The Practical Application of Section 24G of the NEMA: A Critical and Quantitative Empirical Analysis

Abstract

The article examines the practical application of section 24G of the National Environmental Management Act 107 of 1998 (NEMA), highlighting its historical context, amendments, and challenges. The Environment Conservation Act 73 of 1989 (ECA) was the predecessor to NEMA, incorporating environmental assessment procedures and prohibiting the commencement of listed activities without environmental authorisation. Section 24G was introduced in 2004 to address the lacuna in ECA and NEMA, allowing developers of unlawful activities to apply for ex post facto environmental authorisation. The current version of section 24G of NEMA allows developers who have contravened section 24F(1) of NEMA to apply for retrospective environmental authorisation, provided they comply with the directives and pay an administrative fine of up to R10 million. Section 24G has been criticised for undermining environmental management principles, being prone to abuse, and causing interpretation challenges despite legislative amendments addressing these issues. The empirical study revealed that the challenges of section 24G include interpretation issues, a lack of uniformity in the contents of the EIA report, and inadequate public participation provisions. The study further revealed that developers apply for section 24G due to ignorance of the law, the need to provide services, and the requirement to bring unlawful activities into the regulatory loop. The empirical study further found that some criticisms, such as those related to sustainable development and environmental management principles, are still valid. In contrast, others are no longer valid, as the process is shorter, less rigorous and cheaper. The article recommends retaining section 24G in NEMA and suggests the government publish guidelines to standardise its application nationwide.