Facing the music through environmental administrative penalties: lessons to be learned from the implementation and impact of Section 24G?

Abstract

Section 24G was inserted into the National Environmental Management Act 107 of 1998 to provide a mechanism for authorising activities that commence unlawfully. It contains South Africa's only environmental administrative fine - and a quasi one at that. The section has spawned much debate and controversy, including the fact that its existence and purported abuse undermine the fundamental objectives of environmental impact assessments - a cornerstone of government's legislative and decision-making response to the environmental right. This article presents certain results of the first part of an empirical study which explored the criticisms of section 24G; the extent to which it has a deterrent effect, and the lessons that can be learned in designing an administrative penalty system. Approximately 400 people, including representatives from government, the regulated community and environmental consultants were interviewed or surveyed. The results yielded several observations. This article focuses on the extent to which the section is used and the degree of awareness and knowledge about section 24G. The second part of the study probes the deterrent effect of section 24G in more depth by considering the influence that experience – either own or other's – has had on the regulated community.