Chairperson, Ministers and hon members, the National Environmental Management Act, Act 107 of 1998, referred, in section 24(g), to the unlawful commencement, undertaking or conducting of a waste management activity, the control thereof and rectification of the commencement of such unlawful activities.
Over the years a trend has been noticed in the abuse of section 24(g), which deals with the environmental authorisation process. Many people tend to knowingly commence with a listed activity without environmental authorisation and only afterwards apply for section 24(g) environmental authorisation to rectify the unlawful commencement.
From the Department of Environmental Affair's, DEA's, 2009-10 National Environmental Compliance and Enforcement Report, it appears that a fairly significant component of the enforcement function, notably at provincial government level, relates to the conducting of unauthorised activities and associated section 24(g) rectifications. Almost every province cited illegal listed activities as the most prevalent crime reported. These challenges pose serious dangers to the credibility of the environmental impact assessment process.
Numerous complaints have been received from the public that section 24(g) is abused in that applicants proceed with illegal activities on the assumption that their 24(g) applications will be successful. Furthermore, the competent authorities have experienced reluctance on the part of the National Prosecuting Authority to institute prosecution once a person has applied for or has received an environmental authorisation in terms of section 24(g).
The compliance and enforcement report also states that the department has begun to identify institutions and persons that continue to contravene environmental legislation despite enforcement action having been taken against them. Although these organisations, including some parastatals, obtain relevant environmental authorisations, officials from the department continue to detect noncompliance with the conditions of these authorisations. It has also been said that some of these entities make provision in their annual budgets to pay the fines that will be imposed on them for wilfully contravening the provisions of the Act. The most recent noncompliance was detected in relation to construction activities along highways in Gauteng and Mpumalanga.
Based on repeated contraventions such as these, enforcement responses will now be stepped up, as the administrative enforcement tools which have been used up to now in relation to these contraventions do not appear to be effective in raising the level of compliance. In an effort to deal with the challenges, the amending Bill introduces more stringent provisions and, more specifically, the consequences for unlawful commencement of a listed activity. Prosecutorial actions against even parastatals and others can now be launched if precompliance and compliance notices are ignored.
The Minister of Environmental Affairs, the Minister of Mineral Resources and the relevant MECs responsible for environmental affairs are given substantive powers to issue directives for a variety of reasons. The administrative fine is increased from R1 million to R5 million while the requirements for the report to be compiled by the applicant have been tightened.
It is made clear that criminal prosecution may still be instituted despite the fact that a person has applied for an environmental authorisation in terms of section 24(g). It also serves as a reminder to the authorities that the High Court is not bound by the limitation in relation to penalties set by the Act. In cases where the competent authority is of the view that more severe penalties are warranted, it can approach the National Prosecuting Authority to institute criminal proceedings in the High Court.
The amendment also allows the Minister of Environmental Affairs, the Minister of Mineral Resources and the MEC to defer a decision until such time as the criminal investigation has been concluded. The amendment will also provide legal clarity on the applicability of section 24(g) to the unlawful commencement of waste management activities under the 2008 National Environmental Management: Waste Act.
Furthermore, amendments are introduced that clarify the distinction between an incident and an emergency situation, and to address situations where activities are about to commence in response to emergency situations. An example of such an emergency situation is the commencement of flood defence activities by a local authority in response to sudden and inclement weather conditions. The definition of an emergency situation is therefore aligned to a disaster as defined in the Disaster Management Act.
In conclusion, the vision of the ANC has always sought, and still seeks, to embrace a transformative environmentalism based upon the concept of sustainable development in terms of the interconnection of environmental, social and economic justice. The ANC is therefore constantly working on establishing legislative and administrative systems to ensure effective environmental management and to embrace an approach that encourages environmental organisations and communities to play an active role in ensuring environmental protection in the public interest.
I would like to thank the chairperson of the portfolio committee for his leadership and assistance and his legal expertise in helping us to understand these Bills. I also thank the members of the portfolio committee and officials in the department for work well done.
The ANC supports the adoption of the Bill. I thank you. [Applause.]