NEMLAA IV extends environmental enforcement powers at municipal level

Garyn Rapson, Partner, Tendai Bonga, Senior Associate & Tsoseletso Bogopa, Associate at Webber Wentzel

Under NEMLAA IV, enforcement of the NEMA duty of care provisions would be broadened to empower municipal managers to issue directives for non-compliance

NEMLAA IV is finally law. Once this Act is promulgated, municipal managers will have a say in the enforcement of the all-important environmental duty of care provision of NEMA.

Breaching the environmental duty of care provisions entails numerous risks, including enforcement action in the form of a directive issued by officials in the national or provincial environmental department. NEMLAA IV, however, proposes to extend the authority to issue directives to municipal managers, which will widen the enforcement net. This development is a game-changer which may result in an environmental enforcement blitz, particularly at the municipal level.

NEMLAA4 also empowers municipal managers to delegate this authority to other municipal officials.

In addition to national laws, environmental compliance at municipal level is typically regulated in terms of by-laws which govern aspects such as scheduled or offensive trades, waste management, effluent disposal, and the management of atmospheric emissions. However, the sanctions for contravening local legislation are generally minimal and the non-compliance risks in terms of national legislation are typically not front-of-mind for transgressors.

Empowering municipal managers to issue directives for breaches of the NEMA statutory duty of care provision will radically shift this position and strengthen the enforcement of environmental laws at both local and national level. Armed with this new arsenal, municipal managers will be empowered to intervene more meaningfully in cases of suspected or apparent environmental transgressions which require swift and/or critical intervention to mitigate the associated environmental harm.

This proposed development will not extend a carte blanche to local officials, as they must still follow due process in exercising this authority. However, this is a progressive shift towards the consolidation of environmental enforcement strategies across all three levels of government.

Appeals against any duty of care directives issued by municipal managers or delegated officials will need to be heard by the relevant municipal council.