Chapter 7 of the NEMA: The Environmental Management

Inspectorate Legislative Training Workshop –Portfolio Committee on

Environment, Forestry and Fisheries: 20 August 2020Ms Frances Craigie: Chief Director: Sector Enforcement: Regulatory Compliance and Sector

Monitoring Branch

Background• The Environmental Management Inspectorate (EMI)

was introduced through an amendment to NEMA in 2005.

• Objective to provide for a single set of compliance and enforcement powers for all relevant officials at national, provincial and local authority spheres of government.

• Created a network of EMIs with a unified identity to facilitate greater consistency in the execution of compliance and enforcement functions for national legislation regulating biodiversity, protected areas, waste, air quality, impact assessment and coastal management.

The EMI Network

2 National Departments = DEFF, DHSWS

3 national statutory bodies = SANParks, SANBI & Isimangaliso WPA;

9 provincial environmental authorities;

5 provincial parks agencies

64 district and local municipalities

Current EMI Capacity: National and Provincial = 3240Institution Name 2017-18FY 2018-19FY 2019-20FY

National Authorities

DEFF 135 169 160

iSimangaliso 6 8 8

SANParks 859 860 1315

DWS 17 28 22

SANBI 4 8 8

Provincial Environmental Authorities

Eastern Cape DEDEA 44 46 45

Free State DESTEA 40 38 32

Gauteng DARD 50 88 98

KwaZulu-Natal DEDTEA 68 68 57

Limpopo DEDET 256 263 246

Mpumalanga DARDLEA 9 9 9

Northern Cape DENC 28 27 32

North West DREAD 46 40 39

Western Cape DEADP 66 65 72

Provincial Parks Authorities

CapeNature 43 50 42

Eastern Cape Parks 137 122 249

Ezemvelo 661 682 705

Mpumalanga Parks 19 25 25

North West Parks Board 89 80 76

TOTAL 2577 2676 3240

Current EMI Capacity: Local = 407

145

74

56

3528 27

2216

4

0

20

40

60

80

100

120

140

160

1

Municipal EMIs per Province

KZN WC GP Limp NW EC FS Mpum NC

Cooperative Governance Structure

Key Partnerships

SAPS NPA

SARS Customs / Border

Management Authority

Water/Mineral Resources

Who can designate EMIs?

• S31B – Minister responsible for environment;• S31BA – Minister responsible for water affairs;• S31BB – Minister responsible for mineral

resources (EMRIs);• S31C – MEC;

This power to designate may also be delegated, for example:• Minister to DG of DEFF;• Minister to SANParks Board• MEC to Ezemvelo CEO

Functions of EMIs

S31G of NEMA sets out the functions:• Monitor and enforce compliance with specific pieces of national

environmental legislation (principal and subordinate);• Investigate any act or omission on a reasonable suspicion of a breach

of this legislation.

Strict Admission criteria to EMI Basic Training:• At least 50% of your Key Performance Areas must be dedicated to

compliance or enforcement with NEMA and/or the SEMAs

Functions of EMIs

Mandate of EMIsGeographical mandate: • EMIs will only have jurisdiction in the

areas for which the designating authority has administrative power (for example, SANParks Board = only within the boundaries of national parks).

• Some non-DEFF officials have requested national designation, for example, members of the NBIF who investigate criminal syndicates operating across provincial and protected areas boundaries.

Mandate of EMIsLegal mandate:• EMIs may only exercise their powers to monitor compliance

and enforcement the provisions of NEMA and the SEMAs (Biodiversity, Protected Areas, World Heritage Convention, Waste, Air Quality, Integrated Coastal Management, National Water & Environment Conservation Acts).

• Current NEML Amendment Bill = will empower the MEC to designate provincial EMIs to execute their functions in respect of “any provincial Act that substantively deals with environmental management”, for example, the respective provincial nature conservation Acts (previously Ordinances).

• Compliance and enforcement is an executive power, therefore allocation of competence is determined by Schedules 4 and 5 of the Constitution to determine the mandate of national, provincial and local authority EMIs.

Mandate of EMIsImplementation Challenge =Overlapping Mandate:

NEMA includes an all encompassing definition:“environment” means the surroundings within which humans exist and that are made up of

(i) the land, water and atmosphere of the earth; (ii) micro-organisms, plant and animal life;

(iii) any part or combination of (i) and (ii) and the interrelationships among and between them; and

(iv) the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and wellbeing;

Horizontal Overlaps with other sectoral departments:• Water;• Mineral and Petroleum Resources;• Agriculture;• Health;• Safety and Security;• Border Management

Vertical Overlaps with other spheres of government:For example, “environment” and “pollution control” are concurrent national and provincial, however, “air pollution” is exclusively local authority competence

Powers of an EMIEMI powers are found in: S31A – S34H of NEMA, Chapters 2,5,7 and 8 of the Criminal

Procedure Act 51 of 1977; and S13(8) of the SAPS Act 57 of 2008.

• Inspection type powers: entry onto land for the purposes of ascertaining compliance (S31K);

• Administrative Enforcement type powers: issue a compliance notice in response to non-compliance (S31L);

• Investigation type powers: questioning, search, seizure, take photos/audio-visual recordings, stop, enter and search vehicles, vessels and aircraft on reasonable suspicion etc. (S31H/J etc.);

Powers of an EMI: Grading system

Powers of an EMI: Peace officer• S31H(5) of NEMA –

“In addition to the powers set out in this Part, an environmental management inspector must be regarded as being a peace officer and may exercise all the powers assigned to a peace officer, or to a police official who is not a commissioned officer, in terms of Chapters 2, 5, 7 and 8 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977)-(a) to comply with his or her mandate in terms of section 31D; and(b) within the area of jurisdiction for which he or she has been designated.”

Grades 1,2 and 5 EMIs have the same powers as peace officers or non-commissioned police officials related to arrest, search and seizure; and the issuing of admission of guilt fines

http://search.sabinet.co.za/netlawpdf/netlaw/CRIMINAL PROCEDURE ACT.htmhttp://search.sabinet.co.za/netlawpdf/netlaw/CRIMINAL PROCEDURE ACT.htmhttp://search.sabinet.co.za/netlawpdf/netlaw/CRIMINAL PROCEDURE ACT.htmhttp://search.sabinet.co.za/netlawpdf/netlaw/CRIMINAL PROCEDURE ACT.htmhttp://search.sabinet.co.za/netlawpdf/netlaw/NATIONAL ENVIRONMENTAL MANAGEMENT ACT.htm

Duties of an EMI S31F: Identification: identify themselves

while on official duties to members of the public/ regulated community.

S31G: Minimise any damage, loss or deterioration of any premises or thing.

S31H: Provide a receipt and return of seized items on conclusion of criminal proceedings.

S31Q: Confidentiality: maintain appropriate level of confidentiality while exercising official duty (criminal offence to contravene).

EMI Code of Conduct: empowering provision in the NEML Bill to make it legally binding.

Administrative Enforcement• Lower standard of proof unlike criminal proceedings –

reasonable belief versus beyond all reasonable doubt• Not punitive in nature but rather seeks to remedy a situation

– stop the damage causing activity; rehabilitate the environment; apply for or authorisations

• Not just administrative in nature but contains substantive conditions that must be complied with

• May be a need to take both administrative and criminal enforcement action at the same time

LAWFUL, REASONABLE,

PROCEDURALLY FAIR Criminal enforcement

Administrative enforcement

Different Administrative Enforcement Notices

• S31L NEMA – Compliance Notices • S28(4) NEMA – Directive (duty of care)• S30(6) NEMA – Directive (incident - unexpected, sudden and

uncontrolled release of a hazardous substance) • S30A NEMA – Directive (emergency situation - imminent and

serious threat to the environment, human life or property)• S24G Directive (linked to S24G application)• S69(2) and S73(3) NEMBA Directives (Alien & Invasive Species)• S59 ICMA (coastal protection); S59(5) ICMA (coastal access)

and S60 ICMA (repair and removal)• S31A ECA (serious harm to the environment)• Suspension / Withdrawal of licences / authorisations

Commonly used enforcement notices Section 31L of the NEMA provides:

“An Environmental Management Inspector, within his or her mandate in terms of

section 31D, may issue a compliance notice in the prescribed form and

following the prescribed procedure if there are reasonable grounds for

believing that a person has not complied

Section 28(4) of the NEMA provides The Director General, Director General DMR or a provincial head of department may, after

having given adequate opportunity to the affected persons to inform him or her of their relevant

interests, direct any person who is causing, has caused or may cause significant pollution or

degradation of the environment to –

• Cease any activity, operation or undertaking;

• Investigate, evaluate and assess the impact of specific activities and report thereon;

• Commence taking specific measures before a given date;

• Diligent continue with those measures; and

• Complete those measures before a specified reasonable date

Criminal Enforcement• NEMA and SEMAs – significant number of criminal offences

created for non-compliance (including significant penalties)• Specific offences that are directed at ensuring that EMIs are

not impeded in carrying out their work efficiently section 49A(1)(m) – (p)and are as follows –• hindering or interfering with an EMI in the execution of

their duties;• pretending to be an EMI, or the interpreter or assistant of

such an inspector;• furnishing false or misleading information;• failing to comply with a request of an EMI

Expanded approach to penalties• Supplementary fines:

• additional fine equal to the monetary value of any advantage gained, or likely to be gained, from an offence listed in Schedule 3

• Cost, damage and rehabilitation orders:• Order that any damage to the environment be repaired; • Order in respect of the costs for loss or damage, or likely loss or

damage, incurred in rehabilitating the environment or preventing damage to the environment (Schedule 3 offence);

• costs orders in respect of the reasonable expenses incurred in the investigation and prosecution of the offence.

• Forfeiture, withdrawal and cancellation orders:• forfeiture orders in respect of property that was used in the

commission of the offence;• court may withdraw any permit / authorisation if the rights conferred

were abused by that person and disqualify that person from obtaining a permit or authorisation for a period not exceeding five years

Compliance and Enforcement relative to the “ONE ENVIRONMENTAL SYSTEM”

• Ministers of Mineral Resources and Environmental Affairsconcluded an agreement on the “One Environmental System” –December 2014 into effect

• Ministers adopted an integrated mine environmentalmanagement system and sought to align the MPRDA, NEMA,National Environmental Management: Waste Act (NEMWA),National Environmental Management: Air Quality Act(NEMAQA) and National Water Act (NWA).

• The agreement implied that environmental issues resulting frommining, prospecting, production and related activities will beregulated in terms of the NEMA, whilst Minister of MineralResources will become a competent authority in terms of NEMA.

Compliance and Enforcement relative to the “ONE ENVIRONMENTAL SYSTEM”

• Officials from the DMR - equivalentdesignation to EMIs in order to enforce theprovisions of the NEMA – changes made tothe NEMA which introducesEnvironmental Mineral ResourceInspectors (EMRIs)

• Compliance and enforcement related tomining / prospecting activities fall withinmandate of DMRE

• Section 31D of NEMA enables EMI’s tosupport the EMRIs – specific process to befollowed and currently concurrence ofMinister of DMRE is required

MINERAL SANDS RESOURCES // MAGISTRATE OF VREDENDAL AND OTHERS

OUTCOME OF MSR CASELegal Mandate:

Western Cape High Court judgement of Mineral Sands Resources vs MagistrateVredendal and Others (Case 18701/16):

• Confirmed the exclusive legal mandate of DMR/EMRIs in relation to listedactivities directly related to mining as contemplated in section 24C(2A) ofNEMA;

• Confirmed the ongoing mandate of EMIs in relation to non-compliances withthe NEM: Integrated Coastal Management Act, notwithstanding that it mayhave occurred within a mining area. Same applicable to other SEMAs:biodiversity, protected areas, air quality?

Referrals of complaints related to mining activities ito S31D (4) – (9)

• Several complaints have been referred from the EA Ministry to the MRMinistry in terms of section 31D (6) of NEMA requesting further consultation –awaiting a response to these referrals.

Recent Work of the EMI: NECER 2019-202.5 Annual Compliance and Enforcement Highlights

Category Result Institution

Most inspections conducted Green issues = 658

Brown issues = 199

Total = 857 facilities

Limpopo DEDET

Highest sentence of direct

imprisonment without the

option of a fine

S v Khoza (Mpumalanga):

37 years imprisonment: Charges of:

Trespassing,

possession of unlicensed firearm,

illegal possession of ammunition,

illegal hunting and possession of dangerous weapons, and being an illegal immigrant

SANPARKS

Highest sentence for a

pollution and waste case

S v Edgar Adams (3 separate cases)::

Case 1: Western Cape: Fine of R300 000 and 3years direct imprisonment, of which the imprisonment

was suspended for 5 years;

Case 2: Free State: Fine of R300 000 and 3years direct imprisonment,

Case 3: Gauteng: Fine of R300 000 or 3years direct imprisonment

Various Charges, including non-compliance with the conditions of a WML and failure to comply with

compliance notices.

DEFF

Highest number of section

24G fines issued

19 fines were issued and paid with a total sum of R 2 884 079 being collected. GDARD

The highest number of

enforcement notices issued

275 enforcement notices were issued, mostly related to the unlawful commencement of listed activities. DEFF

Highest number of admission

of guilt fines issued

356 were issued to the sum total of R 27 750 SANParks

NECER: Enforcement: 2019/202017-18FY 2018-19FY 2019-20FY

Criminal Enforcement

Arrests by EMIs 926 820 787

Criminal dockets registered 1257 1028 1364

Cases handed to NPA 446 424 434

NPA declined to prosecute (nolle prosequi) 18 25 73

Section 105A agreements (plea bargains) 8 4 15

Acquittals 10 14 9

Convictions (excl. J534s) 53 38 47

J534 (Admission of Guilt Fines):Total number issued 872 957 864

J534: Total number paid 523 460 345

J534: Total value of fines paid R 251 300 R312 930 R 286 896

Administrative Enforcement and Civil Actions

Warning letters issued 324 154 153

Pre-directives issued 286 179 344

Pre-compliances notices issued 576 635 729

Final directives issued 103 55 95

Final compliance notices issued 128 163 233

Civil Court applications launched 2 0 3

S24G administrative fines: Total value paid R 10 064 949,65 R5 983 518,51 R 7 179 405

S24G: Total number of fines paid 110 71 76

NECER 2019/20: Compliance Inspections

Institution Complaint Permit

Planned

Inspection

Section

30

Incident

Routine

Inspection Grand Total

Cape Nature − 488 − − − 488

DEFF 205 18 105 181 9 518

DHSWS − − 263 − − 263

Eastern Cape DEDET 4 1 − − 257 262

Free State DESTEA 9 − 4 − 8 21

Gauteng DARD − 294 1 24 − 319

Isimangaliso − − − − 12 12

Kwazulu-Natal EDTEA 194 159 101 1 321 776

Limpopo DEDET 1 151 500 − 39 691

Mpumalanga DARDLEA100 16 − − 55 171

North West DREAD 931 − 242 − 175 1348

Northern Cape DENC 116 − − − 1 117

Western Cape DEADP 454 1 4 − − 459

Grand Total 2014 1128 1220 206 877 5445

National Compliance and Enforcement Strategy

Chapters of the Strategy follow the

regulatory cycle:

– Legislation and Licensing;

– Compliance Promotion;

– Compliance Monitoring;

– Enforcement;

– Review;

– Information Management and

Research;

– Institutional Matters

Case StudySubmitting False and Misleading Information: State vs Stefan Frylink and

another

• Construction of the Pan African Parliament Building – Midrand – Gauteng

• DPW appointed EAP to facilitate the EA process

• During the consultation process GDARD indicated the presence of a wetland

onsite

• Wetland not visible and unique to this area

• EAP ignored comments and proceeded by submitting information

• DEA issued an EA on the strength of the information supplied by the EAP

• Calls by project manager alerted DEA EMIs to the presence of a wetland

• Directive issued and project was stopped.

THANK YOU!Frances Craigie

Chief Director: Sector Enforcement

Environmental Management Inspector

Department of Environment, Forestry and Fisheries

South Africa

Private Bag X447 Pretoria 0001

Environment House

Cnr Steve Biko and Soutpansberg, Pretoria

Tel: +27 12 399 9460

Cell: +27 82 454 6637