Companies who have been riding the crest of the ex post facto environmental wave have been cautioned that their past environmental transgressions may come back to haunt them with the introduction of amended regulations.  

Section 24G of the National Environmental Management Act, 1998 (NEMA,) which allows for ex post facto environmental authorisation, has been amended to include 24G Fine regulations which came into effect in July this year.

According to environmental experts the original Section 24G regulation, which allowed for an environmental assessment to be carried out after a development was in place or had commenced, was abused with some companies going so far as to proceed with a development without authorisation and budget for a rectification application, including the payment of the obligatory administrative fine.

The new Section 24G Fine Regulations provide for a procedure to be followed and a list of criteria to be considered in determining the quantum of section 24G administrative fines.  The Regulations include an Annexure A which must be completed and included with any section 24G application submitted after 20 July 2017.

Repeat contraveners face R5 million fines

Of particular importance is that Part 2 of Annexure A which requires applicants to disclose all previous administrative actions (compliance notices, directives), criminal convictions and section 24G applications submitted by the firm, its directors, and the firms on whose board the applicant’s directors sit / sat.

According to a notice by Webber Wentzel this information is needed because Regulation 9 provides for “repeat contraveners” and it provides that the fine committee must recommend to the competent authority that the applicant pay the maximum administrative fine of R5 million if the applicant is classified as a repeat contravener.

Know your dirty laundry

“Any client planning to submit a section 24G application must take note of this significant change, the legal firm said.”

“We recommend that clients have a clear picture of their dirty laundry, including that of existing directors – the Regulations require that all conduct since 7 January 2005 can be taken into account; and interrogate the environmental past of new directors to be appointed as part of their due diligence process.”