Resumen

ASHUKEM, Jean-Claude N.. Re-thinking Ex Post Facto Environmental Authorisation in South Africa: Insights from 2022 NEMA Amendment. De Jure (Pretoria) [online]. 2024, vol.57, n.1, pp.79-97. ISSN 2225-7160.  https://doi.org/10.17159/2225-7160/2024/v57a6.

In 2004, section 24G on ex post facto environmental authorisation was introduced into the National Environmental Management Act (NEMA) of 1998 (as amended) to enable developers to get back into the regulatory loop. However, this introduction raised controversies among South African scholars and practitioners alike, despite some adjustments in subsequent amendments - 2008, 2013, and 2014. The argument has been that section 24G is a fait accompli, provides leverage for abuse by potential developers, facilitates environmental non-compliance, and therefore should be considered an anomaly to the constitutional right to an environment that is not harmful to health and well-being. In 2022, the National Environmental Management Laws (NEMAL) Amendment Bill, introduced significant changes to section 24G to drive South Africa's environmental compliance and enforcement regime. In this article, I revisit the question of ex post facto environmental authorisation under section 24G to advance substantive normative and theoretical insight that will attempt to clarify 'the controversial' debate about section 24G. This unique insight is achieved through the methodological combination of systemic analysis of the 2022 amendment of section 24G against previous criticisms of section 24G in tandem with existing literature. I articulate these controversies to provide conceptual direction in academic discourse that earlier criticisms about section 24G are no longer tenable. From these theoretical and analytical understandings, I argue that, unlike previous amendments, the 2022 amendment provides a fundamental radical shift in South Africa's environmental law. Along this line, I advocate for rethinking the "contentious" debate about section 24G and the issue of ex post facto environmental authorisation underpinning it. The legal doctrinal research methodology is used in this article.

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