Main legislation
Environmental impact assessments
Sustainable development
Climate change targets

The environmental effects of public and private sector infrastructure projects in South Africa are regulated by a patchwork of local laws. This update briefly summarises the main legislation and the environmental authorisations needed to take a project forward.

Main legislation

The National Environmental Management: Air Quality Act (39/2004) provides measures for the prevention of pollution and ecological degradation, particularly for the control of emissions, and for securing ecologically sustainable development. The act sets out national norms and standards regulating air quality monitoring, management and control by all spheres of government.

The list of activities that may result in atmospheric emissions which cannot be carried out without an atmospheric emissions licence was published on March 31 2010. This list can be found in the regulations to the National Environmental Management: Air Quality Act (GN 248 in GG 33064).

The National Water Act (36/1998) gives effect to a public rights system under which water is allocated on an administrative licensing basis. This act contains stringent 'polluter pays' provisions in the event of on and off-site water contamination. Under the act, parties that are involved in, or in control of, construction projects are required to take all reasonable measures to prevent water pollution if their activities may pollute water. Failure to take these reasonable measures exposes the contractor to criminal liability and liability for pollution clean-up costs.

The National Environmental Management Act: Waste Act (59/2008) requires holders of waste both to:

  • ensure that the waste is treated and disposed of in an environmentally sound manner; and
  • prevent any employee or any person under his or her supervision from contravening the Waste Act.

The Waste Act prohibits the unauthorised disposal of waste and littering. The act also provides for the licensing of the waste management services.

A list of waste management activities that have or are likely to have a detrimental effect on the environment was published on July 3 2009. This list of activities can be found in the regulations to the National Environmental Management Act: Waste Act (GN 718 in GG 32368). The listing notice prohibits any person from commencing, undertaking or conducting a waste management activity listed unless a licence has been issued for that activity.

Hazardous substances are regulated by the Hazardous Substances Act (15/1973), which provides for the control of hazardous substances that can cause injury, ill health or death to human beings. A licence is required to supply, let, use, operate or apply a hazardous substance as identified in the Hazardous Substances Act.

Environmental impact assessments

Environmental impact assessments are provided for in the regulations to the National Environmental Management Act (107/1998). There are three lists of activities that require environmental assessments:

  • Listing Notice 1 lists activities which require a basic assessment to be carried out before authorisation;
  • Listing Notice 2 lists activities requiring scoping and environmental impact assessments to be undertaken before authorisation; and
  • Listing Notice 3 identifies geographical areas in each province (eg, protected areas, important areas for biodiversity conservation, estuaries, and sites or areas identified under an international convention).

Sustainable development

The section in the National Environmental Management Act on on general environmental management principles requires that development be socially, economically and environmentally sustainable. This includes:

  • avoiding pollution and degradation of the environment;
  • managing waste;
  • using and exploiting non-renewable natural resources responsibly;
  • adopting a risk-averse and cautious approach in developments; and
  • anticipating and preventing negative impacts on the environment and on people's environmental rights, and where these cannot be altogether prevented, ensuring that they are minimised and remedied.

Authorisations granted under the National Environmental Management Act are subject to this principle.

Climate change targets

South Africa is a party to the United Nations Framework Convention on Climate Change and the Kyoto Protocol. South Africa is classed as a developing country under the Kyoto Protocol and therefore does not have specified commitments to reduce or cap carbon emissions. However, in the Copenhagen Accord, South Africa undertook to reduce greenhouse gas emissions 34% by 2020 and by 42% by 2025. Currently, no legislative instruments have been passed to require constructions to comply with carbon emissions or climate change targets. It is expected that such instruments will be introduced once the detailed technical work and mitigation action plans needed to ensure that South Africa achieves these targets have been fnalised.

For further information on this topic please contact Rob Morson or Daniella Zussa at Bowman Gilfillan Inc by telephone (+27 11 669 9000), fax (+27 11 669 9001) or email ([email protected] or [email protected]).

This update is an edited excerpt from the South Africa chapter of PLC's Construction and Projects Handbook 2011/12.