South Africa

Legal Framework

Country:

South Africa

EIA Law:

National Environmental Management Act of 1998 (NEMA) & Amendments

Law Link:

Link

EIA Regulations:

Environmental Impact Assessment Regulations, 2014 & Amendments

Regulations Link:

Link

EIA Procedure

Projects Requiring EIA:

Government projects

Private Projects

Abridged Assessments:

Yes

Assessment Detail:

Certain projects qualify for appraisal under a basic assessment. EIA Regulations, sec. 19 & Appendix 1.

Best Practices in Lieu of EIA:

Who Conducts Screening:

Developer

Who Conducts Screening Detail:

The project proponent's EAP is responsible for determining "whether basic assessment or S&EIR must be applied to the application" according to NEMA, the regulations, and any guidance given by the competent authority. EIA Regulations, sec. 15.

Criteria for Screening:

List or appendix of project or activity types

Criteria for Screening Detail:

See Environmental Impact Assessment Regulations, 2010: Listing Notice 1: List of activities and competent authorities identified in terms of sections 24(2) and 24D (activities for which a basic assessment process must be conducted)(Government Notice No. R. 544 of 2010); Listing Notice 2: List of activities and competent authorities identified in terms of sections 24(2) and 24D (activities for which an S&EIR process must be conducted) (Government Notice No. R. 545 of 2010); Listing Notice 3: List of activities and competent authorities identified in terms of sections 24(2), 24(5) and 24D (activities and sensitive areas per province, for which a basic assessment process must be conducted) (Government Notice No. R. 546).

Who Prepares EIA:

Project Proponent (with or without contractor)

Who Prepares EIA Detail:

The project proponent must appoint an environmental assessment practitioner (EAP) at its own cost. Specialists may also be appointed. EIA Regulations, sec. 12.

Who Pays for EIA:

Project Proponent

Who Pays for EIA Detail:

Although the regulations do not specify who pays for the EIA report, it is presumed to be the project proponent because they are responsible for hiring the EAP and specialists.

EIA Contractor Qualifications:

Yes

EIA Contractor Qualification Detail:

EAPs and specialists must "have expertise in conducting environmental impact assessments or undertaking specialist work as required, including knowledge of the Act, these Regulations and any guidelines that have relevance to the proposed activity." EIA Regulations, sec. 13(1)(b).

Conflict of Interest:

Yes

Conflict of Interest Detail:

EAPs and specialists must be independent and "perform the work relating to the application in an objective manner, even if this results in views and findings that are not favourable to the application[.]" EIA Regulations, sec. 13(1)(a), (d). They must also disclose material information in their possession that reasonably has or may have the potential to influence the decision or the objectivity of any report. Id., sec. 13(1)(f). An EAP or specialist may be disqualified if the competent authority has reason to believe the EAP or specialist has not complied with these standards and the project proponent must pay to commission additional experts to redo or finish work undertaken by the disqualified expert. Id., sec. 14.

Terms of Reference:

Yes

Terms of Reference Detail:

The terms of reference is incorporated in the scoping report. The report must contain a "plan of study for undertaking the environmental impact assessment process." EIA Regulations, Appendix 2(1)(h).

Days for Decision Maker Review:

107 days

Automatic Approval:

Written Decision:

Yes

Written Decision Detail:

After the competent authority has reached a decision, it must within five days notify the applicant of its decision – and, if available, the opportunity to appeal the decision – in writing and provide reasons for the decision. EIA Regulations, sec. 4(1).

Authority to Impose Conditions:

Yes

Authority to Impose Conditions Details:

EIA Regulations, sec. 26(d).

Expiry of Decision:

Variable

Expiry of Decision Detail:

The environmental authorization will indicate how long it is valid. Extensions may be obtained by applying for an amendment to the environmental authorization. EIA Regulations, sec. 26(d)(2).

Financial Assurances or Bond:

Sometimes

Financial Assurances Detail:

“An applicant for an environmental authorisation relating to prospecting, mining, exploration, production or related activities on a prospecting, mining, exploration or production area must make the prescribed financial provision for the rehabilitation, management and closure of environmental impacts, before the Minister of Minerals and Energy issues the environmental authorisation.” NEMA, sec. 24P(1). The Minister may make the financial provision applicable to other applications. NEMA, sec. 24P(7). See also NEMA, secs. 24(5)(b) and (d), 24P, and 24R

EIA Content

Interdisciplinary Team:

Yes

Range of Alternatives:

Yes

Range of Alternatives Detail:

EIA procedures must include "investigation of the potential consequences or impacts of the alternatives to the activity on the environment and assessment of the significance of those potential consequences or impacts, including the option of not implementing the activity[.]" NEMA (as amended), sec. 24(4)(b)(i); see also EIA Regulations, Appendix 3(h)(i).

No Action Alternative:

Yes

No Action Alternative Detail:

Type(s) of Impact Analysis:

Direct environmental impacts

Cumulative environmental impacts

Social impacts

Cultural impacts

Economic impacts

Other

Mitigation:

Yes

Mitigation Detail:

NEMA (as amended), secs. 24(4)(b)(ii), 24N. More detail is provided in the EIA Regulations, Appendix 3 (EIA content) and Appendix 4 (EMPr content)

Monitoring Plans:

Yes

Monitoring Plans Detail:

NEMA (as amended), secs. 24(4)(b)(v) and 24N. Procedures for the assessment of potential impacts of activities on the environment must include “investigation and formulation of arrangements for the monitoring and management of consequences for or impacts on the environment, and the assessment of the effectiveness of such arrangements after their implementation.” NEMA, sec. 24(4)(b)(v). See also EIA Regulations, Appendix 4 (contents of environmental management program).

Access to Information

Public Notice of Draft EIA:

Draft EIA Available:

Draft EIA Locations:

Not available

Public Notice of Final EIA:

Yes

Public Notice of Final EIA Detail:

The project proponent "must give notice to all potential interested and affected parties of an application or proposed application which is subjected to public participation. . . ." EIA Regulations, sec. 41(2).

Final EIA Available:

Final EIA Available Detail:

Although access to "all information" about the project must be provided to the public, the regulations provide no guidance as to how and where the EIA report is made available.

Fee to View EIA Documents:

Fee to Obtain EIA Documents:

Availability of Reference Studies:

Yes

Availability of Reference Studies Detail:

"The public participation process contemplated in this regulation must provide access to all information that reasonably has or may have the potential to influence any decision with regard to an application unless access to that information is protected by law[.]" EIA Regulations, sec. 40(2)

Public Notice of Final Decision:

Yes

Public Notice of Final Decision Detail:

Within 14 days of the decision, the applicant must provide "all registered interested and affected parties are provided with access to the decision and the reasons for such decision" and draw their attention "to the fact that an appeal maybe lodged against the decision in terms of the National Appeal Regulations, if such appeal is available in the circumstances of the decision." EIA Regulations, sec. 4(2).

Public Participation

Public Scoping:

Yes

Public Scoping Detail:

EIA Regulations, sec. 21 & Appendix 2 (required contents of scoping report). There are some exceptions. Id., sec. 21(2).

Public Review of TOR:

Public Review of TOR Detail:

Although the public is consulted during the scoping process, it is not clear whether there is an opportunity to comment on the proposed plan of study. EIA Regulations, sec. 21 & Appendix 2.

Public Participation Opportunities:

Scoping

Public Meetings and/or public hearings

Review of final EIA

Public Meetings:

Sometimes

Public Meetings Detail::

Public meetings are not mandatory

Public Input at Meeting:

Yes

Criteria to Hold Public Meeting:

Other

Days for Public to Review Final EIA:

30 days

Public Comments on Draft EIA:

Public Comments on Final EIA:

Yes

Public Comments on Final EIA Detail:

Public participation must be "facilitated in such a manner that all potential or registered interested and affected parties are provided with a reasonable opportunity to comment on the application or proposed application." EIA Regulations, sec. 41(6)(b)

Response to Public Comments:

Yes

Response to Public Comments Detail:

"The applicant must ensure that the comments of interested and affected parties are recorded in reports and plans and that such written comments, including responses to such comments and records of meetings are attached to the reports and plans that are submitted to the competent authority in terms of these Regulations." EIA Regulations, sec. 44

Facilitation of Public Participation:

Yes

Facilitation of Public Participation Detail:

A person conducting public participation must ensure that "participation by potential interested and affected parties is facilitated in such a manner that all potential interested and affected parties are provided with a reasonable opportunity to comment on the application." EIA Regulations, sec. 41(6)(b). The person must use "reasonable alternative methods" (as agreed to by the competent authority) to accommodate illiteracy, disability or any other disadvantages. EIA Regulations, sec. 41(2)(e). See also EIA Regulations, sec. 47 (NEMA must accommodate individuals with illiteracy, disability, or other disadvantage).

Judicial Review/Enforcement

Citizen Administrative Review:

Yes

Citizen Administrative Review Detail:

Any juristic person may appeal to the Minister against a decision taken by any person acting under a power delegated by the Minister under NEMA. NEMA, secs. 43(1), 1(1). The appeal must be filed within 20 days of the decision. Refer to the National Appeal Regulations, R. 993 of 2014 (available at https://leap.unep.org/countries/za/national-legislation/national-appeal-regulations-2014-no-r-993-2014).

Citizen Judicial Review:

Yes

Citizen Judicial Review Detail:

Yes, although not de novo. NEMA, sec. 32; see also Muckleneuk/Lukasrand Prop. Owners & Residents Ass. v. MEC Dep. of Ag. Conserv. and Env. Gauteng Prov. Gov. (Consolidated Cases) 28192/04 & 12137/06 (2006) ZAGPHC 86; (2007) 4 All SA 1265 (T) (2006) at www.saflii.org.

Project Monitoring:

Yes

Project Monitoring Detail:

Auditing is required. EIA Regulations, secs. 34, 35.

Modified: August 9th, 2023