1. Frequent and intense weather events and devastating effects of climate change are being experienced all over the world.  According to the United Nations Development Programme (UNDP), over the past 50 years, extreme weather events have caused two million deaths and cost USD4 trillion in economic losses.[i] Some of the recent notable natural disasters in South Africa due to climate change include the 2022 floods in KwaZulu-Natal which are reported to have caused an estimated R7 billion worth of damage to businesses, infrastructure and communities, and the heavy snow in parts of KwaZulu Natal and Free State in late September 2024. These are just a few examples which demonstrate the magnitude of the climate crisis and therefore the urgent need to intensify efforts to fight climate change.  According to Milambo, “these interrelated problems are spiralling precisely because of our continuing underinvestment in climate adaptation and resilience measures and in real, lasting solutions.”[1]
2. Great work is being done to counter the effects of climate change but more still needs to be done. Key challenges that have been identified as hindering progress in the development and implementation of mitigation and adaptation solutions to climate change in the developing world include, inter alia, lack of finance for such projects, lack of political will and clear coordinated and cooperative regulation of climate responses by Governments.[2]
3. In response to the climate crisis, on 23 July 2024, President Cyril Ramaphosa signed the long awaited Climate Change Act (“Act”) into law.  However this Act has not yet come into effect. Certain measures, such as, inter alia, the publication of regulations and setting of targets required to make the Act enforceable, need to be put in place before the Act can be operationalised. The Act is intended to, inter alia, “enable the development of an effective climate change response and a long-term, just transition to a low-carbon and climate-resilient economy and society for South Africa in the context of sustainable development“. Simply the Act provides a legal framework for the regulation of our country’s response to climate change and gives effect to South Africa’s commitment to reduce greenhouse gas emissions and achieve net-zero by 2050.  
4. The Act deals with three broad areas, namely policy alignment and institutional arrangements, mitigation and adaptation measures. Noteworthy provisions of the Act relating to mitigation include, inter alia, that –
   • the Cabinet Minister responsible for environmental affairs (“Minister”) must determine a national greenhouse gas emissions trajectory for South Africa. In this regard, the Minister must list the greenhouse gas emitting sectors and sub-sectors that are subject to sectoral emissions targets, within one year of the commencement of the Act;
   • the Minister responsible for each greenhouse gas emitting sector and sub sector must develop policies and measures for which that Minister is responsible relating to the achievement of the sectoral emissions targets and implement, and monitor the effectiveness of the policies and measures pertaining to the relevant sector and sub sectors;
   • the Minister is required to allocate a carbon budget to any person that conducts any activity which emits or has potential to emit greenhouse gases listed in the Act. A person who has been allocated a carbon budget must prepare and submit to the Minister for approval a greenhouse mitigation plan, implement the approved mitigation plan, evaluate progress and annually report against the allocated carbon budget to the Minister. [3]
     
5. With respect to adaptation, the Act requires the Minister, in consultation with the Ministers responsible for functions relevant to the development of sectoral emission targets, to develop and publish the National Adaptation Strategy and Plan (the Plan) within two years of the coming into effect of the Act.[4] The purpose of the Plan is to, inter alia, provide a strategic and policy directive for adaptation to the impacts of climate change and, strengthen the resilience of the socio-economic and environmental system and enhance the adaptive capacity of society, the environment and economy to the impacts climate.  In addition, an MEC and a mayor of a metropolitan or district municipality, as the case may be, must, inter alia, –
   • at least within one year of the publication of the National Adaptation Strategy and Plan, undertake a climate change needs and response assessment for the province, metropolitan or district municipality, as the case may be;
   • assess the extent to which its constitutionally mandated functions are affected by climate change and formulate steps to address these effects in the performance of its function;
   • review and, to the extent necessary, amend and publish in the Government Gazette the climate change needs and response assessment at least once every five years;
   • within two years of undertaking the climate change needs and response assessment, develop, implement and publish a climate change response implementation plan which is to be reviewed every five years.
     
6. As noted above, a significant amount of work needs to be done to give effect to the Act. At the same time, the Act requires national Government, provinces and municipalities to actively engage, collaborate and co-ordinate their responses to climate change as informed by the Plan.  This is doable even though it may be challenging. Furthermore, it is important to note that the Act is not without shortcomings for example it does not create an offence for failure to comply with the allocated carbon budget (but merely requires such person to provide a description of measures that the person will implement in order to remain within the allocated carbon budget) and it is thin on detail with regards to mechanism of funding the proposed mitigation and adaptation initiatives.  
7. That said, it is important to acknowledge that the Act is a critical piece of legislation for South Africa, the implementation of which will mark a significant step forward in South Africa’s fight against climate change. It provides much needed regulatory direction and will assist in accelerating investment in decarbonisation efforts and capacity building of adaptation measures to create climate change resilience in South Africa. Clearly the Act will play a crucial role in the war against the climate crisis, and in this context, Government is urged to prioritise taking the necessary steps required to operationalise the Act so that the work of implementing this important Act can be commenced.  

[1] Chola Milambo, “The outcome document of the Fourth International Conference on Financing for Development

[2]. UNDP website

[3] See section 24, 25 and 27 of the Climate Change Act

[4] See section 21 of The Climate Change Act

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The AR6 warned that unless substantial and immediate reductions in greenhouse gas (GHG) emissions are made, the goals agreed by the international community under the 2015 Paris Agreement, which South Africa has ratified, would not be reached.

National climate change mitigation plans

The Paris Agreement set a goal of keeping the global rise in temperature to well below 2°C and ideally to under 1.5°C above pre-industrial levels. Signatories must determine, plan, and report on their nationally determined contributions (NDC) – national climate change mitigation plans and policies which include targets for GHG emissions reductions.

South Africa is the world’s 14^th largest emitter of GHGs and the largest emitter in Africa. This can be attributed in part to South Africa’s heavy reliance on Eskom’s coal-fired power plants, which produce over 80% of South Africa’s electricity and account for 42% of its GHG emissions.

There are growing calls for Eskom’s aging and failing grid to be supplemented with renewable energy, given South Africa’s excellent opportunities for wind and solar energy – one of the best in the world. A report developed by researchers at the University of Stellenbosch envisions the installation of 5 GW of renewable energy each year until 2050 to both alleviate the pressure on Eskom and to support a just transition to a low-carbon economy.

Climate change mitigation goals

While South Africa has made tremendous strides in its climate change response, its mitigation efforts have been described as “insufficient” and require substantial improvements to meet the Paris Agreement 1.5°C goal. At present, South Africa is highly reliant on international financing for implementation of its climate change mitigation goals. Last year, donor governments pledged $8.5 billion towards South Africa’s just energy transition at COP26 in Glasgow – but South Africa requires approximately $250 billion to effectively transition to a low-carbon economy.

As a developing economy with low economic growth, high levels of unemployment and a widening poverty gap, a high reliance on coal and a haemorrhaging national electricity provider, we face significant challenges in transitioning to a low-carbon economy.

However, as a significant GHG emitter and a leading economy in Africa with constitutionally entrenched environmental rights, South Africa has an important role to play in addressing climate change and has recently taken several steps to bolster its climate change response. The September 2021 revised NDC contained updated emissions targets for South Africa. In 2019, South Africa passed the Carbon Tax Act No. 15 of 2019 (Carbon Tax Act).

Emitters meeting certain thresholds are required to pay tax, but there are significant allowances (up to 95%) which limit the scope of the Carbon Tax Act. The Presidential Climate Commission, which was formed in December 2020, also recently published the on 27 May 2022, which aims to address the social and economic consequences of South Africa’s climate change policies, particularly on our most vulnerable communities.

Climate Change Bill B9-2022

On 18 February 2022, the Minister of the Environment, Forestry and Fisheries (Minister) introduced the Climate Change Bill B9-2022 (the Bill). The Bill is a reworked version of an earlier 2018 draft, and aims to coordinate South Africa’s climate change response in accordance with the principles of cooperative governance; to build social and economic resilience to climate change; to ensure a just transition to a low-carbon economy; and to give effect to South Africa’s international climate change commitments. The Bill is currently being considered by the National Assembly and is the first of its kind in South Africa.

This highly-anticipated Bill, if passed, will form an integral part of South Africa’s environmental law framework and will have far-reaching effects on all spheres of government, as well as on businesses.

Adaptation to the effects of climate change is an important part of any climate change mitigation strategy. As such, the Bill also envisages the creation of National and Sector Adaptation Strategies and Plans. These will be informed by adaptation scenarios to be developed by the Minister, which will anticipate the impacts and vulnerabilities associated with climate change in South Africa.

The purpose of these measures is to reduce the vulnerability of our economy, society and environment and to strengthen our resilience and adaptive capacity to the adverse impacts of climate change.

National GHG emissions reduction target

The Bill will also affect business on a large scale. The Minister will develop a national GHG emissions trajectory, which will specify a national GHG emissions reduction target. Based on this trajectory, the Minister, in consultation with the relevant ministers for each sector, will publish a list of GHG emitting sectors and sub-sectors which will be subject to sectoral emissions targets.

The Minister must also publish a list of GHG emitting activities. Persons who conduct GHG emitting activities and exceed a threshold to be determined by the Minister will be assigned a carbon budget (i.e. an allowed quantity of GHG emissions over a prescribed period) and must submit a GHG mitigation plan for approval by the Minister.

However, the Bill’s enforcement provisions are ineffective. While the failure to submit a GHG mitigation plan may result in a fine of up to R5 million or imprisonment of up to 5 years on a first offence; and up to R10 million or imprisonment up to 10 years on a second offence, these fines are inconsequential to many of South Africa’s largest emitters.

Penalty for exceeding a carbon budget

There is also no penalty for exceeding a carbon budget. Organs of state, provinces and municipalities also face no express consequences for failing to implement the duties the Bill places on them.

If South Africa is serious about addressing climate change and transitioning to a low-carbon economy, it needs a Bill that will be realistic and sensitive to our developmental challenges, but which can also be effectively enforced. Our climate change response has made important strides in the past years. However, the scientific consensus is that the world can no longer afford to be lax on mitigation measures.

South Africa has tremendous opportunities for renewable energy, but it needs a Bill that is not toothless, with stronger penalties for non-compliance in GHG emissions and mitigation plans.

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Mining is one of the major contributors to the national economy.

The issue of mining companies being required to consult with communities remains a contentious issue in South Africa – with an increasing number of court judgments weighing in on the legal implications of consultation. The media has also written extensively, covering the various issues that communities within proximity of mining operations continue to raise and face.

Perhaps there ought to not necessarily be a tension between communities and the mining industry. The legal framework certainly attempts to factor in the role of communities, on the one hand and the mining industry, on the other.

Mineral and Petroleum Resources Development Act

As a starting point, the Mineral and Petroleum Resources Development Act, 2002 – which is the primary legislation regulating the mining industry in South Africa – defines a “community” as “a group of historically disadvantaged persons with interest and rights in a particular area of land on which members have or exercise communal rights in terms of an agreement, custom or law: Provided that, where  as a consequence of the provisions of this act, negotiations or consultations with the community is required, the community shall include the members or part of the community directly affected by the mining on land occupied by such members or part of the community“. This is a broad definition of what is a community for purposes of the MPRDA – which not only includes communities who have or exercise communal rights, but also communities who are directly affected by the mining on the land.

Section 10 of the MPRDA requires the Regional Manager, within 14 days of accepting a mining right, prospecting right or mining permit, to make it known that such application has been accepted in respect of the land in question and call upon interested and affected persons to submit their comments regarding the application within 30 days from the date of the notice.

Furthermore, in terms of sections 16, 22 and 27 of the MPRDA, applicants for mining rights, prospecting rights and mining permits are required to consult with the landowner, lawful occupier and any interested and affected party and include the result of the consultation in the relevant environmental reports.

The Environmental Impact Assessment Regulations

The Environmental Impact Assessment Regulations, 2014 also provide for a public participation process as part of the application for an environmental authorisation – which is now required for all mining and prospecting operations. Regulation 3(8) of the EIA Regulations states that this public participation process must be conducted for a period of at least 30 days. The public participation process must provide interested and affected persons with access to all information that pertains to the application – unless such information is confidential or protected by law. During the public participation process, comments must be received and responded to by the applicant for a mining right, prospecting right or mining permit.

Communities are also afforded a preferent right in terms of section 104 of the MPRDA to prospect or mine in respect of any mineral and land which is registered or to be registered in the name of the community concerned. In this regard, the Act states that the Minister of Mineral Resources and Energy must grant this preferent mining or prospecting right to the community where the mining project will contribute towards the development and social upliftment of the community.

In the Constitutional Court case Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others, the court interpreted what consultation (as envisaged in the MPRDA) entails. The Court held that the purpose of the notification and consultation must be related to the impact that the granting of the mining or prospecting right will have on the landowner or lawful occupier. This consultation should provide the landowner or lawful occupier with the necessary information on everything that is to be done so that they can make an informed decision in relation to the representations being made. The Court then held that the consultation process must:

• inform the landowner in writing that the application has been accepted;
• inform the landowner in sufficient detail of what the mining or prospecting operations will entail on the land;
• consult with the landowner with a view to reach agreement in regard to the impact of the proposed mining or prospecting operations; and
• submit the result of the consultation process to the DMRE within 30 days of receiving notificiation to consult.

In the past three years, we have seen further developments in regard to this requirement by mining companies to consult with communities. Perhaps most notably, is the court judgment in the Baleni and Others v Minister of Mineral Resources and Others, which sought to interpret the provisions of the Interim Protection of Informal Land Rights Act, 1996 (the “IPILRA“).

While the MPRDA merely requires “consultation” to be undertaken with the community, the IPILRA requires the “consent” of holders of informal land rights to be obtained prior to their being deprived of the property. Recognising that many informal land rights are not held individually but communally, section 2(2) of IPILRA requires communal consent. The Xolobeni community in this case contended that the grant of the mining right to the mining company constitutes a “deprivation” which triggers the requirement for consent. In this case, the Court was satisfied that the granting of the mining right indeed amounted to deprivation as the mining operations would interfere substantially with the communities’ agricultural activities and general way of life.

The Court therefore held that the IPILRA requires consent of holders of informal land rights to be obtained prior to the granting of a mining right in respect of the relevant land.

Similarly, in the case Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another, the members of the Lesetlheng Village Community were holders of informal land rights under the IPILRA and contended that they were not properly consulted before the mining right was granted, before the surface lease agreement was signed or before mining commenced.

In this case, the Constitutional Court had to consider whether the community had consented to being deprived of their informal land rights or interests in the land in question. The Court stated that given the invasive nature of a mining right (and mining operations), there can be no denying that when exercising its rights, the mining right holders would intrude the rights of the owner of the land to which the mining right relates. Furthermore, the existence of the mining right (which is a limited real right in terms of section 5 of the MPRDA) does not extinguish the right of a landowner or lawful occupier of the land in question. Accordingly, the Court held that the mining company ought to have complied with the provisions of IPILRA and sought the consent of the community prior to obtaining the mining right.

The message from the courts regarding the involvement of communities in the mining projects and the extent of consultation with mining communities is clear – an extensive public participation (or consultation) process is required and insofar as communities are holders of informal land rights, their consent must be obtained prior to the grant of the prospecting right or mining right.

by Athi Jara, Director

Explore our Mining, Environmental & Resources practice area

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By Chris Stevens, Director and Head of the Mining, Environmental & Resources practice; Jonathan Behr, Director; Bronwyn Parker, Senior Associate; and Tsebo Masia, Candidate Attorney

It goes without saying that from the period commencing on 27 March 2020 to date, our country has experienced, among many other things, firstly an increase in the public’s reliance on and tentative assessment of the Gazetted information being released almost daily and secondly that the various government departments have released directions, regulations and amendments thereof more frequently in the past three months than it has done in a ‘normal’ year.

The Department of Mineral Resources and Energy (“DMRE“) is no exception to the above. This article therefore serves as an attempt to aid those who may be either confused or have fallen behind on what has been released since the 8^th of May 2020 to date, in relation to the DMRE.

Mining sector

On 18 May 2020, the DMRE published in Government Gazette 43335, ‘Guidelines for a Mandatory Code of Practice (“COP“) on the Mitigation and Management of Covid-19 in the Mining Sector’ (“Guidelines“), which we note was an anticipated document as discussed in a Werksmans Attorneys article dated 8 May 2020 entitled ‘New directions, regulations and a Labour Court judgment bring clarity to the mining industry’. These Guidelines were drafted in terms of section 9(2) of the Mining Health and Safety Act 29 of 1996 (“MHSA“) and came about as a result of the Labour Court Order granted on 1 May 2020, instructing employers in the mining industry to prepare and implement a COP on Covid-19. The Guidelines were released to assist employers as far as reasonably possible and practicable in order to establish and maintain a Covid-19 prevention, management and mitigation plan at mines. The Guidelines also provide minimum requirements and best practices for the implementation of the Covid-19 specific COP. Also included in the Guidelines is the status of mandatory COPs, risk assessment, start-up procedure for mines, compliance with the COP and access to the COP and related documents. It was noted by the Chief Inspector of Mines that the Guidelines are to be seen as being ‘a living document’ and may be subject to change should new developments relating to Covid-19 arise.

The Guidelines therefore seem to answer many of the questions that previously faced the mining sector during the start-up process but of importance, among other things, would be to be advised that the legal status of the Guidelines and the COP are such that an employer must prepare and implement a Code of Practice (COP) on the COVID-19 pandemic present and spreading in South Africa. This COP must comply with any relevant guidelines and instructions issued by the CIoM in terms of Section 9(3) MHSA, including regulations and guidelines released in terms of the Disaster Management Act no 57 of 2002 (“DMA“) and all other applicable statutory obligations related to COVID-19.

Failure by the employer to prepare and implement the mine’s COP in line with this guideline constitutes a criminal offence and a breach of the MHSA. The employer must ensure that a complete COP and the related documents are kept readily available at the mine for examination by any affected person, a registered trade union with members at the mine or where there is no such union, a health and safety representative on the mine, or, if there is no health and safety representative, an employee representing the employees on the mine, must be provided with a copy. A register must be kept of such persons or institutions with copies to facilitate updating of such copies. The employer must ensure that all employees are fully conversant with the sections of the COP relevant to their respective areas of responsibilities.

As at 29 May 2020, and in terms of the relevant updates to mining under Alert Level 3, all deep mining operations are now expected to ramp-up to their full capacity and therefore place the mining industry back into full production capacity. In a briefing, the minister of mineral resources and energy, Gwede Mantashe, noted that prior to ramping up, all mining operations are required to prepare and implement a mandatory COP for the mitigation and management of Covid-19, as discussed above. In the Mantashe Economic Cluster Media Briefing on Coronavirus Covid-19 Alert Level 3, the chairperson of the portfolio committee on mineral resources and energy, Sahlulele Luzipo, also called on the department to consider having a “dedicated health specialist, over and above the regular mine health and safety inspectors, who will specifically take lead in the inspection of compliance with Covid-19 plans”

Energy sector

On 5 May 2020, the minister of the DMRE published for comment in Government Notice No 500, in Gazette No 43277, ‘Draft Regulations amending the electricity regulations on new generation capacity, 2011’ (“Draft Regulation Amendments“). One key aspect to take note of in the Draft Regulation Amendments, relates to the proposal to allow Municipalities to apply to the minister to establish new generation capacity in accordance with the integrated resource plan.

The intention behind the Draft Regulation Amendments is said to amend the Electricity Regulations on New Generation Capacity as published by Government Notice R. 399 in Government Gazette 34262 of 4 May 2011 and amended by Government Notice R. 1366 in Government Gazette 40401 of 4 November 2016.

The Draft Regulation Amendments were published for public comment in terms of section 35(5) of the Electricity Regulation Act 4 of 2006 (“ERA“), and invited interested parties to submit written comments on the Draft Regulation Amendments within 30 days of 5 May 2020. As a brief overview, the Draft Regulation Amendments have proposed, among other things, that:

Regulation 3 of the ERA be amended by the insertion after paragraph (a) of, “(aA) to permit a municipality to apply to the Minister to establish new generation capacity”;

Regulation 5 of the ERA be amended by the addition of the following sub-regulations, “(3)Notwithstanding sub-regulation (1), a Municipality may apply to the Minister to establish new generation capacity in accordance with the integrated resource plan, and such application must:

(a) be accompanied by a detailed feasibility study as contemplated in sub-regulation (2);

(b) demonstrate sound financial standing of the Municipality; and

(c) be aligned to the Integrated Development Plan of that Municipality.

(4)In considering an application by the Municipality in terms of sub-regulation (3), the Minister may request additional information required to make a determination in terms of regulation 6.”; and

Regulation 9 of the ERA be amended by the substitution in sub-regulation (2) for the words preceding paragraph (a) of the following words, “(2) Before the buyer concludes a power purchase agreement, the buyer or the procurer must, subject to any approvals required in terms of the PFMA, Municipal Finance Management Act and Municipal Systems Act”.

On 14 May 2020, the DMRE released directions for the Continuous Supply of Energy and Petroleum Products to Society, in terms of the DMA regulations published on 29 April 2020. The directions not only deal with the continuous supply of energy and petroleum products but further aim to allow maintenance and construction work for energy projects to recommence, subject to strict hygiene, safety, sanitation and social distancing protocols. The permitted activities under these directions include, among others, projects procured under the Renewable Energy Independent Power Producers Procurement Programme that are currently in construction, Eskom new build programme which includes Medupi and Kusile, the mineral resources and energy department’s national social solar water heater programme and projects, nuclear projects under maintenance and construction in power stations and other nuclear facilities and energy construction work for already priced and awarded government tenders.

Of interest, in a non-governmental organisation notice 287 of 2020 dated 22 May 2020, the National Nuclear Regulator announced that Eskom had applied for a nuclear vessel licence in terms of section 21(3) of the National Nuclear Regulator Act No 47 of 1999. This licence will enable a non-nuclear powered vessel to dock in the Cape Town harbour for two days in December 2020 in order to transport fresh nuclear fuel assemblies to the Koeberg Nuclear Power Station. Representations regarding this notice have been invited within 30 days of the date of publication of this notice.

On or about 26 May 2020, the DMRE released a ‘2020-2025 Strategic Plan and 2020-2021 Annual Performance Plan’ (“Plan“) in an attempt to provide a roadmap to achieve the 2500 MW Nuclear New Build Programme that is soon to commence. This was announced during a briefing with parliament and it was added that a plan for providing oversight monitoring for the Koeberg Life Extension Programme is also being developed. Among other things, the Plan aims to deal with the inadequate energy supply in South Africa by accelerating the updating and processing of the DMRE’s regulatory frameworks in order to enable interventions relating to the various IRP2019 technologies. The DMRE further plans to commence immediately with procurement processes to ensure the security of energy supply.

Some of the planned interventions include, enhancing the stability of the energy distribution industry by reviewing the regulatory framework and industry structure, as well as introducing regulations to improve the National Energy Regulator’s regulatory oversight on infrastructure maintenance, addressing licensing turnaround times by reviewing and strengthening relevant legislation. It is further proposed that section 50 of the Minerals and Petroleum Resources Development Act be revisited to help increase domestic beneficiation.

On 29 May 2020, regulations were released in Government Gazette 43367, in respect of the Maximum Refinery Gate Price of Liquefied Petroleum Gas (“RGP“). The DMRE drafted these regulations in terms of the Petroleum Products Act No 120 of 1977. Among other things, the regulation states that the RGP has to be based on the import parity pricing and comprise the Saudi Contract Price, freight, insurance, storage, cargo dues, demurrage and stock financing and be expressed in Rands per metric ton. The regulations further state that this RGP needs to be revised every month and will be effective from the first Wednesday of each month and must be calculated by the CEF (SOC) Limited using the RGP in the preceding month in accordance with regulation 2. These regulations have since the date of publication come into effect.

General

On 5 June 2020 and in relation to all industries, it has recently been announced and published in Government Gazette 43408, that the national state of disaster that was declared on 15 March 2020 by Government Gazette 43096 has been extended to 15 July 2020 in terms of section 27(5)(c) of the DMA (“5 June 2020 DMA Extension“). This is said to be subject to the need to continue augmenting the existing mitigation measures undertaken by the state to address the impact of the disaster.

Although the impacts on the 5 June 2020 DMA Extension have not been fully elucidated in respect of the different governmental departments, at this time, one must be cautious in assuming that this extension can be interpreted as being an extension of the timeframe relaxations as provided for in, for instance the directions issued in terms of regulation 10(8) of the regulations made under section 27(2) of the DMA, which dealt with the extension of certain timeframes, released by the DMRE dated 11 April 2020 under Government Gazette No R 462 No 43227 (“DMRE 11 April 2020 Directions“).

The DMRE 11 April 2020 Directions had provided for the extension of timeframes in relation to various processes including, but not limited to, permissions, rights and permits as contemplated in the MPRDA, directives, notices, orders and instructions and the submission of various reports. The DMRE 11 April 2020 Directions had stated that the extensions of these timeframes would in most cases be extended or deemed to have been extended by the number of days of the duration of the lockdown period. If one looks at the definition of “lockdown” in the Regulations issued in terms of section 27(2) of the DMA on 29 April 2020, Government Notice No. R. 462 Gazette No. 43227 (“29 April 2020 DMA Regulations“), it is clear that the lockdown was defined as being the period between the 23h59 on 26 March 2020 and 23h59 on 30 April 2020. As the 29 April 2020 DMA Regulations have not since been repealed, this would mean that the extensions as provided for in the DMRE 11 April 2020 Directions, remain to have only been extended up until 30 April 2020.

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by Justin Truter, Director; Bronwyn Parker, Senior Associate; and Nomsa Nhlangulela, Associate

On 5 June 2020 the Department of Environment, Forestry and Fisheries published various directions to address, combat and prevent the spread of COVID‑19 relating to the freshwater and marine fishing sectors, forestry sector and biodiversity sector in terms of regulation 4(10) of the regulations to the Disaster Management Act No. 57 of 2002.

These directions come into effect on 5 June 2020 and were necessitated by the country entering into alert Level 3 of the national lockdown with effect from 1 June 2020.

There are some important provisions in these directions for persons operating within these sectors to take note of.

Fishing sector

These directions were published in Government Gazette 43410. The purpose of these directions is to reduce the threat to the fishing sector which has been caused by Covid-19 and to alleviate, contain and minimise the effects of the national state of disaster on the freshwater and marine fishing industry sectors in particular.

Under these directions all fishing, including recreational fishing is allowed. However, charter fishing, which is also a form of recreational fishing, is prohibited under alert Level 3. Charter fishing is defined in the directions as “fishing from a vessel carrying more than one person for hire that intend to undertake or are engaged in recreational fishing” and recreational fishing is defined as “any fishing done in the sea, an estuary or a freshwater system for leisure or sport and not for sale, barter, earnings or gain“. An estuary is as defined in section 1 of the National Environmental Management: Integrated Coastal Management Act 24 of 2008.

Although recreational fishing is allowed, all rules relating to social distancing, health protocols, movement and the prohibition of gatherings must be observed.

The publication of these directions has raised eyebrows. Whilst some have welcomed the directions on the one hand, the directions have also been labelled as “nonsensical and irrational” on the other hand. In a Legalbrief Environment article dated 9 June 2020, the director of a fishing advisory company called Feike described the directions as “arbitrary control of people” and “open to legal challenge”, especially by the Deep Sea Angling Association and the Charter Boat Operators. The argument put forward to support this view is that “there is very little difference between recreational fishing and any other form of fishing”. The article goes on further to argue that “the majority of recreational fishers operate from the shore and the coastline and fish in solitude, whereas commercial fishers on the other hand are 10 or 12 on a little boat, particularly with small-scale fishing” and accordingly the risks of spreading the Covid‑19 virus is “higher on a commercial fishing boat than with recreational fishermen”. The rationality of the distinction between charter fishing, which is prohibited under alert Level 3 and commercial fishing, which is permitted under alert Level 3 is therefore questionable. It remains to be seen whether affected stakeholders will challenge these directions by way of judicial review.

Recreational fishers are required to be in possession of a valid recreational fishing permit which can be obtained at the respective post offices in terms of the Marine Living Resources Act 18 of 1998 and applicable freshwater fishing legislation.

The validity period of  any right, permit, exemption or licence or any timeframes attached to any condition in such right, permit, exemption or licence, which have lapsed during the lockdown period of the national state of disaster or during alert Level 4 or which will lapse during alert Level 3 have been extended or are deemed to be extended until the end of alert Level 3, including:

(i) timeframes with regards to validity periods as outlined in the Fisheries Covid‑19 public notice titled ‘Exemption in terms of section 81 of the Marine Living Resources Act 18 of 1998 to all holders of licences, permits and authorisations issued in terms of the Marine Living Resources Act 18 of 1998 to operate without permits for the next 90 days’; and
(ii) the second Fisheries Covid‑19 public notice titled ‘Exemptions issued to all fishing sectors in terms of section 81 of the Marine Living Resources Act 18 of 1998’ issued by the Department of Fisheries on 24 and 26 March 2020 respectively.

Forestry sector

These directions were published in Government Gazette 43411. The purpose of these directions is to reduce the threat to the forestry sector which has been caused by Covid-19 and to alleviate, contain and minimise the effects of the national state of disaster and to ensure fair processes, especially with regard to specified licensing, evaluation of licence applications, inspections and issuing of licenses in terms of the National Forests Act No. 84 of 1998 (“National Forests Act”).

The Department of Environment, Forestry and Fisheries in all the nine provinces (as issuing authority) will receive and process applications in the manner indicated in annexure 1 to these directions. Email addresses for the submission of online applications have been provided in the directions in respect of all nine provinces.

Annexure 1 describes the services to be provided under alert Level 3 and the manner in which such services are to be provided in the following main categories:

(i) receipt of applications for licences in terms of sections 7, 15 and 23 of the National Forests Act may be submitted physically or electronically;
(ii) the evaluation of licence applications may be conducted through site visits by dedicated officials;
(iii) site inspections will be conducted as far as is practically possible and where there are protected trees posing a threat to life and property, an application in that regard must be accompanies by a digital picture of the tree;
(iv) where site inspections are required but cannot be conducted, licences may be issued provisionally, subject to a condition that an inspection will be conducted at a later date to be determined by the issuing authority; and
(v) licences will be issued manually.

If there is any uncertainty about whether a service is restricted or not, the relevant official of the particular issuing authority should be approached for guidance and/or confirmation.

Biodiversity sector

These directions were published in Government Gazette 43409. The purpose of these directions is to ensure fair processes in relation to permits, registrations and certificates during alert Level 3 and to provide direction to the biodiversity sector in respect of activities carried out in terms of the National Environment Management: Biodiversity Act 10 of 2004 (“Biodiversity Act”), the National Environment Management: Protected Areas Act 57 of 2003 and any applicable provincial conservation legislation during alert Level 3.

The validity period of permits, registrations and certificates that have expired during the period of lockdown and alert Level 4 have been extended or are deemed to be extended for a period of 30 working days from the publication of these directions. Holders of these permits, registrations and certificates must apply to the relevant issuing authority for the renewal of such permits, registrations and certificates within a period of 10 working days of the publication of these directions.

The validity period of permits, registrations and certificates that have expired during alert Level 3, or which will expire during alert Level 3, have been extended or are deemed to be extended for a period of 30 working days after the end of alert Level 3. Holders of these permits, registrations and certificates must apply to the relevant issuing authority for the renewal of such permits, registrations and certificates within a period of 10 working days after the end of alert Level 3.

Any activity carried out during alert Level 3 which involve biodiversity resources and which requires a permit, registration or certificate in terms of the Biodiversity Act or any applicable provincial legislation may only be carried out in terms of such a permit, registration or certificate. Applicants for these permits, registrations or certificates must submit their applications in accordance with annexure 1 to these directions. Issuing authorities will receive, process and issue permits, registrations and certificates during alert Level 3 in accordance with annexure 1 to these directions.

In terms of these directions:

(i) all services that were permitted with restrictions during alert Level 4 in the directions published in Government Gazette 43323 and Government Gazette 43355 of 14 May 2020 and 26 May 2020 respectively are now permitted with no restrictions under these directions, unless indicated otherwise in these directions;
(ii) culling and subsistence hunting are permitted. Subsistence hunting has been defined in these directions as hunting for the primary purpose of the hunter acquiring game meat for food security;
(iii) the moving, conveying or translocating of live or dead specimens or products is permissible, even across district, metro or provincial borders, subject to obtaining the required permit;
(iv) wildlife auctions are permissible subject to the directions published in Government Gazette 43323 and Government Gazette 43355 on 14 May 2020 and 26 May 2020;
(v) live or dead specimens or products may be imported into or exported from South Africa, subject to phytosanitary or animal health requirements and any directions published in respect of Trade, Industry and Competition; (vi) persons may apply for new registrations or for the inclusion of new species to existing permits and registrations;
(vii) all bioprospecting and biotrade activities may continue; and
(viii) professional hunting courses may continue and any person who will not be able to meet the requirements for the renewal of permits to operate as professional hunters and hunting outfitters, will nevertheless be able to renew such permits during or immediately after the national state of disaster, as a once-off waiver of such requirements.

The annexure to these directions provides for the various authorising departments or issuing authorities in all nine provinces which shall provide the services described in the annexures to these directions and sets out the manner in which such services shall be provided.

The annexure contains the list of services to be provided, including, amongst other things, the receipt and evaluation of permit applications, site inspections, issuing and dispatch of permits. The manner in which such services shall be provided makes provision for the submission of applications by email, dispatching of permits by courier or email, conducting a site inspection where possible or issuing provisional permits where a site inspection cannot be conducted. The annexure must be referred to for the full list of permitted services under alert Level 3.

It is important to note that these directions provide that in the event that any authorised issuing authority affected by these directions has arrangements which are different from the arrangements provided in these directions and has publicly indicated the different arrangements, in respect of the extension of timeframes, applications for and issuing of permits, registrations and certificates or activities permitted under alert Level 3, such different arrangements shall prevail over these directions. Therefore it is critical that any person requiring the services permitted under these directions enquires from the relevant issuing authority whether their arrangements are different from the arrangements provided in these directions and whether those different arrangements have been publicly declared and, if so, to follow those arrangements.

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1. Following the announcement of the phased and regulated relaxation of the National Lockdown on 23 April 2020, the mining industry remained in need of further clarification in terms of the procedures that employers would be expected to follow in order to embark on this “start-up” process under the newly relaxed regulations.
   
2. In regulations made in terms of section 27(2) of the Disaster Management Act, 2002 (“the DMA”) dated 29 April 2020 (“DMA Regulations 29 April 2020”), the guidelines of what would be permitted under ‘Alert Level 4’ were put forward. The DMA Regulations 29 April 2020 are said to repeal the regulations published by Government Notice No 318 of 18 March 2020, as amended. Despite the repeal of the aforementioned regulations, it is said, inter alia, that all directions issued in terms of those regulations shall continue to apply unless varied, amended or withdrawn by the Cabinet member responsible for such directions.
   
   2.1 In addition to the general measures to contain the spread of Covid-19, in terms of the DMA Regulations 29 April 2020, Regulation 30 is of particular importance to the mining industry, dealing with the ‘start up processes’ relevant to mining operations under Alert Level 4. Regulation 30 states the following:
   
   2.1.1 Open-cast mining scaling up to a baseline of 50% and thereafter scaling up to full employment;
   2.1.2 All other mining starting in batches, scaling up towards 50% employment;
   2.1.3 Mining operations, must be conducted at a reduced capacity of not more than 50% and thereafter at increasing capacity as determined by direction issued by the Cabinet member responsible for mineral resources and energy;
   2.1.4 The following conditions apply to the starting and increasing capacity:
   
   2.1.4.1 Appropriate measures to protect the health and safety of workers must be implemented by mining companies in accordance with the directions issued from time to time by the Cabinet member responsible for mineral resources and energy, in consultation with the Cabinet member responsible for health;
   2.1.4.2 A rigorous screening and testing programme must be implemented as employees return to work;
   2.1.4.3 The mining industry must provide quarantine facilities for employees who have tested positive for the Covid-19;
   2.1.4.4 Data collected during the screening and testing programme must be submitted to the authority referred in regulation 8;
   2.1.4.5 Mining companies must make arrangements to transport their South African employees from their respective areas of operation;
   
   2.1.5 The monitoring and impact assessment of seismicity through the Council for Geoscience must be intensified with immediate effect

3. According to the DMA Regulations 29 April 2020, the list of industries and activities that are permitted to operate under Alert Level 4, includes under Part K, coal production for Eskom scaling up to full employment, open-cast scaling up to a baseline of 50% and thereafter scaling up to full employment and all other mining starting in batches scaling up towards 50% employment.
   
4. In conjunction with the DMA Regulations 29 April 2020, directions released by the DMRE dated 29 April 2020, (“DMRE Directions 29 April 2020”) further stipulate that:
   
   4.1 every employer conducting mining operations and activities in connection therewith at a mine, must implement appropriate measures to protect the health and safety of workers in respect of Covid-19. It states that these measures are to be contained in a standard operating procedure which must be developed in consultation with organised labour or worker representatives at the mine.
   4.2 in the development of a standard operating procedure required in terms of the DMRE Directions 29 April 2020, it is advisable that one prepares the procedure in line with the Standard Operating Procedure for South African Mines, previously circulated to members of the mining operations industry and which is further referenced in the Labour Court order discussed in 8.3.2 below. Further one is to apply the relevant guidelines issued by the World Health Organisation, directions and guidelines issued by the National Department of Health, guidelines issued by the National Institute of Communicable Deceases and the risk based approach as embedded in the Guiding Principles of Prevention and Management of Covid-19 in the South African Mining Industry issued by the Chief Inspector of Mines of the DMRE on 26 March 2020.

5. On 1 May 2020, an order handed down by the Labour Court (“the Order”) has provided further, much needed practical legal certainty in relation to Mine health and safety and as such has been praised by the DMRE. According to the order, employers in the mining industry have been ordered to prepare and implement a code of practice in terms of section 9(2) of the Mine Health and Safety Act 29 of 1996 (“MHSA”), in accordance with guidelines to be published by the Chief Inspector of Mines in the Government Gazette, by 18 May 2020.
   
6. The Order is said to resolve the uncertainty as to whether the DMRE and the Chief Inspector of Mines are empowered under the MHSA to introduce enforceable measures to deal with the outbreak of Covid-19 at mines. In an article released by Werksmans Attorneys dated 30 April 2020 entitled ‘DMRE issues directives on mining sector, in line with requirements of Section 5(1) of the Mine Health And Safety Act, 29 of 1996’, the steps that the DMRE believed were necessary to ensure safe start-up processes and procedures were discussed as stated in the directive issued by the DMRE to all mining operations (“the 23 April 2020 Directive”). It was noted that the 23 April 2020 Directive did not seem to amend the regulations released in terms of section 27(2) of the DMA and that its exact legal status remained unclear. It was further stated that mining companies must, in consultation with labour unions in the respective operations, develop the start-up procedure, and provide a copy of such procedure to the Department, prior to ramp-up of operations.
   
7. The application before the Labour Court was brought by AMCU and as its main relief sought an order directing the Minister to declare Covid-19 an occupational health risk and to issue mandatory directions to mines under section 76(2) of the MHSA or alternatively requiring the Chief Inspector to act under section 9 of the MHSA. The Order requires that it be read with the DMRE Directions 29 April 2020
   
8. The Order directs the following in terms of clarity moving forward for the mining industry:
   
   8.1 The Second Respondent, namely the Chief Inspector of Mining, is directed by no later than 18 May 2020 to publish a notice ( “the Notice “) in the Government Gazette:
   
   8.1.1 containing guidelines in terms of section 9(3) and 49(6) of the MHSA; and
   8.1.2 in terms of section 9(2) thereof requiring employers (as defined in the MHSA) to prepare and implement a code or codes of practice to mitigate the effect of the outbreak of Covid-19 on the health and safety of employees (as defined in the MHSA) and persons who may be directly affected by the disease at the mine.
   
   8.2 Before publishing the Notice in terms of paragraph 2, the Second Respondent shall:
   
   8.2.1 consult with the Mine Health and Safety Council, if constituted at the date of this court order;
   8.2.2 elicit and consider all available expert advice, including but not limited to the expert opinions of Professors Ehrlich, Murray, Naidoo, Sonnenberg, and Rees contained in the Applicant’s papers;
   8.2.3 meaningfully engage with the relevant trade unions, including but not limited to the Applicant, relevant employer organisations, including but not limited to the Minerals Council, Mining Affected Communities United in Action, and such other interested persons as the Second Respondent may determine regarding the content of the guidelines;
   8.2.4 consider the DMRE Directions 29 April 2020; and
   8.2.5 after having completed the steps in the above paragraphs but no later than 11 May 2020, publish the draft guidelines for public comment.
   
   8.3 Pending the publication of the Notice and the lodging of codes of practice with the Chief Inspector in terms of section 9(5) of the HSA, and in addition to complying with any regulations and directions issued under section 27(2) of the Disaster Management Act ( “the Regulations”):
   
   8.3.1 all employers as defined in the MHSA shall, at a minimum, comply with the Standard Operating Procedures for South African Mines, previously circulated to members of the mining operations industry, a copy of which can be made available upon request, to the extent that it is not inconsistent with the Regulations, and as read with, but not limited by:
   
   8.3.1.1 the Directives (Guiding Principles on Prevention and Management of Covid-19 in SAMI) issued by the Second Respondent to employers on 26 March 2020, a copy of which can be made available upon request; and
   8.3.1.2 paragraphs 1 and 3(a) to (d) of the DMRE Directions 29 April 2020.
   
   8.3.2 compliance with paragraph 8.3.1 of this article, will be deemed to constitute compliance with paragraph 2 of the DMRE Directions 29 April 2020.

9. In addition to the guidance provided by the Labour Court by means of the Order, and in anticipation of the Notice to be published by the Chief Inspector of Mining by no later than 18 May 2020, it would seem to remain in the best interest for mining operations to continue to comply in terms of the 23 April 2020 Directive issued by the DMRE to all mining operations and to provide a copy of such procedures to the Department, prior to ramp-up of operations.
   
10. Please contact the Werksmans mining team should you have any questions around the implementation of the Disaster Management Act, 2002 and associated Regulations.

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1. On 23 April 2020, and as the South African mining sector prepares to ramp up to 50% of capacity, the Department of Minerals and Energy (“DMRE”) issued the directive (“the 23 April 2020 Directive”) which contains the steps the DMRE believes are necessary to ensure safe start-up processes and procedures. The directive does not appear to be an amendment to the Regulations terms of section 27(2) of the Disaster Management Act, 2002 (“the Disaster Management Act”) and its exact legal status is unclear.
   
2. The directive is issued in line with the employer’s obligations, as set out in section 5 of the Mine Health and Safety Act 29 of 1996 (“MHSA”), obliges an employer “to maintain healthy and safe mine environment“. When implementing this section, employers are however only required to do that which is “as far as reasonably practicable“. The approach to the implementation of the 23 April 2020 Directive, seems to be similar, which is helpful to employers under the current circumstances as it recognises that employers cannot be expected to implement measures that are not possible.
   
3. The 23 April 2020 Directive must be read in conjunction with Regulations GN318 of March 2020, as amended and issued in terms of Section 27(2) of the Disaster Management Act and the sector specific directions, published by the DMRE in Government Gazette 43227 on 11 April 2020. The directive states the following:
   31. mining companies must, in consultation with labour unions in the respective operations, develop the start-up procedure, and provide a copy of such procedure to the Department, prior to ramp-up of operations;
   
   3.2 the start-up procedures must address measures to be taken to prevent the spread of COVID-19, as well as actions to provide a safe working environment, especially following the prolonged closure of certain operations. These measures should include:
   
   3.2.1 Rigorous screening of all employees, including contractors, prior to accessing the mine;
   3.2.2 Testing of employees with symptoms of Covid-19;
   3.2.3 Adequate social distancing;
   3.2.4 Provision of quarantine facilities for employees showing signs of COVID-19;
   3.2.5 Establishment and maintenance of a personal hygiene programme; and
   3.2.6 Provision of appropriate Personal Protective Equipment (PPE) including face masks.
   
   3.3 the directive also encourages employers to systematically phase in workers at the mines.
   
4. In its press release regarding the directive, the DMRE reiterates that it would continue with scheduled and unannounced visits to mining operations to monitor compliance with the lockdown regulations, guiding principles on prevention and management of Covid-19, as well as each mines’ start-up procedure.
   
5. Please contact the Werksmans mining team should you have any questions around the implementation of the Disaster Management Act, 2002 and associated Regulations.

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1. On 16 April 2020, the Minister of Cooperative Governance and Traditional Affairs amended (for the fourth time) the Regulations issued on 15 March 2020, in terms of section 27(2) of the Disaster Management Act, 2002 (the “Fourth Amendment”).
   
2. The amendment deals inter alia with the definition of ‘lockdown’ (indicating the extension thereof to Thursday 30 April 2020) expanding on what may be transported, authorising the sale of hardware products and vehicle components (as long as this is within the perimeters of ‘essential goods’) and introducing the “phased reopening” of the whole mining and energy sector as an ‘essential service’.
   
3. The department of mineral resources and energy (“the DMRE”) indicated that issues directly affecting mining and energy are being proactively managed to ensure employee health and safety and “that these sectors we regulate are able to meet their obligations during this period, and are better positioned to ramp up production systematically once the lockdown has been lifted”.
   
   
4. Specifically, the Fourth Amendment, stated the following with respect to the energy and mining sectors:
   
   4.1 Collieries that supply Eskom shall continue to run at full capacity;
   4.2 Refineries involved in the supply of energy and petroleum products to society (this includes smelters, plants and furnaces involved in the supply chain) shall run at full capacity to avoid fuel shortages;
   4.3 Mining operations must be conducted at a reduced capacity of not more than 50% during the period of lockdown, and thereafter at increasing capacity as determined by directions issued by the Cabinet member responsible for mineral resources and energy; and
   
   4.4 All mining operations are subject to operating in terms of specific conditions which inter alia include:
   4.4.1 implementing a rigorous screening and testing programme for employees;
   4.4.2 the collection of data during the screening and testing programme to be submitted to the relevant authority;
   4.4.3 provision of quarantine facilities for employees who test positive for COVID-19; and
   4.4.4mining companies must make arrangements to transport their South African employees from their homes to their respective areas of operations.
   
5. Given that mining activities conducted during the lockdown are no longer limited to gold and coal mining, the Fourth Amendment has afforded some much needed relief to the mining and energy sectors (and the economy as a whole) however, there are certain concerns around practical implementation thereof. By way of example:
   
   5.1 whilst all mining now constitutes an ‘essential service’, not all mining products (coal being the obvious exception) are ‘essential goods’. This in turn creates a concern around the legality of the businesses involved in the supply chain transporting these mining products;
   5.2 the list of ‘essential goods’ has been expanded to include ‘hardware’ (which is further subcategorised in Annexure B) and for purposes of this note means “Hardware, components and supplies required by any entity engaged in the provision of essential services for any project related to the provision of water, electricity or other essential services“. It is unclear whether or not this means that businesses producing ‘hardware’ are entitled to resume business. For instance there is no clarity as to whether a manufacturer of bearings and rubber railings for a mines cableway transportation system would be entitled to resume business at 100% capacity, to meet  the operational needs of its customer that is now considered an “essential service” and required to operate; and
   5.3 there is no certainty as to where this leaves associated service providers that support the mining sector such as land management services, catering services and fuel supply services, some of which are instrumental in the proper functioning of the mining sector.
   
6. What is clear from the Fourth Amendment is that with little under two weeks of the national lockdown remaining, there is a definite movement towards phased reopening of businesses and that this has commenced with the mining and energy sector.  The DMRE has however emphasised that a risk-based approach must be maintained and that various conditions apply to the starting and increasing of capacity.
   
7. Accordingly whilst this development is encouraging, it is key that when mines (and other businesses) make decisions as to when and how they will be able to re-join the economy, they must ensure that they are able to implement whatever measures are necessary, to ensure maximum protection of employees and to limit the spread of Covid-19. This will no doubt vary from sector to sector, and indeed as between different mining operations.
   
8. Please contact the Werksmans mining team should you have any questions around the implementation of the Disaster Management Act, 2002 and associated Regulations.
   
9. Accordingly whilst this development is encouraging, it is key that when mines (and other businesses) make decisions as to when and how they will be able to re-join the economy, they must ensure that they are able to implement whatever measures are necessary, to ensure maximum protection of employees and to limit the spread of Covid-19. This will no doubt vary from sector to sector, and indeed as between different mining operations.
   
10. Please contact the Werksmans mining team should you have any questions around the implementation of the Disaster Management Act, 2002 and associated Regulations.

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1. As anticipated, the Department of Mineral Resources and Energy (“the DMR”) has issued directions designed to ensure fair processes (“the Directions”) on licensing, consultation, appeals and compliance processes and reporting requirements for the mining sector during the COVID-19 lockdown period. A copy of the Directions are attached hereto for ease of reference.
   
2. The Directions were published in Government Gazette 43227 on 11 April 2020 and came into effect on this date. The purpose of these Directions is to ensure fair processes, relating to licensing, consultation, appeals and compliance processes and reporting requirements during the lockdown period.
   
3. The Directions specifically apply to:
   
   3.1 Directions relating to permissions, rights and permits as contemplated in the Mineral and Petroleum Resources Development Act (“MPRDA”).
   
   3.1.1 Certain timeframes are extended, or deemed to be extended, by the number of days of the duration of the lockdown period extended during the lockdown, being timeframes:
   
   3.1.1.1 prescribed in terms of the MPRDA in relation to applications for and processing of permissions, rights and permits that fall within the lockdown period;
   3.1.1.2 applicable to renewal of permissions, rights and permits falling within the lockdown or 60 days from 27 March 2020; and
   3.1.1.3 relating to Appeals prescribed under Regulation 74 of the Regulations promulgated under the MPRDA (as amended).
   
   3.1.2 An extension of a time period granted by a functionary referred to in paragraph 4.1(a) of the Directions, the period of which falls between 27 March 2020 and the termination of the lockdown period of the national state of disaster is extended, or deemed to be extended, by the number of days of the duration of the lockdown period.
   
   3.2 Directions relating to directives, notices, orders and instructions
   
   3.2.1 Timeframes stipulated in directives, notices, orders or instructions issued in terms of the MPRDA and which period falls within the duration of the lockdown period of the national state of disaster, are hereby extended, or deemed to be extended, by the number of days of the duration of the lockdown period.
   
   3.2.2 This does not apply to directives, notices, orders and instructions issued as urgent measures to “prevent imminent damage or harm to persons, animals, the environment or property” which measures must be complied with in accordance with stipulated time frames.
   
   3.3 Directions relating to submission of reports
   
   3.3.1 first annual report on the Broad-Based Socio-Economic Empowerment Charter for the Mining and Minerals Industry must now be submitted on 1 June 2020.
   
   3.3.2 Save for the report referred to above, the timeframes for submission of reports to be submitted in terms of the MPRDA and which period falls within the duration of the lockdown period of the national state of disaster, are hereby extended, or deemed to be extended, by the number of days of the duration of the lockdown period.
   
4. We have already noticed that the Directions may lead to ambiguity and/or require further interpretation. In this regard and so as to avoid the missing of any critical deadlines, we encourage you to contact the Werksmans Mining team in respect of any specific queries you may have in the implementation of the Directions.

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On 31 March 2020, the Minister of Forestry, Fisheries and the Environment released directions (Directions) in terms of the Disaster Management Act, 2002 (Disaster Management Act), which seek to curtail the spread of COVID-19 and minimise the effects of the national state of disaster on environmental processes in South Africa.

The Directions are necessary bearing in mind that the movement of environmental authorities, applicants for environmental permits as well as interested and affected parties, has been restricted for the duration of the “lockdown” period – which, in terms of the Disaster Management Act, began at 23h59 on 26 March 2020 and is currently set to lapse at 23h59 on 16 April 2020.

Various environmental processes, therefore, cannot take place for the duration of the lockdown period. Accordingly, in terms of the Directions, certain prescribed timeframes applicable to environmental licensing processes, public participation processes, appeals processes, reporting requirements and the provision of waste management services have been extended by the number of days of the duration of the lockdown (including any possible extension of the lockdown). In particular, the following prescribed periods for environmental authorisations and licences have been extended:

1. the timeframes for the consultation and notification procedures prescribed in the Environmental Impact Assessment Regulations, 2014 (EIA Regulations);
   
2. the timeframes contained in any environmental authorisation issued in terms of the EIA Regulations, relating to the extension of an environmental authorisation and the requirement to submit an environmental audit report which periods ,will lapse or fall within the period of the duration of the lockdown period;
   
3. the timeframes prescribed in terms of the National Environmental Management: Waste Act, 2008 (NEMWA) and the National Environmental Management: Air Quality Act, 2004, relating to licenses and environmental authorisations; and
   
4. timeframes prescribed in terms of the National Appeal Regulations, 2014.

The Guidelines also confirm that the environmental authorities responsible for the processing of applications or appeals contemplated above will not receive or process such applications or appeals from 27 March 2020 until the termination of the lockdown period.

In so far as NEMWA is concerned, the Guidelines furthermore provide that:

1. any exemption issued in terms NEMWA, which expires during the lockdown period is extended;
   
2. authorities responsible for the processing of applications for the transfer of waste management licences in terms of NEMWA will not receive or process such applications during the lockdown period;
   
3. any authorisation for the export of waste tyres issued in terms of the Waste Tyre Regulations, 2017 which expires during the lockdown period is extended; and
   
4. authorities responsible for the processing of applications for the amendment of any order to remediate contaminated land issued in terms of NEMWA will not receive or process such applications during the lockdown period.

Finally, with reference to the emission reporting obligations prescribed in the National Atmospheric Emissions Regulations, 2015 and the National Greenhouse Gas Emission Reporting Regulations, 2017, which must ordinarily occur by “31 March” each calendar year, the reporting period has been extended to 30 April 2020.

Notably, the Directions apply, inter alia, to all national, local and provincial authorities and appeal authorities – albeit that the Directions provide that where any of the aforementioned authorities have publicly indicated that a different arrangement applies, such an arrangement will prevail over any arrangement indicated in the Directions. To date, that relevant authorities in the Western Cape, Eastern Cape, Gauteng and North West have indicated that a different arrangement will apply.

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