Evaluating the effectiveness of section 24G of the National Environmental Management Act (107 OF 1998) as an environmental protection tool, using the Western Cape Provincial Government as a case-study, South Africa

Abstract

Section 24G of the NEMA allows for the rectification of unauthorised commencement or continuation of a listed activity conducted in the absence of an EIA. Such rectification is done through the issuance of retrospective environmental authorisation. However, despite section 24G being promulgated in the interests of environmental protection, it has been associated with negative environmental effects. Both the private sector and governmental departments have misused section 24G as a means of securing quicker and cost-effective authorisation once the development has commenced. Such adverse effects have overshadowed the beneficial effects and legal motivation behind section 24G, with most interested and affected parties criticising the provisions as undermining the main environmental principles contained in section 2 of the NEMA. At present, there seems to be minimal literature that incorporates the positive effects of section 24G regarding commencements of development. The lack of such incorporation hinders the effective amendment or development of section 24G to properly address its shortcomings. The study focused on providing a balanced, unbiased representation of section 24G, while highlighting both the adverse and beneficial effects associated with the provisions. This was done to evaluate the true effectiveness of section 24G. Such a balanced representation of section 24G is important for future development of section 24G. The research study adopted a qualitative approach, using the Western Cape Provincial Government as a case-study. The study made use of purposive sampling. The data collection process included obtaining a sample of ten (10) section 24G applications from the Western Cape Department of Environmental Affairs and Development Planning to determine whether the granting of each retrospective authorisation was beneficial or detrimental to the environment. Semi-structured interviews were conducted with the DEADP personnel and private environmental consultants. The findings of the research indicated that section 24G is overall beneficial to the environment and is effective as an environmental protection tool. The findings further indicated that section 24G does not promote the deliberate ignorance of the traditional environmental authorisation process. The study, however, noted that the section 24G process is not consistent with the principle of cooperative governance as outlined in Chapter 3 of the Constitution of the Republic of South Africa. The inconsistency is due to lack of consultation by the DEADP with other Departments that administer Environmental Authorisations prior to the granting of retrospective authorisation. Such lack of cooperative governance hinders the overall effectiveness of section 24G. Based on the data collected and presented on the study, it was concluded that section 24G is an effective environmental protection tool. However, the section 24G process needs to adopt the Constitutional principle of cooperative governance and consult with other relevant National and Provincial Departments to enhance the effectiveness of the provisions.