Abstract

Keywords

Invasive species; environmental law; legal framework; South Africa; the City of Cape Town.

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1 Introduction

The management of invasive species in South African urban areas is imperative due to the significant adverse impact of invasive species on the environment, on the economy, on human health and sustainable development.1 In 2019 the South African National Biodiversity Institute (hereafter SANBI) published its second report titled The Status of Biological Invasions and their Management in South Africa (hereafter SANBI 2019 Report).2 The SANBI 2019 Report indicated that the South African government expends more than R1-billion per annum on managing biological invasions and the adverse impacts emanating therefrom.3 According to the Report, there are over 1880 alien species in South Africa and more than a third of these are classified as invasive.4

More specifically, the Report highlights the introduction and wanton spread of the Euwallacea fornicatus or Polyphagous Shot Hole Borer Beetle (hereafter PSHB beetle) in South Africa.5 The emergence of the PSHB beetle in South African urban areas is particularly concerning as it has already been detrimental to vulnerable trees and continues to pose a threat.6 The PSHB beetle has been detected inter alia in Somerset West, which is in the municipal parameters of the City of Cape Town.7 In Somerset

West, various tree species such as the London plane, Boxelder and English oak, have been subjected to infestations of PSHB beetles.8

The objective of this note is to briefly examine the responsiveness of the South African legal framework to biological invasions in an effort to prevent or minimise the adverse impacts associated therewith. This is done with specific reference to the PSHB beetle that has recently emerged in the City of Cape Town.9 The paper considers the relevant national, provincial, and city-level law and policy frameworks.

2 What is an invasive species?

Section 1 of the National Environmental Management: Biodiversity Act 10 of 2004 (hereafter the NEMBA) defines "invasive species" in legal terms as:

any species whose establishment and spread outside of its natural distribution range-

(a) threaten ecosystems, habitats or other species or have demonstrable potential to threaten ecosystems, habitats or other species; and

(b) may result in economic or environmental harm or harm to human health.10

This definition highlights the qualities of an invasive species in terms of which it can be determined if it qualifies to be classified as invasive.11 The PSHB can be examined in these terms to see if it qualifies. The origin of the PSHB beetle is in South-East Asia.12 Hence, South African urban areas are not included in the "natural distribution range" of this species. Rather, it is speculated that the species was introduced accidentally through wood packaging.13 Subsequent to its introduction in South Africa, PSHB beetles have demonstrated that they have a detrimental impact on trees in urban areas.14 On the basis of the NEMBAꞌs definition of invasive species, the

harmful nature of invasive species can be three-fold – the environment, the economy, or human health may be affected.15 The multidimensional harm can be illustrated by PSHB beetles' threat to trees with agricultural value (for example, avocado trees or Persea americana). Harm to these trees may result in economic repercussions with consequential effects on food production and ultimately human health.16 The definition is arguably broad as it provides that the establishment of the species in the new place need not pose an actual threat, but a potential threat to the new environment will suffice, together with possible harm to the economy, the environment or human health.17 In this instance this point is moot, since PSHB beetles pose actual threats and their emergence have had proven adverse impacts.18 The definition of "invasive species" in the City of Cape Townꞌs Local Biodiversity Strategy and Action Plan of 2019 (hereafter LBSAP) reflects the definition in section 1 of the NEMBA.19

3 National and provincial legal framework

Section 24 of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) entrenches an environmental right in the Bill of Rights as a human right.20 Its provisions are broad and do not directly address the control and eradication of invasive species, such as PSHB beetles – understandably so.21 Be that as it may, considering the harmful impact of biological invasions, the control and eradication of invasive species fall within the broad scope of this section (which is further evident from the discussion of the NEMBA below).

The National Environmental Management Act 107 of 1998 (hereafter the NEMA), as amended, does not venture into specific environmental issues

such as biological invasions. Nevertheless, the NEMA contemplates the creation of and refers to Specific Environmental Management Acts (hereafter SEMA) and lists the NEMBA, amongst others, as such.22 Beyond the NEMAꞌs broad principles, section 11 of the NEMA provides for the preparation and submission of environmental implementation and management plans.23 Section 11 of the NEMA is specifically important to the control and eradication of invasive species, since it is supplemented by section 76(2) of the NEMBA, which imposes an obligation on organs of state in all spheres of government to prepare an invasive species monitoring, control and eradication plan for land under their control as part of the environmental plans required by the former section.24

The NEMBA was enacted as a so-called SEMA.25 Section 24(b) of the Constitution contemplates the creation of legislation that prevents pollution and ecological degradation, promotes conservation and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.26 The NEMBA is practically a manifestation of this constitutional mandate in the context of biodiversity.27

The NEMBA deals with various matters relating to the management of invasive species and from its provisions it is notable that there are a few relevant role-players. The first provision that deals directly with the control and eradication of invasive species is section 11(1)(a)(iii) and it also identifies such role-players – SANBI has the function of monitoring the status of all listed invasive species and reporting thereon to the Minister.28 It further vests SANBI with the power to coordinate and implement programmes that prevent, control and eradicate invasive species listed as such.29 The Minister is further obliged to publish a national list of invasive species to which chapter 5 will apply at country level.30 In practical terms, the NEMBA required the Minister to issue the first publication of a national invasive species list by 31 August 2006, but the list was only published in 2014 and recently updated in 2020.31

In addition, the NEMBA empowers a provincial member of the executive council for environmental affairs (hereafter MEC) to publish a provincial list of invasive species through a notice in the Government Gazette.32 The Minister and MECs are obliged to review the lists regularly.33 The Minister is further vested with the duty to ensure the coordination and implementation of management programmes for biological invasions and is vested with the power to establish a public entity that carries out such programmes.34 Other relevant role-players include the permit holders of restricted activities and land owners (as further discussed below).35

Chapter 5 of the NEMBA deals specifically with "species and organisms posing potential threats to biodiversity"; that is, alien and invasive species.36 Chapter 5, amongst other things, aims to control and eradicate invasive species in ecosystems or habitats where the presence of these species may have harmful consequences, particularly in the context of biodiversity.37

Chapter 5 continuously refers to "listed invasive species", which includes any invasive species listed in the national and provincial compilations.38 This definition is paramount, and it should be noted that many of the sections discussed below refer and apply specifically to "listed invasive species", as opposed to "invasive species".39 The first national list of invasive species, compiled in terms of the NEMBA was published in 2014 and it was recently repealed with updated Alien and Invasive Species Lists in 2020.40 More than 500 different species are classified as invasive in terms of the current national list.41 It has, however, been reported that the current national list fails to include invasive species that necessitate regulation, the PSHB beetle being an example.42 The PSHB beetle is not yet included in the list, even though it meets the NEMBA definitional elements as set out above.43

In reality, there are thus more "invasive species", as discussed above, than "listed invasive species".

Section 71 of the NEMBA deals with restricted activities involving listed invasive species, which are only lawful after permits are obtained in accordance with the provisions of Chapter 7.44 The permits must be accompanied by an assessment of risks and potential biodiversity impacts which would result from the restricted activity should a permit be obtained.45 Section 1 sets out what constitutes a "restricted activity".46 Essentially, what is restricted includes the import, possession, cultivation, translocation, trade, donation or disposal of listed invasive species.47

Furthermore, the NEMBA creates a duty of care relating specifically to listed invasive species.48 Persons who hold permits that authorise restricted activities and land owners are bound by this duty of care.49 The duty of care resting on a restricted activity permit holder determines that the permit holder must avoid or at the least minimise the harm caused to biodiversity and, of course, comply with the conditions of the permit.50 The duty of care resting on a land owner determines firstly that the landowner must furnish a written notification to the relevant competent authority of any listed invasive species present on the land; secondly, the landowner must take steps to control and eradicate the species and to prevent its proliferation; and thirdly, the landowner must take the necessary steps towards the prevention and minimisation of harm to biodiversity.51

The duty of care resting on permitholders and landowners is arguably onerous since a competent authority may in the case of non-compliance, issue a written directive to a person to take appropriate remedial steps in terms of the harm to biodiversity caused by the personꞌs conduct or by the invasion on the land owned by the person.52 Anyone may make a written request to a competent authority to issue such a directive.53 Moreover, the competent authority may claim some or all reasonable costs incurred for the implementation of the directive from the person, or from both the person as well as another person who benefited from the implementation of the directive.54 Recently the first conviction for non-compliance with invasive

species provisions, particularly this duty of care, was handed down in South Africa in the case of State v Granada Home Builders CC.55

Section 75(1) determines that appropriate methods must be used and a cautious approach must be undertaken to control and eradicate species to avoid or minimise possible harm to biodiversity and the environment.56 In this regard it is submitted that the control and eradication of invasive species (i.e. the process or manner in which the species are combatted or eradicated) should not be more detrimental than the harmful impact caused by the presence of the invasive species. Section 75(3) contemplates re-establishment, regrowth, and reproduction and in an effort to avoid the aforesaid, it prescribes that the management methods must also be applied to the offspring of invasive species, for example.57

The NEMBA makes reference to the National Environmental Management: Protected Areas Act 57 of 2003 (hereafter the NEMPAA) and protected areas.58 This remains relevant in the urban context, since protected areas may be nestled in urban areas, for example the Kirstenbosch National Botanic Garden.59 It provides that an invasive species strategy must be incorporated into the management plan of a protected area.60 The management of a protected area must also report to the Minister or relevant MEC about the status of listed invasive species in the protected area.61 Such status reports must incorporate the following particulars: a detailed and descriptive list related to listed invasive species that have invaded the protected area; a description of the specific area that has been invaded; the degree of invasion as assessed; and a report of the success of control and eradication measures used in the past.62 Section 76(2) of the NEMBA supplements section 11 of the NEMA in that it requires all organs of state to prepare invasive species control and eradication plans for land controlled by them as part of their environmental management plans.63 With regard to municipalities, development plans must include plans for monitoring,

controlling and eradicating invasive species.64 Such plans must be inclusive of detailed and descriptive lists of the invasive species that have been established on the land; a description of the areas of the land which has been invaded; the degree of invasion as assessed; an indication of the success of measures used in the past and the current control measures; as well as indicators of progress, success and the completion of the plan.65

It is evident that the NEMBA contains comprehensive provisions pertaining to the control and eradication of invasive species, but it is notable that many of its provisions (sections 71, 73, 75, 76 and 77) refer to and can be utilised for "listed invasive species" as defined in section 1.66 It has already been pointed out that PSHB Beetles have not yet been listed as such and one can deduce that these sections cannot yet be applied to PSHB beetles.67 In the SANBI 2019 report it was recognised that it has been suggested that an emergency listing should be made to manage PSHB beetles with the necessary urgency.68 The NEMBA also contemplates the publication of regulations to supplement its provisions.69 The National Strategy for Dealing with Biological Invasions of 2014 identifies the absence of legislation pertaining to biological invasion management as an enormous impediment, but points out that the promulgation of regulations is remedial.70 Considering that no new legislation dealing with the management of biological invasions has been adopted, this position stands. The AIS Regulations indeed contain supplementary provisions, but various of its regulations also refer to "listed invasive species", and as such, it is also not yet applicable to the PSHB beetles.71

The Agricultural Pests Act 36 of 1983 (hereafter the APA) in essence aims to prevent and combat agricultural pests.72 Agricultural pests may fall within the scope of "invasive species", as is the case with PSHB beetles.73 Control Measures Relating to the Polyphagous Shot Hole Borer were recently published under section 6 of the APA.74 Section 6(1) of the APA empowers

the Minister (responsible for agriculture – section 1 of the APA) to prescribe control measures to be complied with or executed by land users.75 The Control Measures Relating to the Polyphagous Shot Hole Borer facilitates a response to PSHB beetles as it compels an immediate notification to executive officers appointed in terms of section 2(1) of the APA or the authority (as defined in the notice) from land users if PSHB beetles are present or if their presence is suspected.76 Further, if the presence of PSHB beetles is identified or recorded for the first time in a pest-free area, an individual, organisation or institution is bound to immediately report this to the executive officer as appointed in terms of section 2(1) of the APA.77 The notice also places certain responsibilities and even powers on executive officers: the identification and confirmation of the presence of PSHB beetles by using phytosanitary measures; the prescription or revocation of such phytosanitary measures to be complied with by landowners; and the prescription of measures to manage PSHB beetles in instance where landowners or users are unable to comply with prescribed measures.78 In instances where plants (listed in table 2 and 3) have been infested with PSHB beetles, the notice prohibits the removal of such plants except if a permit was obtained; or if certification was given by the Department of Agriculture, Land Reform and Rural Development; or where PSHB beetles cannot be disseminated by the plant product; or if authorisation was given by the executive officer.79 The keeping, planting or cultivation of infested plants in table 2 is also prohibited.80 If these provisions are contravened or a reasonable suspicion exists to that effect, the plants involved may be destroyed by the executive officer, for example.81 A land user is bound to take the prescribed or specified reasonable measures to manage and control PSHB beetles.82 It is also important to note that a land user may apply for a removal permit and the executive officer may exempt a land user from the prohibition if certain stipulated requirements have been satisfied.83 Be that as it may, the scope of the APA, at large, is applicable to agricultural pests that bring about adverse consequences for agricultural produce and will thus not facilitate a response to PSHB beetles in urban areas.84

The Conservation of Agricultural Resources Act 43 of 1983 (hereafter the CARA) provides a response to biological invasions in urban areas as it aims,

inter alia, to combat the occurrence and dissemination of invader plants, including those prevalent in urban areas.85 Since its scope of application is restricted to invader plants it is, of course, not applicable to PSHB beetles.

Although some provincial ordinances have been enacted, Kidd86 states that there has been "little legislative activity" vis-à-vis provincial nature conservation at large.87 Most provincial acts provide broadly for environmental protection and conservation and do not make express reference to the control and eradication of invasive species.88 For example, the Western Cape Nature Conservation Laws Amendment Act 3 of 2000 deals extensively with nature conservation and it defines nature conservation as the "preservation of fauna and flora".89 It can be argued that the control and eradication of invasive species (such as PSHB beetles) will ultimately preserve fauna and flora, but it is not directly provided for.90

4 The City of Cape Town

The City of Cape Town is a metropolitan municipality and home to unmatched biodiversity.91 PSHB beetles have recently been detected in its municipal boundaries and the infestation warrants a response to protect the significant biodiversity.92

The City of Cape Townꞌs Five Year Integrated Development Plan (hereafter the IDP) for 2017 to 2022 identifies biodiversity management and invasive species management as part of its objective to create resource efficiency and security.93 The IDP contemplates the implementation of the City of Cape Townꞌs Invasive Species Project on all land owned by the municipality

and it aims to contribute to the identification, control and management of invasive species.94 The LBSAP is aligned with this IDP and its targets.95

The City of Cape Town recently published its LBSAP, which will be operative until 2029.96 The LBSAP acknowledges that the City of Cape Town, as the third largest city in South Africa, "is a biodiversity hotspot without parallel".97 The LBSAP states that the City of Cape Town complies with multilevel law pertaining inter alia to biodiversity and has also developed its own measures.98 Accordingly, Irlich et al99 acknowledges that there has been limited municipal management of invasive species, but notes that the City of Cape Town is an exception in this regard and gives recognition inter alia to its "municipal buy-in, departmental collaboration and a city-wide invasive plant tender".100

The aim of the LBSAP is broader. The protection of biodiversity and the diminution of the threats posed by invasions are the focus.101 The LBSAP is comprehensive and has two components, strategy and action, which set out extensively how its objectives is to be achieved.102 The content of the LBSAP is too dense to venture into with detail, but its provisions seemingly support and supplement the requirements set by the NEMBA. For example, its action plan dictates that management must continuously raise awareness about the responsibilities of landowners, which arguably promotes the land ownerꞌs duty of care which is created by section 73 of the NEMBA.103 It is also worth stating that the City of Cape Town has submitted Invasive Species Monitoring, Control and Eradication Plans in compliance with the NEMBA.104

The City of Cape Town has an Invasive Species Unit that is part of the department that coordinates the LBSAP.105 This Invasive Species Unit published a Polyphagous Shot Hole Borer Protocol in 2019 (hereafter referred to as the Protocol).106 The Protocol acknowledges that management efforts with pesticides and fungicides have not proven to be

completely successful for the effective eradication of PSHB beetles.107 The Protocol involves the public in the detection process and the City of Cape Townꞌs invasive species website has a dedicated icon dealing specifically with PSHB beetles that informs the public of various aspects pertaining to PSHB beetles.108 In general and with regard to listed invasive species, this type of collaboration or partnership is ideal, since the NEMBA places a duty of care on public and private land owners.109

5 Concluding remarks

The above analysis indicates that in general the South African legal framework indeed provides a response to the emergence of biological invasions.110 On a national level, there exist voluminous provisions relating specifically to the control and eradication of invasive species. Whilst the legislative measures seem to provide a comprehensive response to invasive species at large, their effectiveness has however not yet been ascertained because most of the legislation and the relevant regulations are relatively new. The same can arguably be said of the Control Measures and the Protocol.111

Be that as it may, the NEMBA, the APA and the CARA, for the various reasons set out above, fail to provide a direct legislative response to the control and eradication of PSHB beetles in urban areas such as the City of Cape Town. Since the NEMBAꞌs provisions pertaining to invasive species are seemingly elaborate, it would be ideal for the NEMBA's regulations to respond specifically to PSHB beetle invasions – even in the form of an emergency listing as was suggested in the SANBI 2019 Report.112

Despite the exclusion of PSHB beetles as invasive under the national list published in terms of the NEMBA, the City of Cape Town has responded to the PSHB beetle infestation.113 In accordance with the public involvement in the detection of PSHB beetles witnessed in the City of Cape Town, the initiation of even more public-private partnerships is supported as it can be mutually beneficial for municipalities and landowners.114 When one

considers that the NEMBA's duty of care is vested in relation to listed invasive species (not yet including PSHB beetles), such voluntary collaborative management efforts are arguably even more valuable, and municipalities should endeavour to empower the public to contribute to the management efforts (as is done by the City of Cape Town).115

Bibliography

Literature

Irlich et al 2017 ABC

Irlich UM et al ꞌꞌRecommendations for Municipalities to Become Compliant with National Legislation on Biological Invasionsꞌꞌ 2017 ABC 1-11

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Case law

Minister of Water and Environmental Affairs v Kloof Conservancy [2015] JOL 34755 (SCA)

State v Granada Home Builders CC (Pine Town Magistratesꞌ Court) (unreported) case number 601/02/2017 of 1 September 2017

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Conservation of Agricultural Resources Act 43 of 1983

Constitution of the Republic of South Africa, 1996

Gauteng General Law Amendment Act 4 of 2005

Limpopo Environmental Management Act 7 of 2003

Mpumalanga Nature Conservation Act 10 of 1998

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National Environmental Management: Protected Areas Act 57 of 2003

Northern Cape Nature Conservation Act 9 of 2009

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GN 1003 in GG 43726 of 18 September 2020

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GN R725 in GG 44983 of 13 August 2021 (Control Measures Relating to the Polyphagous Shot Hole Borer)

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List of Abbreviations