Over the past few decades, the government has enacted numerous laws to regulate the various threats facing South Africa’s biodiversity. The enactment of the National Environmental Management Biodiversity Act (NEMBA) in 2004 brought some semblance of order to a previously fragmented legal regime. Notwithstanding the introduction of NEMBA, several authorities exercise similar and overlapping mandates in respect of biodiversity under provincial and national legislation and this adds a level of complexity to the way in which biodiversity is regulated in the country.
This historic problem has been exacerbated in present times because the Constitution of the Republic of South Africa (the Constitution) affords all three spheres of government (national, provincial and local) the competence to make and administer laws that are of relevance from a biodiversity perspective. Before considering what these laws are, the influence of the Constitution on biodiversity will be considered in more depth.
The Constitution is relevant to biodiversity for three key reasons:
In terms of section 1 of the Constitution, the Republic of South Africa is one, sovereign, democratic state founded on the values that are elucidated in that section. The idea that states have sovereign rights over its own country’s natural resources is recognised in international law and endorsed through the Convention of Biological Diversity (CBD). This right comes with the responsibility of not using the resource in a way that causes harm to other states. As a Party to the CBD, South Africa has chosen to partially limit its ability to exercise sovereign control over its natural resources. Specifically, South Africa must:
Chapter 2 of the Constitution contains a Bill of Rights which sets out the civil, political, economic, social and cultural human rights of the people of South Africa. The Constitution can place positive obligations on the state, such as the duty to develop laws and policies. There are various human rights that are relevant to environmental protection and the conservation and sustainable use of biodiversity. These include:
The Constitution introduced an environmental right that promotes conservation and sustainable development in a domestic context. The Constitution favours a systems approach to sustainability, wherein the economic system, the socio-political system and the ecosystem are nested in one another and then integrated through a system of good governance that keeps all of the other systems together in a legitimate regulatory framework.
The environmental right in section 24 of the Constitution comprises both a right and an obligation:
It guarantees everyone the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –
Section 24 of the Constitution also imposes a duty on the state to take “reasonable legislative and other measures” to –
In response to this constitutional obligation, the South African government has laudably promulgated environmental legislation and introduced several policies, plans and programmes that give practical effect the environmental right and the concept of ecological sustainable development.
- The National Spatial Biodiversity Assessment (NSBA)
- The National Biodiversity Strategy and Action Plan (NBSAP)
- The National Biodiversity Framework (NBF)
- The Cape Action Plan for People and the Environment (CAPE)
- The Succulent Karoo Ecosystems Programme (SKEP)
- The Subtropical Thicket Ecosystem Project (STEP)
- The National Grasslands Programme
- The People and Parks Programme
- The National Protected Area Expansion Strategy (NPAES)
- The Strategy on Buffer Zones for National Parks
The state enacted the National Water Act to give effect to the section 27(1)(b) of the Constitution. In terms of this section of the Constitution:
The state has a legal duty to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
The state enacted the Promotion of Access to Information Act to give effect to section 32 of the Constitution. In terms of this section of the Constitution:
Everyone has the right of access to –
National legislation must be enacted to give effect to this right and may provide for reasonable measures to alleviate the administrative and financial burden on the state. PAIA provides that everyone has a constitutional right of access to information held by the State. The Act plays a very important role in ensuring that there is transparency and accountability in the way in which the State operates. Any information in the possession of CAs that informs a decision about whether or not to grant a licence, permission or environmental authorisation may be requested in terms of PAIA.
The state enacted the Promotion of Administrative Justice Act (PAJA) to give effect to section 33 of the Constitution. In terms of this section of the Constitution:
Furthermore, national legislation must be enacted to give effect to these rights, and must –
PAJA enables members of the public to challenge an administrator’s decision in a High Court if the administrator made a decision that was unlawful, unreasonable or procedurally unfair. Section 6 of PAJA sets out the various grounds for judicial review of administrative action. The definition of “administrative action” is explained in PAJA and it refers to, inter alia, any decision taken by an administrator when they are exercising a public power or performing a public function in terms of any legislation.
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are –
A court, tribunal or forum that interprets the Bill of Rights
When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. Importantly, the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill of Rights.
Legislative and executive competences that are of wide relevance to biodiversity are distributed between the three spheres of government as follows:
In the context of protected areas, the administration of national laws usually falls to the Minister responsible for environmental affairs. The Minister, when dispensing their function, may draw on the assistance of its department and two key statutory institutions:
Since “environment” and “nature conservation” are concurrent provincial constitutional competences, the ministerial and departmental structures at the national level are duplicated at a provincial level too. This means that the provinces have a Member of the Executive Council responsible for environmental affairs as well as a supporting provincial department responsible for environmental affairs (including conservation). Some provinces chose to assign its function, either fully or partially, to the conservation authorities. Examples of these conservation authorities include:
[1] Alexander Paterson, “Biodiversity, genetic modification and the law” in Chapter 13.4.2.2 of Jan Glazewski Environmental law in South Africa (2018).
The National Environmental Management Act (NEMA) is the framework environmental management law in South Africa that was enacted to give effect to section 24 of the Constitution. NEMA incorporates a range of legal sustainable development tools that did not exist under the Environmental Conservation Act.[1]
These tools include environmental management principles for decision-making on matters affecting the environment. These principles apply to the actions of all organs of state that may significantly affect the environment. One particular environmental management principle in NEMA draws specific attention to biodiversity - it provides that sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores, estuaries, wetlands, and similar systems require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure.
Other sustainable development tools in NEMA include an integrated environmental management system,[2] imposing a duty to obtain an environmental authorisation in respect of listed activities and prescribing minimum standards for environmental impact assessments and[3] supporting a ‘one environmental system’ that seeks to align the permitting processes found in sector specific legislation with the national framework legislation.[4]
NEMA establishes an environmental management inspectorate to ensure that environmental legislation is complied with and enforced. Environmental management inspectors are designated by the Minister to enforce provisions in the framework act or in any of the specific environmental management acts.
Section 24 of the NEMA provides that anyone undertaking activities listed or specified by the Minister of Environmental Affairs must obtain a permit in the form of an environmental authorisation before the activity may lawfully commence. Critical biodiversity areas and ecological support areas feature in the Listing Notices published under NEMA and this triggers the need to obtain an environmental authorisation before undertaking certain activities within these areas. [5]
This permitting regime allows for responsible decision-making processes as it compels the applicant to furnish the administrator with information about the environmental impacts of a proposed activity prior to them undertaking it. The decision to grant an environmental authorisation constitutes administrative action in terms of the Promotion of Administrative Justice Act (PAJA). According to the Constitution and PAJA, administrative action must be reasonable, lawful, and procedurally fair - failing which, it will be subject to review by a court or independent tribunal.
Anyone that commences a listed or specified activity without an environmental authorisation or fails to comply with the conditions applicable to an environmental authorisation is committing an offence and, upon conviction, may be liable to a fine or to imprisonment, or to both such fine and such imprisonment.
Section 31A of the ECA states that if any person performs any activity or fails to perform any activity, as a result of which the environment is or may be seriously damaged, endangered or detrimentally affected, then the competent authority may in writing direct such person to either stop such activity or within a specified period take such steps as the competent authority may deem fit.
The purpose of the directive is to eliminate, reduce or prevent damage or danger to the environment. Remedial and preventative measures are to be undertaken at the expense of the person who endangers or causes harm to the environment. Non-compliance with the directive empowers the competent authority to perform said activity or function itself, and then recover the costs from the person who caused the harm.
[1] Environmental Conservation Act 73 of 1989.
[2] Section 23 of NEMA.
[3] Section 24(4) of NEMA.
[4] Chapter 5 of NEMA.
[5] Fuggle and Rabie’s “Environmental Management in South Africa” (2018) at 553.
The National Environmental Management Protected Areas Act (NEMPAA) deals with the declaration and management of protected areas.[1] Geographically, NEMPAA applies to both the terrestrial and the marine environment, including the exclusive economic zone and that part of the continental shelf claimed as part of South Africa’s territory under the United Nations Convention on the Law of the Sea.[2]
It aims to give effect to a national system of protected areas in South Africa as part of a strategy to manage and conserve its biodiversity[3] and does so within the framework of national legislation, including the National Environmental Management Act.[4] Biodiversity considerations are of key relevance when declaring protected areas. From the outset, the preamble of NEMPAA expressly supports “the protection and conservation of ecologically viable areas representative of South Africa’s biological diversity and its natural landscapes and seascapes”.[5] In accordance with this aim NEMPAA calls for the establishment of a national register of all national, provincial and local protected areas[6] and provides for the assignment of a management authority and the preparation of a management plan in respect of nature reserves and protected environments.[7]
The National Water Act (NWA) provides the legal framework for the effective and sustainable management of the water resources in the country. The NWA recognises that water is a scarce and precious resource and the ultimate goal of water resource management is to achieve the sustainable use of water for the benefit of all South Africans.[8]
The NWA must be understood within the context of the Constitution and the Water Services Act (WSA). The WSA provides a regulatory framework for local authorities to supply water and sanitation services in their respective areas. While the provision of water services is an activity distinct from the development and management of water resources, water services must be provided in a manner that is consistent with the goals of water resource management. The WSA is, therefore, still relevant to integrated water resource management.
The Marine Living Resources Act provides for the conservation of the marine ecosystem and sustainable utilisation of marine living resources within the territorial waters and exclusive economic zone of the Republic of South Africa.
South Africa’s marine protected areas are primarily regulated under the Marine Living Resources Act (MLRA). In terms of section 43 of the MLRA, the Minister of Environmental Affairs and Tourism is empowered to declare any portion of “South African waters” as a marine protected area by way of proclamation in the Government Gazette. South African waters are broadly defined to include the seashore, internal waters, territorial waters, the exclusive economic zone, and tidal lagoons and rivers.
The stated aim of the Marine Spatial Planning Act is to provide a framework for marine spatial planning in South Africa; to provide for the development of marine spatial plans; to provide for institutional arrangements for the implementation of marine spatial plans and governance of the use of the ocean by multiple sectors; and to provide for matters connected therewith.
The purpose of the Mountain Catchment Areas Act is to provide for “the conservation, use, management, and control of land situated in mountain catchment areas”. Mountain catchment areas declared in terms of this Act constitute protected areas in terms of NEMPAA.
The Act empowered the former Minister of Water Affairs and Forestry to declare mountain catchments. Its provisions were assigned to the provinces before the National Water Act was enacted and the power to declare mountain catchment areas now vests in the Premiers of the respective provinces. A number of mountain catchments were declared by the Department of Water Affairs and Forestry prior to the Act being assigned to the provinces, and other mountain catchment areas have subsequently been declared by the provinces.
The National Forest Act makes provision for sustainable forest management and special measures to protect forests and trees. Specially protected forest areas, forest nature reserves and forest wilderness areas declared in terms of this Act are protected areas in terms of the National Environmental Management Protected Areas Act.[9]
The Conservation of Agricultural Resources Act (CARA) prescribes several control measures relating to biodiversity. Specifically, the control of weeds and invader plants.
Among other things, CARA aims to ensure that the country’s natural agricultural resources are conserved through the:
The Minister responsible for agriculture is empowered to declare plants as “weeds” or “invader plants” across the country or in respect of one or more areas. The Minister exercised this power by publishing CARA Regulations which lists categories of weeds and invasive species that require varying levels of regulation and impose various obligations on land users. The CARA Regulations is still part of the law, notwithstanding the existence of the Alien and Invasive Species Regulations published under NEMBA.
The Subdivision of Agricultural Land Act (SALA) provides that consent must be obtained from the Minister responsible for agriculture before agricultural land may be subdivided. The SALA applies irrespective of the nature of the proposed development provided that such development requires the subdivision of agricultural land.
The Spatial Planning and Land Use Management Act is the national spatial planning framework law in South Africa, which calls for alignment between spatial plans and land use laws of all spheres of government.
The Mineral and Petroleum Resources Development Act (MPRDA) governs all stages of the mining and petroleum production process in South Africa. The MPRDA is part of a network of legislation geared towards sustainable development and the conservation and management of South Africa’s biodiversity.
Section 49 of the MPRDA allows the Minister of Minerals and Energy to prohibit or restrict the granting of any reconnaissance permission, prospecting right, mining right or mining permit in respect of land identified by the Minister for such period and on such terms and conditions as the Minister may determine.
[1] Section 2(a) of NEMPAA
[2] Section 4 of NEMPAA
[3] Section 2(c) of NEMPAA
[4] Act 107 of 1998
[5] Preamble of NEMPAA
[6] Preamble of NEMPAA
[7] Sections 38 and 39 of NEMPAA
[8] Ecosystem guidelines for the Albany Thicket biome at appendix 2 (Jan 2019, after SANBI review).
[9] Ecosystem guidelines for the Albany Thicket biome at 175-176 (Jan 2019, after SANBI review).
