provide for the exclusion of residue stockpiles and residue deposits from the provisions of the Act; to provide for the Waste Management Bureau to be established as a public entity; to provide for the simultaneous submission of the site assessment report and remediation plan relating to contaminated land; to provide clarity that the Minister must keep a national register of all contaminated land areas; to provide clarity that the Minister responsible for mineral resources is responsible for implementation of the waste management system in so far as it relates to a waste management activity that is a mining activity as defined; to empower the Minister to take a decision in the place of the provincial licensing authority under certain circumstances; to provide for the payment of processing fee for the variation of a waste management licence; to increase the fines that could be imposed in terms of regulations made under the Act; to provide clarity that there will be no exemptions provided from obtaining a waste management licence; and to repeal Schedule 3;
x National Environmental Management Amendment Act, 2008, so as to clarify the instances prior to 8 December 2014 when the requirements of the Act are regarded as having been fulfilled; and to provide clarity that an appeal against an environmental management programme or plan lodged in terms of the Mineral and Petroleum Resources Development Act must be finalised under that Act;
x To provide for transitional provisions regarding residue stockpiles and residue deposits approved in terms of the National Environmental Management: Waste Act, 2008; to provide for transitional provisions regarding the continuation of the Waste Management Bureau; and to provide for matters connected therewith.**
x National Environmental Management: Protected Areas Act, 2003, so as to provide for the Chief Financial Officer of the South African National Parks to be a member of the Board; to provide for the criteria under which a section 48 permission may be issued or rejected; and to create a new offence for non-compliance with section 48A which prohibits certain activities in marine protected areas; to rectify incorrect references to offences;
x National Environmental Management: Biodiversity Act, 2004, so as to provide clarity on the definition of "control’’ and to insert definitions of "eradicate’’ and "well-being’’; to ensure that indigenous biological resources are used sustainably; to ensure that certain species remain in State custody despite escape from a protected area; to empower the Minister to prohibit certain activities that may negatively impact on the well-being of an animal; to provide for the Chief Financial Officer of the South African National Biodiversity Institute to be a member of the Board; to provide clarity on measures to be undertaken to eradicate listed invasive species; to provide clarity on the steps, actions or methods to be undertaken to either control or eradicate listed invasive species; and to ensure that the MECs responsible for environmental affairs follow the consultation process set out in sections 99 and 100 before exercising a power in terms of a provision under the Act;
x National Environmental Management: Air Quality Act, 2004, so as to provide the Minister with discretion to establish the National Air Quality Advisory Committee; to provide clarity on the consequences of unlawful commencement of a listed activity; to provide clarity that a provincial organ of state is the licensing authority where a listed activity falls within the boundaries of more than one metropolitan municipality or more than one district municipality or both a metropolitan and district municipality; to provide for textual amendment to section 36(5)(d); and to provide for revocation or suspension of an atmospheric emission licence;
x National Environmental Management: Integrated Coastal Management Act, 2008, so as to allow for the removal of structures erected prior to commencement of the Act and to repeal Chapter 9 in order to align appeals with section 43 of the National Environmental Management Act, 1998;
x National Environmental Management: Waste Act, 2008, so as to move all definitions from Schedule 3 to section 1; to provide for textual amendment to the definitions of "residue deposits’’, "residue stockpiles’’ and "waste’’; to add definitions for "commercial value’’ and "trade in’’ as it relates to the definition of "waste’’; to provide for the exclusion of residue stockpiles and residue deposits from the provisions of the Act; to provide for the Waste Management Bureau to be established as a public entity; to provide for the simultaneous submission of the site assessment report and remediation plan relating to contaminated land; to provide clarity that the Minister must keep a national register of all contaminated land areas; to provide clarity that the Minister responsible for mineral resources is responsible for implementation of the waste management system in so far as it relates to a waste management activity that is a mining activity as defined; to empower the Minister to take a decision in the place of the provincial licensing authority under certain circumstances; to provide for the payment of processing fee for the variation of a waste management licence; to increase the fines that could be imposed in terms of regulations made under the Act; to provide clarity that there will be no exemptions provided from obtaining a waste management licence; and to repeal Schedule 3;
x National Environmental Management Amendment Act, 2008, so as to clarify the instances prior to 8 December 2014 when the requirements of the Act are regarded as having been fulfilled; and to provide clarity that an appeal against an environmental management programme or plan lodged in terms of the Mineral and Petroleum Resources Development Act must be finalised under that Act;
x To provide for transitional provisions regarding residue stockpiles and residue deposits approved in terms of the National Environmental Management: Waste Act, 2008; to provide for transitional provisions regarding the continuation of the Waste Management Bureau; and to provide for matters connected therewith.**
Table of contents
| SECTION | TITLE |
| 1. | Amendment of section 1 of Act 107 of 1998... |
| 2. | Amendment of section 2 of Act 107 of 1998 |
| 3. | Amendment of section 24 of Act 107 of 1998... |
| 4. | Amendment of section 24C of Act 107 of 1998... |
| 5. | Amendment of section 24G of Act 107 of 1998... |
| 6. | Amendment of section 24N of Act 107 of 1998... |
| 7. | Amendment of section 24O of Act 107 of 1998... |
| 8. | Substitution of section 24P of Act 107 of 1998... |
| 9. | Insertion of section 24PA in Act 107 of 1998 |
| 10. | Amendment of section 24R of Act 107 of 1998... |
| 11. | Repeal of section 24S of Act 107 of 1998... |
| 12. | Amendment of section 28 of Act 107 of 1998... |
| 13. | Amendment of section 31B of Act 107 of 1998... |
| 14. | Amendment of section 31BA of Act 107 of 1998... |
| 15. | Amendment of section 31BB of Act 107 of 1998... |
| 16. | Amendment of section 31C of Act 107 of 1998... |
| 17. | Amendment of section 31D of Act 107 of 1998... |
| 18. | Amendment of section 31E of Act 107 of 1998... |
| 19. | Substitution of section 31F of Act 107 of 1998... |
| 20. | Amendment of section 31G of Act 107 of 1998... |
| 21. | Amendment of section 31H of Act 107 of 1998... |
| 22. | Amendment of section 31I of Act 107 of 1998... |
| 23. | Amendment of section 31J of Act 107 of 1998... |
| 24. | Amendment of section 31K of Act 107 of 1998... |
| 25. | Amendment of section 31L of Act 107 of 1998... |
| 26. | Amendment of section 31M of Act 107 of 1998... |
| 27. | Amendment of section 31N of Act 107 of 1998... |
| 28. | Amendment of section 31O of Act 107 of 1998... |
| 29. | Substitution of section 31P of Act 107 of 1998... |
| 30. | Amendment of section 31Q of Act 107 of 1998... |
| 31. | Substitution of section 34E of Act 107 of 1998... |
| 32. | Amendment of section 34G of Act 107 of 1998... |
| 33. | Amendment of section 42B of Act 107 of 1998... |
| 34. | Insertion of sections 42C and 42D in Act 107 of 1998 |
| 35. | Amendment of section 43 of Act 107 of 1998... |
| 36. | Amendment of section 49A of Act 107 of 1998... |
| 37. | Amendment of section 49B of Act 107 of 1998... |
| 38. | Amendment of section 50A of Act 107 of 1998... |
| 39. | Amendment of Schedule 3 to Act 107 of 1998... |
| 40. | Amendment of section 48 of Act 57 of 2003... |
| 41. | Amendment of section 57 of Act 57 of 2003 |
| 42. | Amendment of section 89 of Act 57 of 2003... |
| 43. | Amendment of section 1 of Act 10 of 2004... |
| 44. | Amendment of section 2 of Act 10 of 2004 |
| 45. | Amendment of section 3 of Act 10 of 2004 |
| 46. | Insertion of section 9A in Act 10 of 2004 |
| 47. | Amendment of section 13 of Act 10 of 2004 |
| 48. | Amendment of section 73 of Act 10 of 2004 |
| 49. | Amendment of section 75 of Act 10 of 2004 |
| 50. | Amendment of section 97 of Act 10 of 2004... |
| 51. | Amendment of section 99 of Act 10 of 2004 |
| 52. | Amendment of section 100 of Act 10 of 2004 |
| 53. | Amendment of section 101 of Act 10 of 2004 |
| 54. | Amendment of section 13 of Act 39 of 2004... |
| 55. | Substitution of section 22A of Act 39 of 2004... |
| 56. | Amendment of section 36 of Act 39 of 2004... |
| 57. | Insertion of section 47A in Act 39 of 2004 |
| 58. | Amendment of section 53 of Act 39 of 2004... |
| 59. | Amendment of section 60 of Act 24 of 2008 |
| 60. | Repeal of Chapter 9 of Act 24 of 2008 |
| 61. | Amendment of section 1 of Act 59 of 2008... |
| 62. | Amendment of section 4 of Act 59 of 2008... |
| 63. | Amendment of section 34A of Act 59 of 2008... |
| 64. | Substitution of section 34C of Act 59 of 2008... |
| 65. | Substitution of sections 34F, 34G, 34H, 34I, 34J, 34K and 34L of Act 59 of 2008... |
| 66. | Insertion of sections 34M, 34N, 34O, 34P, 34Q, 34R, 34S, 34T, 34U, 34V, 34W, 34X, 34Y and 34Z in Act 59 of 2008 |
| 67. | Amendment of section 36 of Act 59 of 2008 |
| 68. | Amendment of section 37 of Act 59 of 2008 |
| 69. | Amendment of section 38 of Act 59 of 2008 |
| 70. | Amendment of section 41 of Act 59 of 2008 |
| 71. | Amendment of section 43 of Act 59 of 2008... |
| 72. | Repeal of section 43A of Act 59 of 2008 |
| 73. | Amendment of section 52 of Act 59 of 2008 |
| 74. | Amendment of section 54 of Act 59 of 2008 |
| 75. | Amendment of section 67 of Act 59 of 2008... |
| 76. | Amendment of section 69 of Act 59 of 2008... |
| 77. | Repeal of section 69A of Act 59 of 2008 |
| 78. | Amendment of section 71 of Act 59 0f 2008 |
| 79. | Amendment of section 74 of Act 59 of 2008 |
| 80. | Amendment of section 75 of Act 59 of 2008 |
| 81. | Amendment of section 76 of Act 59 of 2008 |
| 82. | Amendment of section 77 of Act 59 of 2008 |
| 83. | Substitution of certain expressions in Act 59 of 2008 |
| 84. | Repeal of Schedule 3 to Act 59 of 2008... |
| 85. | Substitution of section 12 of Act 62 of 2008... |
| 86. | Transitional provisions for residue deposits and residue stockpiles |
| 87. | Transitional provisions for Waste Management Bureau |
| 88. | Transitional provision due to amendment of definition of ‘‘waste’’ |
| 89. | Short title and commencement |
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