A critical analysis of the application of S24G provisions of the National Environmental Management Act (NEMA) : the Gauteng Province experience

Abstract

Together with an internationally praised Constitution, South Africa can pride itself in having one of the best sets of environmental laws in the world, and since EIAs have become mandatory for projects that negatively affect the environment, our track record with respect to environmental protection has substantially improved from the Apartheid days. But as the integrated and proactive approach to environmental management has seemingly been established, a new provision was introduced: Section 24G of NEMA (“Rectification of unlawful commencement of activity”), allowing for retrospective authorisation of unlawful activities (i.e. activities identified in terms of S24 of NEMA). Six years after the introduction of the S24G rectification provision in NEMA, its ability to bring about increased levels of compliance is being questioned. The findings of this research show that in Gauteng S24G has had an ambivalent effect on compliance: while on one hand it has artificially increased compliance by rendering illegal activities legal, on the other, it has seriously undermined the overall compliance and enforcement effort by opening the door to abuse and effectively providing an escape route for potential criminals. It is argued that the schizophrenic character of S24G is at the heart of this dilemma. This research presents theoretical and practical perspectives on non-compliance and analyses data collected on S24G applications in Gauteng in order to determine the effect of S24G on compliance. It also identifies key factors influencing effectiveness of S24G, and derives from the above key performance areas to improve effectiveness of S24G.