notifications and directives issued to landowners

The nem:ba empowers competent authorities to issue notices and directives to landowners, to ensure their compliance with the requirements of the act and its regulations. There are three types of notifications – pre-compliance notices, pre-compliance notices and warning letters. The national environmental management act (nema) [section 31l (1)] and its regulations under the act [regulation 8] define and prescribe the procedure for issuing compliance notices (box 7.2). regulation 8 prescribes that before issuing a compliance notice, the intended recipient should be notified of the intention to issue such a notice in the form of a pre-compliance notice. a competent authority may also issue a warning letter, pre-directive and directive, usually to compel a person to take steps to minimise harm caused by listed invasive species on their property. however, the nema or nem:ba acts and their associated regulations do not define a “warning letter” and “pre-directive”, nor do they prescribe their format.

Tus of biological invasions and Their managemenT in souTh africa2017

These notifications and directives may be issued to a person who has: (i) failed to notify any relevant competent authority of the listed invasive species that occur on their property or to take steps to prevent or minimise harm to biodiversity; (ii) failed to comply with conditions specified on a permit, or who has failed to take all the required steps to prevent or minimise harm to biodiversity; and (iii) carried out a restricted activity with a listed alien species without a valid permit.

Box 7.2 defiNitioNS of NotiCeS, direCtiveS aNd SeveraL aSPeCtS of CoMPLiaNCe aS defiNed BY the NeMa aNd NeM:Ba aCtS, aNd their reGuLatioNS.

There are several types of notifications and directives that can be issued to landowners to ensure their compliance with the requirements of the NEm:BA Act and its regulations. This box lists examples of the notifications and directives, which a competent authority can issue and under what circumstances.

Pre-compliance notice

Regulation 8 of the National Environmental management (NEmA) Act 107 of 1998 prescribes that before issuing a compliance notice, the environmental management inspectorates (EmI) must give the person to whom the inspector intends to issue the compliance notice, an advance warning of the intention to issue the compliance notice. This is done by issuing a pre-compliance notice. The Regulations, therefore, provide for a reasonable opportunity to make representations to the EmI regarding why a compliance notice should not be issued. If an EmI has reason to believe, however, that the issuing of a pre-compliance notice will cause a delay that will result in significant and irreversible harm to the environment, the inspector may issue a compliance notice without meeting this requirement. If an EmI, for example, wants to issue a compliance notice to ensure compliance with section 28(1) of NEmA in a situation where harm to the environment is significant and imminent, he or she may issue a compliance notice directly. In such an instance, the EmI must explain the reasons for not issuing a pre-compliance notice in the eventual pre-compliance notice.

Compliance notice

The overall aim of a compliance notice is to bring non-compliant actors into compliance with environmental legislation or with the conditions of permits, authorisations or other regulatory instruments. Non-compliance with a compliance notice, however, is an offence in terms of the NEmA. In this regard, section 31l(1) of NEmA states that an EmI may issue a compliance notice if there are reasonable grounds for believing that a person has not complied with a provision of the law for which that inspector has been designated or with a term or condition of a permit, authorisation or other instrument issued in terms of such law.

directive

NEmA makes provisions to establish a duty of care and empower competent authorities (EmI) to direct transgressors to take a number of steps to remedy harm to the environment. A directive serves to direct, guide, and usually impels a person or company to take the necessary steps to remedy any harm to biodiversity caused by the action of that person or company.

Compliance

The action or fact of complying with instructions. This means that the person to whom the compliance notice was issued should comply with the instructions in the compliance notice e.g. applied for a permit.

Non-compliance

The failure to act in accordance with instructions. The means that the person to whom the compliance notice was issued did not comply with or adhere to the instructions in the compliance notice. And further action is required.

Criminal investigation

An investigation into a crime, usually seeking to identify the offender and build a legal case against him or her. This action will be taken once there is non-compliance and can lead to the prosecution and sentencing of such a person.

representations

formal statements made to the department of Environmental Affairs, especially to communicate an opinion or register reasons why a compliance notice should not be issued.

ChaPter 7IeffecTiveness of regulaTions

Notifications regarding invasive plant species. notices have been served to the owners of 85 properties across south africa; 59 of these notices went to private landowners, and 26 to plant traders. The notices involved up to 37 species on a single property and the two most common species were Solanum mauritianum (bugweed) (24 out 85 properties) and Acacia mearnsii (black wattle) (22 out 85 properties) (Table 7.9). Traders tended to receive notices regarding a single species; only a few of the species involved were found at more than one business premise. These were Rubus fruticosus (european blackberry) (8 out of 26 nurseries), Pyracantha coccinea (red firethorn) (4 out of 26), Murraya paniculata (orange jasmine) (5 out of 26), Cinnamomum camphora (camphor tree) (4 out 26), and Murraya exotica (orange jasmine) (3 out of 26) (Table 7.9). The notifications and directives were issued in six of the nine provinces (figure 7.4); most were in the Western cape and mpumalanga, with none being issued in the north West, northern cape and free state.

tABle 7.9 The number of properties (either privately-owned land or business premises) that were served with notices and directives in connection with alien plant species in South Africa.

tAxon SpeCieS, CoMMon nAMeS in BrACketS privAte

lAndownerS plAnt trAderS

plAntS Acacia cyclops (rooikrans) 7 0

Acacia longifolia (long-leaved wattle) 3 0

Acacia mearnsii and hybrids (black wattle) 22 1

Acacia melanoxylon and hybrids, varieties and selections

(australian blackwood) 1 0

Acacia saligna (Port Jackson) 9 0

Acer buergerianum (chinese maple) 0 1

Agave americana subsp. americana var. expansa (spreading century plant) 1 0

Ageratum housetonianum (mexican ageratum) 1 0

Arundo donax (giant reed) 3 0

Callistemon viminalis (weeping bottlebrush) 1 0

Campuloclinium macrocephalum (pompom weed) 1 0

Casuarina cunninghamiana (beefwood) 2 0

Chromolaena odorata (triffid weed) 1 1

Cinnamomum camphora (camphor tree) 2 5

Duranta erecta (forget-me-not-tree) 0 1

Equisetum hyemale (rough horsetail) 0 1

Eucalyptus camaldulensis and hybrids (red river gum) 2 0

Eucalyptus cladocalyx and hybrids (sugar gum) 6 0

Eucalyptus conferruminata (spider gum) 1 0

Eucalyptus grandis and hybrids (saligna gum) 9 0

Eucalyptus saligna (sydney blue gum) 4 0

Eucalyptus (gums) 3 0

Tus of biological invasions and Their managemenT in souTh africa2017

tAxon SpeCieS, CoMMon nAMeS in BrACketS privAte

lAndownerS plAnt trAderS plAntS

continued

Jacaranda mimosifolia (jacaranda) 0 1

Lantana – all seed-producing species or seed-producing hybrids that are

nonindigenous to south africa (lantana) 17 1

Litsea glutinosa (indian laurel) 1 0

Melia azedarach (syringa) 6 1

Murraya paniculata (listed as Murraya exotica on the permit) (orange jasmine) 0 8

Opuntia ficus-indica (sweet prickly pear) 1 1

Pennisetum purpureum (elephant grass) 0 1

Pinus (pines) 2 0

Pinus elliottii and hybrids (slash pine) 1 1

Pinus pinaster and hybrids (cluster pine) 8 1

Pinus radiata and hybrids (monterey pine) 2 0

Pontederia cordata (pickerel weed) 0 1

Populus alba (white poplar) 5 0

Populus × canescens (grey poplar) 3 0

Prosopis velutina (velvet mesquite) 2 0

Pyracantha angustifolia (yellow firethorn) 0 1

Pyracantha coccinea (red firethorn) 0 4

Pyracantha koidzumii (formosa firethorn) 0 1

Ricinus communis (castor-oil plant) 2 0

Robinia pseudoacacia (black locust) 1 0

Rubus cuneifolius and hybrid (american bramble) 1 0

Rubus fruticosus (european blackberry) 0 8

Sesbania punicea (red sesbania) 1 0

Solanum mauritianum (bugweed) 24 0

Tecoma stans (yellow bells) 2 0

Compliance with alien plant species notifications. The overall compliance was high (95%), and this was achieved through clearing plants from properties, applying for permits, withdrawing listed species from trade, submitting invasive species management plans or making representations as to the need for a compliance notice; there were only 4 cases that were non-compliant (Table 7.10). in three of these cases, the landowners were either issued with a pre-compliance notice or pre-directive, but they did not submit any representations as to why a compliance notice or directive should not have been issued. in one case, the landowner did not comply with a directive to submit an invasive species management plan and to clear listed invasive plant species from their property, and the dea intends to open a criminal case.

ChaPter 7IeffecTiveness of regulaTions

tABle 7.10 The level of compliance by landowners issued with notifications for restricted activities with listed alien and invasive plant species in South Africa.

tAxon type oF notiFiCAtion

And direCtive CoMpliAnCe non-CoMpliAnCe CriMinAl

inveStigAtion proSeCutionS

plAntS Pre-compliance notice 24 1 0 0

compliance notice 0 0 0 0

Pre-directive 53 2 0 0

directive 0 1 0 0

Number issued Directives Notifications Directives Notifications Directives Notifications Directives Notifications Directives Notifications Directives Notifications Directives Notifications Directives Notifications Directives Notifications

WeSTeRN

cAPe MPUMAlANge gAUTeNg eASTeRN

cAPe

KWAZULU-NATAl lIMPoPo NoRTH WeST NoRTHeRN

cAPe fRee STATe 0

5 10 15 20 25 30 35

Figure 7.4 The number of notifications compliance notices, compliance notices and warning letters) and directives (pre-directive and (pre-directive) that were issued for activities with listed alien and invasive plant species in each province in South Africa, 2014–2016.

Notifications regarding invasive animal species. notices have been served to the owners of 119 properties across south africa; 78 of these properties (66%) were pet shops, 19 were game farms (16%), 12 were other private landowners (10%) and 10 were sanctuaries or zoological gardens (8%). The highest number (60%) of species was owned by pet shops and these included reptiles (14 species), birds (2 species), one fish and one terrestrial invertebrate species (Table 7.11). The species that were common were Psittacula krameri (rose-ringed parakeet) (55 out 78 properties), Boa constrictor (common boa) (26), Iguana iguana (green iguana) (17) and Python molurus (indian rock python) (17). sanctuaries and zoological gardens held specimens of reptiles (5 species), mammals (5 species) and birds (3 species) (Table 7.11). species found on game farms included mammals (9 species) and one reptile (Basiliscus plumifrons, plumed basilisk). The notifications covered all the nine provinces of the country (figure 7.5). The highest number of notifications was recorded in KwaZulu-natal (16%), limpopo (15%) and mpumalanga (15%) while the least was in free state (7%) and Western cape (7%). no directives were issued for any restricted activity with alien and invasive species in any of the provinces in the country.

Tus of biological invasions and Their managemenT in souTh africa2017

tABle 7.11 The number and type of properties served with notices and directives for restricted activities with listed alien and invasive animal species in South Africa.

tAxon SpeCieS gAMe

FArMS privAte HoldingS

SAnCtuAry or ZoologiCAl

gArdenS trAderS terreStriAl

inverteBrAteS Achatina fulica (giant african snail) 0 0 0 1

FiSHeS Oreochromis niloticus (nile tilapia) 0 1 0 0

Plecostumus (loricariid catfishes) 0 0 0 2

reptileS Basiliscus plumifrons (plumed basilisk) 1 0 0 1

Basiliscus vittatus (basilisk) 0 0 0 4

Bitis nasicomis (rhinoceros viper) 0 0 0 1

Boa constrictor (common boa) 0 2 2 26

Crotalus (rattlesnakes) 0 1 1 7

Furcifer pardalis (panther chameleon) 0 0 0 2

Iguana iguana (green iguana) 0 0 3 17

Morelia amethistina (amethystine python) 0 0 0 2

Morelia spilota (carpet/diamond python) 0 2 2 7

Pantherophis guttatus guttatus (cornsnake) 0 0 0 2

Python bivittatus (burmese python) 0 0 0 2

Python molurus (indian python) 0 2 3 17

Trachemys scripta elegans (red eyed elegans) 0 0 0 2

Trachemys (sliders turtles) 0 0 0 1

BirdS Alectoris chukar (chukar partridge) 0 0 1 0

Anas platyrhynchos (mallards) 0 2 2 3

Psittacula krameri (rose-ringed parakeet) 0 7 6 55

MAMMAlS Aepyceros melampus petersi (black-faced impala) 3 0 0 0

Ammotragus lervia (babary sheep) 8 0 1 0

Antilope cervicapra (indian blackbuck) 1 0 0 0

Axis axis (chital) 1 0 0 0

Axis porcinus (hog deer) 2 0 0 0

Cervus elaphus (red deer) 0 1 3 0j

Dama dama (fallow deer) 11 0 1 0

Kobus leche kafuensis (Kafue lechwe) 2 0 0 0

Kobus leche leche (red lechwe) 14 0 1 0

Oryx dammah (scimitar-horned oryx) 6 0 1 0

ChaPter 7IeffecTiveness of regulaTions

Number issued

KWAZULU-NATAl lIMPoPo MPUMAlANge NoRTHeRN

cAPe gAUTeNg eASTeRN

cAPe NoRTH WeST fRee STATe WeSTeRN cAPe 0

2 4 6 8 10 12 14 16 18 20

Figure 7.5 The number of notifications (pre-compliance notice, compliances notice and warning letters) issued for activities with listed alien and invasive animal species in each province in South Africa, 2014–2016. There were no directives (pre-directive and directive) issued.

Compliance with alien animal species notifications. The notifications and directives issued for restricted activities with alien and invasive animal species consisted mainly of pre-notices (66%) with a few warning letters (20%) and compliance notices (14%) (Table 7.12). The overall compliance for all the notifications was 82%, and compliance was achieved through applying for permits, the removal of some species from the list of regulated species, and removal of the species from properties. There was only one case of a pending criminal investigation that was instituted after the landowner was issued with a compliance notice but she still continued to trade listed alien species without a permit.

tABle 7.12 The level of compliance by landowners issued with notifications for restricted activities with listed alien and invasive animal species in South Africa.

type oF notiFiCAtion

And direCtive CoMpliAnCe non-CoMpliAnCe CriMinAl

inveStigAtion proSeCutionS

pre-compliance notice 69 10 0 0

Compliance notice 14 2 1 0

warning letter 15 8 0 0

Dans le document The sTaTus of biological invasions and Their managemenT in souTh africa 2017 (Page 167-173)