The requirement for Environmental Assessment Practitioners (EAPs) meaning the individual responsible for the planning, management, coordination or review of environmental impact assessments and associated EMPrs, to be registered with EAPASA became mandatory on 8 August 2022.
There are still a number of practitioners and consultants undertaking work identified in NEMA without registration.
The following guidance is provided to facilitate awareness in the sector of the course of action to be followed in such instances.
1. Section 24(5)(g) of the National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA) enables the Minister to make regulations specifying that a contravention of a specified regulation is an offence and prescribing penalties for the contravention of that regulation.
“Offences and penalties
20. (1) A person is guilty of an offence if that person—
(a) contravenes regulation 14 of these Regulations; or
(b) pretends to be a registered environmental assessment practitioner or registered candidate environmental assessment practitioner.
(2) A person convicted of an offence in terms of subregulation (1) is liable to the penalties contemplated in section 49B(3) of the Act.”.
As already indicated above, regulation 20(1)(a) of the Section 24H Registration Authority Regulations provides that a person is guilty of an offence if that person contravenes regulation 14 of the Regulations. Regulation 20(2) provides that a person that is convicted of an offence in terms of regulation 20(1) is liable to the penalties contemplated in section 49B(3) of the NEMA. Section 49B(3) of NEMA indicates that a person convicted is liable to a fine or imprisonment for a period not exceeding one year or both a fine and such imprisonment.
2. Chapter 7 of NEMA deals with matters related to compliance and enforcement. The enforcement of the requirements of NEMA, the specific environmental management Acts (SEMAs) and any subordinate legislation issued thereunder, including regulation 14 of the Section 24H Registration Authority Regulations, is the responsibility of the environmental management inspectors designated by the relevant Minister or MEC. An environmental management inspector may investigate any act or omission in respect of which there is a reasonable suspicion that it might constitute and offence in terms of the law or a breach of the law for which that inspector has been designated. Chapter 7 of NEMA provides the environmental management inspector with various powers when undertaking enforcement action. Of particular importance are sections 31D and 31G of which parts are quoted below:
“31D. Mandates.—(1) When designating a person as an environmental management inspector, the Minister, the Minister responsible for water affairs or MEC, as the case may be, must, subject to subsection (2), determine whether the person concerned is designated for the enforcement of—
(a) this Act;
(b) a specific environmental management Act;
(c) specific provisions of this Act or a specific environmental management Act;
(d) this Act and all specific environmental management Acts; or
(e) any combination of those Acts or provisions of those Acts.
(2) An MEC may designate a person as an environmental management inspector for the enforcement of only those provisions of this Act or any specific environmental management Act—
(a) which are administered by the MEC or a provincial organ of state; or
(b) in respect of which the MEC or a provincial organ of state exercises or performs assigned or delegated powers or duties.
(2A) The Minister responsible for mineral resources may designate a person as an environmental mineral resource inspector for the compliance monitoring and enforcement of the provisions of this Act or a specific environmental management Act in respect of which powers are conferred on him or her.
(3) A person designated as an environmental management inspector or environmental mineral resource inspector may exercise any of the powers given to environmental management inspectors in terms of this Act that are necessary for the inspector’s mandate in terms of subsections (1) or 2A that may be specified by the Minister, the Minister responsible for water affairs, the Minister responsible for mineral resources or MEC by notice in writing to the environmental management inspector or environmental mineral resource inspector.”.
“31G. Functions of inspectors.—(1) An environmental management inspector within his or her mandate in terms of section 31D—
(a) must monitor and enforce compliance with a law for which he or she has been designated in terms of that section;
(b) may investigate any act or omission in respect of which there is a reasonable suspicion that it might constitute—
(i) an offence in terms of such law;
(ii) a breach of such law; or
(iii) a breach of a term or condition of a permit, authorisation or other instrument issued in terms of such law.
(2) An environmental management inspector—
(a) must carry out his or her duties and exercise his or her powers—
(i) in accordance with any instructions issued by the Minister or MEC, as the case may be; and
(ii) subject to any limitations and in accordance with any procedures that may be prescribed; and
(b) may be accompanied by an interpreter or any other person whose assistance may reasonably be required;
(c) must exercise his or her powers in a way that minimises any damage to, loss or deterioration of any premises or thing.”.
It is therefore clear that the environmental management inspectors and the environmental mineral resource inspectors are responsible for the enforcement of the NEMA and the SEMAs and its subordinate legislation, including regulation 14 of the Section 24H Registration Authority Regulations. The alleged non-compliance/offence must be reported through the toll free Environmental Crime Hotline (0800 205 005) or envirocrime@dffe.gov.za, after which it will be referred to the compliance and enforcement unit of the government department responsible to take enforcement action in that particular case. The relevant government department responsible to take the enforcement action is the same government department who is the relevant competent or licencing authority. The relevant NEMA competent authority (including for section 24G of NEMA) is determined in terms of section 24C of NEMA whilst the licensing authority for the waste management licence is determined in terms of section 43 of the National Environmental Management Waste Act, 2008. The relevant Departments normally have dedicated compliance and enforcements units who deal specifically with compliance and enforcement matters and the relevant competent and licensing authority will work with these units.
3. The EAPASA and IAIAsa are not mandated to enforce the provisions of the NEMA, SEMAs and subordinate legislation. Section 24H(2) of NEMA requires an association that is applying to register its members to submit a code of conduct which regulates the ethical and professional conduct of members of the association. EAPASA therefore has the mandate to regulate the conduct which is required in terms of the code of conduct. Regulate 3(4) of the Section 24H Registration Authority Regulations indicate what the content of the code of conduct should be. In this regard regulation 10 of the Section 24H Authority Regulations should be noted as follows:
“10. Professional Conduct.—(1) A registration authority must develop, administer and enforce a code of conduct regulating the ethical and professional conduct for registered environmental assessment practitioners and registered candidate environmental assessment practitioners.
(2) A registration authority must ensure that the code of conduct is available at no cost and is accessible to all members of the public.
(3) All members of a registration authority must comply with the code of conduct, as contemplated in subregulation (1) and regulation 3 (2) (e) of these Regulations, of such registration authority.”.[our emphasis]
The EAPASA is therefore enabled to enforce the conduct of EAPs within the framework of the existing code of conduct. It is required that any allegation of misconduct of the code of conduct should also be reported through the toll free Environmental Crime Hotline if the alleged misconduct could potentially also constitutes an offence.
4. NEMA and the Section 24H Registration Authority Regulations are not prescriptive with regard to who must report the potential non-compliance/offence. It can be anyone who has information in this regard and wants to bring the matter to the attention of the relevant authority. There is also no specific procedure or information requirements prescribed in this regard. The person who alleges the offence will need to provide all information they have at their disposal through the Environmental Crime Hotline/E-mail. The action to be taken will be determined on a case-by-case basis and will be determined by the relevant Department’s environmental management inspectors /environmental mineral resource and enforcement units.