Companies and directors: Past environmental transgressions may haunt you



These materials are provided for general information purposes only and do not constitute legal or other professional advice. While every effort is made to update the information regularly and to offer the most current, correct and accurate information, we accept no liability or responsibility whatsoever if any information is, for whatever reason, incorrect, inaccurate or dated. We accept no responsibility for any loss or damage, whether direct, indirect or consequential, which may arise from access to or reliance on the information contained herein.

© Copyright Webber Wentzel. All Rights reserved.

Section 24G of National Environmental Management Act, 1998 (NEMA) which enables the ex post facto authorisation of activities that unlawfully commenced under NEMA and the National Environmental Management: Waste Act, 2008 (NEMWA) is contentious in the environmental world.

This "rectification procedure" has, in our experience, been abused historically, with some companies going so far as to proceed with a development without authorisation and budget for a rectification application, including the payment of the obligatory administrative fine.

The proverbial section 24G noose is, however, being tightened to close this unintended loophole. On 20 July 2017, the Section 24G Fine Regulations (Regulations) came into force. These Regulations provide for a procedure to be followed and a list of criteria to be considered in determining the quantum of section 24G administrative fines.

The Regulations apply to any section 24G application submitted after 20 July 2017.

Key risk areas to be noted:​

  • Annexure A and repeat contraveners: The Regulations include an Annexure A which must be completed and included with any section 24G application submitted after 20 July 2017.
    • Of particular importance is that Part 2 of Annexure A which requires applicants to disclose all previous administrative actions (compliance notices, directives), criminal convictions and section 24G applications submitted by the firm, its directors, and the firms on whose board the applicant's directors sit / sat.
    • Why? This information is needed because Regulation 9 provides for "repeat contraveners". It provides that the fine committee must recommend to the competent authority that the applicant pay the maximum administrative fine of R5 million if the applicant is classified as a repeat contravener.
    • Any client planning to submit a section 24G application must take note of this significant change. We recommend that clients:
      • have a clear picture of their dirty laundry, including that of existing directors - the Regulations require that all conduct since 7 January 2005 can be taken into account; and
      • interrogate the environmental past of new directors to be appointed as part of their due diligence process.
      • Note: it is an offence under the Regulations to submit incorrect, false or misleading information in a section 24G rectification application.

  • Mandatory public participation: The Regulations require an advertisement to be published in a local newspaper and on the applicant's website before submitting an application for rectification. Applicants are also required, among other things, to open and maintain a register of interested and affected parties.
Chamber Banner

Webber Wentzel > News > Companies and directors: Past environmental transgressions may haunt you
Johannesburg +27 (0) 11 530 5000
Cape Town +27 (0) 21 431 7000
Validating email against database, please wait...
Validating email: please wait...
Email verified: Please click the confirmation link sent to your mailbox, also check junk/spam folder. If you no longer have access to this email address or haven't received the verification email then email
Email verified: You are being redirected to manage your subscription
Email could not be verified: Please wait while you are redirected to the Subscription Form
Unanticipated error: Saving your CRM information Subscription Form