Proposed changes to NEMA appeals? Some positive, some negative

12th June 2017

Proposed changes to NEMA appeals? Some positive, some negative

The National Environmental Management Laws Amendment Bill, 2017 was tabled in Parliament on 24 May 2017, proposing changes to the National Environmental Management Act 107 of 1998 (NEMA).  Currently, any decision taken by a regulator under NEMA or a specific environmental management Act may be appealed.  When an appeal is lodged, the underlying decision is automatically suspended pending the outcome of the appeal.

The Bill proposes to amend this "automatic suspension" provision in two fundamental ways:
In respect of appeals lodged against a directive [and now a compliance notice]:


In respect of appeals lodged against an environmental authorisation, exemption or any other decision which is the subject of an appeal:


What does this mean for you?
On a positive front, if an appeal is lodged against a decision to grant an environmental approval, clients can apply for the automatic suspension of the decision to be lifted, provided that good cause can be shown.  In our experience, this automatic suspension provision has sometimes been used as a tactic to suspend operations, even if the grounds of appeal are frivolous. The proposed amendments now offer an opportunity to re-commence operations whilst the appeal is on-going, which is encouraging.

On a negative front, if a client appeals a directive or compliance notice that has been issued, the appeal will not suspend the administrative process.  This is unfortunate given that administrative processes can sometimes be unsubstantiated, can result in the shutting of operations and compliance therewith is often costly.  In such circumstances, at least the proposed changes offer an opportunity to apply for the suspension of the administrative processes pending the outcome of the appeal.

Written By Garyn Rapson, a Partner at Webber Wentzel