Written by Janice Tooley

Section 24H of the National Environmental Management Act (NEMA) allows for the establishment of a registration authority to regulate the practice and conduct of environmental assessment practitioners (EAPs). The sector has long identified the need for a formally recognised body to promote the professionalism of environmental consultants by ensuring EAPs meet certain technical standards and conduct themselves in an ethical manner.

In 2016, Regulations were published by the Minister of Environmental Affairs setting out the process for appointing a registration authority and specifying the tasks in relation to an application for environmental authorisation that may only be performed by a registered EAP.

In February 2018, the Environmental Assessment Practitioners Association of South Africa (EAPASA) was appointed as the sole S24H registration authority and all EAPs were required to register with EAPASA by 8 February 2020. In August 2020, the Minister extended this deadline to 8 February 2022.

Recently, the Minister published her intentions to push this deadline to 8 August 2022 and to expand the list of licence applications for which only a registered EAP may undertake the tasks as specified, predominantly in relation to environmental impact assessment (EIA). However, it appears now that the Minister also wants to restrict the preparation of Section 43 appeal submissions by making it mandatory for any person who wants to appeal an environmental authorisation or waste management licence to appoint an EAP to do so. In practice, this would effectively prevent Interested and affected Parties from preparing and submitting their own appeal without an EAP’s involvement and would also exclude I&APs from being able to be legally represented in an appeal.

In the public interest sector, lawyers like ALL RISE work pro bono to assist indigent individuals and communities in appeals, often as a result of them having not been extended the opportunity to participate meaningfully in an EIA process. Should the Minister’s proposed amendment come into law, this assistance to communities would no longer be possible.

ALL RISE has made written representations to the Minister setting out why these proposed amendments to S24H Regulations prohibiting legal representation in an appeal would be unlawful, expressly on the basis that it is contrary to the Promotion of Administrative Justice Act (PAJA). Our Supreme Court of Appeal ruled in Max Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee that the flexibility to allow legal representation is “a constitutional imperative”. There cannot be a blanket rule that prohibits legal representation outright as this would impede on the procedural fairness of administrative decisions, especially where they involve complex environmental issues and have the potential for grave consequences.

We have taken the opportunity to submit comments in the interest of upholding our collective right to have the environment protected and look forward to receiving the Minister’s response as do the many other interest groups that submitted their comment criticising this potentially chilling effect on Section 43 appeals. 

Read our full submission here.