The changes will enable successors in title or persons in control of land to apply for rectification under NEMA.
Currently, only the person who has commenced with an activity listed under NEMA's listing notices or the National Environmental Management: Waste Act, without first obtaining the required authorisation, is permitted to apply for rectification in terms of section 24G of NEMA.
The Bill, however, proposes to insert provisions, which will allow section 24G rectification applications to be submitted by a person in control of, or successors in title to land on which another person has unlawfully commenced with an activity under NEMA or the Waste Act.
These amendments will enable a person (ie natural or juristic) other than the offender, to obtain an ex post facto environmental authorisation or waste management licence to authorise unlawful activities previously carried out by another person. The proposed amendments will create opportunity for the risk associated with an unlawful development or operation in terms of NEMA and the Waste Act to be eliminated without the involvement of the original offender, potentially turning a risky liability into a valuable asset.
While this has the potential to be commercially advantageous, the rectification process is costly and success is not guaranteed. Applying for rectification requires the applicant to pay an administrative fine which could amount to R5 million per listed activity. The current amendments proposed by the Bill require all applicants for rectification, including a new owner or person in control of land, to pay this fine. This aspect of the Bill should be revisited, as persons who have not committed an offence should not be subject to the payment of a fine, which is inherently penal in nature. Even after the payment of this administrative fine, there is no guarantee that an environmental authorisation or waste management licence will be issued by the competent authority.
The Bill does not propose to amend section 24G(7) of NEMA and therefore it appears that criminal investigation into the offender for failing to comply with NEMA or the Waste Act will not permit the competent authority to defer a decision to issue an authorisation in respect of a rectification application which is submitted by someone other than the offender. If implemented in its current form, a competent authority may only defer its decision to issue an authorisation where the applicant is also the offender.
Under these circumstances, the decision may only be deferred until such time that the investigation into the offender has been concluded; and (i) the National Prosecuting Authority has decided not to prosecute; (ii) the applicant has been acquitted or found not guilty; or (iii) the applicant has been convicted or acquitted. However, clarification that an investigation into the offender will not have an impact on an application for rectification submitted by a new owner or person in control of land would be welcome.
Despite the need for further clarity, the proposed amendments have the potential to provide commercial opportunity for new owners or operators of land through the legalisation of unlawful activities commenced with by another person.
These amendments will further broaden the scope of section 24G of NEMA and are therefore likely to be strongly opposed by environmental advocates who argue that this rectification mechanism undermines the constitutional right to have the environment protected, as well as NEMA itself.
Although the Bill is not yet available for public comment, the status of the Bill should be closely watched for any potential changes to the proposed amendments.
