The Anomaly that is Section 24G of NEMA: An Impediment to Sustainable Development

By | 5th September 2013

Section 24G of NEMA was introduced in 2004 to allow for the ‘[r]ectification of unlawful commencement or continuation of [a] listed activity’ conducted in the absence of the requisite environmental authorisation; typically pursuant to an environmental impact assessment (EIA). The section essentially permits the ex post facto legalising of an otherwise unlawful act. This controversial addition to NEMA has unfortunately had precisely the adverse effect that the critics anticipated at the time of its introduction: it has come to be exploited as a developer’s ‘quick fix’ to securing a (generally) short-circuited environmental authorisation once a development is already in essence a fait accompli. Practice reveals both industry and government alike to be guilty of this exploitation. This outcome has seemingly been exacerbated by an apparent reticence on the part of environmental authorities to endorse a rigorous ex ante EIA process.

Instead, the authorities seem to favour the ‘24G approval process’ which, in practice, is typically less burdensome and less transparent. The ultimate result of this abuse has been the subversion of the purpose of the EIA as a crucial planning tool to anticipate and prevent environmental harm before it ensues. This article seeks to analyse critically the failings of the ‘section 24G anomaly’, in light of recent case law and compliance and enforcement statistics, and against the backdrop of our legislative framework and the principles underpinning the EIA as a preventative mechanism to ensure sustainable development.

It is argued that despite the ‘vices’ of section 24G, its key redeeming ‘virtue’ is that it incorporates the notion of an ‘administrative fine’. Both its failings and its promise thus support the need for urgent and meaningful legislative reform – rather than ad hoc legislative tinkering – through the introduction of an administrative penalty system akin to that utilised in the United States and our ‘home-grown hero’ in the competition law domain. The introduction of such a system would not only remedy the abuse of section 24G, but would also improve environmental compliance and enforcement overall by serving as an effective ‘one-stop-shop’ to curb the spate of environmental crime.

Download a copy of the original article as published in the SAJELP here.

Citation: Kohn, L ‘The Anomaly that is Section 24G of NEMA: An Impediment to Sustainable Development’ (2012) 19 South African Journal of Environmental Law & Policy 1