The state of South Africa’s environmental law is consistently improving in terms of the quality and conceptualisation of these laws; however, environmental regulation remains a significant challenge as environmental com- pliance by industry is not always mainstreamed throughout the project cycle from the outset, says University of the Witwatersrand School of Law associate professor Tumai Murombo.

Treating environmental considerations as an additional cost and not as an integral part of doing business poses a serious challenge to compliance, which falsely inflates the cost of environmental compliance.

Minister in the Presidency responsible for the National Planning Commission Trevor Manuel in his Nation Development Plan Vision for 2030, highlights that one of the ways the socioeconomic demands on the State will be redressed is by exploiting the country’s mineral wealth.

Murombo says, while the mining sector shows the most potential for economic growth, it is bleak from a job creation point of view.

However, the mining sector is also the main source of environmental problems in South Africa, therefore the biggest challenge will be reconciling mining and environmental laws with the country’s future vision, states Murombo.

Mining activities in the country will certainly continue, creating a need to promote sustainability and environmental compliance within the sector, he adds.

If not addressed, the awareness of environmental considerations within the country may affect the competitiveness of the economy in future when environmental conditionalities come into play.

“Other countries may prefer to trade with sustainable industries over less sustainable industries, and with countries that use green technology, and processes and procedures following the appropriate environmental impact assessment (EIA) procedures.

“This should be our main focus going forward,” states Murombo.

Environmental Impact Assessments

Murombo says, the idea of undertaking EIAs is commendable, but has to be viewed in terms of the social and economic context within which it is being implemented.

In South Africa, the mining sector, the environment and communities are inextric-ably linked and cannot always be measured against Western-designed legal instruments. Social, economic and environmental interests of Western policies must be balanced, unlike the overemphasis on the environmental characteristic.

EIAs are a relatively new development in South Africa, therefore the country is still identifying the means to make the process more efficient and implementable.

In the past two years, government has tried to smooth the EIA application process by outsourcing work to consultants, resulting in quicker and more accurate decision-making.

An EIA management strategy is also under way to fine-tune the regulatory frame- work.

Meanwhile, the mindset within industry towards the importance of adhering to environmental legislation still needs to change.

Some managers feel that environmental legislation is an unnecessary burden as it may not be in their companies’ interest, and subsequently find ways of avoiding it. This has recently resulted in government fining and shutting down some operations as a warning to industry over noncompliance.

Mining Weekly reported that, as a result of noncompliance with the National Environ-mental Management Act, mining company Coal of Africa Limited had to pay a R9.25-million penalty to the Department of Environmental Affairs as part of a precondition relating to the environmental authorisation for the Vele colliery, in Limpopo, which had not received the necessary environ- mental authorisation before starting operations.

In addition, mining company Anker Coal & Mineral Holdings was recently given a suspended fine of R260 000 and ordered to compensate a Mpumalanga farmer R140 000 for contravening the National Environmental Management Act, states Murombo.

Companies comply with legislation based on the legal advice received from legal counsel and consultants. These practitioners may give incorrect advice to companies relating to compliance with legislation because of unresolved uncertainties surrounding EIAs, as it is a new body of legislation with a new body of experts, which needs refinement of its standards and certification.

Murombo notes, however, that one of the key advantages of EIAs is the sharing of information and the creation of awareness around the importance of sustainable environmental considerations, he concludes.