The Constitutionality of Ex Post Facto Authorisation for Environmentally Harmful Activities in South Africa

Abstract

Environmental activities that have been listed as harmful under the National Environmental Management Act (NEMA) must be authorised prior to commencement in South Africa. The process of authorisation (EA) requires an Environmental Impact Assessment (EIA) to be commissioned before a listed activity could commence on the environment. Failure to commission EIA and obtain EA constitutes an offence under NEMA. Despite being an offence, section 24G of NEMA permits EA to be obtained ex post facto, subject to payment of an administrative fine. Scholarship shows that ex post facto EA undermines the EIA process and the preventative, precautionary and integrated environmental management principles under section 2 of NEMA. Other writings posit that the ex post facto EA legitimizes the pursuit of critical projects for economic development, even if they are harmful. Considering that both the pursuit of environmental protection, which the EIA seeks to achieve, and the realization of economic development, which the ex post facto EA seeks to validate, are both constitutionally entrenched in South Africa, the position of ex post facto EA raises a tension that requires a constitutional enquiry in light of section 24 and section 33 of the Constitution. Through doctrinal research and comparative methodology, this study interrogates ex post facto EA in the context of constitutionally entrenched values, such as environmental protection, sustainable and socio-economic development, and just administrative action, to establish whether the process is constitutional. It further explores good practices in other legal systems, especially, India and the United Kingdom, in relation to ex post facto EA. The study suggests that these legal systems employ the process of ex-post facto EA only in exceptional cases, to strike a balance between environmental protection and economic development. The study recommends that ex post facto EA should generally be prohibited in South Africa and only be granted in exceptional circumstances wherein the developers will bear the onus to prove the exceptionality of their unlawfully commenced projects to ensure that there is accountability and transparency of the process.