Section 24G of the National Environmental Management Act (NEMA) in South Africa provides a "rectification" process for activities that have been commenced illegally ...

Section 24G of the National Environmental Management Act (NEMA) in South Africa provides a "rectification" process for activities that have been commenced illegally without the required environmental authorization. The provision allows a person or company to apply for authorization after the fact, subject to an administrative fine. 

Purpose and legal framework

• Legalization of unlawful activity: The core purpose of Section 24G is to offer a mechanism to deal with a contravention of NEMA, where a listed activity was started without a prior environmental impact assessment (EIA) and subsequent authorization.
• Constitutional backing: This section is linked to Section 24 of South Africa's Constitution, which guarantees the right to an environment that is not harmful to health or well-being. The rectification process is a tool for managing activities with negative environmental impacts.
• Not a pass on prosecution: A Section 24G application is not an amnesty. Applicants remain liable for criminal prosecution for the initial unlawful commencement of the activity, and paying the fine does not prevent this. 

The rectification process

The application process involves several key steps and requirements: 

• Application submission: The person or entity responsible for the unlawful activity must submit an application to the relevant competent authority (the Minister or MEC).
• Environmental assessment: A post-facto assessment of the environmental impacts caused by the unlawful activity must be conducted and submitted.
• Public participation: A public participation process is required to allow interested and affected parties to comment on the application.
• Administrative fine: The applicant must pay an administrative fine determined by the competent authority. Recent amendments in 2022 have increased the maximum fine from R5 million to R10 million for particularly serious transgressions.
• Conditions and directives: As part of the rectification, the authority may impose additional conditions, issue directives for the rehabilitation of the environment, or require other steps to mitigate adverse effects.

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Controversy and criticism

Section 24G has been a source of significant controversy, particularly regarding its implementation and potential for abuse. 

• Undermining environmental assessment: Critics argue that Section 24G can undermine the proactive nature of environmental impact assessments. It may incentivize developers to start projects illegally and "ask for forgiveness later" rather than properly planning and obtaining permission in advance.
• Exploiting the process: The process has been criticized for being exploited by developers who view it as a mere formality for rubber-stamping an already completed project.
• Inherited liability: Recent amendments have expanded the scope of Section 24G to include new landowners who inherit an illegal activity. While intended to prevent ongoing environmental harm, this change can impose unfair liability on innocent successors