UNPACKING NEMBA: NOT QUITE THERE YET
Janice Tooley
Shepstone & Wylie Attorneys

 

Abstract:

The National Environmental Management: Biodiversity Act 10 of 2004 (“NEMBA”) for the most part commenced on 1 September 2004 with the remainder of its provisions coming into effect as of 1 January 2006. It may be true on paper that NEMBA is part of our current legislative regime, but on closer examination it is evident that there are key regulatory provisions of NEMBA that are rendered ineffective in the absence of published subordinate legislation. While NEMBA has given the competent authorities various powers and obligations to create effective tools to regulate various aspects of the Act, they have in many instances failed to comply with these obligations or utilise their powers. Furthermore, the legal status of policies and framework documents that have been created is unclear causing frustration to the public, in knowing when and where they are applicable, and to authorities, in terms of enforcement. This paper provides an in-depth analysis of the duties and remedies NEMBA creates, and identifies those areas that are lacking in legal impetus, particularly in respect of the protection of threatened or protected ecosystems and the control of species that pose potential threats to biodiversity. Further, the synergies with other legislation governing biodiversity management are explored in relation to these lacunae.In essence, this paper identifies the current gaps and uncertainties in our legal framework that obstruct effective conservation of our biodiversity.

 

Presentation Topic
UNPACKING NEMBA: NOT QUITE THERE YET
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