Protection of the environment through the application of section 24G of the National Environmental Management Act, 107 of 1998.

Abstract

Listed / specified activities are undertaken following authorisation through an environmental impact assessment process. It is an offence to commence them without authorisation, which may attract sanctions through administrative, civil or criminal measures. These measures have proven to be inadequate, which leads to the question: what possible remedies could be effective in such instances. The promulgation of s24G was meant to answer this by introducing a process which might ‘correct’ problems associated thereto. However, s24G proved to be controversial and confusing, and possibly not aligned to the enabling provisions under which it was housed. Furthermore, a number of concerns were raised, such as being a fait accompli authorisation, potential for abuse, being inimical to sustainable development principles, possible unconstitutionality (double punishment for the same crime in contravention of the country’s founding constitutional provisions), etc. This study sought to investigate whether these concerns are warranted, whether consideration is given to the environment in the s24G process, and the ex post facto environmental authorisation jurisprudence in the country. This study found that environmental considerations were central to the s24G process and its outcomes, making it a possible solution to listed / specified activities undertaken without authorisation. Courts, however, have been inconsistent and somewhat contradictory in their interpretation of ex post facto authorisations, which makes it difficult to adequately allay some of the concerns. This study also found that concerns regarding s24G may have been warranted at its promulgation but may no longer be sustained by the current provisions as amended, because of refinement thereof over the years. Empirical evidence suggests that most of those who apply for s24G ‘correction’ in the Province of KwaZulu/Natal are companies, and many ultimately get authorisation. This is in line with the observations in other provinces. However, data is not readily available and where it is, it sometimes has gaps, making it almost impossible to make definitive findings. In this regard, it may be necessary to consider making the s24G application process and data thereof transparent and easily accessible.