A critical analysis of the National Environmental Management Act section 24G fine calculator

Abstract

The Section 24G administrative fine which provides for the ex post facto authorisation of illegal development is unique to South Africa since it is enacted into legislation. This retrospective authorisation is seldomly practised internationally except in South Africa, India, Papua New Guinea and Lesotho. In India, the instruction only comes as a directive by which is given time frames and is only applicable to certain activities. In Lesotho, it is only done for projects that have already untaken the Environmental Impact Assessment (EIA) and such a directive will be from the government, whereas in South Africa it is applicable to all the listed or specified activities for which authorisation should have been obtained prior to the commencement of the activity. In all the countries, this has been controversial and being challenged as it is viewed that it undermines the purpose of the EIA. South Africa has a plethora of environmental management legislation, which is used to manage and conserve the environment. Over and above the legislation, environmental impact assessment (EIA) is one of the environmental assessment tools used and adopted internationally to manage the environmental impacts. It has its own challenges but still comes out to be one of the widely accepted and used tools worldwide. In South Africa things started to change when amendments for Environmental Impact Assessment (EIA) regulations of Environment Conservation Act, no. 73 of 1989 were effected to introduce the National Environmental Management Act, No. 107 of 1998, which requires the calculator. The administrative fine is determined by using a prescribed administrative calculator. The calculator was never published, and it was criticised as the developers alleged that the competent authorities are not consistent when determining the quantum fines. In addressing such criticism, the Minister of Environmental Affairs publicised the calculator in July 2017 to enable the stakeholders to make meaningful inputs in determining the administrative fines. Drawing from this, the study aims at critically analysing the NEMA S24G administrative fine calculator. To achieve the study's aim, the study evaluated the use of S24G calculator, assessed challenges experienced using the fine calculator, and finally investigated ways that can be used to improve the fine calculator. The study adopted the qualitative research approach embedded within the interpretivism research tradition. Competent Authorities (CAs) and Environmental Assessment Practitioners (EAPs) formed the basis of the population of the study and its sample thereof. Data was gathered using questionnaire from both CAs and EAPs, and the gathered data was analysed using thematic data analysis. This enabled the researcher to develop codes and to classify the findings. The findings of this study revealed that the competent authorities (CA) and the EAPs have adequate knowledge of EIA regulations and the application of fine calculator in Section 24G. The results

further revealed that the application of a calculator is perceived to be an appropriate instrument in environmental management tools. It was recommended that there be a room to improve the calculator and expand some of the indexes, such as the pollution index, to take into consideration the cumulative impacts. Another noble suggestion was that the fine must take into consideration the profit made with the illegal activities and that be factored into the calculator. It was also recommended that a National Environmental Trust Fund (NETF) be considered as it would help realizing 'the polluter pays' principles and rehabilitation of impacted areas as contemplated in section 28 on NEMA. Finally, the weighting of the calculator should be investigated further to comprehend the weighting and the description of the variables.