NEW CRIMINAL OFFENCES CREATED

CHANGES TO ENVIRONMENTAL LEGISLATION IN SOUTH AFRICA

Financial provisioning for mining and remediating environmental damage

In terms of the new changes to the National Environmental Management Act 107 of 1998 (NEMA) under the National Environmental Management Laws Amendment Act 2 of 2022(NEMLAA), persons are now responsible for financial provisioning for mining and remediating environmental damage.

The circumstances under which persons will be required to set aside funds for financial provisioning will be prescribed by the Minister or an MEC in concurrence with the Minister.

As a result, the new changes which are now in effect, create a number of criminal offences related to environmental financial provisioning.

It is now an offence under s49A(1)(q) and (r) of NEMA, if a person fails to :

• determine the financial provision required for rehabilitation

• provide financial provision for progressive rehabilitation;

• annually undertake the mitigation, remediation and rehabilitation measures

• use a financial provisioning vehicle when providing financial provision;

• maintain and retain a financial provision until a closure certificate is issued

• review and adjust the environmental liability;

• subject the financial provision to an independent audit;

• submit an audit report;

• publish the review decision;

It is also an offence to use the financial provision for any other purpose.

As can be seen from the changes to NEMA, the legislature has taken a strong stance towards persons who abuse or misuse financial provisioning for environmental remediation, particularly in the mining sector.