also provides for the designation of Environmental Management Inspectors as well as their powers and functions in ensuring and monitoring compliancewith specified environmental legislation.
More details are set out in the attached explanatory memorandum.
The Bill will be tabled in Parliament for consideration during the month of June 2003.
Wriien comments and inputs are invited from interested and affected parties as well as the general public.
THE NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENTBILL, 2003 1.
1.1 TheNationalEnvironmentalManagementAct, 107of 1998 (NEMA) provides thelegalframework for implementing the state's constitutional obligations with regard to environmental management.
suite of draft sectoral environmental legislation is proposed to give effect to the policy obligations in respect of biodiversity and protected areas management, air quality and waste management as well as coastal management.
2.1 Definitions regulations or other subordinate legislation made in terms of these two Acts. The implication of this definition is that relevant provisionsof NEMA will apply to these Acts as well as to NEMA. When further environmental management legislation is passed, this definition may be extendedto include these additional Acts thereby making the enforcement provisionsof NEMA applicable to them as well.
"Environmental hazards, access to information and protection of whistleblowers."
"Enforcement of thisActandtheSpecificEnvironmentalManagementActs."Part 3 is an amalgamation of existing and new provisions dealing with judicial matters relating to compliance, enforcement and protection and is headed, "Judicial Matters."
Part 1 retains existing provisionsof the NEMA and includes provisions setting out the general duty of care, the protection of workers refusing to do environmentally hazardous work, the control of emergencyincidents, access to environmental informationandtheprotection of whistleblowers. None of these provisions are being amended.
Members of the South AfricanPoliceService (SAPS)will have all of the powers assignedto environmental management inspectors in terms of this Part of the Act, other than the power to conduct routine inspections and issue and enforce compliance notices.
Amendments to Chapter9: Administration of the Act environmental management Acts.
9 of the NEMA is the expansion of the existing delegation clause to explicitly provide for provincial delegation.
The current delegations clause in section 42 of NEMA only provides for delegation by the Minister and the Director-General. An amendment to section 42 now expands the scope of the provision periods, the validity of legal documents and steps, and the delivery of documents. The limitation of liability provision is also extended to include the exercise of any power or the performance of any duty under the provisions of any specific environmental management Act.
Lastly, the long titleof the principal Actis amended to include the provision for certain aspects of the administration and enforcementof other environmental management legislation.
In addition, the situation whereonly the Minister and the Director-Generalhasthepowerto delegate under the current section42 of the NEMA has been expandedto give the provincialMEC for Environmental Affairs the power to delegate.
All relevant national and provincial departments were consulted and a draft Bill was pubiished for public comment in Government GazetteNo.24311 on the24* January 2003.
In heopinion of tine Department of Environmental Affairs and Tourism andthe State Law Advisers this Bill should be dealt with inaccordance with the procedure established by section 76 of the Constitution, as it falls within a functional area listed inSchedule 4 of theConstitution, namely "Environment"?
(As introduced in the NationalAssembly as a section76 Bill; explanatory summary of Bill publishedinGovernment Gazette No.
Amendment of section1 of Act 107 of 1998 1.
Act, 2003, and includes anv reaulations or other subordinate leaislation made intermsofanv of these Acts;"; and.
Deletion of heading after section30of Act 107 of I998 3.
Insertion of Part in Chapter 7 of Act 107 of 1998 4.
31A. a This Part aoplies to the enforcement of this Act and the sDecific environmental manaaement Acts.
to it in that Act.
@ For theourooses of this Part, Schedule 1 to the Criminal Procedure Act, 1977 ActNo. 51 of 19771, is deemed to include an offence committed in terms of this Act or a soecific environmental manaaement Act.
Prescribed standards inspectors.
Proof of designation duties in terms of thisAct or a specific environmental manaaement Act, an environmental manaaement inspector must, on demand to the insoectorin terms of section31D(3) and proof of identitv.
a breach of a term or condition of a Derrnit, authorisation or other instrument issued in terms of such law.
information removed in terms of subsection(2Vc);or terms of subsection (2Me);and environmental manaaement inwector, within his or her mandate in terms of section 31D, has all the powers assianed in terms of Chapters 2.5,7 and 8 of the Criminal Procedure Act,1977 to a police officialwho is not a commissioned officer.
311. (1) Theprovisionsofsections 30 to 34 of the Criminal Procedure Act, 1977 apDlv to the disposal of anvthina seized in terms of this Part, subiect to such modifications as the context mav require.
& In order to safeauard a vehicle, vessel or aircraft that has been seized, the environmental manaaement inspector may immobilise it bv removina a part.
& An item seized in terms of this section, includina a part of a vehicle, vessel or aircraft referred to in subsection (3). must be kept in such a wav that it is secured aaainst damaae.
W. a breach of such law or a term or condition of a permit, authorisation or other instrument issued in terms of such law; -or in the Drosecution of anv person for an offence in terms of this Act or a specific environmental manaaement Act.
his or her mandate in terms of section 31D, all the powersof a member of the South African Police Service in terms of section 13(8)of theSouth African Police Service Act,1995.
Routine inspections a warrant. enter and insoect any buildina, land or premises for the purposes of ascertainina compliance with -@ the leuislation for which that inspector has been desianated in terms of section 31D: or @ a term or condition of a permit, authorisation or other instrument issued in terms of such leaislation.
An environmentalmanaaementinsr>ector.withinhis or her mandate in terms of section31D, mav. with a warrant obtained in terms of subsection 31, but subject to subsection41, enter and inspect anv residential premises for the purposes terms of section31D; or a term or condition of a Dermit, authorisation or other instrument issued in terms of such leaislation.
While out a routine an environmental inspector exercise On such businessorresidentialDremisesorlandanv of the powers mentioned in section 31H.
comDlied @ with a Drovision of the law for which that insoector has been desianated in termsof section 31D;or @ with a term or condition of a Dermit. authorisation or other instrument issued in terms of such law.
@ must specifv the period within which the personwho. received the notice must complv with anvpart of the notice that is confirmed or modified.
31N. (1) A person who fails to comelv with a compliance notice commits an offence.
of doina so from the person who failed to comelv: and @ reportthe matter to the Director of Public Prosecutions.
comDliance notices in terms of sections 31L to 31 0.
to a member of the South African Police Service, assian to that member all the Dowers conterndated in sections 31K to 31 0.
Apersonconvictedofanoffence in termsof this section is liable to a fine or imprisonment for a period not exceedina one year or to both a fine and such imprisonment.
Amendment of section 32 of Act 107 of 1998 6.
"(2) A court may decide not to award costs against a personwho, or group of persons which, fails to secure the relief sought in respect of any breach or threatened breachof any provision [including a principle] of this Act, includinq a princiole contained in Chapter 1, or of anv Drovision ofa specific environmental rnanaaement Act, orgfany other statutory provision concerned with the protection of the environment or the use of natural resources, if the court is of the opinion that the person or group of persons acted reasonably out ofa concern for the public interest or in the interest of protecting the environment and had made due effortsto use other means reasonably available for obtaining the relief sought."
II -hinders or interferes with an environmental manaaement insoector in the execution of that inspector's official duties; pretends to be an environmental manaclement inspector, or the intermeter or assistantof such an insaector; furnishes false or misleadina information when comDlvina with exceedina one vear or to both a fine and such imprisonment.
@ issueanorderthat all competent authorities authorised to issue permits or other authorisationsbe notified of any disqualification in terms of Daraaraph (b).
Forfeiture of items any sDecimen, container, vehicle, vessel, aircraft. or document that was usedthefor purpose of or in connection with the commissionof the offence and was seized under the provisionsof this Part, to be forfeited to the State.
The Drovisions of section 35 of the Criminal Procedure Act,1977 Act No.51 of 19771, applv to the forfeitureof any item in terms of subsection 1I, subiect to such modifications as the context mav rewire.
The Minister must ensure that anvspecimen forfeited to the State in termsof subsection (1) is -@ reDatriated to the countrv of export or oriainas appropriate, at the from such deposit; or @J otherwise diswsed of in an amropriate manner.
Pendina institution criminal in terms of this Act or a specific environmental manaaement Act or the resolution of such proceedinas, a livesDecimen that has been seized in terms of this Part must be deposited with a suitable institution, rescue centre or facilitv which is able and willina to house and DroDerlv care for it.
& costs and exDenses incurred or reasonablv foreseen to be incurred bv the State in connection with Drosecutinq the offence and recoverable in terms of this Act.
Admission of guilt fines of quilt fine reason to believethat a person has committed an offence specified in terms of subsection (1) mav issue to the alleaed offender a written notice of 1977).
(b)l@ theholderofanoffice in the Department;or f(C)l@ afterconsultation with aprovincialheadofdepartment, an officer in a provincial administration or municipality.
TheDirector-Generalmaypermitapersontowhom a power[, function] or duty has been delegated by the Director-General to delegate further that power[, function] or duty.
Insertion of sections 47A to 47D in Act 107of 1998 11.
Consultation of intentionto act has been made to that person or oraan of state andno response has been received within a reasonable time.
47C. The Ministeror an MEC mav extend, or condone a failure bv a person to complv with. a time period in terms of this Act or a specific environmental manaaement Act, except a time period which binds the Minister or MEC.
Substitution of section 49of Act 107 of 1998 12.
the exercise of any power or the performance of any duty under this Act or any specific environmental management Act; or the failure to exercise the power, or perform any [function or] duty under this Act or anv specific environmental manaaementAct, unless the exercise of or failure to exercise the power, or performanceor failure to perform the duty was unlawful, negligent or in bad faith.
Substitution of long title of Act 107 of 1998 13.
laws; and to provide for matters therewith.