On 24 July 2015 the Minister of Environmental Affairs promulgated in terms of section 34G of the National Environmental Management Act 107 of 1998 (“NEMA”) the admission of guilt fine regulations for certain activities listed under section 67 of the National Environmental Management: Waste Act 59 of 2008 (“the Waste Act”).
The regulations only apply to offences under the Waste Act that relate to general waste and are not applicable to offences that relate to hazardous waste or priority waste.
Under the Waste Act general waste is defined as:
“Waste that does not pose an immediate hazard or threat to health or to the environment, and includes-
- Domestic waste;
- Building and demolition waste;
- Business waste;
- Inert waste; or
- Any waste classified as non-hazardous waste in terms of the regulations.
And includes non-hazardous substances, materials or objects within business, domestic, inert, building and demolition wastes.
There are 10 offences listed in the table of regulations, each with a maximum fine of R5000.00. These offences range from failure by persons who store and generate waste to take adequate measures to prevent the spillage and leaking of waste causing a visual and odour nuisance, to littering in public or into a stream or water course, or allowing a person under your control to litter in any of those places. The offences also include failure to provide the Municipality with information or data that is required under the national and municipal waste management system for reporting purposes.
What Are the Practical Implications?
Much like a traffic fine, by paying an admission of guilt fine, a person avoids going to Court to be tried for the offence, saving both the person and the state a lot of time and money. In light of the definition of "general waste" in the Waste Act, this means that the regulations are applicable to everyone who generates, stores or transports general waste, from the man on the street, to formal industries and companies, transporters of waste and even domestic premises that are used wholly or mainly for residential, educational, health care, sport or recreation purposes.
Challenges to Enforceability
At first glance, the regulations appear to be a wonderful instrument that can move us towards cleaner industries, cities and communities, as well as being a good deterrent against public pollution and environmental degradation. However, one of the challenges facing the efficacy of these regulations is enforcement. To what extent can they be practically enforced?
Unlike traffic offences, where the state employs and capacitates thousands of traffic officers to enforce traffic regulations, this is not the case when it comes to environmental enforcement in South Africa, where littering is still not viewed as a grave offence like disobeying a street sign.
Legislation does, however, provide for environmental law enforcement through Environmental Management Inspectors (“EMIs”), commonly known as ‘Green Scorpions’. EMIs are empowered under section 31D of National Environmental Management Act 56 of 2002
(‘NEMA”) to ensure that environmental legislation is followed and enforced. To assist them in this responsibility, section 31(O) of NEMA empowers members of the South African Police Service (SAPS) to have all the powers of EMIs in respect of any offence under NEMA or a specific environmental management act (SEMA), however these powers exclude the powers to conduct routine inspections and the power to issue and enforce compliance notices, which leaves only the EMIs with the mammoth task of enforcing environmental offences.
Although legislative provisions are in place for EMIs to be appointed in all spheres of government, including our local municipalities, in reality there are few EMIs appointed and operating at national, provincial and local level. With such limited manpower, one is left to wonder how successful they would be in enforcing these regulations.
Practically speaking, are we going to see ‘Green Scorpions’ in our neighbourhoods and around our office blocks enforcing these regulations and issuing admission of guilt fines? This is highly unlikely. If local municipalities, entrusted with ensuring that local communities and cities are clean and free of waste, are battling with environmental enforcement through some deficient by-laws, then how much more effective will the EMIs be if they are understaffed?
This may well be another case of subordinate legislation that looks good on paper, but lacks enforcement capability. For these regulations to be effective, the Minister of Environmental Affairs has to beef up the Environmental Management Inspectorate and ensure that, through co-operative governance, that EMIs are represented and capacitated in all spheres of government, particularly in local Municipalities where a lot of the enforcement is needed.