A Critical Evaluation of the National Environmental Management Act (NEMA) Section 24G: Retrospective Environmental Authorisation

[摘要] ENGLISH SUMMARY: After the publication of groundbreaking texts such as 'Silent Spring (Rachel Carson, 1962), 'The Tragedy of the Commons (Garrett Hardin, 1968), and 'The Population Bomb (Paul Ehrlich, 1970), environmental issues came to the forefront of society's concern. In response, many governments began enacting strong environmental protection laws. South Africa is no exception, with the promulgation of the Environment Conservation Act (ECA), Act 73 of 1989, and subsequently the National Environmental Management Act (NEMA), Act 107 of 1998.Despite thorough environmental framework legislation, non-compliance with environmental law remains common in South Africa. The controversial Section 24G of NEMA, entitled 'Consequences of unlawful commencement of activity attempts to address environmental non-compliance. S 24G allows individuals and companies who illegally commenced with an environmental activity prior to obtaining the necessary environmental authorisations to apply for retrospective authorisation.The provision made for ex post facto (after the fact) environmental authorisation by s 24G is controversial, and a number of concerned individuals and environmental organisations have contested it. Concerns surrounding s 24G include the perception that s 24G leads to guaranteed environmental authorisation, and that s 24G can be used to save time by bypassing the traditional Environmental Impact Assessment (EIA) process. S 24G has been misused by companies who simply budget for the administrative fine and commence with illegal activities. In addition, many have argued that the administrative fine associated with s 24G is too low to constitute an effective deterrent.The purpose of this research is to investigate whether s 24G is an effective deterrent to prevent non-compliance with environmental law. Past research, as well as informationobtained from the Western Cape Department of Environmental Affairs and Development Planning (DEA&DP) is used to analyse trends in s 24G applications and make recommendations for improving the deterrence potential of this legislation.The findings of this research show that despite a consistent increase in the average administrative fine, the number of s 24G applications received by DEA&DP increases every year. However, it is argued that the number of s 24G applications received does not necessarily reflect an increase in environmental non-compliance, but an improved detection of environmental crimes. Most s 24G applications arise from ignorance. Therefore, although s 24G should be amended to increase its effectiveness as a deterrent, ignorance of environmental laws and regulations should be improved through compliance promotion.

[发布机构] Stellenbosch University