Public may challenge enviro laws

ENVIRONMENTAL legislation allows for conscious and alert citizens and organisations to challenge the decisions taken by the relevant authorities under the National Environmental Management Act (NEMA) and the Centre for Environmental Rights (CER).

Environmental law has seen new growth in the number of Acts published but more than the development of the law has been the growth in public awareness regarding environmental issues.

In recent developments, CER has sought to appeal a decision by the KZN Department of Economic Development, Tourism and Environmental Affairs which imposed an administrative fine of R497 000 on Zululand Anthracite Colliery in respect of a section 24G application.

‘Generally one would ordinarily require environmental authorisation prior to commencing an activity, but section 24G of NEMA allows a person or entity who has embarked on an activity without the necessary authorisation, to make that application after the activity has commenced,’ said Garlicke & Bousfield Inc. Litigation Department Associate Patrick Forbes.

‘CER maintains that the fine was not sufficient on a number of grounds including the number of activities which would have required authorisation, the time period over which the offences took place, the impact that the activities have had on the environment and the seeming blatant disregard for the procedures relating to authorisations set down in NEMA.

‘Section 24G is an unusual provision in terms of our law, but it is not the only one in NEMA, as section 43 allows for any person to appeal to the Minister in respect of a decision taken under a power delegated by him.

‘Thus an administrative fine in terms of 24G is one such decision that could be taken on appeal by ‘any person’, Forbes said.

‘The outcome of the appeal will be interesting, but of more general interest is that the issue of a fine may not be the end of the matter, and provided society stays alive to the avenues available to them, the law will give them recourse, provided it is effectively utilised.

‘For those seeking to regularise their activities under section 24G, be warned: the fine, if seen as insufficient, will be challenged.’ he said.