NEMBA Regulations: They Affect Us All!

MCF hosted a very successful workshop on NEMBA (National Environmental Management Biodiversity Act) and its regulations at Michaelhouse recently, with Chris Birkett of Enviroworx as the speaker. This forms part of the MCF’s Invasive Alien Plant (IAP) Clearing Project, which is funded by N3 Toll Concession.

A synopsis of the presentation presented by Chris is given below. For more information, contact Enviroworx directly: Chris Birkett (082 391 4402), Mike Patrick (082 418 2104) or email admin@enviroworx.co.za

Does NEMBA apply to me?

NEMBA applies to all landowners. Protected areas and state owned land have to have management plans in place, while sellers of property have to provide a declaration of listed species present before transfer occurs. (See downloads below for “NEMBA 1 August 2014 – Regulations“)

What are listed species?

There are 379 plant species listed, but not all of these have to be removed. Four categories of species are defined, but one species may fall into several of these categories depending on location.

Category 1a: must be removed. These are generally species which have proved problematic elsewhere in the world, and the intention is to eradicate them before they become a problem in South Africa.
Category 1b: must be controlled to prevent spread. This is the biggest category, and includes most well-known invasive species such as Bugweed and Lantana.
Category 2: This category covers plantations with invasive potential. Permits are issued for plants to be grown in a particular area. If they spread, they are moved into category 1b.
Category 3: This is a list of new species that could become a problem. The presence of species on this list is recorded so that spread can be monitored. One example is the Mulberry.

**(See downloads below for “NEMBA Lists – 1 August 2014“)**

What is the difference between a Declaration and a Notice?

Declaration: This is required when property is being sold. It is a list of the species present on that property, and their abundance. The seller must provide a copy to both the buyer, and to the Department of Environmental Affairs (DEA). DEA use declarations to map the area, so that they can monitor the problem potential and decide when to require removal of a particular species. If a category 1a species is present, this must be removed before the property is sold.

Notice: These are issued by DEA inspectors after visiting a property and deciding that certain species need to be controlled. (If a seller doesn’t issue a declaration to a buyer, and a DEA inspector subsequently visits the property and serves a notice, the buyer can hold the seller liable for clearing costs.) Notices give a timeframe for replying, creating a control plan, and effecting removal.

What is the difference between Management Plans and Control Plans?

Management Plans list the species present, and how these will be controlled over a period of time. Management plans are not required for property of <5 hectares.

Control Plans are required in terms of a Notice issued by a DEA inspector. They list the process and the herbicides that will be used to remove and destroy the IAPs present. Category 1a species cannot be removed from the property, but must be destroyed in situ. (See downloads below for “NEMBA Guidelines for Control Plans“)

How does this affect the Property market?

Estate agents and conveyancers have an obligation to make sellers aware of the legislation. If a Declaration shows a major problem with IAPs on the property, the buyer could ask for a reduction in price for the amount that it will cost to do the necessary clearing. The seller therefore needs to be aware of the liability of having IAPs on their property.

Can this legislation be enforced?

NEMBA is a national Act, and therefore overrides both provincial acts and municipal bylaws. The Deeds Office is not responsible for enforcing the legislation. However, attorneys need to ensure that the necessary Declarations are completed to comply with the law.

How does this affect complexes (sectional title schemes)?

Declarations for property that is part of a sectional title scheme must also cover both common property, and exclusive use areas.

Can I do my own declaration?

As the legislation stands, you can do your own declaration. However, both DEA and attorneys prefer to employ a specialist to reduce the possibility of landing up in trouble.

When should a declaration be done?

It is preferable to do a declaration just prior to transfer, because IAPs grow so fast. It is important to record the date on which the declaration was compiled, for the same reason.

Do the municipalities have management plans?

Currently, neither Umngeni nor Umgungundlovu Municipalities have management plans in place. However, they are working on these.

What services are provided by Enviroworx?

Enviroworx specialise in declarations, but can also provide management/control plans if required. Declarations identify the IAP species present, the abundance of each, and the category they fall into.

A covering letter is also provided, listing any other information that could be of relevance to the purchaser, eg. the presence of a state-owned servitude crossing the land. On small properties, the data provided will be more comprehensive than for large farms, as data for the latter is extrapolated from transepts of representative samples.