Re-thinking Ex Post Facto Environmental Authorisation in South Africa: Insights from 2022 NEMA Amendment

• Jurisdiction: South Africa
• DOI: 10.17159/2225-7160/2024/v57a6
• Author: Jean-Claude N. Ashukem
• Pages: 79-96
• Date: 01 June 2024
• Published date: 01 June 2024
• Published By: University of Pretoria

Re-thinking Ex Post Facto Environmental Authorisation in South Africa 79

Re-thinking

Ex Post Facto

Environmental

Authorisation in South Africa: Insights

from 2022 NEMA Amendment

Jean-Claude N. Ashukem*

Senior Lecturer, Faculty of Law, University of the Witwatersrand, South Africa

SUMMARY

In 2004, section 24G on ex post facto environmental authorisation was

introduced into the National Environmental Management Act (NEMA) of

1998 (as amended) to enable developers to get back into the regulatory

loop. However, this introduction raised controversies among South African

scholars and practitioners alike, despite some adjustments in subsequent

amendments - 2008, 2013, and 2014. The argument has been that section

24G is a fait accompli, provides leverage for abuse by potential developers,

facilitates environmental non-compliance, and therefore should be

considered an anomaly to the constitutional right to an environment that

is not harmful to health and well-being. In 2022, the National

Environmental Management Laws (NEMAL) Amendment Bill, introduced

significant changes to section 24G to drive South Africa’s environmental

compliance and enforcement regime.

In this article, I revisit the question of ex post facto environmental

authorisation under section 24G to advance substantive normative and

theoretical insight that will attempt to clarify ‘the controversial’ debate

about section 24G. This unique insight is achieved through the

methodological combination of systemic analysis of the 2022 amendment

of section 24G against previous criticisms of section 24G in tandem with

existing literature. I articulate these controversies to provide conceptual

direction in academic discourse that earlier criticisms about section 24G

are no longer tenable. From these theoretical and analytical

understandings, I argue that, unlike previous amendments, the 2022

amendment provides a fundamental radical shift in South Africa’s

environmental law. Along this line, I advocate for rethinking the

“contentious” debate about section 24G and the issue of ex post facto

environmental authorisation underpinning it. The legal doctrinal research

methodology is used in this article.

How to cite: Ashukem ‘Re-thinking Ex Post Facto Environmental Authorisation in South Africa: Insights from

2022 NEMA Amendment’ 2024 De Jure Law Journal 79-96

http://dx.doi.org/10.17159/2225-7160/2024/v57a6

* jean-claude.ashukem@wits.ac.za/jcnashukem@gmail.com.

80 2024 De Jure Law Journal

1 Introduction: A paradigm shift from dogmatic

thinking?

One of the innovations embedded in South Africa’s transformative

environmental constitutionalism1 is the premise that section 24 of the

Constitution of the Republic of South Africa, 1996 (the Constitution)

underscores that, unlike previous environmental injustices in the

apartheid era, past environmental injustices would not be tolerated.2

This constitutional provision spawned optimism for living in harmony

with an environment conducive to human health and well-being. In

keeping with the constitutional requirement of the need to protect the

environment through reasonable legislative and other measures, over the

years, various laws, policies, and other measures have been adopted by

the State to keep up with this constitutional environmental mandate. One

such legislative measure was the enactment of the National

Environmental Management Act 107 of 1998 (NEMA, as amended).3 In

2004, section 24G was inserted into NEMA to provide a mechanism for

regulating unauthorised or unlawful activities that have commenced and

may otherwise have a detrimental environmental impact. It prescribes

South Africa’s environmental administrative fine, replicating as it does,

the wording of section 22A of the National Environmental Management:

Air Quality Act 39 of 2004 (Air Quality Act). Section 24G also required a

developer to apply for an ex post facto environmental authorisation for

any listed activity that had commenced without the requisite

environmental authorisation. It was to be read with section 24F which

provided for an administrative fine. It must be clarified that section 24G

has had a sordid history. It has been amended several times: 2008, 2013,

and 2014. Since 2004, the issue of ex post facto environmental

authorisation and the administrative fine has brought about

unprecedented confusion and controversy among South African

academics and practitioners regarding the country’s environmental

compliance and enforcement regime. This particularly concerns the case

of whether the administrative fine could change people’s perception of

environmental protection such that environmental offences will be less

serious as they start budgeting for the fine. Along this line, critics have

variously criticised and categorised section 24G as a fait accompli,

constituting leverage for abuse by potential developers, which is

divergent from the constitutional environmental right and the ideals of

1 For details on transformative environmental constitutionalism, see Murcott

“Transformative environmental constitutionalism response to the setting

aside of South Africa’s moratorium on Rhino horn trade” 2017 Humanities

for Environment 1-15; Murcott Tr an sfo rm at iv e Environmental Constitution-

alism (2022).

2 Hall “Facing the music through environmental administrative penalties:

Lessons to be learned from the implementation of section 24G?” 2022

Potchefstroom Electronic Law Journal 2.

3 See the preamble of the NEMA. It must be noted that NEMA has been

amended several times in 2002, 2003, 2004, 2008, 2013, 2014, and 2022.

This article focuses on the 2022 amendment.