Appeals and Legal Review
Section 43(1) of the National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA) designates the Minister of Environmental Affairs as the appeal authority for a decision made by a delegated official of the Department of Environmental Affairs (DEA) under NEMA or a Specific Environmental Management Act (SEMAs).
The Directorate: Appeals and Legal Review is responsible for administering appeals and making recommendations on appeals to the Minister of Environmental Affairs. Section 43 (1)(A) of NEMA further determines that any person may appeal to the Minister against a decision made in terms of NEMA or any of the SEMAs by the Minister responsible for mineral resources or any person acting under that Minister’s delegated authority. The Minister may, in terms of subsection 5 of NEMA consider and decide an appeal or appoint an appeal panel to consider and advise the Minister on the appeal.
Section 43(6) of NEMA confers the powers on appeal to the Minister by allowing her to confirm, set aside or vary the decision, provision, condition or directive or make any other appropriate decision.
The Directorate: Appeals and Legal Review within the DEA administers appeals and makes recommendations on the appeals to the Minister of Environmental Affairs. This includes, inter alia, acknowledging receipt of notices of intention to appeal and appeal submissions, sourcing and acknowledging receipt of responding statements from applicants or interested and affected parties, compiling appeal response reports and sourcing comments from Branches within the Department on the grounds of appeal and responding statements, analysing the files on which the original decision was based and all the information before the Minister, conducting site visits and consultations with relevant stakeholders (where appropriate), and making recommendations on all appeals to the Minister within the prescribed timeframes.
- National Environmental Management Act, 1998 (as amended) (Act No. 107 of 1998);
- National Appeal Regulations, 2014 (as amended) (GG 38303-GN 993);
- Environmental Impact Assessment Regulations, 2010 (G33306-GN 543);
- Environmental Impact Assessment Regulations, 2014 (G38282 – GN 982 - 985);
- National Environmental Management: Biodiversity Act (10 of 2004);
- Alien and Invasive Species Regulations, 2014 (GG 37885- GN 598);
- National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004):
- Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000);
- Mineral and Petroleum Resources Development Act, 2008 (Act No.49 of 2008); and
- Promotion of Access to Information Act, 2000 (Act No.2 of 2000);
This section provides information and guidance for applicants, authorities and interested and affected parties (“I&APs”) on appeals submitted to the Minister in terms of NEMA and the SEMAs.
Chapter 2 of the 2014 National Appeal Regulations prescribe that an appellant must submit the appeal to the appeal administrator and to any known interested and affected party within 20 days from the date that the decision was sent to the registered interested and affected parties, or in the case of decisions where this does not apply, the date that the decision was sent to the applicant.
No appeal is available if the Minister took the decision himself or herself in his or her capacity as the competent authority, issuing authority or licensing authority. An appeal may, however, be lodged with the Minister responsible for Environmental Affairs against a delegated decision taken by the Department on an application.
An appeal submission must be submitted in writing in the form (Appeal Guideline) obtainable from the Minister, and must be accompanied by –
- a statement setting out the grounds of appeal;
- additional supporting documentation that is referred to (which did not form part of the original application;
- a statement that the applicant complied with the prescription in Regulation 4 (1) of the National Appeal Regulations, 2014 with relation to the submission period of 20 days, as set out above.
Appeals may be lodged with the Minister against a delegated decision taken by the Department on an application, which may include any new information to be submitted when submitting the appeal.
Notification of a decision made by the department
On having reached a decision on an application, the Department must, in writing and within 2 days, notify the applicant of the outcome of the decision, give reasons for the decision, and draw the attention of the applicant to the fact that an appeal may be lodged against the decision.
The applicant must, in writing, within 12 days after the date the decision was made by the Department:
- notify the registered I&APs of the outcome of the decision;
- provide the Department’s reasons for the decision;
- draw the attention of all registered I&APs to the manner in which they can access a copy of the decision (note: it is recommended that a copy of the Department’s decision be attached to the notice); and
- draw their attention to the fact that an appeal may be lodged against the decision, and the manner in which to lodge an appeal against the decision.
Lodging of an appeal
An appellant must submit the appeal submission (the Appeal Questionnaire and Appeal and Response Form) to the appeal administrator, the applicant, and known interested and affected parties within twenty (20) days from:
- the date that the decision for an application for an environmental authorisation or a waste management licence was sent to the registered interested and affected parties, or
- the date that the decision was sent to the applicant, in the case of decisions other than those referred to above.
An appeal submission must be submitted in writing in the form of the appeal questionnaire and accompanied by:
- a completed Appeal and Response Form setting out the grounds of the appeal;
- supporting documentation that is referred to in the appeal which did not form part of the documentation considered when the original decision was made; and
- a statement by the appellant to confirm compliance with Regulation 4 (1) of the National Appeal Regulations, 2014.
Suspension of authorisation
In terms of section 47 (7) of NEMA, an appeal will automatically suspend an environmental authorisation, directive, exemption or other decision taken in terms of NEMA, pending the outcome of the appeal.
Hints on drafting of appeals
- The appeal questionnaire must be submitted together with the grounds of appeal. The grounds of appeal must also be captured in the Appeal and Response Form;
- The appellant must provide their full contact details, i.e. postal address, telephone and cell numbers, fax number and email address;
- If the appellant is representing a company or other body of persons, proof of mandate to lodge the appeal on behalf of the company or other entity must be provided;
- The identity of the project which is the subject of the appeal, and the departmental reference number, if known, must be provided;
- The issues to be considered by the Minister must be clearly identified;
- The grounds of appeal and the facts upon which they rest must be clearly set out. The grounds of appeal must be formulated as averments and not as questions about the project (refrain from material or remarks which do not contribute towards the merits of the appeal);
- Make a particular issue the subject of a separate ground of appeal, avoiding overlaps as far as possible. Issues should be grouped logically and in a chronological order to provide the Minister with clear timelines of the events or facts in dispute;
- A recommended way of arranging issues is to divide the grounds of appeal into procedural grounds, (for example inadequate public participation) and substantive grounds (why the decision is seen as wrong);
- Before submitting the appeal, it is recommended that appellants familiarise themselves with the mandate of the Department to avoid raising matters falling outside the competence of the Minister on appeal; and
- Sign and date the appeal submission.
The responding statement must also be captured in the Appeal and Response Form, which will be provided by the appeal administrator and will have captured the grounds of appeal. The Responding Statement will need to address each ground of appeal as reflected in the Appeal and Response Form.
No new information submitted in the responding statement will be considered by the appeal authority.
If the Minister is of the view that expert advice must be sought or that an appeal panel must be appointed, the Appeal Administrator must source the expert advice or constitute the appeal panel within 10 days from the date of receipt of such an instruction from the Minister. The expert or appeal panel must provide advice to the Appeal Administrator within 10 days from the receipt of the instruction from the Appeal Administrator.
A panel of experts must provide their recommendations on the appeal, to the Appeal Administrator within 10 days of their appointment.
Decision on appeal
Communication to the Directorate: Appeals and Legal Review can be done may be issued by the following methods –
- by delivering it by hand; and/ or
- by emailing it to email@example.com
Any application or appeal lodged prior to the commencement of the National Appeal Regulations, 2014, and which is still pending when the Regulations takes effect, must be finalised in terms of the legislation that applied at the time when the application or appeal was lodged, and not according to the National Appeal Regulations, 2014.
All appeals lodged in respect of applications which commenced before 8 December 2014 will be dealt with in terms of 2010 EIA Regulations, and appeals lodged in respect of applications commenced after 8 December will be dealt with dealt with in terms of National Appeal Regulations, 2014.
Regulation 56(4) of the 2014 EIA Regulations echoes this provision by determining that an appeal lodged in terms of the 2010 EIA Regulations, and which is pending when the 2014 EIA Regulations take effect, must, despite the repeal of the 2010 EIA Regulations, be dispensed of as if those Regulations were not repealed.
Requests for condonation or extension of time periods
In terms of section 47C of NEMA, the Minister has the legal authority to grant an extension or condonation for the submission of an appeal or responding statement which is out of time.
Applications in terms of Section 47C of NEMA must be in writing, and must afford the other party/parties with an opportunity to comment on the request;
When deciding on requests for condonation or extension of time periods, the Minister will consider the following:
- whether good cause is shown to extend a time period,
- the extent of the period requested, or the degree of lateness,
- the factual basis of the motivation for the request and the explanation thereof,
- whether factors outside of the control of the requesting party have played a role,
- potential prejudice in granting or refusing the request to any of the parties;
- whether it is in the interest of justice to grant or refuse the request; and
- prospects of success on the merits of the appeal.
The adjudication of a request for condonation or extension of time periods will, as far as practically possible, be communicated together with the appeal decision.
Calculation of days:
“Days” means calendar days.
Note: When a period of days must be reckoned in terms of these regulations, the period must be reckoned as from the start of the day following that particular day to the end of the last day of the period, but if the last day of the period falls on a Saturday, Sunday or public holiday, that period must be extended to the end of the next day which is not a Saturday, Sunday or public holiday, and the period of 15 December to 5 January must be excluded from the reckoning of days.
What happens when your appeal is received by the Directorate: Appeals and Legal Review?
When your Notice of Intention to Appeal form, or Appeal Form and Questionnaire is received by the Directorate: Appeals and Legal Review:
- An Appeal Administrator will check your form to make sure that everything is in order and if it is, register the appeal;
- Responding statements on the appeal are received from the applicant or the attorney representing the applicant;
- Upon receipt of the ground of appeal, responding statements the appeal administrator will request the relevant line function/s of the Department for comments in the Appeal Response Report;
- Where required, the appeal administrator will conduct the applicant/appellant and arrange a site visit; and
- If you have requested for a meeting in your appeal, an appeal administrator will send you a letter or email advising you of tentative dates and times for the meeting.
What happens after the appeal is decided?
The Minister will consider all the facts before her and make a decision within the time periods prescribed by the 2010 EIA Regulations and 2014 National Appeal Regulations, respectively. The Directorate: Appeals and Legal Review will email a copy of the appeal decision to the appellant and the applicant.
As soon as a decision has been made, it will be sent to you via email 5 days of date of decision.
- Appeals against EAs granted or refused by DEA;
- Appeals against EAs granted by or refused by DMR;
- Appeals against WMLs granted by or refused by DEA;
- Appeals against AELs granted or refused by DEA;
- Appeals against postponement decisions issued by the National Air Quality Officer;
- Objections to Compliance notices and/or Appeals against Directives; and
- Appeals against PAIA decisions of the Deputy Information Officer.