Since June 2023, when most of the 5th General Environmental Laws Amendment came into force, South Africa’s environmental enforcement landscape has changed in ways businesses cannot afford to ignore.
Municipal managers and delegated officials now have the power to issue binding Duty of Care directives under the National Environmental Management Act (NEMA), ordering businesses to halt operations, investigate environmental impacts and remediate harm.
The duty of care: What the law already required and what changed
Section 28 of NEMA is the cornerstone. It says, in essence, that anyone who causes, or may cause, serious pollution must take reasonable steps to stop it, fix it, or at the very least minimise it.
The 3rd General Environmental Laws Amendment extended this duty to cover historic contamination, including pollution that happened in the past, or only surfaces long after the activity that caused it. The duty does not only fall on the polluter. It also catches landowners, anyone controlling the land, and anyone with the right to use it. If the land is producing, or has produced, or is likely to produce, significant pollution, all those people must act. What counts as "reasonable measures"? The law gives examples, including training employees, containing pollutants, and cleaning up the damage.
When those steps are not taken, the authorities may issue a Duty of Care directive, a legally binding order telling the recipient to stop what they are doing, investigate the environmental damage, and fix it within a set deadline. It is a powerful tool. And since June 2023, municipal managers and other delegated municipal officials can issue these directives directly.
Before the 5th General Environmental Laws Amendment, only the Director-General, the Director-General responsible for mineral resources, or provincial heads of department, or their delegated representatives, could issue these directives. While the Director-General could, in principle, have extended this power to municipalities under section 42(3) of NEMA, no such delegation appears to have ever been made. Municipal officials could already issue compliance notices under section 31L of NEMA, a useful but less powerful tool. The Duty of Care directive is a different beast entirely.
A case from Ekurhuleni, decidedin 2023, shows what municipal enforcement can look like in practice. After a community member complained about odours and pollution from the illegal burning of plastic, a municipal environmental management inspector visited the site and issued a compliance notice within two months. The court noted that appointing inspectors at municipal level was a deliberate step towards making environmental protection real on the ground. That case involved the less powerful compliance notice tool, but it demonstrated that municipal officials could act quickly and effectively.
Under the 5th General Environmental Laws Amendment, municipal managers and delegated officials now also have the right to issue Duty of Care directives.
The underlying policy rationale is straightforward: environmental harm should be capable of being addressed at the level of government closest to where it occurs. Complaints about noxious odours, illegal dumping or contaminated water lands on a municipal desk long before they reach provincial or national department. Armed with directive-issuing powers, municipal officials can now act on those complaints directly, without the delays that previously attended escalation up the governmental chain.
Ignoring a Duty of Care directive is a serious criminal offence, listed in Schedule 3 to NEMA. The consequences do not stop with the company. Under section 34(7), any person who is, or was, a director when the offence was committed may be held personally guilty if they failed to take all reasonable steps to prevent it. Proof that the company committed the offence is treated as automatic evidence against the director. A directive landing on the company’s desk is therefore not just a corporate problem. It is a personal legal risk for the people running the business.
What this means for your business?
The Duty of Care reaches further than many businesses realise. Environmental management systems need to be thorough, well-documented and able to show, in practice, not just on paper, that the business is meeting its duty of care.
Personal liability makes this a boardroom issue. Environmental compliance cannot be left to environmental managers or legal teams alone. It demands active oversight at the top, with clear accountability and a documented trail of engagement. A director who fails to take reasonable steps to prevent an offence faces the same hefty penalties as the company. That is not a risk that can be delegated.
Giving municipal managers the power to issue Duty of Care directives is not a minor legal tweak. It is a structural shift, one that brings enforcement closer to where environmental harm happens, speeds up regulatory action, and raises the stakes for companies and individuals alike.
As municipalities build capacity and become more familiar with these powers, expect Duty of Care directives from local officials to become far more commonplace. Businesses that are not already treating this as a live risk may find themselves on the back foot when that knock on the door comes.
