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NATIONAL ENVIRONMENTAL MANAGEMENT ACT 107 OF 1998

The purpose of the Act is to, inter alia:
  • Provide for co-operative environmental governance by establishing principles for decision-making on matters affecting the environment,
  • Provide for institutions that will promote co-operative governance and procedures for the co-ordination of environmental governmental functions,
  • Give effect to South Africa’s Constitution, international law agreements acceded to and obligations in terms thereof.
Preliminary

The Constitution of South Africa provides, inter alia, that:

Everyone has 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 measures that-

    i. Prevent pollution and ecological degradation;
    ii. Promote conservation;
    iii. Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.


The National Environmental Management Act
The National Environmental Management Act (“the Act”) was assented to on 19 November 1998. The Act came into operation on 29 January 1999 and consists of ten chapters, schedules and various regulations thereto.

In essence and fundamentally, the Act prescribes a framework within which environmental management issues are to be governed. The framework is premised upon, inter alia, various National Environmental Management Principles.

Establishment, objects and functions of National Environmental Advisory Forum

The objects of the National Environmental Advisory Forum are to:
  • inform the Minister of Environmental Affairs and Tourism of the views of stakeholders regarding the application of the principles set out in section 2: and
  • advise the Minister on—

    i. any matter concerning environmental management and governance and specifically the setting and achievement of objectives and priorities for environmental governance; and
    ii. appropriate methods of monitoring compliance with the principles set out in section 2.
The Forum may on its own initiative and, after consultation with the Director-General of Environmental Affairs and Tourism, draw the Minister’s attention to any matter concerning environmental management requiring attention, and the Minister may refer matters for consideration by the Forum.

Committee for Environmental Co-ordination
The object of the Committee for Environmental Co-ordination is to promote the integration and co-ordination of environmental functions by the relevant organs of state and in particular to promote the achievement of the purpose and objectives of environmental implementation plans and environmental management plans as set out in section 12.

The functions of the Committee include the following:
  • scrutinizing, reporting and making recommendations on the environmental implementation plans submitted to it in accordance with section 15;
  • investigating and making recommendations regarding the assignment and delegation of functions between organs of state under the Act or any other law affecting the environment and regarding the practical working arrangements, including memoranda of understanding between the organs of state represented by members and other organs of state;
  • investigating and recommending the establishment of mechanisms in each province with the concurrence of the MEC, for providing a single point in the each province for the receipt of applications for authorisations, licences and similar permissions required for activities under legal provisions concerned with the protection of the environment where such authorisations, licences or permissions are required from more than one organ of state, and procedures for the co-ordinated consideration of such applications by the organs of state concerned;
  • making recommendations to co-ordinate the application of integrated environmental management as contemplated in Chapter 5, including cooperation in environmental assessment procedures and requirements and making determinations regarding the prevention of duplication of efforts as contemplated in section 24(4):
  • making recommendations aimed at securing compliance with the principles set out in section 2 and national norms and standards contemplated in section 146(2)(b)(i) of the Constitution;
  • making recommendations regarding the harmonisation of the environmental functions of all relevant national departments and spheres of government;
  • advising the Minister on providing Guidelines for the preparation of environmental management plans and environmental implementation plans;
  • endeavouring to ensure compliance with the principle set out in section 2(2) by making appropriate recommendations requiring reports from its members and advising government on law reform.
Expropriation
The Minister may purchase or, subject to compensation, expropriate any property for environmental or any other purpose under this Act if that purpose is a public purpose or is in the public interest: Provided that the Minister must consult the Minister of Minerals and Energy before any mineral rights are expropriated.

The Expropriation Act, 1975 (Act No. 63 of 1975) applies to all expropriations under this Act and any reference to the Minister of Public Works in that Act must be read as a reference to the Minister for purposes of such expropriation.

Notwithstanding the provisions of subsection (2), the amount of compensation and the time and manner of payment must be determined in accordance with section 25 of the Constitution, and the owner of the property in question must be given a hearing before any property is expropriated.

The Minister may reserve State land with the consent of the Minister authorised to dispose of the land and after consultation with any other Minister concerned for environmental or other purposes in terms of this Act if that purpose is a public purpose or is in the public interest.

This Act is binding on the State except in so far as any criminal liability is concerned.

Limitation of liability
Neither the State nor any other person is liable for any damage or loss caused by —
  • the exercise of any power or the performance of any duty under this Act: or
  • the failure to exercise any power or perform any function or duty under this Act, unless the exercise of or failure to exercise the power or performance or failure to perform the duty was unlawful, negligent or in bad faith.
SCHEDULE 1
Section 11(1)
National departments exercising functions which may affect the environment
  • Department of Environmental Affairs and Tourism
  • Department of Land Affairs
  • Department of Agriculture
  • Department of Housing
  • Department of Trade and Industry
  • Department of Water Affairs and Forestry
  • Department of Transport
  • Department of Defence
SCHEDULE 2
Section 11(2)
National departments exercising functions that involve the management of the Environment
  • Department of Environmental Affairs and Tourism
  • Department of Water Affairs and Forestry
  • Department of Minerals and Energy
  • Department of Land Affairs
  • Department of Health
  • Department of Labour
Further Environmental legislation:
  • National Radioactive Waste Disposal Act of 2008
  • National Environment Management Waste Act of 2008
  • Air Quality Act of 2004
  • National Environment Biodiversity Act of 2004
  • National Environment Management Protected Areas Act of 2003
  • Mineral and Petroleum Resources Act of 2002
  • National Nuclear Regulation Act of 1999
  • Nuclear Energy Act of 1999
  • National Water Act of 1998
  • Marine Living Resources Act of 1998
  • Environment Conservation Act of 1989
  • Conservation of Agricultural Res
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AA SLAMAT - Attorney-at-Law
B.COM (Law & Economics), LL.B. (Mercantile Law), LL.M. (Commercial Contracts & Commercial Law), RPE 2004 (South African Institute of Financial Markets)

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Email: asl@slamatlaw.co.za | Tel: +27 (0)79 534 5077 | Fax: +27 86 232 7208/9
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