Ex post facto environmental authorisation in South Africa

Abstract

Competent authorities issue environmental authorisations before a proposed activity that is likely to have a significant impact on the environment can take place (section 24 National Environmental Management Act 107 of 1998 (NEMA). Non-compliance is an offence (section 24F NEMA). However, South Africa allows an ex post facto environmental authorisation after a listed activity has commenced without the necessary authorisation (section 24G NEMA). Before an environmental authorisation or ex post facto environmental authorisation may be granted, an environmental assessment has to be carried out. However, it remains questionable whether an environmental assessment is an ideal tool to inform decision-making before issuing an ex post facto environmental authorisation. Sustainable development and environmental management principles underpin environmental decision-making and include, amongst others, the precautionary and the preventive principles. The emerging international law principle of non-regression requires that states must not backtrack on their commitment to environmental protection. This study interrogates the practical and theoretical challenges of an ex post facto environmental authorisation in South Africa and whether introducing section 24G of NEMA is tantamount to a regressive measure. The study also includes a limited empirical study to probe the practical experiences of the national Department responsible for environmental matters and three provinces in implementing section 24G of NEMA to identify the challenges. The findings of the study suggest that section 24G is not punitive but a corrective measure to bring unlawful activities into the regulatory loop. The challenges identified are the abuse of the section 24G process, interpretation issues, public participation, the administrative fine issue, and the fact that an environmental assessment is not the ideal tool to inform the decision-making in the case of an ex post facto environmental authorisation. Further, the findings suggest that an ex post

facto environmental authorisation prima facie was not intended to undermine the non-regression principle. The thesis further followed a legal comparative method to discuss the experiences of Ireland, England, India and the Kingdom of Eswatini with ex post facto environmental authorisations to distil lessons for South Africa. Given the lessons, the study recommends, among other things, that section 24G be retained but be amended so that it applies to exceptional circumstances to curb abuse. Further, the public participation process should be strengthened. It is further recommended that alternative tools such as environmental risk assessments, environmental audits or a combination of tools should be introduced to strengthen the process.