This is in terms of an amendment to the National Environmental Management Act (NEMA), which has been in place since 2 September 2014.
The amendments to NEMA, introduced by the National Environmental Laws Amendment Act (NEMLAA), could have the unfortunate consequence of delaying much-needed developments.
This is particularly as appeals to environmental authorisations are often lodged without any substantive basis, with appellants relying on minor environmental impacts and not balancing the socio-economic elements of sustainable development under NEMA's provisions.
However, prior to the amendment, because the environmental authorisation was not suspended by an appeal, the law required that where local communities or other interested and affected parties identified a serious environmental or socio-economic impact associated with a development, such parties were obliged to resort to the very costly route of instituting interdict proceedings in a High Court to stop the development, whilst they awaited the outcome of their appeal (and possibly also review proceedings if the appeal was dismissed). In the interim, whilst an appeal was being considered by the competent authority, it was possible that significant environmental damage could result.
If interdict proceedings were not immediately instituted and the development had commenced, it was often difficult to obtain an interdict, as the party applying for it could not show that irreparable harm would be caused and the balance of convenience favoured them, which is necessary to prove for an interdict. If an interdict was not granted, the development generally proceeded and there was little value to the appeal, particularly given the long period generally taken by the authorities to decide on appeals.
The NEMLAA further provides that an appeal submitted under NEMA also suspends an exemption, directive, or any other decision made in terms of NEMA or any other specific environmental management Act (which includes the National Water Act, National Environmental Management: Waste Act and National Environmental Management: Air Quality Act), or any provision or condition attached thereto.
The Minister or a MEC may, however, direct that any part or provision of the directive not be suspended by an appeal, but only strictly in exceptional circumstances where there is an imminent threat to human health or the environment. Where that occurs, the NEMLAA provides that a person may apply to the competent authority to suspend the operation of the directive or any part of the directive pending the finalisation of the appeal.
On appeal, the competent authority is empowered to confirm, modify or cancel a part or the whole of a directive as well as specify the period within which the person who received the directive must comply with any part of the directive that is confirmed or modified.
The amendments to NEMA bring it in line with other environmental legislation, for example the National Water Act, which contains provisions suspending a water use licence when an appeal is lodged.
