J ridl* and e couzens



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Constitution is a non-limited right, and it could consequently be argued that lack of capacity is no excuse.

68The number of specialists qualified and available to undertake review work is limited. There could be long delays in making appointments and the appointees undertaking the work. By way of example, the controversial N2 Wild Coast EIA followed the following time-frames: the environmental scoping report and application for authorisation was submitted in February 2001, the EIA report in February 2003 and a positive ROD issued on 3 December 2003. Over 200 appeals were lodged. Reviewers were appointed on 2 June 2004 and submitted their review report on 29 October 2004, recommending the overturning of the decision of the department. The Minister upheld the appeals and reversed the decision of his department on 9 December 2004. The appeal was determined on a non-scientific technical point that the consultants who undertook the EIA were not independent within the meaning of the Regulations. The review period took nearly five months to complete, a relatively short time given the period of nearly four years to undertake the EIA.

69The obligation to ensure that relevant information be made available can be an onerous task, with extensive implications, but the point remains that "comment" falls short of "consult".

70The complaint of the I&APs in the "Gautrain" matter was that despite "hundreds" of meetings with the environmental consultants and the authorities, it was not apparent to them that their comments had been dealt with in the EIA report nor that the report had been changed in accordance with these in any way. Similar criticisms were made in the Pebble Bed Modular Reactor matter (see n 63 above).

71 Hereafter EIAR.

72See Weaver et al 1998 "Strengthening the effectiveness of EIA" 300–310. The authors conclude that the "weak link" is the step between scoping and specialist investigation, the latter to include the assessment and evaluation of impacts. We differ with the conclusion drawn. Specialist investigation should be seen as an extension of scoping. It is an expert identification of impacts that together with the perceived impacts (issues) identified by non-expert participants in the process must be included in the scoping report. All impacts, irrespective of their source require assessment and evaluation as a linked but separate process.

73This has been blamed on the lack of any certification system for practitioners. There has been a rapid growth in the market for EIA practitioners but no professional body to ensure that they have the qualifications and competence required for the challenging task of managing an EIA process and writing an acceptable report. See DEAT (2004) Environmental Impact Reporting Series 14 and 15,



74The objection might be made that the distinction between "basic" and "full" assessment is artificial, but discussion of this falls outside of the scope of this article.

75This could be seen as odd, if scoping shows that there are no significant issues to be assessed. Probably the thinking is that in such a case the matter would not have proceeded beyond the basic assessment stage.

76 Hereafter DEAT.

77The challenge to the independence of Bohlweki Environmental (Pty) Ltd, the consultants that undertook the EIA for the Wild Coast N2 Toll Road, resulted in the setting aside of the authorisation and ROD by the Minister of Environmental Affairs and Tourism. This was after the Minister commissioned an independent review of the decision by specialists. The Minister concluded that the failure to appoint an "consultant" in accordance with the peremptory requirements of Reg 3(1)(a) of the old Regulations resulted in the EIA process being fatally flawed. Reg 3(2) of the old Regulations provides that if the requirement for the independence of the consultant under Reg 3(1) is not complied with, the application is "regarded to have been withdrawn". It followed, in the Minister's reasoning, that S 22(2) of the ECA effectively provided that the purported authorisation could not be validly issued in the light of the fact that the reports considered were compiled by an entity that did not meet the requirements of the old Regulations for independence. Consequently, the Minister had no legal option but to uphold the appeals and to set aside the decision of 3 December 2003 to grant the South African National Roads Agency Limited authorisation to proceed with the construction of the N2 Wild Coast Toll Road. The lack of independence related to a financial interest of the chairman (albeit indirectly) of the board of the consultant in one of the members of the consortium making the application, and a shareholding by another applicant in the consultant. See DEAT 2004 http://bit.ly/fbYE0P for the Minister's decision and the review report.

78Kidd and Retief "Environmental assessment" 1005–1006.

79Kidd and Retief "Environmental assessment" 1006, referencing Reg 18.

80Kidd and Retief "Environmental assessment" 1006, referencing Reg 19.

81Something of the confusion that appears to exist in the minds of many people when it comes to the difference between scoping and assessment can arguably be seen in the judgment of the Constitutional Court in Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 6 SA 4 (CC), 10H–J, para 8, in which the Court (per Ngcobo J) stated that "a scoping report is an environmental impact report that must be submitted in support of an application for authorisation under section 22(1) of ECA". See Couzens 2008 SAJELP 50. If judges of the Constitutional Court, applying their minds to the issue, can err so grievously, then perhaps it is not surprising that many others do so too.

82Per S 2(3) of NEMA, in which it is stated that "[d]evelopment must be socially, environmentally and economically sustainable".

83DEAT 2006 http://bit.ly/gzGOJ4.

84It is beyond the scope of the present article to deal with this aspect of EIA. For a summary of this initiative and its future direction, see the documents posted on the home page of the Interim Certification Board www.eapsa.co.za.

85See DEAT and ICBEAPSA 2007 http://bit.ly/hFn6PI.

86See above in this section.

87What is meant by this is that the average person in South Africa, with its high unemployment rate and its huge gap between rich and poor, is presently focused more on short-term than long-term goals. An often-heard criticism from environmentalists is that government lacks the political will to enforce environmental laws. It might be however that government is in fact responding to political will in not so enforcing these laws.

88See, for instance, Couzens and Gumede 2007 SAJELP.

89See Couzens and Dent 2006 PER.

90See, for instance, Van der Merwe 2008 http://bit.ly/fXM6BN.

911999 2 SA 709 (SCA) 719B.

9228 of 2002 – hereafter MPRDA.

93The original period was to have been three years, but this provision was overtaken by the events of the promulgation of Act 62 of 2008.

9462 of 2008 – hereafter NEMA Amendment.

95The Act was signed into existence on 5 January 2009 (GN 22 in GG 31789 of 9 January 2009).

96Preamble to NEMA Amendment.

97Preamble to NEMA Amendment.

98Preamble to NEMA Amendment.

99S 43(1).

100S 43(1A).

101See, for instance, Tempelhoff 2009 http://bit.ly/aDP6B0.

102 Tempelhoff 2009 http://bit.ly/aDP6B0.

103 Sonjica 2009 http://bit.ly/14PlVU.

104Ensor 2008 http://bit.ly/gLjIKO. Van Schalkwyk was giving the opening address at a conference arranged by DEAT to "reflect on 10 years' experience of environmental impact assessments and to begin charting a new EIA strategy and action plan with industry stakeholders".

105 Robinson 2006 SAJELP 96.

106 Rabie 1986 SA Public Law 19.

107While it would be difficult to argue at this stage, and before the new Regulations have been given time to work, that rights have been eroded, it is our contention that rights are presently at least threatened with erosion.

108Bray 1999 SAJELP 1.

109From a decade before the publication of this present dedicated issue of the PER.

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