National Environmental Laws Amendment Act

This section substitutes section 46 of the Atmospheric Pollution Prevention Act, 1965 and appears to relate to penalties.

Jurisdiction: South Africa
Instrument: Act or statute
Citation: Act 14 of 2009
Version: Undated source snapshot
Language: en
Updated: 27 May 2009
Official source: View official record ↗

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About this statute

This section substitutes section 46 of the Atmospheric Pollution Prevention Act, 1965 and appears to relate to penalties. A person convicted of an offence under this Act may be fined or imprisoned, with higher maximum penalties for a second or later conviction. This provision makes it an offence to breach specified environmental law provisions or permit conditions, and sets fines or imprisonment for conviction. This section amends section 32 so the authority may issue a regulation or direction under the Act. This provision amends Section 1 of the National Environmental Management Act, 1998 by deleting the definitions of “Committee” and “Forum”, and it also refers to repeal of Parts 1 and 2 of Chapter 2 of Act 107 of 1998.

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Provisions of National Environmental Laws Amendment Act

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1
The following section is hereby substituted for section 46 of the Atmospheric
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This section substitutes section 46 of the Atmospheric Pollution Prevention Act, 1965 and appears to relate to penalties.

1. The following section is hereby substituted for section 46 of the Atmospheric 5 Pollution Prevention Act, 1965: ‘‘Penalties
46
Any person convicted of an offence under this Act shall be liable, in
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A person convicted of an offence under this Act may be fined or imprisoned, with higher maximum penalties for a second or later conviction.

46. Any person convicted of an offence under this Act shall be liable, in the case of a ﬁrst conviction, to a ﬁne not exceeding [ﬁve hundred] ﬁve million rand or imprisonment for a period not exceeding [six months] ﬁve years, and in the case of a second or subsequent conviction to a ﬁne not exceeding [two thousand] 10 million rand or imprisonment for a period not exceeding [one year] 10 years.’’. 10 Amendment of section 29 of Act 73 of 1989, as amended by section 18 of Act of 79 of 1992 and by Proclamation No. 29 of 1995 15
2
Section 29 of the Environment Conservation Act, 1989, is hereby amended by the
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This provision makes it an offence to breach specified environmental law provisions or permit conditions, and sets fines or imprisonment for conviction.

2. Section 29 of the Environment Conservation Act, 1989, is hereby amended by the substitution for subsections (4), (5) and (6) of the following subsections, respectively: ‘‘(4) Any person who contravenes a provision of section 20(1), 20[(6)](9), 22(1) or 23(2) or a direction issued under section 20(5) or fails to comply with a condition of a permit, permission, authorisation or direction issued or granted under the said provisions shall be guilty of an offence and liable on conviction to a ﬁne not exceeding [R100 000] R5 million or to imprisonment for a period not exceeding [10] ﬁve years and in the case of second or subsequent conviction, to a ﬁne not exceeding R10 million or imprisonment for a period not exceeding 10 years or in both instances to both such ﬁne and such imprisonment, and in addition to a ﬁne not exceeding three times the commercial value of any thing in respect of which the offence was committed. (5) Any person convicted of an offence in terms of this Act for which no penalty is expressly provided, shall be liable to a ﬁne not exceeding [R2 000] R500 000 or to imprisonment for a period not exceeding six months or to both such ﬁne and such imprisonment. (6) Any person convicted of an offence in terms of this Act, and who after such conviction persists in the act or omission which constituted such offence, shall be guilty of a continuing offence and liable on conviction to a ﬁne not exceeding [R250] R1 000 per day or to imprisonment for a period not exceeding [20 days] six months or to both such ﬁne and such imprisonment in respect of every day on which he or she so persists with such act or omission.’’. 20 25 30 35 Amendment of section 32 of Act 73 of 1989
3
Section 32 of the Environment Conservation Act, 1989, is hereby amended by the
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This section amends section 32 so the authority may issue a regulation or direction under the Act.

3. Section 32 of the Environment Conservation Act, 1989, is hereby amended by the substitution in subsection (1) for paragraph (a) of the following paragraph: 40 ‘‘(a) issue a regulation [or a direction] in terms of the provisions of this Act;’’. Amendment of section 1 of Act 107 of 1998, as amended by section 1 of Act 56 of 2002, section 1 of Act 46 of 2003, section 1 of Act 8 of 2004, section 60 of Act 39 of 2004 and section 1 of National Environment Laws Amendment Act, 2008, and section 1 of National Environmental Management Amendment Act, 2008 45
4
Section 1 of the National Environmental Management Act, 1998, is hereby
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This provision amends Section 1 of the National Environmental Management Act, 1998 by deleting the definitions of “Committee” and “Forum”, and it also refers to repeal of Parts 1 and 2 of Chapter 2 of Act 107 of 1998.

4. Section 1 of the National Environmental Management Act, 1998, is hereby amended by— (a) (b) the deletion of the deﬁnition of ‘‘Committee’’; and the deletion of the deﬁnition of ‘‘Forum’’. 6 Repeal of Parts 1 and 2 of Chapter 2 of Act 107 of 1998
5
Parts 1 and 2 of Chapter 2 of the National Environmental Management Act, 1998,
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This provision repeals Parts 1 and 2 of Chapter 2 of the National Environmental Management Act, 1998.

5. Parts 1 and 2 of Chapter 2 of the National Environmental Management Act, 1998, are hereby repealed. Insertion of section 3A in Act 107 of 1998
6
The following section is hereby inserted in Chapter 2 of
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This section inserts a new section in Chapter 2 about the establishment of fora or advisory committees.

6. The following section is hereby inserted in Chapter 2 of the National 5 Environmental Management Act, 1998, after section 3: ‘‘Establishment of fora or advisory committees
3A
The Minister may by notice in the Gazette—
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The Minister may, by notice in the Gazette, establish a forum or advisory committee and तयermine its composition, functions, and member remuneration/expense basis.

3A. The Minister may by notice in the Gazette— (a) establish any forum or advisory committee; (b) determine its composition and functions; and (c) determine, in consultation with the Minister of Finance, the basis and extent of the remuneration and payment of expenses of any member of such forum or committee.’’. Amendment of section 11 of Act 107 of 1998
7
Section 11 of the National Environmental Management Act, 1998, is hereby
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This section amends section 11 of the National Environmental Management Act, 1998, replacing paragraph (b) in subsection (5).

7. Section 11 of the National Environmental Management Act, 1998, is hereby amended by the substitution in subsection (5) for paragraph (b) of the following paragraph: ‘‘(b) on application by any organ of state, or on his or her own initiative with the agreement of the relevant Minister where it concerns a national department, [and after consultation with the Committee,] amend Schedules 1 and 2.’’. Amendment of section 13 of Act 107 of 1998 10 15 20
8
Section 13 of the National Environmental Management Act, 1998, is hereby
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The Minister may make regulations to give effect to subsection (1)(b) and (c), after consulting the Committee.

8. Section 13 of the National Environmental Management Act, 1998, is hereby amended by the substitution for subsection (2) of the following subsection: ‘‘(2) The Minister may[, after consultation with the Committee,] make regulations for the purpose of giving effect to [subsections] subsection (1)(b) and (c).’’. 25 Amendment of section 15 of Act 107 of 1998
9
Section 15 of the National Environmental Management Act, 1998, is hereby
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Section 15 is amended so environmental implementation plans and environmental management plans must be submitted for approval to the Minister or MEC, as applicable.

9. Section 15 of the National Environmental Management Act, 1998, is hereby amended by— (a) the substitution for subsection (1) of the following subsection: ‘‘(1) Every environmental implementation plan and every environ- mental management plan must be submitted [to the Committee by a date to be set by the Minister] for approval to the Minister or MEC, as the case may be.’’; (b) (c) the deletion of subsections (2), (3) and (4); and the deletion in subsection (6) of paragraphs (b) and (c). Amendment of section 16 of Act 107 of 1998
10
Section 16 of the National Environmental Management Act, 1998, is hereby
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Organs of state must follow environmental plans when carrying out functions, report substantial deviations immediately, and file annual implementation reports within four months after financial year-end.

10. Section 16 of the National Environmental Management Act, 1998, is hereby amended by the substitution for subsection (1) of the following subsection: ‘‘(1) (a) Every organ of state must exercise every function it may have, or that has been assigned or delegated to it, by or under any law, and that may signiﬁcantly affect the protection of the environment, substantially in accordance with the environmental implementation plan or the environmental management plan prepared, submitted and adopted by that organ of state in accordance with this Chapter: Provided that any substantial deviation from an environmental manage- ment plan or environmental implementation plan must be reported forthwith to the Director-General [and the Committee]. (b) Every organ of state must report annually within four months of the end of its ﬁnancial year on the implementation of its adopted environmental management plan or environmental implementation plan to the Director-General [and the Committee]. (c) The Minister may[, after consultation with the Committee,] recommend to any organ of state which has not submitted and adopted an environmental 30 35 40 45 50 8 implementation plan or environmental management plan, that it comply with a speciﬁed provision of an adopted environmental implementation plan or submitted environmental management plan.’’. Amendment of section 22 of Act 107 of 1998
11
Section 22 of the National Environmental Management Act, 1998, is hereby
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This provision amends section 22 of the National Environmental Management Act, 1998 by deleting paragraphs (a) and (b) in subsection (2), and refers to an amendment of section 28 of Act 107 of 1998.

11. Section 22 of the National Environmental Management Act, 1998, is hereby 5 amended by the deletion in subsection (2) of paragraph (a) and (b). Amendment of section 28 of Act 107 of 1998
12
Section 28 of the National Environmental Management Act, 1998, is hereby
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This section amends environmental law to let authorities respond to significant pollution or degradation, and it creates offences for unlawful acts or refusals to comply with directives.

12. Section 28 of the National Environmental Management Act, 1998, is hereby amended by— (a) the insertion after subsection (1) of the following subsection: ‘‘(1A) Subsection (1) also applies to a signiﬁcant pollution or de- gradation that— (a) occurred before the commencement of this Act; (b) arises or is likely to arise at a different time from the actual activity that (c) caused the contamination; or arises through an act or activity of a person that results in a change to pre-existing contamination.’’. (b) the substitution for subsection (7) of the following subsection: ‘‘(7) Should a person fail to comply, or inadequately comply, with a directive under subsection (4), the Director-General or provincial head of department responsible for environmental affairs may take reasonable measures to remedy the situation or apply to a competent court for appropriate relief.’’; 10 15 20 (c) the substitution in subsection (8) for the words preceding paragraph (a) of the following words: 25 ‘‘Subject to subsection (9), the Director-General or provincial head of department may recover [all costs incurred as a result of it acting] costs for reasonable remedial measures to be undertaken under subsec- tion (7), before such measures are taken and all costs incurred as a result of acting under subsection (7), from any or all of the following persons—’’; (d) the addition of the following subsections: ‘‘(14) No person may— (a) unlawfully and intentionally or negligently commit any act or omission which causes signiﬁcant or is likely to cause signiﬁcant pollution or degradation of the environment; (b) unlawfully and intentionally or negligently commit any act or omission which detrimentally affects or is likely to affect the environment in a signiﬁcant manner; or refuse to comply with a directive issued under this section. (c) (15) Any person who contravenes or fails to comply with subsection (14) is guilty of an offence and liable on conviction to a ﬁne not exceeding R1 million or to imprisonment for a period not exceeding 1 year or to both such a ﬁne and such imprisonment.’’. Amendment of section 30 of Act 107 of 1998
13
Section 30 of the National Environmental Management Act, 1998, is hereby
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This section adds an offence and penalty for a person who fails to comply with certain subsection requirements in section 30.

13. Section 30 of the National Environmental Management Act, 1998, is hereby amended by the addition of the following subsection: ‘‘(11) A person who contravenes or fails to comply with subsection (3), (4), (5) or (6) is guilty of an offence and liable on conviction to a ﬁne not exceeding R1 million or to imprisonment for a period not exceeding 1 year, or to both such a ﬁne and such imprisonment.’’. 30 35 40 45 50 Amendment of section 31 of Act 107 of 1998 10
14
Section 31 of the National Environmental Management Act, 1998, is hereby
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This provision amends Section 31 of the National Environmental Management Act, 1998 by deleting subsections (1), (2), and (3), and it also changes the heading to Part 2 of chapter 7.

14. Section 31 of the National Environmental Management Act, 1998, is hereby amended by the deletion of subsections (1), (2) and (3). Amendment of heading to Part 2 of chapter 7 of Act 107 of 1998
15
The following heading is hereby substituted for the heading to Part 2 of chapter 7
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This section substitutes a new heading for Part 2 of chapter 7 of the National Environmental Management Act, 1998.

15. The following heading is hereby substituted for the heading to Part 2 of chapter 7 5 of the National Environmental Management Act, 1998: ‘‘Part 2: Application and enforcement of Act and any speciﬁc environmen- tal management [Acts] Act’’. Amendment of section 31A of Act 107 of 1998, as inserted by section 4 of Act 46 of 2003 10
16
Section 31A of the National Environmental Management Act, 1998, is hereby
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This section amends section 31A so that Part applies to enforcement of the Act and any specific environmental management Acts.

16. Section 31A of the National Environmental Management Act, 1998, is hereby amended by the substitution for subsection (1) of the following subsection: ‘‘(1) This Part applies to the enforcement of this Act and [the] any speciﬁc environmental management [Acts] Act.’’. Amendment of section 31F of Act 107 of 1998, as inserted by section 4 of Act 46 of 2003 15
17
Section 31F of the National Environmental Management Act, 1998, is hereby
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An environmental management inspector must show an identity card, and the related notice, when asked by a member of the public while exercising powers or performing duties under the Act.

17. Section 31F of the National Environmental Management Act, 1998, is hereby amended by the substitution for subsection (2) of the following subsection: ‘‘(2) When exercising any powers or performing any duties in terms of this Act or a speciﬁc environmental management Act, an environmental management inspector must, on demand by a member of the public, produce the identity card [and the notice issued to the inspector in terms of section 31D(3)] referred to in subsection (1).’’. 20 Amendment of section 31H of Act 107 of 1998, as inserted by section 4 of Act 46 of 2003 25
18
Section 31H of the National Environmental Management Act, 1998, is hereby
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This section amends section 31H so paragraph (g) now covers taking photographs or making audio-visual recordings for an investigation or a routine inspection.

18. Section 31H of the National Environmental Management Act, 1998, is hereby amended by the substitution in subsection (1) for paragraph (g) for the following paragraph: ‘‘(g) take photographs or make audio-visual recordings of anything or any person is relevant for the purposes of an investigation or for a routine that inspection.’’. Amendment of section 31K of Act 107 of 1998, as inserted by section 4 of Act 46 of 2003
19
Section 31K of the National Environmental Management Act, 1998, is hereby
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This section amends section 31K to expand an environmental management inspector’s inspection, seizure, and related powers.

19. Section 31K of the National Environmental Management Act, 1998, is hereby amended by— (a) the substitution in subsection (1) for the words preceding paragraph (a) of the following words: ‘‘An environmental management inspector, within his or her mandate in terms of section 31D, and subject to subsection (2), may[,] at any reasonable time[,] conduct routine inspections and, without a warrant, enter and inspect any building, land or premises or search, including but not limited to, any vehicle, vessel, aircraft, pack-animals, container, bag, box, or item for the purposes of ascertaining compliance with—’’; (b) the substitution for subsection (5) of the following subsection: ‘‘(5) While carrying out a routine inspection, an environmental management inspector may seize anything in or on any, including but not limited to, business or residential premises, [or] land or vehicle, vessel, aircraft, pack-animals, container, bag, box, or item that may be used as evidence in the prosecution of any person for an offence in terms of this Act or a speciﬁc environmental management Act.’’; and 30 35 40 45 50 12 (c) the substitution for subsection (7) of the following subsection: ‘‘(7) An environmental management inspector may exercise on such [business or residential premises or land] building, land, premises, vehicle, vessel, aircraft, pack-animals, container, bag, box, item and the like any of the powers mentioned in section 31H.’’. 5 Amendment of section 31N of Act 107 of 1998, as inserted by section 4 of Act 46 of 2003
20
Section 31N of the National Environmental Management Act, 1998, is hereby
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This section amends section 31N by deleting paragraph (c) in subsection (2).

20. Section 31N of the National Environmental Management Act, 1998, is hereby amended by the deletion in subsection (2) of paragraph (c). Amendment of section 31Q of Act 107 of 1998, as inserted by Act 46 of 2003 10
21
Section 31Q of the National Environmental Management Act, 1998, is hereby
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Section 31Q is amended to say subsection (1) does not apply to certain environmental information.

21. Section 31Q of the National Environmental Management Act, 1998, is hereby amended by the insertion after subsection (1) of the following subsection: ‘‘(1A) Subsection (1) does not apply to information that pertains to— (a) environmental quality or the state of the environment; (b) any risks posed to the environment, public safety and the health and 15 (c) well-being of people; or compliance with or contraventions of any environmental legislation by any person.’’. Amendment of section 34 of Act 107 of 1998
22
Section 34 of the National Environmental Management Act, 1998, is hereby
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If someone is convicted of a Schedule 3 offence, the court may assess any advantage gained and may order compensation, damages, a fine, or remedial measures.

22. Section 34 of the National Environmental Management Act, 1998, is hereby 20 amended by the substitution for subsection (3) of the following subsection: ‘‘(3) Whenever a person is convicted of an offence under any provision listed in Schedule 3 the court convicting such person may summarily enquire into and assess the monetary value of any advantage gained or likely to be gained by such person in consequence of that offence, and, in addition to any other punishment imposed in respect of that offence, the court may order— (a) the award of damages or compensation or a ﬁne equal to the amount so assessed; or that such remedial measures as the court may determine must be undertaken by the convicted person.’’. (b) Amendment of section 34D of Act 107 of 1998, as inserted by section 7 of Act 46 of 2003.

Part

Schedule 3 the court convicting such person may summarily enquire into and

23
Section 34D of the National Environmental Management Act, 1998, is hereby
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After a conviction for an offence under this Act or specific environmental Acts, the court may order seized items used in the offence to be forfeited to the State.

23. Section 34D of the National Environmental Management Act, 1998, is hereby amended by the substitution for subsection (1) of the following subsection: ‘‘(1) The court convicting a person of an offence in terms of this Act or any of the speciﬁc environmental Acts may declare any item including but not limited to any specimen, container, vehicle, vessel, aircraft or document that was used for the purpose of, or in connection with, the commission of the offence and was seized under the provisions of this Part, to be forfeited to the State.’’. Insertion of section 34H in Act 107 of 1998
24
The following section is hereby inserted in the National Environmental
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This section inserts a new section into the National Environmental Management Act, 1998.

24. The following section is hereby inserted in the National Environmental Management Act, 1998, after section 34G: 25 30 35 40 ‘‘Jurisdiction
34H
Notwithstanding anything to the contrary in any other law, a
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A magistrate’s court may impose penalties prescribed by this Act or any specific Environmental Management Acts.

34H. Notwithstanding anything to the contrary in any other law, a magistrate’s court shall have jurisdiction to impose any penalty prescribed by this Act or any speciﬁc Environmental Management Acts.’’. 45 14 Amendment of Schedule 3 to Act 107 of 1998, as amended by section 8 of Act 8 of 2004
25
Part (a) and Part (b) of the Schedule to this Act are hereby substituted for Part (a)
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This section replaces Part (a) and Part (b) of Schedule 3 to the National Environmental Management Act, 1998 with the corresponding parts of the Schedule to this Act.

25. Part (a) and Part (b) of the Schedule to this Act are hereby substituted for Part (a) and Part (b) of Schedule 3 to the National Environmental Management Act, 1998. Amendment of section 82 of Act 57 of 2003
26
Section 82 of the National Environmental Management: Protected Areas Act,
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If the Minister or MEC cannot reach agreement with the relevant owner or right-holder, they may expropriate the servitude or privately held right in or to State land.

26. Section 82 of the National Environmental Management: Protected Areas Act, 2003, is hereby amended by the substitution for subsection (3) of the following subsection: ‘‘(3) If the Minister or MEC fails to reach an agreement with the owner of the property in whose favour the servitude is registered or with the person holding the right, the Minister or MEC may expropriate the servitude or the privately held right in or to State land, in accordance with the Expropriation Act, 1975 (Act No. 63 of 1975), subject to section 25 of the Constitution.’’. Amendment of section 88 of Act 57 of 2003
27
Section 88 of the National Environmental Management: Protected Areas Act,
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Regulations made under section 86 or 87 can make non-compliance an offence, with fines and possible imprisonment.

27. Section 88 of the National Environmental Management: Protected Areas Act, 2003, is hereby amended by the substitution for subsection (2) of the following subsection: ‘‘(2) Regulations made under section 86 or 87 may provide that any person who contravenes or fails to comply with a provision thereof is guilty of an offence and liable [on] in the case of a ﬁrst conviction to a ﬁne not exceeding R5 million or to imprisonment for a period not exceeding ﬁve years and in the case of a second or subsequent conviction to a ﬁne not exceeding R10 million or imprisonment for a period not exceeding 10 years or in both instances to both a ﬁne and such imprisonment.’’. Amendment of section 89 of Act 57 of 2003
28
Section 89 of the National Environmental Management: Protected Areas Act,
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This section amends penalties and offences under section 89 of the Protected Areas Act.

28. Section 89 of the National Environmental Management: Protected Areas Act, 2003, is hereby amended by— (a) the substitution in subsection (1) for paragraph (a) of the following paragraph: ‘‘(a) contravenes or fails to comply with a provision of section 45(1), 46(1), 47(2), [or] (3) or (3A), 48(1), [or] 49A(5)(b), 50(5) or 55(2)(fA).’’; (b) the substitution for subsection (2) of the following subsection: ‘‘(2) A person convicted of an offence in terms of subsection (1) is liable, [on] in the case of a ﬁrst conviction, to a ﬁne not exceeding R5 million or imprisonment for a period not exceeding ﬁve years and, in the case of a second or subsequent conviction, to a ﬁne not exceeding R10 million or imprisonment for a period not exceeding ten years or in both instances to both a ﬁne and such imprisonment.’’; and 5 10 15 20 25 30 35 (c) the addition of the following subsections: ‘‘(3) Contravention of or failure to comply with any provision of a 40 regulation made under section 86 or 87 is an offence. (4) Notwithstanding anything to the contrary in any other law, a magistrate’s court shall have jurisdiction to impose any penalty prescribed by this Act.’’. Amendment of section 1 of Act 10 of 2004 16
29
Section 30 of the National Environmental Management: Biodiversity Act, 2004,
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This section amends the Biodiversity Act by adding definitions for “commercialisation,” “commercialisation phase of bioprospecting,” and “discovery phase of bioprospecting.”

29. Section 30 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the insertion of the following deﬁnitions after the deﬁnition of ‘‘Board’’: ‘‘ ‘‘commercialisation’’, in relation to indigenous biological resources, includes the following activities: 5 (a) the ﬁling of any complete intellectual property application, whether in South Africa or elsewhere; (b) obtaining or transferring any intellectual property rights or other rights; (c) commencing clinical trials and product development, including the conducting of market research and seeking pre-market approval for the sale of resulting products; or the multiplication of indigenous biological resources through cultivation, propa- gation, cloning or other means to develop and produce products, such as drugs, industrial enzymes, food ﬂavours, fragrances, cosmetics, emulsiﬁers, oleoresins, colours and extracts; ‘‘commercialisation phase of bioprospecting’’ means any research on, or development or application of, indigenous biological resources where the nature and extent of any actual or potential commercial or industrial exploitation in relation to the project is sufficiently established to begin the process of commercialisation;’’. by the insertion of the following deﬁnition after the deﬁnition of ‘‘Director- General’’: ‘‘discovery phase of bioprospecting’’ means any research on, or development or application of, indigenous biological resources where the nature and extent of any actual or potential commercial or industrial exploitation in relation to the project is not sufficiently clear or known to begin the process of commercialisation;’’. Amendment of section 11 of Act 10 of 2004
30
Section 11 of the National Environmental Management: Biodiversity Act, 2004,
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This provision amends section 11(1)(b) so that monitoring and regular reporting to the Minister must cover the environmental impacts of all categories of genetically modified organisms after commercial release, using research that identifies and evaluates risk.

30. Section 11 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the substitution in subsection (1) for paragraph (b) of the following paragraph: ‘‘must monitor and report regularly to the Minister on the environmental impacts of [any] all categories of genetically modiﬁed organism [that has been released into the environment, including the impact on non-target organisms and ecological processes, indigenous biological resources and the biological diversity of species used for agriculture], post commercial release, based on research that identiﬁes and evaluates risk;’’. Amendment of section 33 of Act 10 of 2004 10 15 20 25 30 35
31
Section 33 of the National Environmental Management: Biodiversity Act, 2004,
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This section amends section 33 of the Biodiversity Act so that notices must give a national botanical garden a name and be recorded in Schedule 1.

31. Section 33 of the National Environmental Management: Biodiversity Act, 2004, 40 is hereby amended by— (a) the substitution for subsection (3) of the following subsection: (b) ‘‘(3) A notice in terms of subsection (1)(a) or (2)(a) must assign a name to the national botanical garden, and Schedule 1 must be amended accordingly.’’ the substitution for subsection (4) of the following subsection: ‘‘(4) All notices in terms of sections (1), (2) and (3) must be included in Schedule 1 to this Act, which will contain the name and deﬁnition of the land in question, of all proclaimed national botanical gardens.’’. 45 Amendment of section 34 of Act 10 of 2004 18

Part

Schedule 1 to this Act, which will contain the name and deﬁnition of the land

32
Section 34 of the National Environmental Management: Biodiversity Act, 2004,
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This provision amends section 34 so it says the Minister may, by notice in the Gazette, amend Schedule 1.

32. Section 34 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the substitution in subsection (1) for the words preceding paragraph (a) of the following words: ‘‘The Minister may, by notice in the Gazette amend Schedule 1 in order to—’’. 5 Insertion of section 36A in Act 10 of 2004
33
The following section is hereby inserted in the National Environmental
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The Institute cannot be wound up or dissolved except under an Act of Parliament, and if it is wound up or dissolved it must transfer its remaining assets or sale proceeds after liabilities are paid.

33. The following section is hereby inserted in the National Environmental Management: Biodiversity Act, 2004, after section 36: ‘‘Winding up or dissolution of Institute 36A(1) The Institute may not be wound up or dissolved except by or in 10 terms of an Act of Parliament. (2) Upon its winding-up or dissolution the South African Biodiversity Institute must transfer its remaining assets or the proceeds of those assets, after satisfaction of its liabilities, to the State or to an equivalent Schedule 3A Public Entity which has the same objectives as the South African Biodiversity Institute and which itself is exempt from income tax in terms of section 10 (1)(cA) of the Income Tax Act, 1962 (Act No. 58 of 1962).’’. Amendment of section 45 of Act 10 of 2004
34
Section 45 of the National Environmental Management: Biodiversity Act, 2004,
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This provision amends section 45 of the National Environmental Management: Biodiversity Act, 2004, including a new requirement to take certain plans into consideration.

34. Section 45 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by— (a) (b) (c) (d) the deletion of the word ‘‘and’’ at the end of paragraph (b); the deletion in paragraph (c) of subparagraph (v), (vi) and (vii); the insertion of the word ‘‘and’’ at the end of paragraph (c); and the addition of the following paragraph: ‘‘(d) take into consideration— (i) (ii) (iii) any plans issued in terms of Chapter 3 of Environmental Management Act; any municipal integrated development plan; and any other plans prepared in terms of national or provincial legislation that is affected.’’. the National Amendment of section 57 of Act 10 of 2004
35
Section 57 of the National Environmental Management: Biodiversity Act, 2004,
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The Minister may exempt a person from a restriction by notice in the Gazette, but must first follow a consultative process under sections 99 and 100.

35. Section 57 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the addition of the following subsection: ‘‘(4)(a) The Minister may, by notice in the Gazette, exempt a person from a restriction contemplated in subsection (1).’’ and (b) Before granting an exemption in terms of paragraph (a), the Minister must follow a consultative process in accordance with sections 99 and 100.’’. Substitution of section 58 of Act 10 of 2004
36
The following section is hereby substituted for section 58 of the National
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This section substitutes a new section 58 dealing with amendment of notices.

36. The following section is hereby substituted for section 58 of the National Environmental Management: Biodiversity Act, 2004: ‘‘Amendment of notices
58
The Minister may by notice in the Gazette amend or repeal any notice
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The Minister may amend or repeal certain notices by publishing a notice in the Gazette.

58. The Minister may by notice in the Gazette amend or repeal any notice published in terms of section [55] 56(1), [or] 56(2) or 57(4).’’. 15 20 25 30 35 40 Amendment of section 78 of Act 10 of 2004 20
37
Section 78 of the National Environmental Management: Biodiversity Act, 2004,
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If the Minister thinks releasing a genetically modified organism may threaten indigenous species or the environment, no permit may be issued unless an environmental impact assessment has been done.

37. Section 78 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the substitution for subsection (1) of the following subsection: ‘‘(1) If the Minister has reason to believe that the release of a genetically modiﬁed organism into the environment under a permit applied for in terms of the Genetically Modiﬁed Organisms Act, 1997 (Act No. 15 of 1997), may pose a threat to any indigenous species or the environment, no permit for such release may be issued in terms of that Act unless an environmental impact assessment has been conducted in accordance with Chapter 5 of the National Environmental Manage- ment Act as if such release were a listed activity contemplated in that Chapter.’’. 5 10 Amendment of section 81 of Act 10 of 2004
38
Section 81 of the National Environmental Management: Biodiversity Act, 2004,
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This section amends section 81 by replacing paragraph (a) and inserts section 81A.

38. Section 81 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the substitution in subsection (1) for paragraph (a) of the following paragraph: ‘‘(a) engage in the commercialisation phase of bioprospecting involving any 15 indigenous biological resources; or’’. Insertion of section 81A in Act 10 of 2004
39
The following section is hereby inserted in the National Environmental
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Before starting the discovery phase of bioprospecting involving indigenous biological resources, a person must notify the Minister.

39. The following section is hereby inserted in the National Environmental Management: Biodiversity Act, 2004, after section 81: ‘‘Notiﬁcation requirements 81A. (1) No person may, without ﬁrst notifying the Minister, engage in the discovery phase of bioprospecting involving any indigenous biological resources. (2) A notice referred to in subsection (1) must be in such form and must contain such other particulars as may be prescribed. 20 25 (3) A person involved in the discovery phase of bioprospecting must sign the to comply with the requirements at a prescribed commitment commercialisation phase of bioprospecting.’’. Amendment of section 82 of Act 10 of 2004
40
Section 82 of the National Environmental Management: Biodiversity Act, 2004,
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This provision amends section 82 of the Biodiversity Act by replacing wording in subsection (1)(b).

40. Section 82 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the substitution in subsection (1)(b) for the words preceding subparagraph (i) of the following words: 30 ‘‘an indigenous community or a speciﬁc individual—’’. Amendment of section 85 of Act 10 of 2004
41
Section 85 of the National Environmental Management: Biodiversity Act, 2004,
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This section amends section 85 by replacing paragraph (a) of subsection (3).

41. Section 85 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the substitution in subsection (3) for paragraph (a) of the following paragraph: ‘‘(a) must manage the Fund in the prescribed manner or may appoint a trustee in terms of the Trust Property Control Act, 1988 (Act No. 57 of 1988), to administer the fund on the Director-General’s behalf in the prescribed manner and under such terms as the Director-General may consider necessary; and’’. 35 40 Amendment of section 86 of Act 10 of 2004
42
Section 86 of the National Environmental Management: Biodiversity Act, 2004,
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This section amends section 86 and allows the Minister, by notice in the Gazette, to declare that the Chapter does not apply to specified indigenous resources, related activities, certain research, or commercial exploitation, and to amend or withdraw such a notice.

42. Section 86 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the substitution for subsection (1) of the following subsection: 22 ‘‘(1) The Minister may by notice in the Gazette— (a) declare that this Chapter does not apply to indigenous resources speciﬁed in the notice or to an activity relating to such indigenous biological resources; [and] or (b) declare that this Chapter does not apply to certain categories of research involving indigenous biological resources or commercial exploitation of indigenous biological resources; and amend or withdraw a notice referred to in [paragraph] paragraphs (a) and (b).’’. (c) Amendment of section 92 of Act 10 of 2004
43
Section 92 of the National Environmental Management: Biodiversity Act, 2004,
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This section amends Section 92 so that, where an activity is also regulated under other law, both the authority under that other law and the permitting authority under this Act may act.

43. Section 92 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the substitution in subsection (1) for the words preceding paragraph (a) of the following words: ‘‘If the carrying out of an activity mentioned in section [90] 87 is also regulated in terms of other law, the authority empowered under that other law to authorize that activity and the issuing authority empowered under this Act to issue permits in respect of that activity may—’’. Insertion of section 93A in Act 10 of 2004
44
The following section is hereby inserted in the National Environmental
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A permit holder may apply to renew or amend a permit before it expires, and the application must follow prescribed form, information, and fee requirements.

44. The following section is hereby inserted in the National Environmental Management: Biodiversity Act, 2004, after section 93: ‘‘Renewal and amendment of permits 93A. (1) A permit holder may, before the expiry date of a permit, apply to an issuing authority for the renewal or amendment of such permit. (2) An application for the renewal or amendment of a permit must be in the form, contain such information and be accompanied by such processing fees as may be prescribed. (3) In considering an application to renew or amend a permit, the issuing authority must have regard to the same matters which it was required to consider when deciding on the initial application for that permit. (4) A issuing authority may for good reason amend or substitute any condition attached to a permit and any new information at the time of the renewal application.’’. Amendment of section 97 of Act 10 of 2004
45
Section 97 of the National Environmental Management: Biodiversity Act, 2004,
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This section amends section 97 of the Biodiversity Act by changing listed purposes and permit-related wording.

45. Section 97 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by— (a) (b) (c) (d) (e) the substitution in subsection (1)(b) for subparagraph (iv) of the following subparagraph: ‘‘(iv) the facilitation of the implementation and enforcement of an international agreement regulating international trade in speci- mens [of listed threatened or protected species] of species to which the agreement applies and which is binding on the Republic.’’; the deletion in subsection (1)(b) of the word ‘‘or’’ at the end of subparagraph (vii); the insertion in subsection (1)(b) of the word ‘‘or’’ at the end of subparagraph (viii); the addition to subsection (1)(b) of the following subparagraph: ‘‘(ix) the hunting industry;’’; the substitution in subsection (1)(e) for subparagraph (ii) of the following subparagraph: 50 5 10 15 20 25 30 35 40 45 24 ‘‘(ii) the form and content of, and requirements and criteria for, notiﬁcation requirements referred to in section 81A and beneﬁt-sharing agreements and material transfer agreements.’’; and the substitution in subsection (1)(f) for subparagraph (i) of the following subparagraph: ‘‘(i) the conditions subject to which issuing authorities may issue, renew or (f) amend permits in terms of this Act;’’. Amendment of section 98 of Act 10 of 2004
46
Section 98 of the National Environmental Management: Biodiversity Act, 2004,
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This provision amends Section 98 to change the penalties, including imprisonment and fines.

46. Section 98 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by the substitution in subsection (2) for paragraphs (a) and (b) of the following paragraphs, respectively: ‘‘(a) imprisonment for a period not exceeding ﬁve years; (b) [an appropriate ﬁne] a ﬁne not exceeding ﬁve million rand, and in the case of a second or subsequent conviction, to a ﬁne not exceeding R10 million or imprisonment for a period not exceeding 10 years or in both instances to both a ﬁne and such imprisonment; or’’. Amendment of section 102 of Act 10 of 2004 5 10 15
47
Section 102 of the National Environmental Management: Biodiversity Act, 2004,
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This section increases penalties for certain offences and lets magistrate’s courts impose any penalty prescribed by the Act.

47. Section 102 of the National Environmental Management: Biodiversity Act, 2004, is hereby amended by— (a) the substitution for subsections (1) and (2) of the following subsections, respectively: 20 ‘‘(1) A person convicted of an offence in terms of section 101 is liable to a ﬁne not exceeding R10 million, or an imprisonment for a period not exceeding [ﬁve] ten years, or to both such a ﬁne and such imprisonment. (2) [A ﬁne in terms of subsection (1) may not exceed— (a) an amount prescribed in terms of the Adjustment of Fines Act, (b) 1991 (Act No. 101 of 1991); or if] If a person is convicted of an offence involving a specimen of a listed threatened or protected species, [an amount] a ﬁne may be determined, either in terms of [paragraph (a)] subsection (1) or [which is] equal to three times the commercial value of the specimen in respect of which the offence was committed, whichever is the greater.’’; and the addition of the following subsection: ‘‘(3) Notwithstanding anything to the contrary in any other law, a magistrate’s court shall have jurisdiction to impose any penalty prescribed by this Act.’’. (b) Amendment of section 45 of Act 39 of 2004
48
Section 45 of the National Environmental Management: Air Quality Act, 2004, is
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A licensing authority must review certain atmospheric emission licences at the licence’s specified intervals or when needed, and must notify the licence holder and relevant provincial air quality officer in writing about any proposed review, the reason, and the fee cost.

48. Section 45 of the National Environmental Management: Air Quality Act, 2004, is hereby amended by the substitution for subsections (1) and (2) of the following subsections, respectively: ‘‘(1) A licensing authority must review a provincial atmospheric emission licence or an atmospheric emission licence at intervals speciﬁed in the licence, or when circumstances demand that a review is necessary, on payment of the prescribed processing fee. (2) The licensing authority must inform the licence holder and the relevant provincial air quality officer, in writing, of any proposed review, [and] the reason for such review and the cost of the prescribed processing fee.’’. 25 30 35 40 45 Amendment of section 49 of Act 39 of 2004 26
49
Section 49 of the National Environmental Management: Air Quality Act, 2004, is
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Section 49 is amended so paragraph (c) now requires the person to have been a director or senior manager of a company, juristic person, or firm to which paragraph (a) or (b) applies.

49. Section 49 of the National Environmental Management: Air Quality Act, 2004, is hereby amended by the substitution for paragraph (c) of the following paragraph: ‘‘(c) that person has been a director or senior manager who is or was a director or manager of a company, a juristic person or ﬁrm to whom paragraph (a) or (b) applies; and’’. 5 Amendment of section 52 of Act 39 of 2004
50
Section 52 of the National Environmental Management: Air Quality Act, 2004, is
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This section amends penalties in section 52 and gives magistrate’s courts power to impose any penalty under the Act.

50. Section 52 of the National Environmental Management: Air Quality Act, 2004, is hereby amended by— (a) the substitution for subsections (1) and (2) of the following subsections, respectively: 10 ‘‘(1) A person convicted of an offence referred to in section 51 is liable to a ﬁne not exceeding ﬁve million rand, or to imprisonment for a period not exceeding [ten] ﬁve years and in the case of a second or subsequent conviction, to a ﬁne not exceeding R10 million or imprisonment for a period not exceeding 10 years or in both instances to both a ﬁne and such imprisonment. (2) A ﬁne contemplated in subsection (1)[— (a) may not exceed an amount prescribed in terms of legislation regulating maximum ﬁnes for criminal offences; and (b)] must be determined with due consideration of— [(i)](a) [(ii)](b) [(iii)](c) the severity of the offence in terms of its impact, or potential impact, on health, well-being, safety and the environment; the monetary or other beneﬁts which accrued to the convicted person through the commission of the offence; and the extent of the convicted person’s contribution to the overall pollution load of the area under normal working conditions.’’; and (b) the addition of the following subsection: ‘‘(3) Notwithstanding anything to the contrary in any other law, a magistrate’s court shall have jurisdiction to impose any penalty prescribed by this Act.’’. 15 20 25 30 Short title and commencement
51
This Act is called the National Environment Laws Amendment Act, 2008, and
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This section says the Act is called the National Environment Laws Amendment Act, 2008, and section 35 starts when the President fixes a date by proclamation in the Gazette.

51. This Act is called the National Environment Laws Amendment Act, 2008, and 35 comes into effect on a date ﬁxed by the President by proclamation in the Gazette. 28 SCHEDULE ‘‘Part (a): National Legislation No and year of law Short title Relevant provisions Act No. 36 of 1947 Act No. 71 of 1962 Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947 Section 18(1)(i), in so far as it re- lates to contraventions of sections 7 and 7bis Animals Protection Act, 1962 Sections 2(1) and 2A Act No. 45 of 1965 Atmospheric Pollution Prevention Act, 1965 [Section 9] Sections 7(2)(a) to (d), 9(1)(a) to (c), 14A, 15(1)(a) and (b), 15(2), 17(4), 19(5), 20(11), 23(3), 24(2), 28(3), 29(4), 31(6) 32(2) 34 (4), 37(4), 40(4) and 41(2) Act No. 63 of 1970 Mountain Catchment Areas Act, 1970 Section 14, in so far as it relates to contraventions of section 3 Act No. 15 of 1973 Act No. 63 of 1977 Act No. 73 of 1980 Hazardous Substances Act, 1973 Section 19(1)(a) and (b), in so far as it relates to contraventions of sec- tions 3 and 3A Health Act, 1977 Section 27 Dumping at Sea Control Act, 1980 Section 2(1)(a) and (b) Act No. 6 of 1981 Marine Pollution (Control and Civil Section 2(1) Liability) Act, 1981 Act No. 43 of 1983 Conservation of Agricultural Re- sources Act, 1983 Sections 6 and 7 Act No. 2 of 1986 Marine Pollution (Prevention of Pollution from Ships) Act, 1986 Section 3A Act No. 73 of 1989 Environment Conservation Act, 1989 [Section] Sections 19(1) and 19A read with 29(3), 20(1) and (9) read with section 29(4), 29 (2)(a)[and (4)], 31A and 41A read with 29(3) Act No. 18 of 1998 Act No. 36 of 1998 Act No. 84 of 1998 Marine Living Resources Act, 1998 Section 58(1), in so far as it relates to contraventions of sections 43(2), 45 and 47, and section 58(2), in so far as it relates to contraventions of international conservation and man- agement measures National Water Act, 1998 Section 151(1)(i) and (j) National Forests Act Sections 4(8), 7(1), 10(1), 11(2)(b), 15(1)(a) and (b). 17(3) and (4), 20(3), 21(2), 21(5), 24(8), 63(1)(a), (d), (e) and (f), 63(2)(a) and (b), 63(3) to (5), 64(1) and (2) Sections 10(2), 12(1), 12(2)(b), 12(14)(a), (4), 17(1), 18(1)(a), 18(2), 18(3)(b), 18(4),18(4)(b), (25(2)(a) to (e),25(5), (6) and (7) Act No. 101 of 1998 National Veld and Forest Fire Act 30 No and year of law Short title Relevant provisions Act No. 107 of 1998 National Environment Management Act, 1998 Act No. 25 of 1999 National Heritage Resources Act Act No. 57 of 2003 National Environmental Manage- ment: Protected Areas Act Act No. 10 of 2004 National Environmental Manage- ment: Biodiversity Act Sections 24F(1) and (2), 24G(3), 28(14), 30(11), 31N(1) and 34A (a), (b) and (c) Sections 27(18) and (22), (23)(b),28(3), 29(10), 32(13), (15),(16), (17), (19) and (20) 33(1) and (2), 34(1), 35(3), (4), (6) and (7)(a) 36(3), 44(2) and (3), 50(5) and (12) and 51(8) Sections 45(1), 46(1), 47(2), 47(3), 48(1), 50(5), read with sections 89(1),89(1) (b), (c) and (d) and 50A Sections 57(1) read with 101(1)(a), 65(1) read with 101(1)(a), 67(2) read with 101(1)(a), 71(1) read with 101(1)(a), 81(1) Act No. 39 of 2004 National Environmental Manage- ment: Air Quality Act Sections 51(10(a) to (h), 51(2) and (3) 32 Part (b): Provincial Legislation Short title Relevant provisions Orange Free State Conservation Section 40(1)(a) in so far as it re- lates to contraventions of sections 2(3), 14(2), 15(a), 16(a) and 33 Orange Free State Townships Section 40(1)(a)(ii) Natal Nature Conservation No and year of law Ordinance No. 8 of 1969 Ordinance No. 9 of 1969 Ordinance No. 15 of 1974 Section 55 in so far as it relates to section 37(1), to section 49 in re- spect of specially protected game and to section 51 in respect of spe- cially protected game, section 109 in so far as it relates to section 101, to section 102 and to section 104, section 154 in so far as it relates to section 152, section 185 in so far as it relates to section 183, and section 208 in so far as it relates to section 194 and to section 200 Section 86(1) in so far as it relates to contraventions of sections [26,] 4[4] 1(1)(b)(ii) and (c) to (e), 52(a), 57(a), 58(b) and 62(1) Sections 16A, 17 to 45, [42], 47, 48, 51, 52, 54, 66, 71 to 78, 79, 80, 81, 83, 84, 85,87, 88 to 93, 95, 96 [and] 98, 99, 100 and 107 Ordinance No. 19 of 1974 [Cape] Nature and Environmental Conservation Ordinance Ordinance No. 12 of 1983 [Transvaal] Gauteng Nature Con- servation Ordinance No. 15 of 1985 Cape Land Use Planning Section 46(1) in so far as it relates to sections 23(1) and 39(2) Ordinance No. 15 of 1986 Transvaal Town Planning and Townships Sections 42, 93 and 115 Act No. 29 of 1992 KwaZulu Nature Conservation Section 67 in so far as it relates to sections 59(1), 59(2), 60(1) and 62(1); section 86 in so far as it re- lates to sections 76, 77 and 82; and section 110 in so far as it relates to section 109 Act No. 5 of 1998 KwaZulu-Natal Planning and Section 48’’. Development

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