ENFORCEMENT

Possible Infringements

  1. A developer has commenced an activity that you know is a listed activity (and therefore requires Environmental Authorisation). You however, know that he has not even applied for the required authorisation.
  2. A developer has commenced an activity that you know is a listed activity (and therefore requires Environmental Authorisation). You, however, know that he has applied for authorisation and the authorisation was denied.
  3. A developer was granted Environmental Authorisation. Certain conditions were contained in the authorisation. You suspect that the developer is not complying with the conditions.
  4. A developer was granted an Exemption from complying with any aspect of the EIA regulations. Certain conditions were contained in the exemption. You suspect that the developer is not complying with the conditions.
Possible Solutions
  1. Any member of the public, a company or an organ of state, can lay a charge at the South African Police Services. The National Prosecuting Authority can then decide whether to prosecute.
  2. However, only relevant state authorities can issue a compliance notice or directive; or can amend, withdraw, or suspend an authorisation.
  3. If the relevant state authority fails to issue a directive, you may write to the Director General (DG) or provincial head of the relevant department giving them 30 days within which to order any person who may be causing or have caused pollution to take reasonable measures. If the DG or provincial head fails to make such an order you may apply to the High Court for an order forcing them to do so.
  4. A fourth possible option, which you or the Competent Authority can take, is to apply to the relevant High Court for an interdict. An interdict is an order that either forces someone to do something (mandatory interdict) or stops someone from doing something (prohibitory interdict) e.g. stops a developer from continuing with construction. If you decide to follow this path, you will need to make use of an attorney. The Competent Authority will usually only seek an interdict after issuing a directive or compliance notice and the party responsiible for the pollution has failed to comply.

These routes are not exclusive - they could all be pursued at the same time.

Note: A compliance notice is issued to a person accused of non-compliance (for example, a developer) and contains details of the violation, steps to be taken by the party accused of non-compliance, and the time period for remedying the situation.

How Do I Do This?

Would the best option be to notify a Competent Authority of the suspected non-compliance or to lay a charge at the South African Police Service (SAPS)?

As a first step it would be best to notify the relevant Competent Authority who issued the authorisation, or the Competent Authority who should have received the Application. If action is not taken appropriately or in a timely fashion, you should then either approach the SAPS and lay a charge or write to the DG or provincial head, as discussed above.

If you want to get the relevant Competent Authority involved in order to take appropriate action, e.g. issue a compliance notice or directive; or amend, withdraw, or suspend the environmental authorisation - how would you do that?

A formal complaint should be referred to the relevant Competent Authority (either directly or to the Enforcement section.) An Environmental Management Inspector (EMI) may be appointed to take action. For more information on EMIs, please visit www.emi.gov.za.

What can you do if the Competent Authority refuses to act upon your complaint?

If the Competent Authority does not take action quickly enough or ignores you, then this can be elevated in writing to the Head of Department, Director-General or even to the Minister or MEC. If you are still unhappy, you can send a complaint of non-compliance and a complaint that the Competent Authority is failing to execute its mandate to the Legislature or Parliament. The relevant MEC or Minister will then have to explain to these structures what his/her Department has done, or not done, and why. Remember you may also approach the High Court but this approach is costly.

In addition, if you are not receiving any response, you might consider laying a charge directly with the SAPS - this action is likely to speed up the Competent Authority's response, as they will be seen to have failed to undertake their function.

If you want to lay a charge at the SAPS, what information would you need in order to lay the charge?

It would be helpful, but not essential, to take photographs and / or to complete an affidavit stating why you believe there is non-compliance and attach any relevant documentation in support thereof eg - the authorisation containing the conditions. Other evidence would then need to be collected by the investigating officer assigned to the matter (they may then refer it for assistance to the relevant Competent Authority's enforcement section).

Would it be possible to lay a charge anonymously?

This would be possible but then there wouldn't be an affidavit and the SAPS may be more reluctant to quickly investigate. If you wish to lodge an anonymous complaint the best thing to do is to phone the DEAT Environmental Crimes and Incidents hotline on 0800 205 005