RECTIFYING AN ENVIRONMENTAL OFFENCE

NEW CHANGES IN ENVIRONMENTAL LAW TO AFFECT ERRANT DEVELOPERS

One of the most controversial and if not, the most abused environmental processes to date - is the s24G process.

CHANGES TO SECTION 24G OF NEMA: Rectification of unlawful commencement

This provision in the National Environmental Management Act 107 of 1998 (NEMA) allows an errant developer who has commenced an activity unlawfully (i.e. without environmental authorisation) to apply for retrospective authorisation.

However, new changes to NEMA will have a significant impact on developers who have chosen to jump the gun rather than comply with environmental requirements.

The categories of persons who now have legal standing to bring a rectification application include persons in control or successors in title to land on which the offence occurred.

This means that a person who purchases, inherits or takes control over property on which an unlawful activity has occurred or is occurring, can now seek retrospective authorisation for that activity, even though he or she was not responsible for the unlawful activity.

The consequence of this is that the person who pursues a s24G rectification application will need to fork out an administrative fine, which has now been increased to a maximum of R10 million.

The most significant change to s24G is in the powers of the Minister or MEC once he or she receives a rectification application.

The Minister or MEC is now compelled in terms of the new changes to the legislation, to inter alia direct the applicant to immediately cease the offending activity, assess the environmental impacts, rehabilitate the damage caused or to conduct a public participation process in furtherance of the s24G application.

Previously, before the coming into effect of the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLAA), the Minister or MEC had a discretion on whether to issue the directive to inter alia cease the activity or rehabilitate the environmental damage.

The only discretionary power of the Minister or MEC now lies in deciding whether to direct the applicant to compile an Environmental Management Programme (EMPr) or not.

The s24G process may seem like an easy way out for a person who contravenes EIA legislation and has the funds available to proceed with a rectification application, but the joy could be short-lived.

There is no guarantee that the activity will be authorised, and even if the activity is capable of rectification or authorisation, it could be stalled if not reversed, if a criminal investigation commences, the NPA has decided to institute a prosecution, and if the offender has been convicted of the offence.

Irrespective of the new changes to our environmental laws, the s24G process in my opinion, remains a thorn in the foot for environmental activists, and a poisoned chalice for developers.

It is therefore of utmost importance for one to seek legal help before embarking on a s24G process.

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