Environmental Management Inspectorate

1. What is the Environmental Management Inspectorate?

The Environmental Management Inspectorate is a network of environmental enforcement officials from different government departments (national, provincial and municipal). The Inspectorate was created when an amendment to the National Environmental Management Act, 107 of 1998 (NEMA) came into effect on 1 May 2005. The new Chapter 7 of NEMA now provides for Environmental Management Inspectors (EMIs) to be designated by the Minister and MECs.

2. Who can be designated as an EMI?

The following officials may be designated as EMIs:

• officials employed by the Department of Environmental Affairs and Tourism (DEAT);
• officials employed by provincial environment departments, or other provincial organs of state;
• municipal officials; and
• officials employed by “other organs of state”

The legislation does not provide for members of the public, volunteers or representatives of non-governmental organisations to be EMIs.
Before designation, officials must successfully complete an EMI training course (see 6 below).

3. What are EMIs’ mandates and functions?

EMIs must monitor compliance with and enforce the specific environmental legislation they have been mandated to enforce in their designations by the Minister or relevant MEC.

At present, EMIs can be mandated to enforce a range of legislation depending on their particular functions, including:

NEMA (including all regulations promulgated under NEMA, such as the 4x4 regulations and the new EIA regulations);
the National Environmental Management: Biodiversity Act, 10 of 2004;
the National Environmental Management: Protected Areas Act, 57 of 2004 and its regulations; and
the National Environmental Management: Air Quality Act, 39 of 2004 (when Section 60 of this Act is brought into effect).

These acts are known in NEMA as “specific environmental management Acts”. It is likely that other environmental legislation will be added to this list in future.

EMIs are also empowered to enforce any authorisations issued under their mandated legislation, including permits, licences and EIA authorisations (records of decision).

4. What are their powers and responsibilities?

A range of powers can be conferred on EMIs, including powers of:

• routine inspection (entering premises to ascertain compliance; seizing evidence of non-compliance);
• investigation (questioning witnesses; copying documents; inspecting and removing articles or substances; taking photographs and audiovisual recordings; taking samples; removing waste)
• enforcement (search and seizure of premises, containers, vessels, vehicles, aircraft and and search of pack animals; establishing roadblocks; arrest); and
• administrative powers (issuing compliance notices).

Not all EMIs will have the same powers, or all of the above powers. EMIs are organised into a ranking system, depending on experience, qualifications and seniority. A Grade 1 EMI has more powers than any other Grade of EMI.

5. How will the Inspectorate step up enforcement of environmental legislation?

National enforcement network

With the establishment of the Environmental Management Inspectorate, environmental enforcement officials will for the first time be part of a national network, sharing intelligence, experience, standardised training and procedures. For the first time, environmental enforcement will have a distinctive national identity with a national profile.

This national EMI network will break through the traditional separation between the protection of different aspects of the environment, and will include park rangers and conservation officers, air quality officers, marine and coastal enforcement officers, pollution and waste enforcement officials and officials monitoring urban developments.

Primary areas of enforcement
P&W = pollution and waste
B = biodiversity
PA = protected areas
M&C = marine and coastal
EIA = environmental impact assessment

New criminal offences

In addition to standardising enforcement powers, NEMA’s new Chapter 7 also provides for extensive new powers for EMIs (see below), as well as a set of new criminal offences and other enforcement provisions. New criminal offences include:

giving false information to an EMI, or refusing to comply with an EMI’s request;
hindering or interfering with an EMI’s duties, or pretending to be an EMI; and
failure to comply with a compliance notice, which can be issued by certain EMIs when that EMI has reasonable grounds for believing that a person has not complied with environmental legislation, or with a term of a permit issued under that legislation.

If a person fails to comply with a compliance notice issued by an EMI (which has to be done in writing in accordance with a prescribed procedure), the Minister or relevant MEC may revoke or vary that person’s permit, take the necessary steps and recover the costs from the offender, and refer the matter to the National Prosecuting Authority for prosecution.

In addition, NEMA’s new Chapter 7 provides that all offences under NEMA or any specific environmental management Act are now Schedule 1 offences under the Criminal Procedure Act, 55 of 1977.

Forfeiture of items used to commit environmental crime

NEMA’s new Chapter 7 also contains new forfeiture provisions: a court convicting a person of an offence in terms of NEMA may declare any item - including but not limited to any specimen, container, vehicle, vessel, aircraft or document - that was used for the purpose of or in connection with the commission of the offence and was seized under NEMA, to be forfeited to the State.

Payment of part of fine to informers

A court which imposes a fine for an offence in terms of NEMA or a specific environmental management Act may order that up to ¼ of the fine be paid to the person whose evidence led to the conviction or who assisted in bringing the offender to justice.

Cancellation of and disqualification for permits

The court convicting a person of an offence in terms of NEMA or a specific environmental management Act may:
withdraw any permit or authorisation under NEMA or a specific environmental management Act if the rights under that permit had been abused;
disqualify that person from obtaining a permit or other authorisation for up to five years, and order that all other permitting authorities be notified of such disqualification.

6. What training will EMIs receive?

With the advice and support of the United States Environmental Protection Agency and the Environment Agency of England and Wales in the United Kingdom, DEAT (assisted by the University of Pretoria and TRAFFIC East and Southern Africa) is currently preparing high-quality training that must be attended by all EMIs. This training will cover the following topics:

an overview of environmental, constitutional, criminal and administrative law;
principles of integrated environmental management;
the mandate, functions, duties and powers of an EMI;
basic health and safety, and dealing with hostile situations;
carrying out routine inspections;
conducting thorough investigations and collecting evidence that will stand up in court;
legal requirements for search and seizure and for arrest;
giving evidence in court; and
using the EMI network and resources for efficient enforcement.

7. How many EMIs have been designated, and how many will there be?

Since the Minister of Environmental Affairs the Tourism, Marthinus van Schalkwyk, designated the first 26 EMIs in DEAT and South African National Parks (SANParks) on 14 July 2005, a further approximately 600 employees of SANParks have been designated as EMIs. It is anticipated that, by mid-2006, there will be at least 900 EMIs in national and provincial government institutions across the country, designated by the Minister and MECs.

8. How can the public recognise or contact an EMI?

EMIs can be idenfitied by the EMI logo, which has been designed to represent a shield of protection and enforcement, and the three key areas of enforcement – marine and coastal enforcement (the “blue” issues), biodiversity and conservation enforcement (the “green” issues), and urban development, pollution and waste enforcement (the “brown” issues). EMIs are also issued with standard EMI identity cards.

Although EMIs will wear distinctive EMI clothing, they will continue to be identified as employed by a specific institution. For example, EMIs designated in the Gauteng Department of Agriculture, Conservation and Environment will wear the Gauteng provincial coat of arms on their EMI clothing.

At the moment, there is no central contact point for the Inspectorate or EMIs, and members of the public must therefore contact the relevant institutions employing EMIs (e.g. the national Department of Environmental Affairs and Tourism, SANParks, the Mpumalanga Parks Board or the Free State Department of Environmental Affairs and Tourism) directly.

Another option is to call the Department of Environmental Affairs and Tourism’s toll-free anti-corruption tip-off line on 0800 701 701, from where your tip-off will be referred to EMIs in the appropriate department.

9. What is the role of the SAPS in the prosecution of environmental crimes?

The South African Police Services (SAPS) will continue to play a crucial role in enforcing environmental legislation, and EMIs will work very closely with police officials in the investigation of environmental crimes. In terms of NEMA, all police officers also have most of the powers of an EMI.

10. What is the role of the National Prosecuting Authority in the prosecution of environmental crimes?

EMIs are not empowered to prosecute cases in court. EMIs’ powers relate to the investigation of environmental violations, gathering evidence and bringing offenders before court, and all cases will therefore continue to be handed over to prosecutors of the NPA to prosecute. EMIs will therefore be working closely with prosecutors across the country to ensure the successful prosecution of offenders.

The Department of Environmental Affairs and Tourism and the NPA are already collaborating to provide information, training and support to prosecutors to ensure the effective and successful prosecution of environmental crimes.

11. Are EMIs the same as the Green Scorpions?

Although not an official title, the Environmental Management Inspectorate is popularly known as the “Green Scorpions”. However, it is important to note that the Inspectorate is structured in a fundamentally different way to the Directorate of Special Operations based within the National Prosecuting Authority (NPA) – the Scorpions.

Firstly, EMIs do not form part of one “unit”, based in a single institution; instead, they form a network of environmental enforcement officials based in different institutions across the spheres of government. Secondly, EMIs do not only focus on criminal offences under environmental legislation, but also have administrative tools at their disposal, particularly by way of issuing a compliance notice to offenders. Thirdly, whereas the Scorpions have both investigators and prosecutors within their team, EMIs do not prosecute criminal cases in court.