Overview

Municipal managers, and officials to whom they delegate the power, can now issue directives under section 28(4) of the National Environmental Management Act 107 of 1998 (NEMA). Before the National Environmental Management Laws Amendment Act 2 of 2022, that power sat only with the Director-General, the Director-General responsible for mineral resources and provincial heads of department. The reform was intended to bring enforcement closer to the source of pollution, and municipal officials are indeed often the first to receive complaints about illegal dumping, contaminated stormwater and impacts on watercourses.

The Duty Of Care And The Directive

Section 28 requires every person who causes, has caused or may cause significant pollution or degradation of the environment to take reasonable measures to prevent it from occurring, continuing or recurring, or, where harm is authorised or unavoidable, to minimise and rectify it. A directive can be directed at the polluter, the owner of the land, a person in control of the land or a person with a right to use it. It may require the recipient to stop an activity, investigate the harm and remediate it within a set period. A municipal directive is therefore not a warning. It is an enforceable instruction with environmental, financial and operational consequences.

The Procedural Safeguard In Section 28(4A)

Section 28(4A) requires the authority, before issuing a directive, to give the intended recipient adequate written notice of the proposed directive and a reasonable opportunity to make written representations. This introduces an express audi alteram partem requirement into the process. The subsection also contains an urgency exception: where urgent action is necessary to protect the environment, the directive may be issued first, with representations invited as soon as reasonably possible afterwards.

In practice, the safeguard raises questions that NEMA does not answer u2013

• what amounts to adequate notice, and what information and evidence must accompany it for representations to be meaningful;
• how long a “reasonable opportunity” to respond must be; and
• when a municipality may legitimately rely on urgency, because an authority that invokes it can leave the recipient facing substantive remedial obligations before it has seen the evidence.

An Appeal Does Not Stop The Directive

Many recipients assume that lodging an appeal suspends the directive. It does not. Section 43(7) of NEMA, as amended, provides that an appeal suspends a decision except for a directive or other enforcement notice aimed at addressing significant harm to the environment. Where the directive is issued by a municipal manager, the appeal is directed to the municipal council, and the new appeal regulations allow 30 calendar days from receipt of a duty of care directive to lodge it, compared with 20 days for most other NEMA appeals.

To obtain relief in the interim, the recipient must bring a separate application to suspend the directive, showing good cause. The result is two parallel processes: one challenging the validity of the directive, the other seeking temporary relief from it. The suspension application typically requires full legal submissions, expert input and factual evidence, and can resemble a mini-appeal before the appeal itself is heard. NEMA also prescribes no detailed procedure for how municipal suspension applications are to be processed, how quickly they must be decided or what standard applies, so an appellant may face a compliance deadline while the suspension application is still pending.

Personal And Parallel Exposure

A directive rarely arrives alone. In one recent matter, the recipient faced a warning letter, a directive, an appeal and a suspension application, while a senior employee at the facility was separately issued with a municipal by-law infringement notice and summoned to the magistrates’ court. The company was challenging the directive while an individual faced possible criminal proceedings arising from the same incident. Municipalities hold a suite of powers under NEMA, by-laws and criminal procedure, and may use several at once.

Practical Steps

• treat every municipal warning letter or notice of intention to issue a directive as a trigger for immediate legal and technical review, and diarise the response deadline;
• use the representations opportunity under section 28(4A) fully, with supporting expert evidence, and record any request for further information that the municipality does not answer;
• scrutinise any urgency claim, and consider whether the remedial measures ordered are proportionate and technically achievable;
• if a directive is issued, lodge the appeal and the suspension application together, within the prescribed period, and continue interim compliance planning in the meantime;
• identify who at the facility could face by-law or criminal exposure, and brief them early; and
• prevent the problem upstream by auditing stormwater, waste, effluent and watercourse management against the section 28 duty of care.

Conclusion

Municipal empowerment under section 28 is still relatively new, and many municipalities are developing their experience with warning notices, directives, appeals and suspension applications. That is not a criticism, but it does mean procedural disputes are becoming more common. Businesses should assume that a municipality now has one of the most powerful tools in South African environmental law available to it, and should prepare for it before it is used.

How LexEco Can Assist

LexEco advises businesses and directors on environmental enforcement at every level of government, including:

• responding to warning letters and notices of intention to issue section 28 directives, including written representations under section 28(4A);
• preparing appeals and applications to suspend directives, and coordinating the supporting expert evidence;
• advising on parallel by-law, criminal and compliance notice exposure for companies, directors and employees;
• auditing duty of care compliance for waste, effluent, stormwater and watercourse impacts; and
• negotiating remediation plans and timeframes with municipalities.

Contact LexEco to discuss your environmental enforcement and duty of care position.