Legislative Requirements in South Africa
Besides the specific requirements imposed by various legislation certain overarching principles and roles have been identified.
Role of public participation
In South Africa public participation is described as a process that is used to provide sufficient and accessible information to any I&AP in an objective manner to
- assist them to identify issues of concern,
- identify alternatives,
- suggest opportunities to reduce potentially positive impacts, and
- verify that issues and the inputs have been captured and addressed during the assessment process.
The public participation process provides members of the public with the opportunity to suggest ways of avoiding and reducing negative impacts of an activity and for enhancing positive impacts. It also enables the applicant to incorporate the needs, preferences and values of affected parties into the activity.
Public participation enhances transparency and accountability into decision-making. This provides an opportunity for all I&APs to obtain clear, accurate information about the proposed activity, the alternatives and the environmental impacts. I&AP s will also get an opportunity to indicate their views, points, issues and concerns regarding the activity, alternatives and the decision made.
The Public Participation Guideline in support of the EIA regulations published in 2006, states that public participation is one of the most important aspects of the environmental authorisation process. Every one has a right to be informed about decisions that affect them and that they must be offered an opportunity to have an influence to those decisions made. An effective Public Participation also improves the ability of the competent authority to make well-informed decisions.
Principles of public participation
The following principles of the public participation process have been identified.
Involvement of all the stakeholders: All the stakeholders are to be involved in all the initiatives.
Awareness creation: Creating awareness in communities will result in an empowered society.
Good quality feed back to and from the stakeholders: Flow of information in the public participation process is important, as it will establish trust and assurance among stakeholders.
Monitoring and evaluation: Monitoring and evaluation will minimise mistakes and risks to the process both in the present and the future by applying lessons learnt from past experiences.
Accessibility of information: These will enable effective public participation by supporting stakeholders to be well informed and more knowledgeable. Also timely access to information is required in order for the public to participate effectively. The information should be accessible in terms of the language and terminology to build capacity understanding and knowledge of stakeholders and the way stakeholders will make meaningful contributions. Materials should be easily obtained, copies should be available in an appropriate language and stakeholders should be supported in distributing it to the public.
Transparency: An open, honest and equitable approach to public participation encourages trust and can help to show that the decision is fair.
Integration: Best practice in public participation brings together public issues, technical assessment and a consideration of local and traditional knowledge.
Continuity in participation: Participation of the role players throughout the initiative is important to ensure continuity in participation.
Centrality of public participation
The central role of public participation in environmental decision making is summarised and highlighted in the diagrams shown in Figure 1 and Figure 2.
EIA Regulations 2010: National Environmental Management Act (NEMA)
The new Environmental Impact Assessment (EIA) regulations 2010 framed in terms of the National Environmental Management Act as amended provide some guidance on the conduct of public participation processes, but this is generally limited to providing for when public participation is required. The only detail specified concerns the forms of notification and the keeping of registers of I&APs and their issues and comments.
In particular Regulation 54 deals with means of notifying I&APs, Regulation 55 and 56 deal with the keeping of a register of I&APs and their rights to access and comment on reports. Regulation 57 provides for the keeping of a register of comments and responses. It does make reference to making alternative arrangements for those who may be hampered by “(i) a lack of skills to read or write; (ii) disability; or (iii) any other disadvantage” (Reg 57.(2)).
The need to notify I&APs is clearly of paramount importance and the regulations require that proof of public participation must be submitted to the department. This includes proof of the placing of notice boards, advertisements, notices sent to those specified in Reg 54.(2)(b) and other methods of notifying of I&APs. Notices are to be sent to:
- Owners and occupants of the site of the proposed activity;
- Owners and occupants of land adjacent to the site of the proposed activity;
- The municipal councillor for the area in which the proposed activity will take place;
- Any ratepayers associations in the area;
- The municipality;
- Any organ of state having jurisdiction in respect of any aspect of the activity; and
- Any other party as required by the competent authority.
Placing newspaper advertisements is required and the content of these and the notices is specified.
However the regulations do not specify how this proof should be made. The Guidelines suggest that a copy of the newspaper advertisement that was placed, which indicates the name of the newspaper and the date of publication should be provided and a site map showing where the site notices were placed including photographs showing the notice on site. The guidelines also suggest that a list of all the mails that where sent should also be available, showing all the names of persons the mail was sent to, with the address of that person, and the date the mail was sent. For all hand deliveries of information to I&APs, signatures and the name of the person who received the information together with the address of the person must be included in the register.
Register of interested and affected parties
The current regulations require that a register of I&APs is kept in which is recorded the names, contact details and addresses of all those who have submitted comments or attended meetings those who have requested registration and the organs of state with jurisdiction.
Register of comments and responses
A Comments and Responses Register (CRR) is also required in which are recorded all comments made by I&APs and the responses made to these. It is implied that the comments should be written although reference is also made to attaching records of all meetings. It is assumed that these records will include an adequate record of the verbal comments made at these meetings.
Access to and commenting on reports
Provision is also made for all registered I&APs to have access to these comments and responses and to comment on any written submissions as well as to comment on any reports.
The provisions outlined above are intended to ensure that everyone has sufficient opportunity to engage in the IA process and to engage with the opinions and assessments made by the EAP and specialists.
EMF Regulations 2010: National Environmental Management Act (NEMA)
The regulations issued by the Department of Environmental Affairs (DEA 2010) regarding public participation in an Environmental Management Framework (EMF) require that a draft EMF must be made available to the public for comment. I&APs involvement must be invited by means of advertisements in a local newspaper, and other appropriate ways of notifying I&APs. Appropriate steps need to be taken to ensure that reasonable means have been implemented to engage with I&APs who are illiterate, disabled or have any other constraints to participation. A comment and responses report needs to be prepared for the EMF report to be complete.
An EMF can differ in context and in size from one area to another. The requirements of the regulations should therefore be regarded as a minimum requirement and in most cases; it will be necessary to conduct a broader public participation process that takes place during the entire development of the EMF. The three main goals of the public participation process in the development of EMF are, first to inform all I&APs about an EMF process and what the objectives are. Secondly is to provide an opportunity for inputs from I&APs, and give the stakeholders and I&APs an opportunity to comment about the EMF. Lastly is to give feedback to I&APs with the opportunity for them to respond. This will enable flow of information between the authorities and the public, being the stakeholders and I&APs.
Phases in an EMF
There are different phases of public participation in an EMF; with the emphasis being to distribute information about the EMF and gather information to guide its development. These are discussed below.
Phase 1: Preparation
The first phase is the preparation phase, this phase involves meeting with the authorities that have jurisdiction in the study area. A preliminary compilation of all the necessary documents for the public participation process is made. These documents include a Background Information Document (BID) about the EMF approach and process, BIDs should be distributed to I&APs in languages appropriate for the area. A project advertisement should be prepared and placed in the local newspaper to inform the public about the development of the EMF, how they can become involved in the process, and the details about public meetings to be held. Invitations to the community to attend open days and public meetings should also be distributed and/or published.
Phase Two: Stakeholder consultation
The stakeholder consultation process focuses on the interaction with I&APs. This is to ensure that I&APs are afforded sufficient opportunity for engagement in the EMF development. The extent of consultation will greatly depend on the extent and the sensitivity of the specific EMF. For a large scale or regional EMF, an extensive consultation process will be required at various levels. The approach to consultation should be flexible and the levels of literacy should influence the approach in engagement. The effective approach to consultation includes preparation, an open day, focused group and subject specialist meeting and interviews with local leaders and councillors.
I&APs should be engaged on an ongoing basis to ensure that they are informed of the project progress and that they are able to communicate issues and concerns to the project team. These issues and comments should be captured in the Public Participation Report (PPR) that forms part of the draft EMF. The PPR must include the description of the strategy and the process followed, the list of the registered I&APs. Minutes and all the comments during the Public Participation Process should also be included.
Phase Three: Public review and report writing
The last phase involves the finalisation of the EMF development process and Public Participation Process. The EMF must be made available for public review, and all the comments must be integrated into the final report, which will be submitted to the authorities for final review. The final document should also be made available to the public in an accessible location such as public libraries, and also in an appropriate format, that is easy to understand. If the EMF report is very large it might be difficult to provide multiple copies for everyone, therefore a full electronic version should be made available for those who have access to internet.
SEA: National Environmental Management Act (NEMA)
Strategic Environmental Assessment (SEA) refers to the process that integrates sustainability consideration into the formulation, assessment and implementation of Policies, Plans and Programmes also known as PPP. The PPP are then tied in with the project in the EIA process. EIA is applied at project level where the SEA’s main focus is at the level of policies, programmes and plans. An SEA helps to identify and addresses potential areas of conflict between PPP early on in the formulation of new PPP. It also enables stakeholder engagement which includes a public participation process. NGOs, government departments, institutions and the public are the stakeholders, and they must be included at a strategic level in the planning and policy making processes.
The use of SEA and many other SEA tools are prompted in policy and framework legislation. NEMA chapter 5 makes provision for the development of procedures for the assessment of PPP, for the SEA to be successful. Effective stakeholder involvement is important. It requires commitment from a variety of stakeholders such as the public, I&APs, community representatives and NGOs. Stakeholders’ participation in the SEA process may be difficult. It is therefore reasonable that stakeholder engagement is initially undertaken by a group of representatives such as the authorities and community based organisations (CBOs) who form a steering committee to coordinate the participation of a wider group of stakeholders. It is recommended that the stakeholders be divided into two groups to ensure effective participation.
The first group being the key stakeholders, these stakeholders will receive all the documents during the SEA process, and they will attend all the meetings and workshops to provide a constructive input into the process. The second group will then be general stakeholders; they will also receive all documentation so that they will also be well informed of the SEA process and be able to comment when necessary. Stakeholder engagement should be undertaken not only during the scoping phase but throughout the entire SEA process. Specialist skills in the communication, facilitation and engagement are required, because if it is not done properly, the public may feel frustrated, and this may result in reluctance to contribute to yet another process.
Common techniques used to ensure effective Public Participation and consultation in an SEA process include:
- Public meetings
- Printed materials such as the BIDs
- Media adverts and articles
- Radio and TV interviews
- WEB information
- Small meetings
- Focus group discussion
- Interviews .
The levels of public participation for an effective SEA
The levels can be summarised as follows:
- Involvement and consultation: This could be a formal or informal dialogue to identify issues of concerns through focus group discussion and workshops.
- Extended involvement : Participants must be able to contribute to the formation of a plan and influence a decision through group discussion or forums
- Information feedback: This involves the provision of information with a request for feedback to supplement knowledge and gain a better understanding of issues, through surveys, displays and adverts.
Overlap with Mineral and Petroleum Resources Development Act Regulations
Part III, Regulations 47 to 62 of the 2004 Mineral and Petroleum Resources Development Act (MPRDA) Regulations make provision for Environmental Reports to be conducted in specific circumstances. An Environmental Report is referred to as a Scoping Report and as an Environmental Impact Assessment Report. In particular the contents of environmental impact assessment reports are detailed in S 50 (1) and include:
d) a comparative assessment of the identified land use and development alternatives and their potential environmental, social and cultural impacts;
f) details of the engagement process of interested and affected persons followed during the course of the assessment and an indication of how the issues raised by interested and affected persons have been addressed (emphasis added).
Clearly there is an intention for public participation to form part of the processes. This is provided for in the Mineral and Petroleum Resources Development Act, 2002 Chapter 4 - Mineral and Environmental Regulation at S 38A. Environmental authorisations, where it is stated that
1) The Minister is the responsible authority for implementing environmental provisions in terms of the National Environmental Management Act, 1998 (Act No. 107 of 1998) as it relates to prospecting, mining, exploration, production or activities incidental thereto on a prospecting, mining, exploration or production area.
2) An environmental authorisation issued by the Minister shall be a condition prior to the issuing of a permit or the granting of a right in terms of this Act.
The issue that arises from this is the overlapping responsibilities of the Ministers for Environmental Affairs and for Mineral Resources. The tensions caused by this are outside the scope of this report except where the public participation process is concerned.
In the 2010 EIA Regulations a similar overlapping is demonstrated for example in Regulation 6 which provides for “[c]onsultation between competent authority and State departments administering a law relating to a matter affecting the environment”. In the subsections it becomes quite clear that the mandated consultation will most often be with the Department of Mineral resources and its structures. It should be noted that apart from the references in S 50 (1) of the MPRDA Regulations noted above and the reciprocal provisions of the 2010 EIA regulations there are apparently no other legislated prescriptions for public participation.
The MPRDA Regulations makes provision for an Environmental Risk Report, which presumably requires an assessment (see for example Regulation 60), but there is no requirement for a public participation process.
However there are a number of other processes that imply environmental decision making or have an impact on Integrated Environmental Management. Some of the most obvious are described below. These are presented in no particular order.
Integrated Development Planning (IDP)
All municipalities in South Africa are required to prepare IDP, for their areas in terms of the Municipal Systems Act, 2000 (Act no 32 of 2000). Integrated Development Planning (IDP) is considered to be one of the processes whereby sustainability can be addressed at a local level. In the process of preparing an IDP stakeholder involvement is very crucial. The Act stipulates that when the municipalities are preparing their IDP they must consult local communities on the development needs and priorities. The local community must participate in the drafting of the IDP, and traditional authorities and other role players must be identified and consulted on the drafting of the IDP. Consultation and participation are considered key principles of an IDP.
Development Facilitation Act No. 67 of 1995
The Development Facilitation Act (DFA) introduced measures to facilitate and speed up the implementation of the Reconstruction and Development Programme and projects in relation to land; and in so doing to lay down general principles governing land development throughout the Republic. The Development Facilitation Act provided for general principles governing land development nationally. The general principles for land development state that policy, administrative practice and law should promote both efficient and integrated land development:
promote land development which is within the fiscal, institutional and administrative means of the Republic;
promote the establishment of viable communities;
promote sustained protection of the environment;
meet the basic needs of all citizens in an affordable way; and
ensure the safe utilisation of land.
Regulation 31 of the Regulations promulgated under the Act provides that the land development applicant must include in his or her application an Environmental Scoping Report, which will include a report on the public participation process that was used, prepared in accordance with the environmental impact assessment guidelines or other requirements which are from time to time issued or amended by the National Department of Environmental Affairs and Tourism (DFA Regulation 31). It is important to note that in addition to the Development Facilitation Act, at provincial and local government level, policies, provincial legislation, ordinances and by-laws regulate land development planning processes.
Spatial Development Framework
A Spatial Development Framework (SDF) is a framework that forms part of the Integrated Development plan and Strategic Environmental Assessment (SEA), which is required by all municipalities. The SDF is a useful tool that is used to manage and monitor developments in cities. It helps investors assess what they are buying and where development opportunities exist in municipal areas. The SEA can be used to assess the application by investors and property developers, and guide changes in land uses and public investment in infrastructure. An SDF indicates both to the public (land owners) and to municipalities (councillors and the officials) where certain activities are not allowed and where curtailed land uses are permitted.
Municipalities must ensure integrated land development and mixed land use areas that will make it easier for people to live closer to economic opportunities and work places, and they must ensure that urban sprawl is avoided. Public participation and stakeholder involvement that includes the general public is very important in the planning process. This can be achieved through steering committee meetings and workshops. General community meetings must also be arranged for communication to the broader stakeholders within the area.
Conservation Planning (CP)
Public participation is not required in a Conservation Planning exercise, however it should be noted that where CP is included in an SDF, EMF or SEA it will be included on the public participation process.
Including CP in the IDP process will also be beneficial, especially if the IDP is truly participatory in its development and compilation.
Ecological Risk Assessment (ERA)
Ecological Risk Assessment is a tool that “evaluates the likelihood that adverse ecological effects may occur or are occurring as a result of one or more stressors”
Risk management is the process of “implementing specific actions in response to the risk”. The ERA framework can be integrated with the generic environmental impact assessment (EIA) procedure. There is an overlap in the basic principles of the generic EIA procedure and the ERA framework. This overlap leads to the ERA being scrutinised in the public participation process and the risks being communicated to I&APs.
The two processes are complementary in that the EIA addresses all the identified issues in a specific development, whereas the ERA is a structured approach to dealing with ecological impacts. Because the ERA is based on the general principles of risk assessment, the approach is already relevant at the planning stage, where potential risks are identified. The risk-based approach followed in an ERA ensures that the process is rigorous and scientifically sound.
Cumulative Effects Assessment (CEA)
Cumulative Effects Assessment is the process of systematically analysing and assessing cumulative environmental change. The purpose of CEA is to ensure that the full range of consequences of actions is considered. Cumulative impacts can occur over different temporal and spatial scales by interacting, combining and compounding so that the overall effect often exceeds the simple sum of previous effects. The spatial scale can be local, regional or global, whilst the frequency or temporal scale includes past, present and future impacts on a specific environment or region. Cumulative effects can simply be defined as the total impact that a series of developments, either present, past or future, will have on the environment within a specific region over a particular period of time.
There are two ways in which cumulative effects can be assessed. These are the application of CEA as an independent and stand-alone process; or the assessment of cumulative effects could be incorporated as part of existing environmental assessments (e.g. as part of the EIA or SEA process).
There is no requirement for public participation to be included in a CEA however where it forms part of an EIA or SEA it will be scrutinised in the public participation processes associated with those tools.
Life Cycle Assessment (LCA)
Life Cycle Assessment (LCA) is the calculation and evaluation of the environmentally relevant inputs and outputs and the potential environmental impacts of the life cycle of a product, material or service (SABS ISO,1998). Environmental inputs and outputs refer to demand for natural resources and to emissions and solid waste.
The life cycle consists of the technical system of processes and transport routes used at, or needed for, raw materials extraction, production, use and after use (waste management or recycling). LCA is sometimes called a "cradle-to-grave" assessment.
LCA has no legal standing in South Africa. However, the tool has been proposed by DEAT as a means to ensure that the NEMA Chapter 1 principles are considered in decision making.
During the analysis phase the public participation process can provide insight on the dynamics and causes of priority issues. During the project phase it could indicate the environmental implications of certain proposed developments. The input from I&APs can guide the prioritising of projects in terms of environmental protection and pollution prevention.
There is no legislated provision for public participation, but it is potentially very important both for the quality of the final product and for the level of acceptance by I&APs.
Cost Benefit Analysis (CBA)
Cost Benefit Analysis (CBA) is a tool used either to rank projects or to choose the most appropriate option. The ranking or decision is based on expected economic costs and benefits. The rule is that a project should be undertaken if lifetime expected benefits exceeds all expected costs.
In a perfect world, the market would ensure that land, labour and capital were allocated in a way that would maximize both profits, and the welfare of society. Ours is an imperfect world, but Social CBA is a tool that allows the analyst to mimic the welfare optimising behaviour of the market.
Social CBA is used to appraise the social merit of projects or policies. The projects may be public or private, and the analysis is typically used to inform public decision makers. This type of CBA is the form typically used in EIAs. As such it is of importance in the public participation process.
Environmental Management Plan (EMP)
The EMP provides a description of the methods and procedures for mitigating and monitoring impacts. The EMP also contains environmental objectives and targets which the project proponent or developer needs to achieve in order to reduce or eliminate negative impacts. The EMP document can be used throughout the project life cycle. It should be regularly updated to remain aligned with the project as it progresses from construction to operation and, finally to decommissioning.
An EMP will typically contain:
- Summary of Impacts
- Description of mitigation measures
- Description of monitoring programme
- Institutional arrangements where responsibilities for mitigation and monitoring actions are clearly defined
- Legal enforceability
- Implementation schedule and reporting procedures
- Cost estimates.
From the point of view of I&APs the benefits of including the EMP as part of an EIA are important for a number of reasons. These have been summarised as
- Encouraging applicants to be more systematic and explicit in the design and development of mitigation measures and the intended means of implementation;
- Encouraging authorities to check the practicality and likelihood of implementation of mitigation and monitoring measures;
- Ensuring that the mitigation measures are properly incorporated into the project design and contract documentation after authorisation is granted;
- Encouraging the project proponent to meet the requirements of the EMP which now form the basis for the conditions attached to authorisation of the project; and
- Forcing the project proponent to internalise environmental impacts that would otherwise become a social cost.
The Ecological Footprint is a resource management tool that measures how much land and water area a human population requires to produce the resources it consumes and to absorb its wastes under prevailing technology. However there is currently no legal mandate for Ecological Footprinting in South Africa. It is a resource accounting and management tool that potentially could add great value to the IDP and other tools by addressing underlying sustainability questions.
Integrated Environmental Programme (IEP)
An Integrated Environmental Programme (IEP) is most often prepared as a sector plan within a municipal IDP. The need to integrate environmental considerations in a council’s planning is required in terms of the National Environmental Management Act (NEMA) S 16.(4)(a). A municipal IEP consists of two components:
- The Strategic Environmental Assessment which is issues and strategy based; and
- The Environmental Management Plan which is more spatial and area specific in context.
IEP’s are a pro-active management tool used to ensure sustainability at strategic (planning and implementation) level. An IEP aims to integrate natural environmental concerns into the planning process at the same level at which social, economic and institutional considerations are addressed. The IEP serves as a tool for the practical translation of the idea of sustainability into programmes and projects in the IDP process.
This management tool does not make specific provision for public participation; however a robust public participation process would enhance the value of the IEP and its level of acceptance.
South Africa's national environmental management legislation allows the delegation of lawmaking powers to the Minister and Provincial MECs, including that of setting "norms" and "standards" that contribute to the achievement of aims of legislation are neither new nor novel. Examples of such norms and standards include, for instance, the setting of tariffs for water services in terms of S 10(1) of the Water Services Act, 108 of 1997 as promulgated in July 2001; National norms and standards for the management of elephants in South Africa which were also promulgated in terms of S 9 of the National Environmental Management: Biodiversity Act, 10 of 2004 in February 2008.
The National Environmental Management Act, 107 of 1998
Section 24(10) of the National Environmental Management Act, 107 of 1998 ("NEMA") (effective as from 1 May 2009) allows for the development by the Minister (or Provincial MECs) of norms and standards for activities or any parts or combinations of such activities that may commence without environmental authorisation in terms of the Act. The Minister may also prescribe the use of developed or adopted norms and standards in order to meet the objectives of the Act, prescribe reporting and monitoring requirements and prescribe procedures and criteria to be used by the competent authority for the monitoring of such activities in order to determine compliance with the prescribed norms and standards.
The National Environmental Management: Waste Act, 59 of 2008
The National Environmental Management: Waste Act, 59 of 2008 (the "Waste Act") also allows norms and standards to be set.
Role of public participation in norms and standards
Rabie and Cameron believe that
[s]cience and technological innovation have a significant impact on norms and standards, as have societal perceptions, values and priorities. In this regard it is insightful to bear in mind the standard of "best practicable environmental option" entailing the option that provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society, in the long term as well as in the short term (emphasis added).
Norms and standards are therefore inherently subjective in a number of ways, but are often not subjected to a public participation process, although it is acknowledged that the case of the norms and standards for “elephant culling” created a great deal of public debate and was the subject of numerous submissions.
 Basterfield; Hadi; Makara M. (ed) 2007; Marzuki 2009
; Brooklyn National Lab; Makara M. (ed) 2007
 Makara M. (ed) 2007
 See for example Regs 22.(2)(f), 21.(8)(h), 31.(2)(e), 39.(3)(a), 44.(1), 46.(4) et seq,
 Regulation 55
 Regulation 57
 Regulation 56
 Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002): Mineral and Petroleum Resources Development Regulations. Department of Minerals and Energy, Government Notice No. R. 527 of 23 April 2004
 DFA 1995 S 3.(1)(h)
 Rabie and Cameron. 2009.
 op cit