SELLING YOUR PROPERTY? IMPLICATIONS OF PRESENCE OF ALIEN AND INVASIVE SPECIES
The Alien and Invasive Species Regulations (“the Regulations”) were published on 1 August 2014 (GN R598 in GG 37885 of 1 August 2014, with effect from 1 October 2014) and are aimed at enabling landowners to assist the Department of Environmental Affairs (“DEA”) in controlling alien and invasive species in South Africa. The Minister of DEA published lists of alien and invasive species and categorised these species in four different categories namely category 1a, 1b, 2 and 3. Category 1a and 1b listed species must be controlled and eradicated. Category 2 listed species may only be present on site if a permit is obtained and the landowner ensures that the species do not spread beyond his or her property. The presence of Category 3 species is subject to various exemptions and prohibitions.
It is important to note that, if category 1a or b species are present on land, an authorised official from DEA must be allowed entrance to land to monitor, assist with or implement the combatting or eradication of the listed invasive species.
What is more important is that, if you sell your immovable property, you must, prior to the conclusion of the relevant sale agreement, notify the purchaser of the property in writing of the presence of listed invasive species on that property.
Furthermore, if you, as the owner of your property on which alien or listed invasive species are present, are a permit-holder in terms of these Regulations, the new owner of the property must apply for a permit in terms the National Environmental Management Biodiversity Act 10 of 2004 (NEMBA) and these Regulations. The new owner of the property will then be subject to the same conditions as the original permit holder, unless specific circumstances require all such permit conditions to be revised.
So what for my operation?
In this regard it is important to determine whether there are alien or listed invasive species present on your property, as you have to be in a decision to confirm the presence, or absence, of alien or listed invasive species on your property to the purchaser of your property. If you do not do this, you are acting in contravention with these Regulations, which offence is punishable by a fine not exceeding five million rand, and in the case of a second or subsequent conviction, to a fine not exceeding R10 million, or imprisonment for a period not exceeding 10 years, or to both such fine and imprisonment.
What is Shangoni’s approach?
A duty of care is imposed on landowners in terms of section 73 of the NEMBA to control invasive species listed in the Alien and Invasive Species. Shangoni can assist landowners in the identification of alien and invasive species by conducting Alien Invasive Studies for all types of operations in the mining and non-mining industry.
Furthermore, Shangoni has experience in conducting environmental due diligence assessment during which all environmental legal requirements and responsibilities (including as discussed above pertaining to alien and listed invasive species) of the seller of the relevant property are identified and prioritised to avoid criminal legal liability. By conducting due diligence assessments Shangoni assists our clients in ensuring legal compliance when closing down or selling operations.
