The Minister of Water and Environmental Affairs, Ms Edna Molewa published under section 97 of the National Environmental Management Biodiversity Act, 2004 (Act No. 10 of 2004), non-substantive amendments to the Threatened or Protected Species (ToPS) Regulations in Gazette No. 35565 of 2 August 2012, for immediate implementation.

The original Regulations provide for certain legal responsibilities to be carried out specifically by provincial departments where “provincial department” is defined in the ToPS Regulations as being the provincial department responsible for the conservation of biodiversity in a province. However, in the case of Mpumalanga, Western Cape and KwaZulu-Natal, the function of biodiversity conservation are performed by organs of the state and not the provincial department. Therefore the definition of “provincial department” was not clear and capable of different interpretations as it could be argued that an organ of state in the above-mentioned provinces do not have the legal mandate to perform specific functions in terms of the ToPS Regulations, and are also not in a position to comply with the ToPS Regulations. The amendments published today rectify this with a definition of provincial departments that is inclusive of an organ of state responsible for the conservation of biodiversity in a province.

In the original version of the ToPS Regulations, only the Minister was the issuing authority for restricted activities carried out by national and provincial departments on land under their jurisdiction; and in national protected areas. This provision was therefore not clear as to whom the issuing authority was when provincial officials are tasked with carrying out restricted activities on private land. Consequently, the amendment of regulation 3(2) of the ToPS Regulations clarifies that the Minister is the issuing authority for permits relating to the carrying out of restricted activities involving any listed threatened or protected species: in a national protected area; by an official of an organ of state and by an organ of state for the control of damage causing animals originating from protected areas or private land.

Furthermore, regulation 3(3) of the ToPS Regulations has been amended to provide clarity. The MEC is the designated issuing authority for permits relating to the carrying out of restricted activities involving specimens of any listed threatened or protected species, excluding permits relating to: restricted activities carried out in a national protected area; restricted activities carried out by an official of an organ of state; listed threatened or protected marine species and the control of damage causing animals by an organ of state originating from protected areas or private land in compliance with regulation 14.

On 14 May 2012 the Minister published in Gazette No. 35343 the “Prohibition of trade in certain Encephalartos (Cycad) Species”; this notice was found to be in direct conflict with ToPS Regulations 25 and 71(3). Accordingly, Minister Molewa has now repealed the above-mentioned regulations.
In order to facilitate effective implementation of the ToPS Regulations, these amendments will become effective immediately on the date of publication.

To access the gazette, click on the link below:
http://www.environment.gov.za/sites/default/files/legislations/nemba_tops_protectedareas_g35565gon614.pdf <http://www.environment.gov.za/sites/default/files/legislations/nemba_tops_protectedareas_g35565gon614.pdf>