Section 24G: Consequences of unlawful commencement of activity

One of the most notable changes to NEMA proposed in the Bill is the insertion of subsection 1A in Section 24G which will allow a person who has taken ownership or control of a property on which infrastructure or development was built unlawfully, to apply to have it legalised going forward. Up to now, the Section 24G remedy was only available to the transgressor, that is, the person who had commenced the activity listed under NEMA without an environmental authorisation or who had commenced, undertaken or conducted a waste management activity listed under NEMWA without a waste management licence.

The amendment should be welcomed by property buyers and business owners as it now means there will be a mechanism to deal with existing unlawful activities that is not dependant on the co-operation of the original or previous owner or developer.

Although subsection 1A will go some way to reduce business risk, there is still no guarantee that an applicant, including a subsection 1A applicant, will be granted authorisation or a licence after submitting a Section 24G application. Upon application, the applicant could also be directed to remediate any adverse effects on the environment and/or cease operations pending the decision.

Notably, subsection 4 which requires the payment of an administrative fine of up to R5 million before an application will be considered, has not been amended to include a subsection 1A applicant. Also worth noting, is that a subsection 1A applicant will not attract statutory liability by submitting a Section 24G application. This liability will remain with the transgressor, who can be prosecuted by the State for up to 20 years from the date the offence was committed, even though an environmental authorisation or a waste management licence may have been granted subsequently to the new owner.

Siya Mkhize, Candidate Attorney