South Africa: NEMA’s hidden penalties

According to the Compliance Institute Southern Africa, businesses may be surprised to know that even non-industrial businesses have quite a bit of environmental compliance duties, and that environmental penalties are not necessarily limited to the penalties mentioned in a specific Act, such as the Waste Act. For example, every business should have a working knowledge and appreciation of the, recently amended, Schedule 3 penalties contained in the National Environmental Management Act (NEMA). In other words, the risk related to not complying with the duties in terms of a law such as the Waste Act, are compounded when one also considers the additional penalties in Schedule 3.

Section 34 of NEMA covers criminal proceedings and states, amongst others, that anyone convicted of an offence in terms of any provision listed in Schedule 3 is, in addition to other penalties, liable to meet the cost of rehabilitating − or preventing damage − to the environment.

“In terms of the Act, private citizens, employers, directors, managers, agents and employees can all potentially be held liable of an environmental offence either through a direct action, or due to inaction on their part,” says Julie Methven, CEO of the Institute.

“As one consequence, they can be ordered to cover the loss or damage cause by the offence, which can include covering any cost incurred by government to rehabilitate the affected area. They can also be made to pay for any costs incurred to investigate and prosecute the offence.”

Citing the Contemporary Gazette, Methven says that parts of Schedule 3 affect every business, not just those for which Schedule 3 offences are part of their normal regulatory environment.

“As an unfortunate by-product of every business is waste, all businesses should consider the offences in Schedule 3 that relate to general waste,” says Pieter Stassen of the Contemporary Gazette.

In a nutshell, companies and individuals have to ensure their waste is treated and disposed of in an environmentally sound manner; is managed so as not to endanger health or the environment; and is not used for an unauthorised purpose.There are exceptions that should also be kept in mind, notably those relating to waste generated by normal household activities or waste disposals done to protect human life or as a result of an emergency.

Schedule 3 also lays down specifics for littering. For example, no individual or company can litter in any public place, land, vacant holding, stream, watercourse, street or road, except in a container specifically provided for that purpose.A good business practice for every person considering an environmental requirement is to immediately also consider Schedule 3 of NEMA, to ensure they have a more complete picture of the actual risk involved in not complying.