BY E MAIL

TO: The Honourable Minister of Environmental Affairs: Ms Bomo Edna Molewa

c/o bsobayeni@environment.gov.za; GRamutshila@environment.gov.za

COPY TO: The parties listed in Annexure B to this letter

11 October 2017

Dear Minister

Re: The widespread failure to properly publish draft laws for comment as required in terms of sections 99
and 100 of the National Environmental Management Biodiversity Act, 2004.

Information supplied to me by your department that is tabulated in Annexure A to this letter reveals that
the requirements set out in sections 991 and 1002 of the National Environmental Management Biodiversity
Act, 2004 or NEMBA has not been properly followed in respect to any of the laws to which these sections
apply. This means that it is more likely than not that these laws are all unlawful. Yes it is probable that just

1
Section 99 -Consultation
(1) Before exercising a power which, in terms of a provision of this Act, must be exercised in accordance
with this section and section 100, the Minister must follow an appropriate consultative process in the
circumstances.
(2) The Minister must, in terms of subsection (1)-
(a) consult all Cabinet members whose areas of responsibility may be affected by the exercise of the
power;
(b) in accordance with the principles of co-operative governance set out in Chapter 3 of the
Constitution, consult the MEC for Environmental Affairs of each province that may be affected by
the exercise of the power; and
(c) allow public participation in the process in accordance with section 100.
2
Section 100- Public participation
(1) The Minister must give notice of the proposed exercise of the power referred to in section 99-
(a) in the Gazette; and
(b) in at least one newspaper distributed nationally, or if the exercise of the power may affect only a
specific area, in at least one newspaper distributed in that area.
(2) The notice must-
(a) invite members of the public to submit to the Minister, within 30 days of publication of the
notice in the Gazette, written representations on, or objections to, the proposed exercise of the
power; and
(b) contain sufficient information to enable members of the public to submit meaningful
representations or objections.
(3) The Minister may in appropriate circumstances allow any interested person or community to present
oral representations or objections to the Minister or a person delegated by the Minister.
(4) The Minister must give due consideration to all representations or objections received or presented
before exercising the power.
over ten years of law making under NEMBA fails because you and your predecessors failed to ensure that
due process was followed in the making of these laws.

It is reasonable to assume, given the wholesale failure of your department to apply the law properly in
relation to NEMBA, that laws passed in terms of the other National environmental management legislation
(NEM Acts3) will also be similarly affected. If this is true then the environmental legislation and
governance at a national level is compromised.

You are under a positive duty to investigate and take steps to remedy this.

The purpose of this letter three fold:

1. I ask that you acknowledge that the situation described in Annexure A and in this letter indeed
means that the affected measures implemented in terms of NEMBA are unlawful; on account of a
failure to follow the legally required process.
2. I ask that you take immediate steps to remedy this situation such steps to include inter alia:
a. An immediate halt on the promulgation of any affected draft laws that have not been
promulgated.
b. An immediate halt on the further implementation of affected laws until a properly
sanctioned remediation process can be developed and approved.
3. I ask that you investigate if there are similar instances in the case of the other NEM Acts and if so
likewise acknowledge this and take immediate steps to remedy the situation.

Sections 99 and 100 of NEMBA require that you as Minister to publish a notice in the Gazette and in a
newspaper calling for representations within 30 days of the date of publication in the Gazette. The notice
must also contain sufficient information to enable the public to make meaningful representations.

This is not a mere formality. Considerable prejudice and harm results from a failure to comply with these
sections. This is because these sections underpin the constitutionally important right all South Africans
have to participate in government, not just through the ballot box, but also by making representations on
proposed laws before the legislature and government exercises their law making powers.

The Constitutional Court has equated this right to participate in law making through the exercise of the
right to be consulted as important as the right to vote.4 The prejudice that flows from a failure to comply
with these requirements has a profoundly adverse effect on the integrity of human rights, democracy, good
governance and the rule of law.

This passage from the Doctors For Life Case is worth repeating.
[108] Thus the Constitutional Assembly, in framing our Constitution, was not content only with
the right to vote as an expression of the right to political participation. It opted for a more
expansive role of the public in the conduct of public affairs by placing a higher value on
public participation in the law-making process. As Ms N Mokonyane, a Gauteng member of
the NCOP, has recently noted:

3
National Environmental Management Waste Act, National Environmental Management Air Pollution Act, National
Environmental Management Protected Areas Act and the National Environmental Management Integrated Coastal
Management Act.
4
See, for example, paragraph 115 of Doctors for Life International v Speaker of the National Assembly and Others
(CCT12/05) [2006] ZACC 11; - http://www.saflii.org/za/cases/ZACC/2006/11.html See also paragraphs 87 to 89 of Land
Access Movement of South Africa and others v Chairperson of the National Council of Provinces and Others
(CCT40/15) [2016] ZACC 22 - http://www.saflii.org/za/cases/ZACC/2016/22.html
Page 2 of 23
 Our struggle against apartheid was necessitated not just by our hatred of the
apartheid system, and the suffering and the injustice it inflicted on the people of
our country; it was also inspired by our vision of a democratic alternative as
opposed to a system based on an institutionalised racialism and exploitation.
Our struggle was inspired in particular by our vision of a nonracial and democratic
South Africa in which the people shall govern.
A key aspect of our vision of democracy was obviously the right to vote. The idea
that every citizen, regardless of their race, colour or creed, was entitled to stand for
elections and to vote in them. But our vision of democracy also went beyond
simply voting every five years.
We were also inspired by the idea of a participatory democracy as well as a system
in which the people of our country would on an on-going basis participate in and
have a say in every aspect of the lives in workplaces, communities, streets and
schools.
[109] This is reflected in the very nature of our constitutional democracy.

Annexure A reveals your failure and that of your predecessors to either publish the requisite notice in a
newspaper at all or to do so timeously. Publication in a newspaper is important as this passage from the
judgement in the Rhino Horn Moratorium Case confirms:
[19] In at least one newspaper, must be guided by the members of the public likely to be
affected by the exercise of the power. Seen in the light of the diversity of the South African
population and the historical background and many languages, to allow proper public
participation and to submit meaningful representations or objections, especially in the
present case, where the moratorium has substantial consequences, one would have
expected the Minister to be more proactive and go beyond the minimum requirement.
That, however, did not happen, and worse, there has not been compliance with the
minimum requirement by notice of the proposed moratorium in at least one national
newspaper.

Annexure A contains many instances where your department is unable to show that there was any
publication in a newspaper at all. Ms Garlipp5, who corresponded with me on behalf of your department
regarding these matters, tries to put a brave face on this by alleging that your department cannot locate
the advertisement. I dont know what the point of this is. Perhaps the argument will be made that the
public must assume that the notice was properly advertised if it cannot be located. But that would be an
incorrect assumption. You and your Department bear the onus of showing that due process was complied
with. If you cannot do this then one must assume that this did not happen.

This also seems to be the reasonable conclusion to draw in the circumstances. It is not, after all, as if this
has not happened before. Notice of the Draft 2014 Alien Species Lists and Regulations was not published in
a newspaper until I asked at a meeting of stakeholders in Pretoria if this had been done. The initial
response of officials in your department was that this was unnecessary which is a more likely explanation as
to why your department cannot produce a record of the any publication in a newspaper pertaining to the
2007 and 2009 draft alien and invasive species lists and regulations than them being unable to locate the
notice. This is not the only case where the requisite notice was not published in a newspaper.

5
Ms Garlipp is Chief Director of Law Reforms and Appeals at the Department of Environmental Affairs.
Page 3 of 23
You and your Department tried to appeal the judgement in the Rhino Horn Moratorium Case all the way to
the Constitutional Court. You were unsuccessful at every turn. The legal position remains as it has always
been, a failure to publish a notice in a newspaper as required in terms of sections 99 and 100 of NEMBA
makes that law unlawful and as such it must be set aside as void ab initio.

The unanimous judgement of the court in the Rhino Horn Moratorium Case is expressed in these terms:
[36] Inasmuch as the Minister wishes to find substantial compliance in the Gazette and in the
publications referred to above, and other publications referred to during oral argument, all did not
meet the peremptory requirements in sections 99 and 100. To find substantial compliance in the
circumstances of the present case, would render the provisions of sections 99 and 100 of no use
and will serve to undermine and infringe everyones constitutional right enshrined in section 24 of
the Constitution. The decision to impose a moratorium is consequently ought to be reviewed and
set aside.

Annexure A reveals a great many laws that fail on this ground. These include impactful laws such as the
Threatened or Protected Species or TOPS Regulations, and the CITES Regulations as well as important
management tools such as the Biodiversity Management Framework6 and management plans pertaining to
rhino, lions and cycads.

The purpose of publishing notices in a newspaper is to notify members of the public of their right to make
representations on measures you intend taking in terms of NEMBA. The 30 day period is what the
legislature considered reasonably necessary to do this. It is regarded by our courts as a minimum period.
You will recall that your department sought to justify its failure to publish a notice inviting comments on
the draft of the Rhino Horn Moratorium on the basis that this had been spoken about in newspapers. It is
as the court found at paragraph 33.5 of that judgement:
The requirement in terms of section 100 is that members of the public must be given at least 30
days within which to make representations or to submit objections. That did not happen and
therefore just like with other publications, it was complete non-compliance with the provisions of
sections 99 and 100.

Ms. Garlipp acknowledged this is a minimum period in a letter to me dated 24 April 2014 when she wrote
the section does not require that the newspaper notice and the Gazette notice be published
simultaneously but merely that it invites comments to be submitted within 30 days of the Gazette notice
being published (this is a minimum period).

And of course this must be so for anything else would render this provision of no use which will serve to
undermine and infringe everyones constitutional right enshrined in section 24 of the Constitution.

Ms Garlipp, pointed, in her more recent correspondence with me regarding this non publication issue, to
sections 97(4) of NEMBA which she says operates so that non-substantial amendments to regulations need
not go through the process prescribed in sections 99 and 100. She also referred me to section 47A(2) of the
National Environmental Management Act, 1998 or NEMA which says that noncompliance may to be
condoned where this is not material and does not cause prejudice.7

6
The review of this framework is now considerably overdue.
7
Section 47A(2) of NEMA states that: The failure to take any steps in terms of this Act or a specific environmental
management Act as a prerequisite for any decision or action does not invalidate the decision or action if the failure-
(a) is not material;
(b) does not prejudice any person; and
Page 4 of 23
This is correct but the issue of what is material or prejudicial or procedurally unfair must of course be
addressed from a human rights based perspective rather than that of the convenience of officials.

The excuse tendered, in Ms Garlipps letter of 6 October 2017, that your departments inability to deal
effectively with its supply chain management issues is not a valid reason for condoning noncompliance with
the section. It is devoid of any merit at both a legal and practical level. It is, after all, not difficult to publish
a notice in a newspaper on the same day as it appears in the Gazette. People have been doing this
successfully for many years. Most national newspapers provide an efficient service that makes this easy and
the Government Printer works tirelessly to make publication in the Gazette as easy as possible.

When one talks of materiality and prejudice one is dealing with the legal question of substantial
compliance. The Constitutional Court held in the Bergrivier Municipality Case8 that this enquiry requires a
holistic purposive approach that looks at whether the steps taken are effective when measured against
the object of the Legislature, which is ascertained from the language, scope and purpose of the enactment
as a whole and the statutory requirement in particular9.

The delays in publication tabulated in Annexure A are not immaterial or non-prejudicial. The failure to
timeously publish notices in newspapers is not a matter of occasional inadvertence. It is the norm.
Annexure A reveals that you did not publish the notice timeously in a newspaper at all. There is not one
case where this was done. The fact it is the norm speaks to substantial noncompliance of worryingly large
proportions that compromises the legitimacy of everything you, your predecessors and your department
have done.

Annexure A shows that you and your predecessors have routinely, and for at least a decade, treated with
contempt the right everyone has to participate in government, to be consulted and to make
representations. These important constitutional rights have been reduced to a mere tick box exercise to be
implemented in a lackadaisical manner as you and your department see fit. The integrity of human rights
including the environmental right has been prejudiced by this failure to comply with Sections 99 and 100 of
NEMBA. The rule of law and democracy has been compromised as a result.

This failure to advertise in a newspaper is only part of the problem. It is the tip of the iceberg. Annexure A
does not address the other problem that arises with many of the measures listed in Annexure A, namely
that in many cases no information or insufficient information was provided to enable members of the
public to consult meaningfully. It is as the court held at paragraph 26 of the judgement in the Rhino Horn
Moratorium Case:
A notice without a background and in the circumstances, without the reasons for the exercise of a
power, will not enable members of the public to submit meaningful representations or objections.

This is not the primary focus of Annexure A or indeed this letter but Ms Garlipp can confirm that your
department refused to tell me how various species were identified as invasive in the 2014 draft lists and
regulations because it was said this was beyond the its capacity and therefore unreasonable to expect it to

(c) is not procedurally unfair.

8
Liebenberg NO and Others v Bergrivier Municipality (CCT 104/12) [2013] ZACC See -
http://www.saflii.org/za/cases/ZACC/2013/16.html
9
Paragraph 25 of the judgement of Mhlantla AJ in Liebenberg NO and Others v Bergrivier Municipality
Page 5 of 23
do this.10 It was alleged that it was therefore unreasonable of me to make this request. This of course begs
the obvious question of how a government can make a law if it cannot tell the public why it is necessary.

The result of this failure is that representations regarding the 2014 AIS regulations have been largely
legalistic.

As it turns out the real reason your department failed to explain what it was doing was that it knowingly
applied a definition of invasive that is incompatible with the legal definition set out in NEMBA11. In short it
abused the process to pursue agendas that are incompatible with NEMBA and indeed the Constitution.12

The proof of this particular pudding has been in the eating. A recent draft report that was published on
these regulations13 reveals that they are being ignored by government and the public alike.

This is one example of what is a widespread failure to provide the public with sufficient information in
order to enable them to make meaningful representations. This failure requires further investigation and
also needs to be remedied.

But this letter addresses the much narrower issue of lack of proper publication of draft notices in the
requisite newspaper and it is to that failure that I now return.

The legal conclusion one draws by applying the rationale set out in the judgement in the Rhino Horn
Moratorium case14 as well as the principles regarding consultation and public participation that are
explained in a number of judgements of the Constitutional Court15 is that most all of these laws are
unlawful and liable to be set aside ab initio as a consequence of the failure to publish a notice calling for
comments on the draft in a newspaper at or to do so timeously.

Yet your department refuses to acknowledge the self-evident truth of this situation continuing to maintain,
as it does, that other consultation measures adopted by it somehow remove the need to comply with
NEMBA and what it has done is somehow substantially complaint.
10
Ms Garlipp wrote to me on 24 April 2014 saying it is not economically possible or feasible to expect the Department
to publish all the background information and reasoning which gave rise to the draft regulations and this is not the
intention of the section. This was in response to submissions made by Trout SA and FOSAF (that were attached to my
e mail to your department of 14 March 2014) objecting to and making representations regarding the Draft 2014 Alien
and Invasive Species Regulations that the Minister must, when republishing the Notices, also make available the fish
sanctuary area maps and the reasons for each proposed listing. A failure to do means that the Notices will not contain
sufficient information to enable members of the public to submit meaningful representations or objections as is
required by section 100(2)(b) of the NEM:BA.
11
See A national strategy for dealing with biological invasions in South Africa where invasive species is defined
incorrectly as species that sustain self-replacing populations over several life cycles, produce reproductive offspring,
often in very large numbers at considerable distances from the parent and/or site of introduction, and have the
potential to spread over long distances -
http://www.durbanflytyers.co.za/Articles/National_Strategy_02_Apr_2014.pdf
12
Trout SA and FOSAF made this point in representations to the Parliamentary Environmental Portfolio Committee
see http://www.durbanflytyers.co.za/Articles/170811_Representations_To_Enviro%20Prtfolio_Comm.pdf
13
See National Status Report on Biological Invasion in South Africa Draft 1 for comment -
https://www.sanbi.org/information/documents?field_documentcategory_value_many_to_one=Reports&keys=invasi
ons
14
Kruger and Another v Minister of Water and Environmental Affairs and Others (57221/12) [2015] ZAGPPHC 1018 -
http://www.saflii.org/za/cases/ZAGPPHC/2015/1018.html
15
See, for example, paragraph 115 of Doctors for Life International v Speaker of the National Assembly and Others
(CCT12/05) [2006] ZACC 11; - http://www.saflii.org/za/cases/ZACC/2006/11.html See also paragraphs 87 to 89 of Land
Access Movement of South Africa and others v Chairperson of the National Council of Provinces and Others
(CCT40/15) [2016] ZACC 22 - http://www.saflii.org/za/cases/ZACC/2016/22.html
Page 6 of 23
This conduct can only be described as disgraceful.

The excuses put forward by your department are made even worse by the fact that it is not as if your
department was previously unaware of this problem. The public has been complaining about its failure to
consult as is legally required for years. I first raised the issue of a failure to properly publish notices with
your department in March 201416, but your department chose to ignore this and subsequent warnings and
has proceeded as if the law does not matter.

This demonstrates that your department does not accept that the environmental right is a human right and
has no intention of implementing its constitutional mandate to implement reasonable legislative and other
measures necessary to ensure that our environment is not harmful to our health and wellbeing. The court
handing down the judgement in the Rhino Horn Moratorium Case was right when it ruled that to find
substantial compliance in the circumstances of the present case, would render the provisions of sections 99
and 100 of no use and will serve to undermine and infringe everyones constitutional right enshrined in
section 24 of the Constitution.17

Its failure to align its values and thinking with those enshrined in the Constitution means that it cannot
explain its real intentions or consult properly as it is obliged to do. Such consultation that does take place is
reduced to the kind of tick box set pieces that the public so often complains of. Real consultation is
compromised by these failures as is proper compliance with due process.18

This not only speaks to a fundamental disconnect between what your department is doing and what our
laws and the Constitution say your department must do, it amounts to maladministration and an abuse of
power by government. Again I have warned you and your department repeatedly of this only to have these
warnings fall on deaf ears.

The reasonable conclusion to draw from all of this is that your department thinks that it is above the law.
What makes this even worse is that it is acting in an unlawful manner in making penal laws that can and
have resulted in people being punished and imprisoned in terms of laws that themselves are unlawful and
unjust.

The findings and the reasoning of the Constitutional Court not to mention and the Courts dismay,
expressed in the judgement in the in the recent Cash Paymaster Services Case19 speak appropriately to the
situation that pertains here. A government department cannot expect to function if it acts above and
beyond the law and should not be allowed to continue doing so. It must not be allowed to treat the rights
of the public with contempt.

You need to take urgent steps to remedy this situation. That regrettably is easier said than done. This is
because it is difficult to comprehend the magnitude of the wrongdoing that Annexure A reveals. It is simply
unprecedented in this country though not completely unheard of in the annals of legal history.

16
See note 10 supra
17
Paragraph 36 of the judgement in the Rhino Horn Moratorium Case see note 14 supra.
18
Section 2(4)(f) of the NEMA principles set out in NEMA (which must be applied to all actions by government in
connection with the environment) making and state that the participation of all interested and affected parties in
environmental governance must be promoted, and all people must have the opportunity to develop the
understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by
vulnerable and disadvantaged persons must be ensured.
19
Black Sash Trust v Minister of Social Development and Others [2017] ZACC 8 See -
http://www.saflii.org/za/cases/ZASCA/2013/29.html
Page 7 of 23
A few years ago all laws passed by the state of Manitoba were declared unconstitutional because they had
not been promulgated in French20. Temporary relief was granted to enable this to be remedied. This is not
unlike the situation in the recent Cash Paymaster Services Case.

But is not just a case of withdrawing laws so that they can be republished properly, though that clearly
must be done. The situation in this case is much more complex. This is because one is dealing with the
failure to observe important matters of process that go to the heart of just law making. The failure to deal
with this appropriately cannot effectively be remedied by something as simple as a translation.

Moreover the problem is not just technical. Your departments failure to comply with simple matters of due
process when making laws speak to much deeper systemic failings of values, thinking and perspective that
need to be addressed if this situation is to be remedied.

The truth is that your department is far more likely to see people as being the problem than to care about
their rights.

Your department is meant to introduce and implement measures that promote human health and
wellbeing but in truth are treating people on the basis they are the mischief that laws need to address
rather than the beneficiaries of these laws. This has resulted in an attempt to centralise power under a
regime where government acting as custodian of our environmental right increasingly seeks to bring the
use and enjoyment of natural resources under state control.

It seems that your department is really trying to extend state control rather than take reasonable legislative
and other measures that preserve and protect our right to an environment that is not harmful to our health
and wellbeing. It is as if it wants to treat South Africans as its children subject to the custodial rule of a
parent.

When government seeks to act in this way, it is as Robert Sobukwe said in 1959 during the opening address
of the Pan Africanist Congress21. It reduces South Africa to a child nation whose people are treated as the
boys and girls of the State. It is the antithesis of what human rights are meant to be.

Taking rights away from people and placing them in the custody of the state does not protect those rights.
It replaces them with state power. The exercise of power by the state in circumstances where people do
not personally enjoy rights is normally called oppression.

The measures underpinning participatory government which are being ignored by your department are an
important countervailing force against the baleful influence of corrupt and oppressive state hegemony.

The practical situation is that laws that have been introduced without following due process are unlawful
and should as a general rule be withdrawn. There may be exceptional cases where South Africas people
will suffer considerable harm if this were to be done and it may be necessary to apply the kind of discretion
that our Constitutional Court spoke of in the Local Government Transition Act case in 1995 and the Cash
Paymaster Services Case22. Fortunately there will not be many exceptions of this nature. This is because

20
See Re Manitoba Government Employers Association and Government of Manitoba 79 DLR (3d) 1 referred to in
Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others
(CCT27/95) [1995] ZACC 8 See http://www.saflii.org/za/cases/ZACC/1995/8.html
21
See http://www.sahistory.org.za/archive/robert-sobukwe-inaugural-speech-april-1959
22
See note 20 supra
Page 8 of 23
there is already a longstanding raft of other laws that can be relied on. It is also because a great deal of
what passes for law under NEMBA has failed or is already failing and can thus be officially done away with.

What cannot and must not happen is for your department think that in can find a safe refuge in the rule
set out in the judgement in the Oudekraal Case23 and continue to apply these laws on the basis that they
are presumed to be lawful until a court of law sets them aside as unlawful.

That principle was developed to address occasional cases where laws lack legality. The application of the
principle in cases where there has been a wholesale failure of due process in law making makes a mockery
of the law itself and the rule of law. It will result in increasing noncompliance, contempt for law and
ultimately civil insurrection.

As I said at the beginning of this letter, you are under a positive duty to act. You cannot sit back and watch
events unfold. You cannot assume that what is unlawful will be deemed to be lawful until a court sets it
aside.

Minister you swore an oath upon taking office of faithfulness to the Republic and obedience to the
Constitution.

Your department is conducting itself in a manner that is irreconcilable with your oath. You are complicit in
this by virtue of the office you hold. You are responsible. It is my heartfelt wish and plea that you take
immediate steps to remedy this situation. I am not so nave, however, to think that this is a given.

It is for this reason that this letter is being and will be distributed widely along with the attached
correspondence with your department that give rise to it.

Yours faithfully
sent electronically and therefore unsigned.
Ian Cox
Cox Attorneys

23
Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others (25/08) [2009] ZASCA 85 -
http://www.saflii.org/za/cases/ZASCA/2009/85.html

Page 9 of 23
 ANNEXURE A
SCHEDULE TABULATING NOTICES ISSUED IN TERMS OF NEMBA WHERE A DRAFT NOTICE MUST BE
PUBLISHED IN TERMS OF SECTIONS 99 AND 100 BEFORTE ANY LAW IS MADE.

Notes to Annexure A
1. This schedule is divided into two parts, Part A and Part B.
a. Part A lists those notices pertaining to drafts which resulted in laws being made in terms of
NEMBA.
b. Part B is the converse to this. It lists those notices pertaining to drafts which did not or have
not yet resulted in laws being made in terms of NEMBA.
2. Both Part A and Part B are further divided into sections
a. Section 1 of Part A and B deals Section 2 of Part A deals with those instances where DEA
says it has been unable to locate the details pertaining to notices published in newspapers.
b. Section 2 of Part A and B deals with those instances where the details of the publication in
a newspaper are known.
c. Sections 3 of Part A deals with those instances where the Department of Environmental
Affairs or DEA says that no publication in of sections 99 and 100 are necessary because the
amendments are claimed to be non-substantial amendments to regulations and that
section 97(4) of NEMBA accordingly applies.
3. I have not asked for or been shown copies of the notices that were published in a newspaper. Save
for the notice that was published in the Post on 8 March 2014 pertaining to the 2016 AIS lists and
regulations (see A2.8) I assume that they are all substantially in the same form as that published in
the Gazette. I deal with the AIS notice that was published in the post in a footnote to that item.

Part A : laws that have been promulgated where notices of the draft were either not published in the
Gazette for comment or this notice was not published in the requisite newspaper or the publication in a
newspaper took place after the 30 day notice period began to run.

Part 1: Notices of draft laws published in the Gazette but DEA cannot say if the notice was published in a
newspaper

Date of Promulgation Description of the law Details of the Applicable

publication of of the law notice publishing section in
Item
the notice of the the draft notice NEMBA
no
draft in the
Gazette
18 February 2005 Promulgated National Environmental GN 151 - 27306 56
R151 in Management: Biodiversity
A.1.1 Gazette 29657 Act: Threatened or Protected
on 23 February Species: Lists.
2007
29 July 2007 Promulgated - National Biodiversity GN 801 38
A.1.2 GN 813 32474 Framework For South Africa 30027
-
8 August 2008 Promulgated - Moratorium on the trade in GN 835 31301 57
GN 148 31899 Rhino horn.
0n 13 February
A.1.3
2009
Note this moratorium was declared unlawful and set aside as such ab initio in terms of the judgement
in the Rhino Horn Moratorium Case
A.1.4 29 August 2008 Promulgated National Environmental GN -917 31360 97
Page 10 of 23
 31963 27 Management: Biodiversity
February 2009 Act: Regulations: Threatened
or Protected Species: Second
Amendment.
3 March 2009 Promulgated Norms And Standards For GN - 11008 - 30269 9 and 43
A.1.5 GN 214 - Biodiversity Management
31968 Plans For Species
3 April 2009 Promulgated National Environmental GN 347 32090 97
R506 - 36683 Management: Biodiversity
A.1.6 Act: Regulations: Alien and
invasive species.
Regulation declared invalid in terms of the judgement in the Kloof Conservancy Case24
3 April 2009 GN 509 - National Environmental GN 348 32090 66
36683 Management: Biodiversity
A.1.7 Act: List 1: Categories of
species exempted)
List declared invalid in terms of the judgement in the Kloof Conservancy Case
3 April 2009 GN 5008 - National Environmental GN 349 32090, 67
36683 Management: Biodiversity
A.1.8 Act: List 2: Prohibited alien
species
List declared invalid in terms of the judgement in the Kloof Conservancy Case
3 April 2009 GN 507 - National Environmental GN 350 32090, 70
36683 Management: Biodiversity
A.1.9
Act: List 3: Invasive species:
List declared invalid in terms of the judgement in the Kloof Conservancy Case
28 August 2009 Promulgated National Environmental GN 1165 32515, 97
A.1.10 33002 5 March Management: Biodiversity
2010 Act: Regulations: Cites.
6 November Promulgated National Environmental GN 1477 32689 52
2009 34809 9 Management: Biodiversity
A.1.11 December Act: Draft national list of
2011 threatened ecosystems for
public comment.
15 February 2011 Promulgated Prohibition Of Trade in certain GN 34206 43
GN 382 35343 Encephalartos (Cycad) Species
- E. caffer, E. humilis, E.
cupidus, E. cerinus and E.
ngoyanus.
2 July 2012 Promulgated - Publication Of Norms And GN 532 9 and 43
373027 7 Standards For Biodiversity 35486
A.1.12
February 2014 Management Plans For
Ecosystems
29 April 2014 Promulgated National Environmental GN 331 37586) 43
38607 29 April Management: Biodiversity
A.1.13 2014 Act, 2004 (Act No. 10 of 2004)
Draft Shark Biodiversity
Management Plan
7 November Promulgated Draft Biodiversity GN 978- 38187 43(3)
A.1.14 2014 GN 406 40815 Management Plan for the
1 April 2016 Clanwilliam Sandfish

24
Kloof Conservancy v Government of the Republic of South Africa and Others (12667/2012) [2014] ZAKZDHC 60 (22
October 2014) See - http://www.saflii.org/za/cases/ZAKZDHC/2014/60.html
Page 11 of 23
 Note DEA accepted that a notice inviting comments on the draft of this management plan had not
been advertised in a newspaper and consequently withdrew it in terms of GN - 120 40621 published
on 17 February 2017 See B.2.20
31 March 2015 Promulgated The Draft Biodiversity GN 269 43(1)(b)(i),
39469 2 Management Plan For White 38619 43(3)
December Rhinoceros (Ceratotherium
2015 Simum)
17 April 2015 Promulgated National Environmental GN 351 43(3)
39468 2 Management: Biodiverty Act, 38706
December 2004 (Act No. 10 Of 2004)
2015 Biodiversity Management Plan
For African Lion (Panthera
Leo)
5 June 2015 Promulgated National Environmental GN 503 43
40815 28 April Management: Biodiversity Act 38844
2017 (10/2004): Draft Biodiversity
Management Plan for 11
critically endangered and 4
endangered encephalartos
species

Part 2: Details of notices of draft laws that were published in the Gazette and a newspaper

Date of Promulgation Description of the Details of Applicable Details of

publication of of the law law the notice section in publication in
Item no the notice of publishing NEMBA a newspaper
the draft in the the draft
Gazette notice
5 May 2006 Promulgated R National GN 597 - 97 Sunday Times
152 published Environmental 28803 on 21 May
in Gazette Management: 2006 16
29657 on 23 Biodiversity Act: days after
A.2.1 February 2007 Regulations: publication in
Threatened or the Gazette.
Protected Species:
Original Draft
Regulations
16 March 2007 Promulgated National GN 329 - 97 City Press - 1
30739 8 Environmental 29711 April 2007 -
February 2008 Management: 16 days after
A.2.2 Biodiversity Act: Gazette
Regulations: Bio-
prospecting, access
and benefit-sharing.
13 February Promulgated - National GN - 170 - 9 Sunday Times
2009 34245 - 20 July Environmental 31899 and Rapport -
2009 Management: 22 February
Biodiversity Act: 2009 - 9 days
Norms and standards after Gazette
A.2.3
for marking of
rhinoceros horn and
hunting of white
rhinoceros for trophy
hunting purposes.
Page 12 of 23
 2 July 2010 Promulgation National GN 667 17(3)(c) Sunday Times
not necessary Environmental 33348 -1 August
Management: 2010 - 30
A.2.4
Biodiversity Act: Bio- days after
prospecting Benefit Gazette
Sharing Agreement.
3 December Promulgated National GN - 1100 - 97 City Press - 10
2010 34452 on 11 Environmental 33833 December
July 2011 Management: 2010 - 7 days
Biodiversity Act: after Gazette
A.2.5 Proposed
amendments to
Threatened or
protected species
regulations,
3 December Promulgated National GN - 1101 - 97 City Press - 10
2010 34453 11 July Environmental 33833 December
2011 Management: 2010 - 7 days
Biodiversity Act: after Gazette
Proposed
amendments to
A.2.6
Convention on
International Trade
in Endangered
Species of Wild
Fauna and Flora
(CITES) regulations
26 July 2013 Promulgated National GN - 763 - 43 Natal Witness
37620 - 8 May Environmental 36697 - 10 August
2014 Management: 2013; -
Biodiversity Act, Sunday Times
2004 (Act No. 10 of 11 August
A.2.7 2004) Draft 2013 -
Biodiversity between 14
Management Plan and 15 days
for Gypaetus after Gazette
Barbatus
Meridionalis
12 February Promulgated - National GN - 78 - 66,67,70 71 The Post - 8
2014 37886 -1 Environmental 37320 March 2014
A.2.8
August 2014 Management: 24 days after
Biodiversity Act (10 Gazette25

25
The notice reproduced out below correctly calls for comments by an extended date but no Gazette was published
extending the date for publication set out in the original notices. The notice also does not contain sufficient
Page 13 of 23
 of 2004): Draft Alien
and Invasive Species
Lists, 2014
12 February Promulgated - National GN 79 37320 97 The Post - 8
2014 GR 598 37885 Environmental March 2014
1 August 2014 Management: 24 days after
Biodiversity Act 2004 Gazette27
A.2.9
(Act No. 10 Of 2004)
Alien And Invasive
Species Regulations,
201426
17 February Promulgated - National GN - 73 97 City Press -23
2014 38809 -18 May Environmental - 37331 February
2015 Management: 2014 - 6 days
Biodiversity Act after Gazette
A.2.10 (10/2004): Draft
amendment
regulations on bio-
prospecting, access
and benefit-sharing
23 April 2014 Promulgation National GN 330 17(3)(c) City Press
not necessary Environmental 37582 27 April 2014
Management: 4 days after
Biodiversity Act, Gazette
A.2.11
2004 (Act No. 10 of
2004) Benefit Sharing
Agreement
concluded between

information to enable members of the public to submit meaningful representations or

objections.
26
No notice was given of regulation 29 Sale or transfer of alien and listed invasive species when the draft regulation
was submitted for comment. This regulation is thus invalid applying the rationale in the Rhino Horne Moratorium Case
on account of a failure to give notice of this measure in a newspaper.
27
See note 25 Supra

Page 14 of 23
 the Council of
Scientific and
Industrial Research
and the Traditional
Healers Council
30 January 2015 Promulgation Bio-prospecting GN 83 17(3)(c), City Press - 8
not necessary Permit Application 38436 February
A.2.12
2015 9 days
after Gazette
31 March 2015 Marine Tops National GN - 255 - 97 Sunday Times
promulgated - Environmental 38600 -12 April 2015
40876 - 30 May Management: - 12 days after
2017 - rest still Biodiversity Act Gazette
in draft (10/2004):
Threatened or
protected species
A.2.13 regulations do.:
Publication of lists of
species that are
threatened or
protected, activities
that are prohibited
and exemption from
restriction
29 May 2015 Promulgated - National GN - 493 - 66,67,70,71 Published but
40166 -29 July Environmental G38833 A name and
2016 Management: date of
Biodiversity Act 2004 newspaper
A.2.14
(Act No.10 of 2004) unknown
Amendments to the
Alien and Invasive
Species Lists, 2015
10 June 2016 Promulgated - Biodiversity GN - 337 43(3) The Star and
40882 - 2 June Management Plan - 40058 the Natal
2017 For Pickersgill's Reed Mercury - 15
A.2.15
Frog (Hyperolius June 2016 -10
Pickersgilli) days after
Gazette

Part 3: Promulgations that DEA says are not substantial and that sections 99 and 100 of NEMBA do not
apply because section 99(4)28 does

Notes to Part 3
I dispute that these amendments are not substantial. Substance as I have already pointed out has to be
considered in the light of the constitutional right South Africans have to participate in government and the
role played by consultation processes such as those set out in sections 99. It follows that any measure that
is materially affects or is prejudicial to a person will be regarded as substantial. All of the above regulations
contain such measures. For example:

28
Section 97 deals with regulation making. Section 97(3) says that sections99 and 100 apply to regulation making
subject to section 97(4) which in turn says: Subsection (3) need not be applied to a non-substantial change to the
regulations.
Page 15 of 23
 1. GN 69 30703: The substitution of a new regulation 3 in the TOPS regulations materially affects how
applications for permits in respect of restricted activities must be made by extending the ambit of
national governments responsibility in this regard to all from national parks in respect of land under
their control to all organs of state. Many organs of state operate independently of government as
private citizens. Universities are a case in point. Many of the amendments material affect how the TOPS
regulations were going to be interpreted and thus applied. The fact that the deficiencies in the original
regulations were highlighted through a process of consultation emphasises the need for the remedial
process to be conducted by way of a formal consultation process. This prudent course was adopted at
much the same time such as was the case with GN -270 -30853 despite the fact that the changes
proposed in that notice were less substantial than those in this one.
2. GN 629 36770: This amendment deals with the same issue of substance namely a further amendment
to regulation 3 which resulted inter alia in the substantial change which requires any official in an organ
of state to make application for a permit to the Minister instead of the MEC as was previously the case.
This reference to an official in an organ of state has caused a great deal of confusion which has
impacted materially on the permitting process currently underway in respect of research proposed at
Van Der Kloof Dam. This would have been avoided if this regulation had been submitted to the required
consultation process.
3. GN 323 37596 and GN 323 37596: I have written to DEA on this issue previously. The fact that these
regulations were not published for comment speaks to the fundamental difference of opinion that will
arise where a rights base opinion of what is substantial confronts a perspective based on official
convenience. Thus officials will take the view that agreement reached at CITES do not have to be
submitted to a consultation process because the incorporation of these measures is part and parcel of
South Africas treaty obligations. But such obligations must be processed into domestic law in terms of
domestic processes that include consultation in terms of sections 99 and 100 of NEMBA in this case.
I contend that all the above listed promulgations are unlawful and are as such are liable to be set aside if
challenged in court. I also say that it would be wrong, even reckless to rely on the presumed legality of
these laws.

Date of Promulgation of the Description of the law Applicable

Item publication of law section in
no the law in the NEMBA
Gazette
A.3.1 28 January Promulgated - GN 69 Threatened Or Protected Species 97
2008 - 30703 Amendment Regulations
2 August 2012 Promulgated - GN Amendment To The Threatened Or 97
A.3.2
614 - 35565 Protected Species Regulations, 2007
23 August Promulgated - GN Amendment To Convention On 97
A.3.3 2013 629 - 36770 International Trade In Endangered
Species (Cites) Regulations
29 April 2014 Promulgated - GN Amendments To Cites Regulations, 2014 97
A.3.4
323 - 37596

Part B cases where the publication of draft laws either did not or has not yet resulted in the
promulgation of laws.

Part 1: Notices of draft laws published in the Gazette but DEA cannot say if the notice was published in a
newspaper.

Page 16 of 23
 Date of Promulgation of Description of the law Details of Applicable
publication of the law the notice section in
Item no the notice of publishing NEMBA
the draft in the the draft
Gazette notice
28 January 2005 Draft The Draft National Norms GN 72 9
And Standards For The 27214
B.1.1
Sustainable Use Of Large
Predators
28 January 2005 Draft The Draft Regulations GN 72 97
Relating To The Keeping And 27214
Hunting Of Acinonyx Jubatus,
B.1.2 Hyaena Brunnea, Crocuta
Crocuta, Lycaon Pictus,
Panthera Leo And Panthera
Pardus
7 March 2008 Draft National Environmental GN -270 97
Management: Biodiversity 30853
B.1.3 Act: Regulations: Threatened
or Protected Species: Second
Amendment.
17 September Draft National Environmental GN 1146 97
2007 Management: Biodiversity 30293
B.1.4
Act: Regulations: Alien and
invasive species: Draft,
27 November Draft Draft Minimum Standards GN 1567 9
B.1.5 2009 For The Management Of 32745
Captive Elephants
13 August 2010 Draft National Environmental GN 798 43 and 100
Management: Biodiversity 33456
B.1.6 Act: Draft Biodiversity
Management Plan for
Encephalartos Latifrons,
14 May 2012 Draft National Environmental GN 382
Management: Biodiversity 35343 57(2)
Act (No. 10 of 2004):
B.1.7
Prohibition of trade in
certain Encephalartos - E.
cerinus and E. cupidus
19 August 2013 Draft National Environmental GN 853 57(4)
Management: Biodiversity 36758
Act, 2004 (Act No.10 of
2004) Exemption of
veterinarians from certain
B.1.8
restrictions relating to the
carrying out of restricted
activities involving
threatened or protected
species

Page 17 of 23
 30 August 2016 Draft Norms And Standards For GN 512 9(1)(a)
The Management Of 40236
B.1.9
Damage-Causing Animals In
South Africa

Part 2: Details of notices of draft laws that were published in the Gazette and a newspaper

Date of Promulgatio Description of the Details of Applicable Details of

publication of n of the law law the notice section in publicatio
Item no the notice of publishing NEMBA n in a
the draft in the draft newspape
the Gazette notice r
11 December Draft National GN - 1614 9 City Press
2009 Environmental - 32798 - 22
Management: December
B.2.1 Biodiversity Act: Draft - 9 days
norms and standards after
for regulation of Gazette
hunting industry.
26 November Draft National GN - 1084 9 Advertised
2010 Environmental - 33806 but date
Management: and
Biodiversity Act: Draft newspape
B.2.2 norms and standards r not
for management of known.
damage-causing
animals in South
Africa.
31 December Draft National GN - 1142 9 Not
2010 Environmental - 33900 advertised
Management: .
Biodiversity Act:
Extension of deadline
for comment
B.2.3
submission on Norms
and standards for
management of
damage-causing
animals in South
Africa.
29 July 2011 Draft National GN - 501 - 43 City press
Environmental 34487 14 -
Management: August
Biodiversity Act: 2011;
B.2.4 Biodiversity Herald -
Management Plan for 15 August
Pelargonium Sidoides 2011 and
Diamond
Field
Page 18 of 23
 Advertiser
- 17
August
2011 -
Between
16 and 19
days after
Gazette
20 August Draft Draft Biodiversity GN - 663 34 City Press
2012 Management Plan For - 35607 - 26
Spheniscus Demersu August
B.2.5
2012 - 5
days after
Gazette.
16 April 2013 Draft Publication Of Lists Of GN - 386 56(1), The
Species That Are - 36375 57(2) and Sunday
Threatened Or 57(4)(a) Times 21
B.2.6 Protected, Activities April 2013
That Are Prohibited - 5 days
And Exemption From after
Restriction Gazette
16 April 2013 Draft National GN- 388 - Sunday
Environmental 36375 Times - 21
Management: April 2013
Biodiversity Act, 2004 5 days
B.2.7
(Act No.10 of 2004) after
Threatened or Gazette
protected species
regulations
13 August Draft National Environment GN - 846 - 97 and Sunday
2013 Management: 36744 100 Times - 18
Biodiversity Act (10 of August
2004): Regulations for 2013 - 5
B.2.9
the registration of days after
professional hunters, Gazette
hunting outfitters and
trainers
18 December Draft National GN 1147 97 Sunday
2014 Environmental - 38347 Times -28
Management: December
Biodiversity Act 2014 - 9
B.2.10 (10/2004): days after
Regulations for the Gazette
registration of
professional hunters,
hunting outfitters and
trainers
15 January Draft National GN- 44 - 9 City Press
B.2.11
2015 Environmental 38395 - 25

Page 19 of 23
 Management: January
Biodiversity Act 2015 - 10
(10/2004): Norms and days after
Standards for the Gazette
translocation of
indigenous species in
South Africa
12 January Draft National GN - 5 - 9(1)(c) Sunday
2016 Environmental 39589 Independe
Management: nt -17
Biodiversity Act January
(10/2004): Draft 2016 - 5
amendment of the days after
B.2.12 norms and standards Gazette
for the marking of
rhinoceros and
rhinoceros horn, and
for the hunting of
rhinoceros for trophy
hunting purposes
B.2.13 15 April 2016 Draft National GN 427- 43 Pretoria
Environmental 39922 Record -
Management: 17 April
Biodiversity Act, 2004 2016 -2
(Act No. 10 of 2004) days after
Draft Biodiversity Gazette
Management Plan for
Hartebeesspruit
Ecosystem
B.2.14 3 November Draft Draft Distribution GN 727- 97 Sunday
2016 Maps For Certain 40398 Independe
Indigenous Species nt 6
November
2017 3
days after
Gazette
B.2.15 10 November Draft Norms and Standards GN 749 - 9(1)(a) Sunday
2016 For Damage Causing 40412 Independe
animals In South nt -13
Africa November
2016 - 3
days after
Gazette.
B.2.16 2 December Draft Biodiversity GN - 1483 43(3) The Star -
2016 Management Plan For - 40464 5
Cape Mountain Zebra December
(Equus Zebra Zebra) 2016 - 3
days after
Gazette

Page 20 of 23
B.2.17 8 February Draft 2017 National GN 74 - 97 Sunday
2017 Environmental 40601 Independe
Management: nt 12
Biodiversity Act, 2004 February
(Act No. 10 of 2004) 2017 4
Draft regulations for days after
the domestic trade in Gazette
rhinoceros horn, or a
part, product or
derivative of
rhinoceros horn (GN
40601)
B.2.18 8 February Draft Proposed GN - 76 - 72, Sunday
2017 Amendment Of The 40601 70(1)(a) Independe
Invasive Species List nt 12
And Proposed Listing February
Of Species That Are 2017 4
Threatened Or days after
Protected, Restricted Gazette
Activities That Are
Prohibited And
Exemption From
Restriction

B.2.19 8 February Draft Prohibition Of The GN 77- 57(2) Sunday

2017 Powdering Or Shaving 40601 Independe
Of Rhinoceros Horn, nt - 12
The Domestic Selling February
Or Otherwise Trading 2017 - 4
In, Giving, Donating, days after
Buying, Receiving, Gazette
Accepting As A Gift Or
Donation, Or In Any
Way Disposing Or
Acquiring, Of
Powdered Or Shaved
Rhinoceros Horn, And
The Export Of
Powdered Or Shaved
Rhinoceros Horn
B.2.20 17 February Draft National GN - 120 - 43(3) The Star -
2017 Environmental 40621 20
Management: February
Biodiversity Act, 2004 2017 3
(Act No. 10 of 2004) days after
Draft Biodiversity Gazette
Management Plan for
the Clanwilliam
Page 21 of 23
 Sandfish, Labeo
Seeberi (Gn 40621)

B.2.21 3 March 2017 Draft Extension Of The GN - 184 - 43(3) The Star -
Commenting Period 40660 7 March
For The Draft 2017 - 4
Biodiversity days after
Management Plan For Gazette
The Cape Mountain
Zebra

Page 22 of 23
 Annexure B

Parties to whom this letter is copied

Name Title E mail address

The Honourable Mr Jackson The Chairman of the Portfolio tmadubela@parliament.gov.za
Mphikwa Mthembu Committee for Environmental
Affairs
Ms Susan Masapu The Acting Senior State Law c/o IStein@justice.gov.za
Advisor:
Mr Sakhumzi Somyo The MEC Eastern Cape c/o
Department of Economic Siyabulela.onceya@ectreasury.gov.za
Development, Environmental
Affairs and Tourism
Dr Benny Malakoane The MEC Free State c/o the HOD tauk@detea.fs.gov.za
Department of Economic,
Small Business Development,
Tourism and Environmental
Affairs
Mr Lebogang Maile The MEC Gauteng Gauteng c/o jolidee.matongo@gauteng.gov.za
Department of Agriculture and
Rural Development
Mr Sihle Zikalala The MEC Economic c/o mkhizem@kznded.gov.za
Development, Tourism &
Environmental Affairs KwaZulu-
Natal
Mr Seaparo Charles Sekoati The MEC Economic c/o the HOD kgopongns@ledet.gov.za
Development, Environment
and Tourism Limpopo
Ms Manketse Tlhape The MEC Department of Rural, c/o the HOD Atlaletsi@nwpg.gov.za
Environment and Agricultural
Development North West
Ms Tiny Chotelo The MEC Northern Cape c/o the HOD twessels@ncpg.gov.za
Department of Environment
and Nature Conservation
Anton Bredel The MEC Department of c/o
Environmental Affairs and magdalena.griesel@westerncape.gov.za
Development Planning
Western Cape
Mr Ishaam Abader Deputy Director General: Legal, iabader@environment.gov.za
Authorisations, Compliance
and Enforcement: Department
of Environmental Affairs
Ms Linda Garlipp Chief Director of Law Reforms LGarlipp@environment.gov.za
and Appeals- Department of
Environmental Affairs

Page 23 of 23