WESTERN CAPE ECOLOGICAL COMMUNITIES BILL - CapeNature Draft Ordinance

Monday, 11 April 2011 22:03

Note: This is an annotated working draft prepared for discussion purposes and must not be interpreted as reflecting the final position of CapeNature or of the Provincial Government of the Western Cape. All footnotes and the references to section headings which are enclosed in square brackets will be removed before the final draft is submitted.

DRAFT 1: 19 March 2010

WESTERN CAPE ECOLOGICAL COMMUNITIES BILL[1]

To protect the integrity and promote the health of ecological communities in the Province and to promote human well-being and ecologically sustainable human communities by: recognising intrinsic rights and obligations; establishing institutions and conservation planning systems to promote mutually beneficial relationships between human and other members of ecological communities; conserving indigenous plants and animals; regulating the hunting and harvesting of wild species and trade in products derived from them; requiring certain public and private activities to be undertaken in a manner that enhances and protects the integrity and health of ecological communities; harmonising provincial legislation with national legislation; and providing for incidental matters.

ARRANGEMENT OF SECTIONS

chapter I: INTRODUCTORY PROVISIONS

1. Definitions and interpretation

2. Objects

3. Application

4. Conflicts with other legislation

chapter II: INTRINSIC RIGHTS, FUNDAMENTAL DUTIES AND PRINCIPLES

5. Intrinsic rights of ecological communities and their members

6. Duty to respect intrinsic rights

7. Duty of custody

8. Duty of State as trustee

9. Principles of co-existence

10. Application of principles of co-existence

chapter III: ADMINISTRATION

11. Provincial Conservation Council

12. Composition of Council

13. Meetings of the Council

14. Powers of the Council

15. Local and bioregional conservation committees

16. Role, function and powers of Provincial Minister

17. Role and functions of Department

18. Role and functions of Board

19. Powers of Board

20. Measures on private land

21. Role and functions of municipalities

22. Delegation

chapter IV: CONSERVATION PLANNING AND MONITORING

23. Bioregions

24. Conservation Plans

25. Monitoring systems

chapter V: PROTECTION OF AREAS, ECOSYSTEMS, NATURAL FEATURES AND SPECIES

26. Establishment of Provincial nature reserves

27. Establishment of Provincial protected environments

28. Agreements with private landowners and municipalities

29. Establishment of local protected areas

30. Use of term “nature reserve”

31. Management authorities

32. Prohibition and regulation of activities within protected areas or protected environments

33. Powers of management authorities

34. Access to protected areas

35. Advisory boards for protected areas

36. Directive to owners and occupiers of land adjacent to rivers bordering protected areas

37. Regulations and by-laws concerning protected areas

38. Protected ecosystems

39. Protected natural features

40. Protected plants

41. Protected wild animals

42. Invasive exotic species

chapter VI: CONSERVANCIES AND GAME-FENCED AREAS

43. Declaration of conservancies

44. Rights and duties of conservancies

45. Conservancy management plans

46. Amendment or withdrawal of conservancy declaration

47. Game-fences

48. Certificate of adequate enclosure

49. Application of Game Theft Act

50. Duties in relation to fences and barriers

51. Rights of owners of adequately enclosed areas

52. Exemptions for large-scale conservancies and game farms

53. Regulations concerning conservancies, game-fences and game farms

chapter VII: CONSERVATION OF PLANTS

54. Rights of land owners

55. Restriction on picking indigenous species of plant

56. Permits and registrations in respect of indigenous plants

57. General authorisations in respect of indigenous plants

58. Applications for registration of persons and premises for cultivation and sale of indigenous plants

59. Special permit for sale of indigenous plants

60. Places for sale of indigenous plants

chapter VIII: PROTECTION OF AQUATIC ECOLOGICAL COMMUNITIES

61. Angling right of owners and occupiers of land

62. Restricted activities in relation to aquatic ecological communities

63. Prohibited ways of catching fish

64. Licences in relation to aquatic species

65. Board may direct aquatic animals and aquatic plants to be destroyed

66. Exemption for scientific purposes

chapter IX: THE HUNTING AND CAPTURE OF WILD ANIMALS

67. Declaration of wild animals as “game”

68. Right of custodian to hunt game for personal consumption

69. Permits to hunt, capture or disturb, wild animals

70. Registrations in respect of game farms, and the hunting and capturing of wild animals

71. Hunting areas

72. Determination of hunting quotas and off-take limits

73. Competent authority in respect of hunting permits

74. Form of hunting permits

75. Hunting returns

76. Lease of hunting rights

77. Prohibited means of hunting, killing and capturing wildlife

78. Hunting and capturing damage causing animals

79. Professional hunting and game capture

80. Regulations concerning the hunting and capture of game

chapter X: KEEPING AND BREEDING WILD ANIMALS IN CAPTIVITY

81. Permits in respect of keeping, breeding and releasing wild animals

82. Registrations in respect of the keeping, breeding and displaying of wild animals in captivity

83. General duty in respect of captive wild animals

84. Register of captive wildlife

85. Regulations concerning captive wild animals

chapter XI: TRADE IN WILDLIFE AND WILDLIFE PRODUCTS

86. Prohibitions in relation to trade in wildlife and wildlife products

87. Permits in relation to trade in wildlife and wildlife products

88. Certificate of origin

89. Biltong and biltong sausages

90. Regulations concerning trade in wildlife and wildlife products

chapter XII: CO-OPERATIVE GOVERNANCE AND DECISION-MAKING

91. Co-operative governance

92. Participation in decision-making

93. Public notices

94. Commenting and provision of information

chapter XIII: AUTHORISATIONS

95. Holders of authorisations

96. Applications for authorisations

97. Requests for additional information or public participation

98. Deciding on applications

99. Integrated authorisations

100. Terms and conditions of authorisations

101. Power to review and vary an authorisation

102. Suspension or revocation of an authorisation

chapter XIV: APPEALS

103. Appeals to be lodged with Provincial Minister

104. Appeal panels

105. Appeal decisions

chapter XV: COMPLIANCE AND ENFORCEMENT

106. Enforcement of intrinsic rights and duties

107. Appointment of nature conservation officers

108. Identity card and certificate of appointment

109. Functions of nature conservation officers

110. Duties of nature conservation officers

111. General powers of nature conservation officers

112. Written notices

113. Powers and functions of nature conservation officers pertaining to search, seizure, entry and arrest.

114. Search warrant

115. Seizure of items

116. Routine inspections

117. Powers of honorary nature conservation officers

118. Powers of nature conservation rangers

119. Powers of custodians

120. Cost Orders

121. Power to issue compliance notices

122. Objections to compliance notice

123. Failure to comply with compliance notice

124. Access to information

chapter XVI: LEGAL PROCEEDINGS, OFFENCES AND PENALTIES

125. Application of NEMA to legal proceeding to enforce Act

126. Offences

127. Penalties

128. Continuing offences

129. Documentary evidence

130. Presumptions

131. Defences

132. Administrative penalties

133. Powers of the court on conviction

chapter XVII: GENERAL AND TRANSITIONAL PROVISIONS

134. Regulations and notices

135. Codes of practice

136. Limitation of liability

137. Repeal of laws and savings

138. Transitional provisions

139. Short title and commencement

SCHEDULE 1: REPEALS AND AMENDMENTS

SCHEDULE 2: STATUTORY PLANS IN RELATION TO WHICH THE DEPARTMENT AND THE BOARD MUST BE CONSULTED

chapter I: INTRODUCTORY PROVISIONS

Definitions and interpretation

1. (1) In this Act, unless inconsistent with the context –

“adverse effect” means any actual or potential impact on an ecological community that impairs or may impair the integrity or functioning of that ecological community to an extent that is more than trivial or insignificant, and, without limiting the term, includes any actual or potential impact that results in –

(a) the infringement of an intrinsic right referred to in section 5 [Fundamental rights of ecological communities and their members];

(b) the harvesting or use of a population of wild animals or wild plants to an extent that exceeds the natural capacity of that population to regenerate and to maintain its genetic diversity and health;

(c) the use of any goods or environmental services provided by an ecological community to an extent that prejudices the capacity of that ecological community to continue providing those, or related, goods or environmental services or the viability or integrity of the ecological community or of vital ecological processes;

(d) the genetic viability of a species or ecological community being compromised.[2]

“aquatic animal” means an animal that lives in water for most or all of its life and includes fish, amphibians and invertebrate animals and the eggs or immature forms of any such animal;

“authorisation” means any registration, certificate, licence, permit or other written permission issued or given by a competent authority in terms of this Act that authorises the person to whom it is issued or given to do anything that would otherwise be prohibited;

“Biodiversity Act” means the National Environmental Management: Biodiversity Act, 2004 (Act 10 of 2004);

“biological diversity” or biodiversity” means the variability among living organisms from all sources including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part and also included diversity within species, between species, and of ecosystems;[3]

“bioregion” means an identifiable geographical area that contains one whole, or several nested ecosystems, functions as a relatively self-sustaining community, and is characterised by specific landforms, vegetation, or human culture and history, and includes a bioregion declared in terms of section 40 of the Biodiversity Act;

“bioregional planning” means the planning of human activities within the context of a bioregion that –

(a) prioritises maintaining and enhancing the functioning of the life-supporting functions of the bioregion;

(b) takes account of the specific natural and cultural characteristics of the bioregion; and

(c) aims to define and implement development options that ensure that human needs are met in an ecologically sustainable way;

“Board” means the Western Cape Nature Conservation Board established in terms of section 2 of the Western Cape Nature Conservation Board Act, 1998 (Act 15 of 1998);

“chief executive officer” means the chief executive officer of the Board appointed in terms of section 10 of the Western Cape Nature Conservation Board Act, 1998 (Act 15 of 1998);

“CITES” means the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, 1973 as amended from time to time;

“coastal protection zone” has the same meaning as in the Integrated Coastal Management Act;

“coastal public property” has the same meaning as in the Integrated Coastal Management Act;

“competent authority” in relation to an authorisation or an exemption, or the exercise of any power in terms of this Act, means the organ of state or other person who is empowered by this Act or any other law to issue or give that authorisation or exemption or who is empowered by this Act to exercise that power;

“conservancy” means a legal person that has been registered by the Provincial Minister in terms of section 43(3) [Declaration of conservancies] as the custodian of ecological communities within a registered conservancy area;

“conservation” in relation to an ecological community or a member of that community, means to restore, maintain and protect the integrity, health and functioning of that ecological community or member, and “conserve” has a corresponding meaning;

“conservation committee” means a committee established in terms of section 15 [Local and bioregional conservation committees] to further the objects of this Act within a bioregion or local area;

“Conservation of Agricultural Resources Act” means the Conservation of Agricultural Resources Act, 1983 (Act 43 of 1983);

“conservation plan” means a plan referred to in section 24 [Conservation plans];

“Council” means the Western Cape Conservation Council established in accordance with section 11 [Provincial Conservation Council];

“Constitution” means the Constitution of the Republic of South Africa, 1996;

“Department” means the department of the provincial government responsible for conserving indigenous plants and animals and the environment;

“development” in relation to a place, means any process initiated by a person to change the use, form or function of that place, and without limitation includes:

(a) the construction, erection, alteration, demolition, or removal of a structure or building;

(b) changes to the existing or natural topography of land; and

“Director of a Professional Hunting School” means a person who presents and conducts a prescribed course to instruct prospective professional hunters or hunting outfitters or recesses the proficiency of professional hunters or hunting outfitters;

“domestic animal” means any animal of a species that has been domesticated or that is deemed to be a domesticated animal by virtue of a notice prescribed by the Provincial Minister in terms of section 134 [Regulations and notices]:

“duty of custody” means the duty referred to in section 7 [Duty of custody];

“ecological community”[4] means a community composed of members that interact and function as an integrated whole;

“ecologically sensitive area” means an area that is –

(a) in a protected area;

(b) within the core area of a biosphere reserve that is demarcated in the Provincial Spatial Development Framework or in a municipal spatial development framework;

(d) outside and abutting the urban edge;

(e) on the same property as, or within 100 metres of the water’s edge of –

(i) a wetland,[5] lake or lagoon; or

(ii) a watercourse[6] that has been designated by the national organ of state responsible for the management of water resources as stressed, pristine or near pristine;[7]

(f) within a one in one hundred year flood line of a watercourse, or if the flood line is unknown, within 30 metres of the water’s edge of a watercourse;

(g) part of the riparian habitat^{^[8]} of a watercourse;

(h) within coastal public property or the coastal protection zone;

(i) part of a coastal dune system;

(j) part of a ecosystem that has been listed in terms of section 52(1) of the Biodiversity Act as an ecosystem that is threatened or in need of protection;^{^[9]} or

(k) a habitat for indigenous plants or animals and has not been cultivated or significantly physically altered by humans in the preceding 10 years;

“ecologically sustainable” in relation to an activity carried out by human beings, means an activity that can be sustained indefinitely without causing lasting adverse effects;

“environment” means the surroundings within which humans exist and that are made up of –

(a) the land, water and atmosphere of the earth;

(b) micro-organisms, plant and animal life;

(d) the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and well-being;[10]

“environmental management framework” or “EMF” means the compilation of information and maps specifying the attributes of the environment in a particular geographical area which is referred to in section 24(3) of the NEMA;

“exotic wild animal” means any wild animal that is not an indigenous species;[11]

“feral animal” means an animal of a species of domesticated animal, which has gone wild;

“Fund” means the trust fund established and administered by the Board in terms of section 18(10)(e) [Role and functions of Board];

“fundamental duties” mans the duty of all persons to respect intrinsic rights in terms of section 5, the duty of custody in terms of section 7, and the duty of the state as trustee in terms of section 8;

“intrinsic rights” means the rights of ecological communities and their members referred to in section 6;

“game” means any species of wild animal which the Provincial Minister has prescribed in terms of section 67 [Declaration of wild animals as game] to be game, and any animal of such a species;

“game farm” means any area registered as such in terms of section 70 [Registrations in respect of game farms and hunting and capturing of wild animals];

“game-fence” means a fence or other barrier that will have a substantially similar effect as a fence, which certain types of game or other wild animals cannot pass through;

“Head of Department” means the official in charge of the Department;

“hunt” means to hunt a wild animal or a feral animal in order to kill or capture it, whether or not the hunter is successful, and includes lying in wait for, deliberately disturbing, searching for, pursuing, following, driving, shooting or discharging a missile at, luring, poisoning, fishing for, or setting any net, trap or device, with the intention of killing or capturing a wild animal or a feral animal;

“hunting outfitter” means a person who, for any form or manner of reward, presents for hunting or organisers or conducts the hunting of, wild animals or feral animals for clients;

“indigenous”–

(a) in relation to a species, means a species that occurs, or has historically occurred, naturally in a free state in nature within the borders of the Province, but excludes a species that has been introduced into the Province as a result of human activity;[12] and

(b) in relation to a specific plant or wild animal, means a plant or wild animal of a species referred to in (a);

“Integrated Coastal Management Act” means the National Environmental Management: Integrated Coastal Management Act, 2008 (Act 24 of 2008);

“integrated development plan” means an integrated development plan prepared in accordance with Chapter 5 of the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000);

“interested and affected party” means any person, including an organ of state –

(a) whose rights will be affected by,^{^[13]} or who has a direct and substantial interest in, an application or decision to be made under this Act;

(b) who is registered as an interested and affected party in respect of that decision-making process in accordance with section 7(3) [Duty of custody] or section 92(2) or (3)(b) [Participation in decision-making]; or

“interests of the whole community” means the long-term collective interests of ecological communities in the Province (including human beings who are members of those communities) taking into account the interests of existing members and the rights and interests of future generations in becoming members of intact, healthy and productive ecologically communities;

"listed ecosystem" means any ecosystem within the Province that has been listed by the Minister or the Provincial Minister in terms of section 52 of the Biodiversity Act as being threatened and in need of protection;

“local protected area” means a local nature reserve established by a municipality in terms of section 7(1) of the Ordinance or a local protected area declared by a municipality in terms of section 29 [Establishment of local protected areas];

“long term perspective” in relation to the taking of a decision that may affect the integrity, health or functioning of an ecological community, means a perspective that takes account of the likely effects of the decision over a period of 50 years or longer;

“Marine Living Resources Act” means the Marine Living Resources Act, 1998 (Act No. 18 of 1998);

“marine protected area” means an area declared as a marine protected area in terms of section 43 of the Marine Living Resources Act;

“member” in relation to an ecological community means an entity that is part of an ecological community by virtue of its interactions with other members of that community, regardless of whether the entity is scientifically classified as organic or inorganic, living or non-living, sentient or non-sentient, and-

(a) includes –

(i) human beings;

(ii) all other forms of life including plants, animals, micro-organisms, whether or not they are indigenous, exotic, wild, domesticated, feral or invasive;

(iii) inorganic aspects of the environment including soil, minerals, water and air;

(iv) landforms and natural features of the landscape such as rivers, mountains and oceans; and

(v) natural entities that are composed of other entities such as ecosystems; but

(b) excludes artificial entities such as juristic persons;

“migratory species” has the same meaning as in the Biodiversity Act;

“Mineral and Petroleum Resources Development Act” means the Mineral and Petroleum Resources Development Act, 2002 (Act 28 of 2002);

“Minister” means the member of the national cabinet who is responsible for the conservation of indigenous species;

“municipality” means a metropolitan municipality, a district municipality or a local municipality as defined in section 155(1) of the Constitution;

“national department” means a department of state within the national sphere of government;

“National Environmental Management Act” or “nema” means the National Environmental Management Act, 1998 (Act 107 of 1998);

“National Water Act” means the National Water Act, 1998 (Act 36 of 1998);

“nature conservation officer” means a person designated by the Provincial Minister in terms of section 107 [Appointment of nature conservation officers];

“nema principles” mean the national environmental management principles set out in section 2 of NEMA;

“Ordinance” means the Western Cape Nature and Environmental Conservation Ordinance, 1974 (19 of 1974) which until its amendment by the Western Cape Nature Conservation Laws Amendment Act, 2000 (Act No.3 of 2000) was called the Nature Conservation Ordinance, 1974;

“organ of state” means an organ of state as defined in section 239 of the Constitution;

“owner” means-

(a) in relation to land, the registered owner, except that if –

(i) the land is not occupied by the registered owner, it means the person who occupies the land, who exercises general control over the land and who has been authorised in writing by the owner to exercise the rights and fulfil the duties of an owner of land under this Act;

(ii) the land is owned by an association of persons, whether corporate or unincorporate, it means the person designated by the association in writing as the owner;

(iii) the land is under the control or management of a municipality, it means the municipality;

(iv) the land is State land that is not under the control or management of a municipality, it means the member of the national Cabinet or the member of the Executive Committee of the Provincial Government in whom control or management of the land is vested or any officer designated by such member for that purpose;

(v) the registered owner or the person who is defined as the owner by sub-paragraph (i) or (ii) is dead or insolvent or has assigned his estate for the benefit of his creditors or has been placed under curatorship by order of court or is a company being wound up or under judicial management, it means the person in whom the administration of such land is vested as executor, administrator, trustee, assignee, curator, liquidator or judicial manager, as the case may be;

(b) in relation to a water resource, the owner as contemplated by paragraph (a) of the land on or in which the water resource is situated or which is adjacent to it;

(c) in relation to coastal public property means the national department responsible for the environment or any other organ of state designated by the Minister as the lead agency in relation to the fulfilment of the obligations of the State as public trustee of coastal public property in terms of sections 11 and 12 of the Integrated Coastal Management Act;

“person” includes a juristic person and an organ of state but does not include any legal subject referred to in section 5(3) [Intrinsic rights of ecological communities and their members] that is not a human being;

“Premier” means the Premier of the Province;

“prescribe” means prescribe by regulation published in the Provincial Gazette;

“principles of co-existence” means the principles set out in section 9 [Principles of co-existence];

“professional hunter” means any person who, for any form or manner of reward, offers or agrees to escort a client to enable the client to hunt wild animals or feral animals;

“Promotion of Administrative Justice Act” means the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000);

"protected area" means any protected area referred to in section 9 of the Protected Areas Act;

“Protected Areas Act” means the National Environmental Management: Protected Areas Act, 2003 (Act 57 of 2003);

“protected environment” has the meaning given to it in section 1 of the Protected Areas Act;

"protected natural feature" means any topographical or other natural feature of the landscape that has been declared as such by the Provincial Minister in terms of section 39 [Protected natural features];

"protected plant" means any species of plant or fungi that is not listed as an invasive species under this Act or in terms of section 70(1) of the Biodiversity Act and that -

(a) is prescribed by the Provincial Minister in terms of section 40 [Protected plants] to be a “protected plant”;

(b) is listed under section 56(1) of the Biodiversity Act as a “critically endangered species”, an “endangered species”, a “vulnerable species”, a “threatened species” or a “protected species”; or

“protected wild animal” means any species of wild animal that is not listed an as invasive species under this Act or in terms of section 70(1) of the Biodiversity Act and that -

(a) is prescribed by the Provincial Minister in terms of section 41 [Protected wild animals] to be a “protected wild animal”;

“Province” means the Western Cape Province and “Provincial” has a corresponding meaning;

“Provincial Gazette” means the official Provincial Gazette of the Province;

“Provincial Government” means the Provincial Government of the Province;

“Provincial Minister” means the member of the Provincial Cabinet to whom the Premier of the Province has, by notice in the Provincial Gazette, assigned responsibility for this Act;

“Provincial nature reserve” means a provincial nature reserve established in terms of section 6(1) of the Ordinance or a nature reserve established by the Provincial Minister in terms of section 27 [Establishment of Provincial protected environments] as read with section 23 of the Protected Areas Act;

“Provincial protected area” means a Provincial nature reserve or Provincial protected environment;

“Provincial protected environment” means a protected environment which existed in the Province when the Protected Areas Act commenced on 1 November 2004, or that is declared by the Provincial Minister in terms of section 28 of the Protected Areas Act;

“Provincial Spatial Development Framework” or “PSDF” means the spatial component of the Provincial Growth and Development Strategy;

“Provincial Growth and Development Strategy” or “pGDS” means the integrated planning framework and strategy for the Province;

“regulation” means a regulation made under this Act;

“restricted bait” means any crab, prawn, pencil bait, shell bait or worm, whether alive or not, which has been caught in any water resource within the Republic, and any other bait which the Provincial Minister may prescribe to be restricted bait;

“restricted aquatic animal” means any species or category of aquatic animal which the Provincial Minister has prescribed to be a restricted aquatic species; [14]

“spatial development framework” or “SDF” means a municipal spatial development framework that indicates the spatial implication of a municipal integrated development plan;

“statutory plan” means a policy, programme, or plan required by legislation and which governs or affects the use of ecological communities including those listed in Schedule 2;

“this Act” includes regulations made under it;

“urban edge” means a demarcated line indicating the outer limit of an urban area as determined in accordance with national or provincial legislation;

“watercourse” means-

(a) a river or spring;

(b) a natural channel in which water flows regularly or intermittently;

(d) any collection of water which the Minister of Water Affairs may, by notice in the Gazette, declare to be a watercourse, and a reference to a watercourse includes, where relevant, its bed and banks;[15]

“water resource” includes a watercourse, surface water, estuary, or aquifer;[16]

“wild animal” means any member of the animal kingdom that is not a human being, a domestic animal or a microorganism, whether or not the animal in question is alive or dead, tame, bred or kept in captivity, and includes the eggs, spawn, gametes, genetic material, or any part of, such an animal;

“wildlife” means any indigenous species or member of such a species other than a human being or a microorganism, and includes any protected wild animal or protected plant;

“wildlife product” means any product or thing that is made wholly or partially from wildlife;

“World Heritage Site” has the same meaning as in the World Heritage Convention Act, 1999 (Act 49 of 1999);

“World Heritage Site authority” means a juristic person declared in terms of section 8 or established in terms of section 9 of the World Heritage Convention Act as the management authority of a World Heritage Site;

“working day” means a day that is not a Saturday, Sunday or public holiday;

(2) In this Act, unless inconsistent with the context –

(a) a reference to another Act or Ordinance refers also to regulations made under that Act or Ordinance; and

(b) if a provision of another Act that is referred to in this Act is amended or is replaced by another provision in any law, the reference in this Act must be regarded as a reference to the amended or replacement provision.

Objects[17]

2. The objects of this Act are –

(a) to give effect within the Province to the obligation of the State as defined in section 24 of the Constitution and in national legislation to act as trustee in relation to the environment, biological diversity, and the coastal zone;

(b) to conserve indigenous species and ecological communities;

(c) to promote human well-being and ecologically sustainable human communities by conserving the ecological communities that sustain them;

(d) to recognise the intrinsic rights of all members of ecological communities and to enforce corresponding human obligations;

(e) to promote bioregional planning; and

(f) to require certain activities to be undertaken in a manner that enhances and protects the integrity and health of ecological communities.

Application

3. (1) This Act applies in the Province.

(2) This Act binds the State.

(3) This Act must be read with the NEMA, the National Forests Act, 1998 (Act 84 of 1998), the Biodiversity Act, the Protected Areas Act, the Marine Living Resources Act and the Integrated Coastal Management Act.

Conflicts with other legislation

4. (1) If there is a conflict between a provision of this Act and –

(a) national legislation, the conflict must be resolved in terms of section 146 of the Constitution;[18]

(b) another provincial Act, the provision of this Act prevails to the extent that the conflict concerns provisions governing the conservation of wildlife and ecological communities;

(c) municipal legislation, the provision of this Act prevails to the extent that the conflict concerns provisions governing –

(i) matters referred to in either Part A of Schedule 4 or Part A of Schedule 5 of the Constitution; or

(ii) matters referred to in Part B of Schedule 4 or Part B of Schedule 5 of the Constitution and the provision is a legitimate exercise of the powers and duties of the Province under section 155(6)(a) and (7) of the Constitution to monitor and support municipalities and to see to the effective performance by municipalities of their functions referred to in Schedules 4 and 5 of the Constitution;

(2) If there is a conflict between subordinate legislation made in terms of this Act and –

(a) an Act of Parliament, the conflict must be resolved in terms of section 146 of the Constitution;

(b) a Provincial Act, that Act prevails;

(c) subordinate Provincial legislation, the subordinate legislation made under this Act prevails to the extent that the conflict concerns the matters specified in subsection (1)(b);

(d) municipal legislation, the subordinate legislation made in terms of this Act prevails.

chapter II: INTRINSIC RIGHTS, FUNDAMENTAL DUTIES AND PRINCIPLES

Intrinsic rights of ecological communities and their members

5. (1) Every ecological community and every member of an ecological community has the intrinsic and inalienable right –

(a) to exist and to maintain its integrity and functioning;

(b) to a habitat or a place to be; and

(2) The intrinsic rights of each member of an ecological community are limited by the intrinsic rights of other members of that community and by the intrinsic rights of any ecological community within which they exist, to the extent necessary to maintain the integrity, balance and health of those ecological communities.^{^[19]}

(3) An ecological community or member of an ecological community must be recognised as a legal subject that holds the intrinsic rights referred to in this section despite any provision in the common law or in any other legislation that treats that ecological community or member as property.

(4) If there is a conflict between an intrinsic right referred to in this section and the property rights of any person, the intrinsic right must prevail.

Duty to respect intrinsic rights

6. (1) Every person must take reasonable measure to ensure that he or she does not directly or indirectly infringe on the intrinsic rights of any other member of an ecological community without adequate justification.

(2) For the purposes of subsection (1), a person will be presumed, unless the contrary is proven, to have adequate justification –

(a) to do anything that does not contravene this Act or a code of practice and which is authorised in terms of a licence, permit or other authorisation issued under NEMA, the Biodiversity Act, the Protected Areas Act, the Marine Living Resources Act, or the National Forests Act, 1998 (Act 84 of 1998);

(b) to take reasonable measures, including the use of reasonable force, to protect themselves or other persons against harm from another member of an ecological community, including attacks by animals, flooding, and fire;

(c) to take reasonable measures to control plant pests that have adverse effects on cultivated plants without causing excessive harm to non-target species or ecological communities;

(d) to take reasonable measures to control or eradicate invasive alien species without causing excessive harm to non-target species or ecological communities;

(e) to keep a domesticated animal in a manner that allows it adequate access to food and drink and protects it from suffering and unreasonable discomfort; and

(f) to kill a domesticated animal in a manner that is not cruel, for food or to make animal products.

(3) If subsection (2) does not apply, a person will be presumed, unless the contrary is proven, not to have had adequate justification –

(a) to do any act or omission that results in cruelty to a wild animal or a feral animal;

(b) to remove an indigenous species from its habitat;

(c) to keep an animal without adequate access to food and drink or protection from suffering and unreasonable discomfort;

(d) to kill, capture, confine, harm or disturb a wild animal;

(e) to harvest or harm an living indigenous wild plant or to remove it from its habitat;

(f) to destroy or degrade ecological communities, in an indiscriminate, excessive or wasteful manner;

(g) to use any aspect of an ecological community in manner that is not ecologically sustainable; or

(h) to do any act which the Provincial Minister has prescribed in terms of section 134(1) [Regulations and notices] to be an activity that is not ecologically sustainable.

Duty of custody

7. (1) A person who owns, occupies, has the right to use, or is in control of land has a duty of custody in relation to any ecological community in, on or above that land (including aquatic ecological communities) and any rights which a custodian may have to use land for his or her own benefit is limited by, and subject to, the duty of custody.

(2) A custodian of an area must[20] –

(a) care for the land and the ecological communities associated with it in the interests of the whole community;

(b) take reasonable measures to ensure the well-being of any wild animals under his or her custody;

(c) take reasonable measures to prevent, minimise and rectify pollution and degradation of the environment as required by section 28(1) of NEMA[21] and section 19 of the National Water Act;[22]

(d) maintain the fertility and productive potential of land that is, or may be, used for agriculture as required by the Conservation of Agricultural Resources Act;[23]

(e) control and eradicate invasive species as required by the Biodiversity Act[24] and by the Conservation of Agricultural Resources Act;

(f) protect and conserve indigenous species and ecosystems that are protected by this Act, the Biodiversity Act, [25] the National Forests Act or the Sea birds and Seals Protection Act, 1973 (Act 46 of 1973);

(g) restore damaged land as required by NEMA, the National Water Act, the Conservation of Agricultural Resources Act and the Mineral and Petroleum Resources Development Act; and

(h) take reasonable measures, including any measures prescribed by the Provincial Minister, to find out whether or not a proposed development of the land may have an adverse effect, before undertaking the development or allow it to be undertaken.

(3) A person who undertakes an environmental impact assessment or a proposed development in terms of the National Environmental Management Act is presumed until the contrary is proved, to have complied with subsection (2)(h).

(4) The following persons are deemed to be custodians for the purpose of this section -

(a) the management authority for a protected area in respect of ecological communities within that protected area;

(b) the conservancy in respect of wild animals, indigenous plants and ecosystems within a conservancy areas;

(c) a person registered by the Board under subsection (5) as the custodian in respect of the ecological communities or members of an ecological community specified in the registration;

(d) the member of the National Cabinet in whom control or management of state land is vested in respect of ecological communities associated with that state land;

(e) the national department responsible for the environment any other organ of state designated by the Minister to conserve coastal or marine ecosystems and marine living resources, in respect of ecological communities within coastal public property;

(f) the local municipality in respect of ecological communities associated with land under the control or management of the municipality;

(g) the member of the Executive Committee of the Provincial Government in whom control or management of any land is vested in respect of ecological communities associated with that land;[26]

(h) the Board in respect of ecological communities associated with any other land vested in the Provincial government or that is not mentioned above.

(5) A person may apply to the Board to be registered as a custodian in respect of a particular ecological community, water course, mountain, forest, indigenous species or other member of an ecological community, and the Board –

(a) must register any applicant who is able to demonstrate that it or its members have historically played a role in conserving that ecological community or member; and

(b) must treat that person as a registered interested and affected party in relation to any decision-making process that affects that ecological community or member.

(6) If there is more than one custodian for a particular ecological community or member of an ecological community the custodians must take reasonable measures to coordinate their activities in order to act in the best interests of the ecological community or member concerned.

(7) No person shall incur any civil or criminal liability arising from an act of a wild animal on the basis that they are deemed under this section to be the custodian of that wild animal.

Duty of State as trustee

8. (1) Any person or organ of state who is empowered by statute or by the State to exercise a power that may have a significant impact on the integrity and health of an ecological community, must in exercising those powers –

(a) act as a public trustee, and without limiting the generality of this obligation, must comply with duties to act as a public trustee referred to in –

(i) section 2(4)(o) of NEMA;

(ii) section 3 of the Protected Areas Act,[27]

(iii) section 3 of the Biodiversity Act;

(iv) section 5(1) of the National Heritage Resources Act;

(v) section 3(1) of the National Water Act; and

(vi) section 3 of the Integrated Coastal Management Act;[28]

(b) take a long-term perspective;

(d) be guided by and apply –

(i) the principles of co-existence;

(ii) the nema principles;

(iii) the principles to guide decisions affecting forests in section 3 of the National Forests Act, 1998 (Act 84 of 1998); and

(iv) any other applicable principles relating to the conservation and ecologically sustainable use by humans of the environment which are established by an Act of Parliament;

Principles of co-existence

9. (1) Human interactions with ecological communities and other members of an ecological community must be managed so as to ensure that –

(a) the intrinsic rights of ecological communities and their members are not infringed; and

(b) the integrity, functioning and health of ecological communities and their members is not endangered.

(2) Restorative justice, which prioritises restoring and healing damaged relationships within a community and the integrity and health of that community over punishing wrongdoers, must be applied where possible in addressing any infringement of –

(a) intrinsic rights referred to in section 5;

(b) breaches of the duty to respect intrinsic rights referred to in section 6;

(d) the duties of the State as trustee in terms of section 8.[29]

(3) The long-term collective interests of the whole community must be given priority over the specific interests of any member or members of that community.

(4) Local people and local communities must be encouraged and assisted by the State to become involved in, and to take responsibility for –

(a) the conservation of the ecological communities, wildlife and landscapes in the areas in which they live; and

(b) living in a way that is beneficial to the ecological communities in the areas in which they live.

(5) Decision-making processes that affect the ecological communities must be inclusive and participatory, and in particular –

(a) all interested and affected parties must be given a reasonable opportunity to participate in decision-making processes;

(b) the rights, interests, needs and values of interested and affected parties that participate in decision-making processes must be taken into account;[30]

(c) the rights, interests and needs of any ecological community that is affected and of all the member of that ecological communities, must be taken into account.

(6) Decision making processes that affect the ecological communities must apply the precautionary principle, which requires that where there is a risk of serious or irreversible adverse effect occurring, a lack of scientific certainty should not prevent or impair the taking of precautionary measures to protect ecological communities and which means that even if there is insufficient scientific evidence to prove conclusively that there is a causal link between an activity or proposed activity and an adverse impact –

(a) preventive measures to protect ecological communities and human health and well-being must be taken if there is reason to believe that an activity is causing an adverse effect or is creating a significant risk of an adverse effect occurring; and

(b) an activity must not be authorised under this Act if there is reason to believe that the activity is likely to cause an adverse effect that will not be mitigated adequately.

Application of principles of co-existence

10. (1) The principles of co-existence –

(a) must be taken into account and applied by any person or organ of state empowered by this Act or any other statute (whether directly or as a consequence of the delegation or assignment of those powers) to exercise a power that may have a significant impact on the integrity or health of an ecological community within the Province; and

(b) must guide the development and implementation of statutory plans that affect ecological communities; and

(2) When applying the principles of co-existence –

(a) only those principles relevant to the decision or action contemplated must be applied;

(b) the principles must be applied in a balanced way that best promotes the rights and interests of the whole community; and

(c) the principles must be applied and interpreted as far as possible in a way that complements and gives effect to each relevant principle, but if any relevant principles are inconsistent, the principle that is most specific and relevant to the issue prevails.

chapter III: ADMINISTRATION

Provincial Conservation Council

11. (1) The Provincial Minister must, within 180 days of the commencement of this Act, publish a notice in the Provincial Gazette establish a conservation council for the Province and appointing the members of the Council.

(2) The Council -

(a) must investigate alleged infringements of an intrinsic right, or breaches of a fundamental duty that are referred to it by the Board or by the Provincial Minister;

(b) may of its own accord or at the request of any person, investigate alleged infringements of an intrinsic right or breaches of a fundamental duty;

(d) must make findings in relation to –

(i) matters investigated by it and decisions reviewed by it;

(ii) regarding the rights and interests of affected member of an ecological community and ecological communities and the interests of the whole community;

(iii) whether or not the principles of co-existence and the NEMA principles have been applied correctly;

(e) must express an opinion on whether or not a person has infringed an intrinsic right, or breached a fundamental duty;

(f) must make recommendations concerning the measures that should be taken to remedy adverse effects that have occurred and to prevent further adverse effects;

(g) may provide assistance and support to a conservation council established for a bioregion.

(3) The Provincial Minister may prescribe rules regulating the functioning of the Council and the conditions of service of its members, including conditions relating to the payment of remuneration and allowances, determined by the Provincial Minister with the concurrence of the Provincial Cabinet Minister responsible for finance.[31]

Composition of Council

12. (1) The Council consists of a minimum of seven and maximum of twelve members of whom one shall be elected as chairperson and another as deputy chairperson.

(2) The members of the Council must be persons who are qualified and competent to be members by reason of their integrity, qualifications, experience and expertise and may be employees of an organ of state in any sphere of government.

(3) The members of the Council must include at least one[32] –

(a) expert in terrestrial ecology;

(b) expert in freshwater aquatic ecology;

(d) lawyer who has been admitted to practise as an attorney or advocate of the High Court or is a retired judge;

(e) environmental impact assessment practitioner.

(4) A member of the Council may resign by giving a signed notice of resignation to the Provincial Minister.

(5) The Provincial Minister may remove a member of the Council from office if the Provincial Minister is satisfied that the member –

(a) is, for whatever reason, incapable of performing the duties of a member;

(b) has neglected the duties of a member or has engaged in misconduct;

(c) has been convicted of an offence involving dishonesty or corruption or is sentenced to imprisonment without the option of a fine; or

(d) has had his or her estate sequestrated or has applied for the assistance referred to in section 10(1)(c) of the Agricultural Credit Act, 1996.

Meetings of the Council

13. (1) Members of the Council may with the permission of the chairperson of the Council, participate in meetings of the Council by proxy or via telephone, video conferencing or other similar means of communication.

(2) Meetings of the Council must be open to the public unless the Council decides by a majority vote that part of their deliberations must be held in private due to the confidential nature of information to be discussed.

(3) Any person who has an interest in, or is affected by, an application being considered by the Council may make written representations to the Council, and at the discretion of the chairperson, may make an oral presentation to the Council.

(4) In exercising the discretion to allow oral presentations the chairperson must take account of the importance of facilitating the participation of people for whom it is difficult to make written representations.

(5) Decisions of the Council must be made by a majority of at least two-thirds of the members present and voting and must be made public.

(6) The Provincial Minister must prescribe procedural rules for the Council that regulate –

(a) the procedure for convening meetings of the Council;

(b) the quorum for meetings; and

(7) The Council may determine its own rules and procedures provided that they do not conflict with any rules established by the Provincial Minister.

Powers of the Council

14. (1) The Council may –

(a) co-opt persons to participate in its meetings;

(b) appoint any expert to provide specialist advice;

(d) consider decisions referred to it by a competent authority;

(e) establish ad hoc and permanent subcommittees to assist it in the performance of its functions, and persons who are not members of the Council may be members of a subcommittee;

(f) establish ad hoc working groups to assist a subcommittee in the performance of its functions, and persons who are not members of the Council may be members of a working group.

(2) Every subcommittee established in terms of subsection (1)(e) must report to the Council on its own activities as well as those of any working groups established in terms of subsection (1)(f) to assist the subcommittee.

Local and bioregional conservation committees

15. (1) A municipality may itself, or jointly with the Board and one or more other municipalities, establish a conservation committee for a bioregion or local area that falls within its area of jurisdiction, in order to further the objects of this Act and must define the mandate and powers of that committee.

(2) Unless the mandate of a conservation committee provides otherwise, the specific objects of a conservation committee include –

(a) to promote compliance with the fundamental duties;

(b) to assist in the implementing of conservation, land stewardship and other initiatives that focus on engaging land owner and the public in general in conservation activities outside of protected areas;

(c) to facilitate the more effective performance of the duties of the State as trustee in terms of section 8 [Duties of State as trustee];

(d) to prepare, or coordinate the preparation of conservation plans and to facilitate the effective implementation of conservation plans;

(e) to prepare, or coordinate the preparation of, conservation plans and to facilitate the effective implementation of conservation plans;

(f) to facilitate bioregional planning and the effective implementation of bioregional plans;

(g) to co-ordinate and facilitate the effective implementation of bioregional and ecosystem approaches to conservation;

(h) to improve the monitoring of the integrity, health and functioning of ecological communities and the effectiveness of conservation measures;

(i) to improve the efficiency and effectiveness of conservation measures within the area;

(j) to undertake any other functions which may be delegated to it by an organ of state who established it, or by the Provincial Minister in accordance with section 22 [Delegation].

(3) The members of a bioregional or local conservation committee must be persons who are qualified and competent to be members by reason of their integrity, qualifications, experience, expertise and knowledge of the area in question and the ecological communities within it.

(4) The members of a bioregional conservation committee must include at least one -[33]

(a) representative of the Department;

(b) representative of the Board;

(d) expert in aquatic ecology;

(e) lawyer who has been admitted to practise as an attorney or advocate of the High Court or is a retired judge;

(f) expert in spatial planning.

(5) Subsection (4) applies with the necessary changes to the membership of a local conservation committee except that a local conservation committee need not include a representative of the Department.

(6) The organs of state that establish a bioregional or local conservation committee must notify the Provincial Minister of the establishment of a bioregional or local conservation committee and of the names and reasons for appointment of any members appointed from time to time.

(7) If the Provincial Minister is of the opinion that a bioregional or local conservation committee is competent to perform any or all functions in relation to the area for which it is established that would otherwise have been performed by the Council, the Provincial Minister must delegate the performance of those functions to that bioregional or local ecological committee unless the committee declines to accept the delegation.

Role, function and powers of Provincial Minister

16. (1) The Provincial Minister must exercise oversight over the activities of the Department and the Board to the extent permitted by law in order to ensure that they discharge their obligations under this Act in a manner that is consistent with the fulfilment by the State of its obligations as trustee in relation to ecological communities.

(2) The Provincial Minister –

(a) may authorise the Department to enter into memoranda of understanding or contracts with any person in order to further the objects of this Act;

(b) may by notice in the Provincial Gazette and after following a consultative and participatory process in accordance with sections 91 [Co-operative governance] and 92 [Participation in decision-making] define a geographic area as a bioregion for the purposes of this Act, change the boundaries of such a bioregion, and prescribe or amend a bioregional plan for that bioregion;

(c) must review any bioregional plan published under this Act at least every five years and assess compliance with the plan and the extent to which its objectives are being met; and

(d) may, after following a consultative and participatory process in accordance with sections 91 [Co-operative governance] and 92 [Participation in decision-making] prescribe guidelines in order to clarify how any aspect of this Act will be applied or what should be done to comply with it.

(3) If the Provincial Minister wishes a bioregion or bioregional plan referred to in subsection (2)(b) or 2(c) respectively to also be a bioregion or bioregional plan for the purposes of the Biodiversity Act, the Provincial Minister must comply with the provisions of Chapter 3 of the Biodiversity Act when defining or changing the boundaries of a bioregion or prescribing or amending a bioregional management plan for such a bioregion.

Role and functions of Department

17. (1) The Department must –

(a) fund and provide administrative support to the Council;

(b) make recommendations to the Provincial Minister regarding the division of the Province into bioregions and must prepare bioregional plans referred to in section 40 of the Biodiversity Act;

(c) establish hunting quotas and off-take limits in accordance with sections 72 [Determination of hunting quotas and off-take limits];

(d) establish hunting quotas and off-take limits in accordance with section 72 [Determination of hunting quotas and off-take limits];

(e) oversee the disposal by management authorities of wild animals and protected plants from Provincial protected areas and the introduction of wild species to those areas in accordance with section 33(1)(e) [Powers of management authorities];

(f) review and assess annual reports submitted by the management authorities of protected areas in accordance with section 43(3) of the Protected Areas Act and report to the Provincial Minister on the performance of the management authorities;

(g) consider and comment on statutory plans and when it is responsible for preparing a statutory plan, must ensure that the relevant provisions of conservation plans are integrated into the statutory plan; and

(h) periodically evaluate the effectiveness of the implementation and enforcement of this Act and of provincial conservation policies and methods;

(2) Subject to subsection (3) the Department is the issuing authority for permits issued under the Biodiversity Act in respect of bioprospecting.

(3) The Department is only the issuing authority for those permits issued under the Biodiversity Act in respect of which it has been designated as the issuing authority by the Minister in regulations made under section 97 of the Biodiversity Act.

Role and functions of Board

18. (1) The Board must –

(a) notify the Minister of all areas declared as protected areas in terms of this Act and give the Minister a copy of each notice that establishes, abolishes or varies the extent of a provincial nature reserve or provincial protected area to enable the Minister to maintain the register of protected areas contemplated by section 10 of the Protected Areas Act;

(b) monitor the status of natural processes, ecological communities and indigenous species in accordance with section 25 [Monitoring systems]; to enable early detection of adverse effects, to ensure timely intervention and to facilitate the evaluation of the effectiveness of this Act and of conservation policies and methods;

(c) prepare draft biodiversity management plans to be submitted to the Minister for approval in terms of section 43 of the Biodiversity Act for –

(i) ecosystems which are either listed in terms of section 52 of the Biodiversity Act or that warrant special conservation attention;

(ii) indigenous species which are either listed in terms of section 56 of the Biodiversity Act or that warrant special conservation attention; and

(iii) migratory species in order to comply with the obligations of the Republic under international law;

(d) establish programmes that provide advice and assistance to owners and occupiers of land in relation to the duty to respect intrinsic rights and the duty of custody referred to in sections 6 [Duty to respect intrinsic rights] and 7 [Duty of custody] respectively and to improve the conservation of ecological communities on that land; and

(e) establish and administer a trust fund to be used for the benefit of ecological communities and administer the fund in accordance with regulations prescribed by the Provincial Minister with the consent of the member of the Provincial Cabinet responsible for finance.

(2) Subject to subsection (3) the Board is the issuing authority for permits issued under the Biodiversity Act in respect of –

(a) restricted activities involving specimens of –

(i) listed threatened or protected species in terms of section 57(1) of the Biodiversity Act;

(ii) alien species in terms of section 65(1) of the Biodiversity Act [other than alien species used in agriculture];[34]

(iii) listed invasive species in terms of section 71(1) [other than marine species];[35]

(b) activities that may negatively impact on the survival of a listed threatened or protected species specified in terms of a notice published by the Minister under section 57(2) of the Biodiversity Act;

(c) the export from the Province of indigenous biological resources for research other than bioprospecting under section 81(1) of the Biodiversity Act.[36]

(3) The Board is only the issuing authority for those permits issued under the Biodiversity Act in respect of which it has been designated as the issuing authority by the Minister in regulations made under section 97 of the Biodiversity Act.

Powers of Board[37]

19. (1) In addition to the powers set out in section 9 of the Western Cape Nature Conservation Board Act, 1998 (Act 15 of 1998), for the purposes of performing its mandate and functions under this Act, the Board –

(a) may conduct experiments, undertake research, make surveys, and conduct investigations;

(b) display or otherwise disseminate information relating to conservation which may serve to further the achievement of the objects and purposes of this Act;

(d) take such measures as may be necessary or desirable for –

(i) the breeding, acclimatisation, utilisation, control and quarantining of wild animals imported into the province;

(ii) the control of wild animals and plants growing wild, including in watercourses, or

(iii) the protection, propagation or cultivation of indigenous species;

(e) erect, re-erect, maintain and repair on any land or in any water course such beacons, buoys, notices, notice boards, signs or other marks as may be necessary or desirable for the enforcement of any provision of this Act; and

(f) generally take such steps as may be necessary or desirable for the achievement of the objects and purposes of this Act.

(2) Any person to whom the Board has given written authority to take measures referred to in subsection (1)(a), (d)(ii) or (iii) or (e) may for that purpose –

(a) enter upon the land or water course in question with such employees, assistants, animals, vehicles, appliances and instruments as may be required;

(b) make use of any natural material, including water, found on such land or in such water course, and

(3) Any person referred to in subsection (2) must give the owner or occupier of the land or waters concerned reasonable notice of that he or she intends to enter that land or water during a specified period in order to take specified measures referred to in subsection (1).

(4) The powers specified in subsection (1), except paragraph (d)(i) thereof, may also be exercised in or in respect of any local nature reserve or nature reserve declared on private land.

Measures on private land

20. (1) If the Board at any time considers it necessary or desirable that special measures should be taken to ensure the survival of any indigenous species, it may authorise a person –

(a) to enter private land;

(b) to capture any such wild animals (including gathering their semen, ovaries or eggs) on that land, and where necessary, to pursue them onto adjacent land;

(d) to remove those animals or plants to a protected area or other place at which they can be conserved, bred, cultivated or propagated.

(2) Before exercising powers under subsection (1) the Board must –

(a) consult with the owner of any land on which the Board wishes to exercise those powers; and

(b) give reasonable notice to the owner of the time when, the place where and the manner in which the Board proposes to exercise these powers.

(3) Subsection (2) does not apply to the owner of any land to which any such animal may flee to avoid capture.

(4) The owner of land on which powers granted by this section are exercised may make apply to the Board in writing for compensation and the Board must pay the owner reasonable compensation for any loss or damage suffered by the owner as consequence of the exercise of those powers.

(5) Any person who resists, hinders or wilfully obstructs any person in possession of the written authority of the Board issued under subsection (1) [Measures on private land] in the exercise of his or her powers or functions under that subsection is guilty of an offence and is liable on conviction to the sanction provided for in section 127 [Penalties].

Role and functions of municipalities[38]

21. (1) A municipality –

(a) must conserve ecological communities within its area of jurisdiction;

(b) may establish and manage local protected areas in accordance with section 29 [Establishment of local protected areas];

(d) must employ appropriately qualified persons as nature conservation rangers;

(e) must, in consultation with the Board, prepare and implement a strategy for conserving ecological communities and fulfilling its duties as a custodian and trustee under sections 7 [Duty of custody] and 8 [Duty of State as trustee] respectively;

(f) must at the request of the Board, give it access to any information held by the municipality which the Board may reasonably require for the purposes of performing its functions under this Act, including monitoring the integrity, health and functioning of ecological communities or members of those communities, and monitoring and assessing the effectiveness of this Act, and of measures to promote the objects of this Act;

(g) must integrate the relevant provisions of conservation plans into municipal integrated development plans as required by section 24 [Conservation plans]; and

(h) must collaborate with the Board to resolve any conflicts between conservation plans and integrated development plans; and

(i) must participate in any conservation committees established in accordance with section 15 [Local and bioregional conservation committees] for an area that is wholly or partially within its municipal area.

Delegation

22. (1) The Provincial Minister may delegate any power or duty assigned or delegated to the Provincial Minister in terms of this Act to –

(a) the Head of the Department;

(b) the Board;

(d) a conservation committee; or

(e) any other organ of state or a statutory functionary, by agreement with that organ of state or statutory functionary.

(2) A delegation in terms of subsection (1) –

(a) is subject to any limitations, conditions and directions the Provincial Minister may impose;

(b) must be in writing;

(d) does not divest the Provincial Minister of the responsibility concerning the exercise of the power or the performance of the duty.

(3) The Provincial Minister may confirm, vary or revoke any decision made using a power granted by a delegation or sub-delegation in terms of this section.

(4) The Provincial Minister –

(a) may not delegate a power or duty vested in the Provincial Minister –

(i) to make regulations; or

(ii) to publish notices in the Provincial Gazette; or

(iii) to appoint the members of the Council; and

(b) may withdraw any delegation by notice in writing to the person to whom the power was delegated.

(5) The Board and the Department may delegate any power or duty assigned or delegated to them in terms of this Act with the consent of the Provincial Minister and of the person to whom the delegation is made.

(6) The provisions of subsection (1), (2), (3) and (4)(b) apply with the necessary modifications to any delegation by the Board or the Department.

chapter IV: CONSERVATION PLANNING AND MONITORING

Bioregions

23. (1) The Provincial Minister may by notice in the Provincial Gazette and after following a consultative process in accordance with sections 91 [Co-operative governance] and 92 [Participation in decision-making] define a geographic area as a bioregion for the purposes of this Act or change the boundaries of such a bioregion.

(2) If the Provincial Minister wishes a bioregion referred to in subsection (1) to be a bioregion for the purposes of the Biodiversity Act, the Provincial Minister must comply with the provisions of Chapter 3 of the Biodiversity Act when defining or changing the boundaries of that bioregion or prescribing or amending a conservation plan for it.

Conservation Plans

24. (1) A conservation plan is a plan which indicates how the integrity, health, and functioning of ecological communities within the bioregion or other area covered by the plan, is to be protected, conserved, restored and enhanced, and –

(a) must be consistent with this Act; the principles of co-existence and the NEMA principles, the national biodiversity framework, and the obligations of the Republic under international law; and

(b) must set goals, objects and indicators that enable the implementation and effectiveness of the plan to be monitored and assessed.

(2) The Provincial Minister –

(a) must ensure that a conservation plan is prepared and published for each bioregion referred to in section 23(1) [Bioregions]; and

(b) may publish a conservation plan for any other area or ecological community.

(3) The Board must prepare conservation plans and submit them to the Head of Department for approval but may, with the consent of the Head of Department, delegate this duty to a conservation committee, municipality or other appropriate person who is willing to prepare the conservation plan.

(4) The Department must review any conservation plan published under this Act at least once every five years and assess compliance with the plan and the extent to which its objectives are being met.

(5) For the purposes of the Biodiversity Act, a conservation plan may also function as a bioregional plan or as a biodiversity management plan referred to in sections 40(1) or section 43(1) respectively of that Act, provided that the requirements of Chapter 3 of the Biodiversity Act are complied with when preparing, adopting or amending a conservation plan.

(6) The Board must liaise with municipalities in order –

(a) to ensure that the provisions of conservation plans are integrated into municipal integrated development plans; and

(b) to resolve any conflicts between conservation plans and integrated development plans.

(7) The Provincial Minister may by notice in the Provincial Gazette deem a plan or programme that is prescribed or required under any other provincial statute[39] or a national statute[40] to be the conservation plan for a defined geographical area if –

(a) that statutory plan or programme meets all the requirements for a conservation plan; and

(b) the process of preparing the plan enabled interested and affective parties to participate effectively in the planning process.

Monitoring systems

25. (1) The Board must –

(a) establish a system for collecting the information necessary to provide any information which may be required –

(i) by the South African National Biodiversity Institute for the purposes of fulfilling its mandate under section 11(1) of the Biodiversity Act to monitor and report to the Minister on the status of biodiversity in the Province, the conservation status of listed threatened or protected species and listed ecosystems, and the status of all listed invasive species; to collect information about biodiversity and the sustainable use of indigenous biological resources and to undertake and promote research;

(ii) to monitor performance with regard to the management of provincial and local protected areas,[41] the conservation of biodiversity and the integrity, health and functioning of ecological communities in those areas;

(b) monitor the status of natural processes, ecological communities and wildlife to enable early detection of adverse effects, to ensure timely intervention and to facilitate the evaluation of the effectiveness of this Act and of conservation policies and methods; and

(c) monitor compliance with authorisations issued by it and assess the extent to which the regulatory systems administered by it are effective in achieving the desired conservation goals and in furthering the objects of this Act.

chapter V: PROTECTION OF AREAS, ECOSYSTEMS, NATURAL FEATURES AND SPECIES

Establishment of Provincial nature reserves

26. (1) If the Provincial Minister is satisfied that the requirements of the provisions of Protected Areas Act have been met, the Provincial Minister may by notice in the Provincial Gazette and in the manner prescribed in the Protected Areas Act[42] -

(a) declare an area to be part of a nature reserve as provided for in section 23 of the Protected Areas Act;

(b) withdraw the declaration of an area as a nature reserve or as part of an existing nature reserve, or exclude any area from a nature reserve as provided for in section 24 of the Protected Areas Act;

(c) designate a nature reserve as a specific type of nature reserve as provided for in section 25 of the Protected Areas Act; and

(d) designate all or any part of a nature reserve as a wilderness area as provided for in section 26 of the Protected Areas Act.

(2) The Provincial Minister may enter into a written agreement with another organ of state in order to establish a provincial nature reserve on land under the control or management of that organ of state.[43]

(3) The Provincial Minister may enter into a written agreement with a person other than an organ of state in order to establish a provincial nature reserve on land owned by that person.

Establishment of Provincial protected environments

27. (1) If the Provincial Minister is satisfied that the requirements of the provisions of the Protected Areas Act have been met, the Provincial Minister may by notice in the Provincial Gazette and in the manner prescribed in the Protected Areas Act -

(a) declare an area to be part of a provincial protected environment as provided for in section 28 of the Protected Areas Act; and

(b) withdraw the declaration of an area as a protected environment or as part of an existing protected environment, or exclude any area from a protected environment as provided for in section 29 of the Protected Areas Act.

(2) The Provincial Minister may enter into a written agreement with any other person in order to establish a provincial protected environment on land under the control or management of that person.

Agreements with private landowners and municipalities

28. (1) An agreement between the Provincial Minister and the owner of land for the establishment of a provincial nature reserve or a provincial protected environment contemplated in section 26(3) [Establishment of provincial nature reserve] or section 27(2) [Establishment of Provincial protected environments] –

(a) must record who is the management authority for that area;

(b) must comply with any requirements prescribed by the Provincial Minister; and

(2) The establishment of a Provincial nature reserve or Provincial protected environment on private land and any servitudes or restrictions on the use of that land which are imposed as a consequence, must be included in a notarial deed and registered by the Registrar of Deeds against the title deeds of the land in question.

(3) The Board must notify the Registrar of Deeds in writing whenever an area is included in, or excluded from, a Provincial nature reserve or Provincial protected environment, and the notification must include a description of the land involved.

(4) On receipt of the notification, the Registrar of Deeds must record the changes in the relevant registers and documents in terms of section 3(1)(w) of the Deeds Registries Act, 1937 (Act No. 47 of 1937).

Establishment of local protected areas

29. (1) A municipality may, by notice in the Provincial Gazette –

(a) declare an area within its area of jurisdiction to be a local protected area in order to further the objects of this Act;

(b) add or remove land from local protected area;

(d) make by-laws relating to the establishment, conservation and management of a local protected area.

(2) A municipality may enter into a written agreement with any other person in order to establish a local protected area on land under the control or management of that person.

Use of term “nature reserve”

30. (1) The owner of any area that was lawfully designated as a private nature reserve prior to the commencement of this Act may, within two years of the commencement of this Act, apply to the Board for that area to be declared to be designated as either a nature reserve or a protected environment for the purposes of the Protected Areas Act and this Act.

(2) The Board must approve an application referred to in subsection (1) and authorise the applicant to use the term “nature reserve” to describe the area in question if the Board is satisfied that the area meets the requirements prescribed in the Protected Areas Act for it to be declared as a nature reserve or protected environment, as the case may be.

(3) The owner of any area that was lawfully designated as a private nature reserve prior to the commencement of this Act may continue to refer to that area as a “nature reserve” for a period of two years from the commencement of this Act or until an application referred to in subsection (1) is refused, whichever occurs first.

(4) Subject to subsection (3), no person may display a sign, advertise or make any other public representation to the effect that an area is a “nature reserve” unless that area has been declared to be a nature reserve under this Act or the Protected Areas Act, or both.

(5) A person who contravenes subsection (4) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Management authorities

31. (1) The Provincial Minister, in accordance with section 38(2) of the Protected Areas Act, must assign the management of each Provincial protected area to a suitable person and may do so in relation to a Provincial protected environment, and that person will be the management authority for that protected area or protected environment for the purposes of this Act and the Protected Areas Act.

(2) If a marine protected area established under section 43 of the Marine Living Resources Act shares a common boundary with a Provincial protected area it must be regarded as falling within that Provincial protected area and must be managed as such by the same management authority that manages the terrestrial part of the Provincial protected area as required by section 38(4) of the Protected Areas Act.

(3) A municipality that establishes a local protected area is the management authority for that area unless the municipality assigns the management of that area to a suitable person who consents to the assignment in a written management agreement concluded between that person and the municipality.

(4) The management authority of any Provincial protected area, Provincial protected environment or local protected area –

(a) must submit a management plan to the Board for approval, and may only amend the management plan with the consent of the Board;[44]

(b) must manage the area exclusively for the purpose for which it was declared and in accordance with the management plan for the area, this Act, the Protected Areas Act and any other applicable legislation;

(c) is exempt for the obligations under section 56 [Permits in respect of indigenous plants], section 57 [Registrations in respect of indigenous plants], section 69 [Permits to hunt, capture or disturb wild animals], and section 70 [Registration in respect of game farms and the hunting and capturing of wild animals], in relation to anything which is done by it or on its instructions within the area which it manages;[45]

(d) may enter into a co-management agreement in terms of section 42 of the Protected Areas Act in respect of that provincial protected area or provincial protected environment; and

(e) must monitor the area in question against any performance indicators established by the Provincial Minister and report annually on its findings to the Board.[46]

(5) If the Board is the management authority for a protected area or protected environment then in relation to that area or environment the references in subsection (4) to the Board must be read as references to the Department.

Prohibition and regulation of activities within protected areas or protected environments

32. (1) No person may undertake a development or any farming activities within a Provincial protected area, Provincial protected environment or local protected area without the prior written permission of the management authority for that area and subject to any conditions which it may impose.

(2) No person may conduct any activities for which a right, licence or other authorisation under the Mineral and Petroleum Resources Development Act is required, within a Provincial protected area, Provincial protected environment or local protected area without the prior written permission of the Provincial Minister and subject to any conditions which he or she may impose.

(3) No person may land or take off in an aircraft in a Provincial protected area or fly over a Provincial nature reserve at a level of less than 2500 feet above its highest point, except –

(a) to land or take-off from a landing field designated by the management authority and with the permission of the management authority;

(b) in an emergency;

(d) if acting in accordance with an appropriate agreement which may be concluded between the Board and the South African Civil Aviation Authority.

(4) The management authority or Provincial Minister may not permit an activity referred to in subsections (1), (2) or (3) that is fundamentally incompatible with the purposes for which the area was declared, or that would be contrary to the objects of this Act.

Powers of management authorities

33. (1) The management authority of a provincial protected area, provincial protected environment or local protected area may, subject to the provisions of any regulation or by-law referred to in section 37[47] [Regulations and by-laws concerning protected areas] and to the management plan for that area –

(a) carry out or allow –

(i) a commercial activity in that area; or

(ii) an activity in the area aimed at raising revenue;

(b) enter into a written agreement with a local community inside or adjacent to the area to allow members of the community to use plants, animals or water from the area in a sustainable manner; and

(c) set norms and standards consistent with any appropriate national norms and standards set by the Minister or Provincial Minister in relation to an activity allowed in terms of paragraph (a) or (b).

(d) make rules consistent with this Act and any norms and standards that may be prescribed in terms of section 11 of the Protected Areas Act, for the proper administration of the area; and

(e) with the approval of the Department, sell, exchange or donate any indigenous or exotic species found in any provincial protected area or acquire any indigenous species and introduce it into any provincial protected areas, or local protected area.

(2) The management authority must ensure that any activity that it may allow in terms of subsection (1)(a) or (b) does not have an adverse effect on ecological communities within the area.

(3) The management authority must establish systems to monitor –

(a) the impact of activities allowed in terms of subsection (1)(a) or (b) on ecological communities within the area; and

(b) compliance with –

(i) any agreement entered into in terms of subsection (1)(b); and

(ii) any norms and standards set in terms of subsection (1)(c).

(4) Any activity carried out lawfully in terms of any agreement, which exists when this section takes effect, may continue until the date of termination of that agreement, provided that the agreement may not be extended or varied so as to expire after the original intended expiry date without the consent of the Provincial Minister.

(5) Subject to compliance with other applicable legislation, the management authority of a provincial nature reserve or local nature reserve may within that area -

(a) build, construct and maintain roads, bridges, ferries, dams, boathouses, slipways, jetties, buildings, fences and other infrastructure and structures;

(b) take measures to eradicate exotic species and invasive species;

(d) conserve landforms and anything of geological, cultural or scientific value;

(e) take measures to ensure the safety of visitors and employees;

(f) provide and maintain accommodation, camping areas, garages, entertainments, transport services or other undertakings for the amusement, recreation, enjoyment and general convenience of visitors, or allow such undertakings to be set up and maintained subject to the conditions determined by the management authority;

(g) conduct business for the sale of necessities and the supply of services for the convenience of visitors;

(h) call for public tenders and enter into agreements for the provision and maintenance of anything mentioned in paragraph (f) or the conducting of any business referred to in paragraph (g) and with the approval of and subject to such conditions as may be determined by the Provincial Minister;

(i) let land or buildings;

(j) determine and levy charges, for entry into and remaining in that area or any part of it, or for the use or enjoyment of anything provided in it, or

(k) perform any act or acquire any thing, which it considers necessary for the better achievement of the objects and purposes of this Act.

Access to protected areas[48]

34. (1) The management authority of a protected area within the Province must not apply any restrictions on access to the protected area in a manner that would obstruct the resolutions of issues relating to land rights dealt with in terms of-

(a) the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994); and

(b) the provision of essential services and the acquisition of servitudes for that purpose.

(2) A person may continue to exercise an existing water use right as defined in the National Water Act in relation to a water resource within a protected area, but subject to any conditions that may be prescribed by the Cabinet member responsible for water affairs with the concurrence of the Provincial Minister.

Advisory boards for protected areas[49]

35. (1) The Board may establish one or more advisory boards for a Provincial protected area.

(2) The Board must define the mandate of an advisory board established under subsection (1) and after consulting with the advisory board –

(a) may amend that mandate; or

(b) may suspend or withdraw that mandate if the advisory board fails or refuses to exercise its mandate in a manner that is consistent with this Act.

(3) The Board must –

(a) publish a notice in local newspapers inviting nomination for members of an advisory board; and

(b) appoint as members of the advisory board person who are able and willing to make a significant contribution to the management of the Provincial protected area and to facilitate relationships between the management authority of the protected area and local communities or other stakeholders by virtue of their specialist knowledge, or expertise, or the fact that they represent a particular constituency or sector of society.[50]

(4) The provisions of subsections (1), (2) and (3) apply with the necessary modifications in respect of a local nature reserve and any reference in those subsections to-

(a) the Board must be read as a reference to the municipality concerned; or

(b) a Provincial protected area must be read as a reference to a local protected area.

Directive to owners and occupiers of land adjacent to rivers bordering protected areas

36. (1) The Board may direct the owner of any land who constructs any works in or adjacent to a watercourse that is in or adjacent to a Provincial protected area or a local protected area to take steps -

(a) to allow aquatic or amphibious animals to enter or leave the protected area via the watercourse; or

(b) to prevent other animals or people entering or leaving the protected area via those works.

(3) If a person fails to comply with a directive issued under subsection (1) the Board may take whatever reasonable steps as are required to give effect to this section, and recover the costs from the owner to whom the directive was given.

Regulations and by-laws concerning protected areas

37. (1) The Provincial Minister may make regulations relating to the administration of Provincial protected areas including, but not limited to, regulations –

(a) to restrict or regulate development or other activities in a provincial protected environment development that may be inappropriate for the area given the purpose for which the area was declared, or that may impede such purpose;[51]

(b) prescribing the powers and duties of conservation officers with regard to -

(i) the exclusion of members of the public from certain areas within a protected area;

(ii) the killing, capturing or impounding of any animals within a protected area and the disposal of animals killed, captured or impounded;

(iii) the burning of grass, the cutting of trees, reeds and grass and the gathering of aquatic or marine plants within a protected area;

(d) stipulating the conditions subject to which permission to enter or reside in a protected area may be granted and the periods during which or times when a protected area or any portion of a protected area shall be open to the public;

(e) prescribing the conditions subject to which any animal or any article may be conveyed through a protected area and the route or routes over which any such animal or article may be so conveyed;

(f) prescribing the conditions subject to which any person entering, staying in or passing through a protected area, may obtain the services or attendance of any officer or employee, and the fees to be paid in respect of such services or attendance;

(g) regulating the admission of aircraft, motor cars or other vehicles or vessels to, and the taking of photographs within, a protected area, the demarcation of areas in a protected area for the purposes determined by the management authority and the control over such areas, or any other matter connected with the use and enjoyment of a protected area;

(h) concerning the maintenance, protection and preservation of a protected area and the ecological communities within that area;

(i) regulating traffic and the carriage of passengers in a protected area, including (but subject to the provisions of any other law in this regard) the requirements to which vessels and persons on such vessels shall conform, the places at which persons may enter or leave and the routes by which they may pass through a protected area;

(j) concerning the protection from defacement by writing or otherwise of any tree, bridge, rock, fence, seat or other object in a protected area;

(k) prescribing the duties, remuneration, leave and other conditions of service of officers, the number and species of domestic animals which any officer may keep in a protected area, and the extent of land which the officer may cultivate in the protected area; and

(l) generally for the efficient control and management of a protected area.

(2) The provisions of subsection (1) apply with the necessary modifications in respect of local protected areas and any reference in subsection (1) –

(a) the provincial minister shall be read as a reference to the municipality concerned;

(b) a provincial protected area shall be read as a reference to a local protected area.

Protected ecosystems

38. (1) If the Provincial Minister has reason to believe that an ecosystem requires additional protection in order to achieve the objectives of this Act, the Provincial Minister may –

(a) by notice in the Provincial Gazette, describe the ecosystem and declare it to be a protected ecosystem; and

(b) prescribe regulations for the conservation of that ecosystem.

(2) If the Provincial Minister is satisfied that that the requirements of section 52 of the Biodiversity Act have been met, the Provincial Minister may, with the concurrence of the Minister, list that ecosystem within one of the categories provided for in section 52(2) so that the ecosystem becomes a “listed ecosystem” for the purposes of the Biodiversity Act.

(3) Before acting in terms of subsection (1) the Provincial Minister -

(a) must follow a consultation process in accordance with section 91 [Co-operative governance] which includes consulting the Council, the Board and any conservation associations established for an area that falls within the ecosystem in question;

(b) must follow a public participation process in accordance with section 92 [Participation in decision-making].

Protected natural features

39. If the Provincial Minister has reason to believe that any topographical or other natural feature of the landscape requires additional protection in order to achieve the objectives of this Act, the Provincial Minister may –

(a) by notice in the Provincial Gazette, declare that natural feature to be a protected natural feature; and

(b) prescribe regulations for the conservation of that natural feature.

Protected plants

40. If the Provincial Minister has reason to believe that any species, subspecies or genetically distinct group of plant requires additional protection in order to achieve the objectives of this Act, the Provincial Minister may –

(a) by notice in the Provincial Gazette, declare that species, subspecies or group of plant to be a protected plant; and

(b) prescribe regulations for the conservation of that protected plant.

Protected wild animals

41. If the Provincial Minister has reason to believe that any species, subspecies or genetically distinct group of wild animal requires additional protection in order to achieve the objectives of this Act, the Provincial Minister –

(a) may by notice in the Provincial Gazette, declare that species, subspecies or group of wild animal to be a protected wild animal; and

(b) may prescribe regulations for the conservation of that wild animal.

Invasive exotic species

42. (1) If the Provincial Minister has reason to believe that an exotic species has or may become invasive and harm ecological communities within the Province, the Provincial Minister may –

(a) by notice in the Provincial Gazette, declare that species to be an invasive exotic species; and

(b) prescribe regulations for the control and eradication of that invasive exotic species.

(2) The Provincial Minister may include an exotic species referred to in subsection (1) in a provincial list of invasive species and with the concurrence of the Minister publish the list in terms of section 70 of the Biodiversity Act so that the exotic species becomes a “listed invasive species” for the purposes of the Biodiversity Act.

(3) Before acting in terms of subsection (1) the Provincial Minister –

(a) must follow an consultation process in accordance with section 91 [Co-operative governance] which includes consulting the Council, the Board and any conservation associations established for an area that falls within the ecosystem in question; and

(b) must follow a public participation process in accordance with section 92 [Participation in decision-making].

chapter VI: CONSERVANCIES AND GAME-FENCED AREAS

Declaration of conservancies

43. (1) Any group of persons who resides on a single piece or contiguous pieces of land may form a conservancy and apply to the Provincial Minister to declare all or part of the area which they inhabit to be a conservancy area.

(2) An application referred to in subsection (1) must include –

(a) the constitution of the conservancy which must –

(i) define the boundaries of the area of the proposed conservancy area;

(ii) state the objectives of the conservancy and how it is proposed that these will be achieved; and

(iii) include the procedure and rules governing the establishment and functioning of a conservancy committee that will make decisions on behalf of the conservancy;

(b) a list of the names of the members of the committee;

(c) a list of the names of the members of the conservancy or a description of the categories of persons who are members which is sufficiently accurate to determine whether or not a particular person is a member;

(d) any other documents or information that may be prescribed.

(3) The Provincial Minister must by notice in the Provincial Gazette, declare all or part of the area in respect of which the application was made to be a registered conservancy area and register a conservancy for that conservancy area, on such conditions as the Provincial Minister may prescribe if the Provincial Minister is satisfied in respect of an application made in terms of subsection (1) that –

(a) the conservancy area concerned is contiguous, has been sufficiently identified and is not subject to other land uses which are inconsistent with its declaration as a conservancy area;

(b) the constitution of the conservancy contains appropriate safeguards to ensure that the conservancy committee will be able to fulfil its duties as custodian of ecological communities within the conservancy, and generally gives effect to the purpose of this Act;

(c) the conservancy committee is reasonably representative of the different categories of members of the conservancy and if there are any communities living within the proposed conservancy area who have lived there for more than ten years, that they are represented on the conservancy committee;

(d) the conservancy committee has the ability to manage funds, and has an appropriate method for equitably distributing the benefits to be derived from the consumptive and non-consumptive uses of ecological communities in the proposed conservancy area to the members of communities living on customary land, and to the owners and lawful occupiers of other land, within in the proposed conservancy area; and

(e) all other prescribed requirements have been complied with.

Rights and duties of conservancies

44. (1) A conservancy is the custodian of the ecological communities within the conservancy and must –

(a) protect and conserve those ecological communities in accordance with this Act and the Biodiversity Act;

(b) be guided by the principles of co-existence; and

(2) The Provincial Minister may by notice in the Provincial Gazette, delegate or grant appropriate powers to a conservancy to enable it to perform its functions effectively.

(3) A conservancy committee must –

(a) submit an annual report on the implementation of the conservancy management plan and any change in the membership, area, ownership, constitution or management objectives of the conservancy to the Board; and

(b) record all introductions and off-takes of wild animals from the conservancy area and report them to the Board in the prescribed manner.

Conservancy management plans

45. (1) Unless the notice declaring the conservancy provides otherwise, a conservancy committee must submit a draft conservancy management plan to the Board by no later than the first anniversary of the date of publication of the notice registering the conservancy.

(2) The Board must within six months of the date of receipt of a draft conservancy management plan, either approve it or refer it back to the conservancy committee for amendment.

(3) The Board must at the request of a conservancy committee, provide it with information and advice in connection with the preparation of a conservancy management plan.

(4) The Provincial Minister may suspend any powers, functions or benefits which he or she granted to the conservancy committee until the Board has approved the conservancy management plan for the conservancy.

(5) A conservancy management plan must –

(a) state the management objectives for the conservancy;

(b) indicate the approach to be adopted by the conservancy committee in managing the range of species and wildlife habitats included within the conservancy;

(d) include off-take quotas and other restriction on off-takes for all game, exotic wild animals or other wild animals in respect of which any exemption from a restriction on off-take imposed by or under this Act is sought.

Amendment or withdrawal of conservancy declaration

46. (1) The Provincial Minister may, subject to subsections (2) and (3), amend or withdraw a notice issued under section 43 [Declaration of conservancies] if by the third anniversary of the notice the conservation committee has not submitted a conservancy management plan acceptable to the Board, or for any other good reason.

(2) Before the Provincial Minister acts under subsection (1) he or she must in writing –

(a) inform the conservancy committee of his or her intention to do so;

(b) furnish the conservancy committee with the reasons for the intended amendment or withdrawal in question; and

(c) call upon the conservancy committee to make representations within a period specified as to why the amendment or withdrawal in question should not be effected.

(3) After considering any representations received within the specified period from the conservancy committee concerned by virtue of subsection (2)(c), the Provincial Minister must decide whether or not to amend or withdraw the notice and must inform the conservancy committee in writing of his or her decision.

Game-fences

47. (1) A person who wishes to construct a game-fence must –

(a) engage an appropriately qualified professional to undertake an environmental impact assessment to determine, among other things, the potential impact of the game-fence on wild animals and ecological communities; and

(b) forward a copy of the report on the environmental impact assessment to the Board together with an application for a permit to construct the game-fence explaining the purposes for which it is required.

(2) If the Board, after considering the environmental impact assessment report and the application, is satisfied that the proposed game-fence will not cause adverse effects, may issue a permit for the construction of the game-fence subject to whatever terms and conditions the Board may consider appropriate to achieve the objects of this Act.

(3) Any person who constructs a game-fence without a permit under this section or contrary to the provisions of such a permit, commits an offence and is liable on conviction to the sanctions prescribed in section 127 [Penalties].

Certificate of adequate enclosure

48. (1) The owner of land or a conservancy committee may apply to the Board in the prescribed manner and form for a certificate of adequate enclosure that certifies that a specified area is enclosed in a manner that is adequate to prevent wild animals or feral animals of the species specified in the application, from escaping from that area.

(2) For the purposes of this section an area is regarded as “adequately enclosed” in relation to a specified species of wild animal or feral animal if that area is enclosed by—

(a) any game-fence, wall or obstruction of any kind that forms an enclosure from which any wild animal of or feral animal the specified species is unable to escape without breaking it;

(b) any natural boundary through or over which any wild animal or feral animal of the specified species will under normal circumstances not pass; or

(c) any combination of fences, walls, obstructions or boundaries referred to in paragraphs (a) and (b) which prevent any wild animal or feral animal of the specified species from escaping from that area.

(3) An application for a certificate of adequate enclosure must include any prescribed information and must -

(a) describe the boundaries, size and nature of the area in respect of which application is made, and the ecological communities on that land;

(b) state the species of wild animal or feral animal to which the application relates, the estimated number of such species living free on that land and the number of such species in captivity on that land; and

(4) The Board must refuse the application if, after having considered the size of the enclosed area, the number of wild animals of the species to which the application relates which would normally be found in such an area, and other relevant circumstances it believes that the wild animals in question are in effect being kept in captivity.

(5) If the Board is satisfied that wild animals are effectively enclosed within the area and may live freely within that area, it may issue a certificate of enclosure which must define the boundaries of the area concerned, specify the species of wild animal or feral animal to which it relates, and the conditions, if any, subject to which it is issued.

(6) A certificate of adequate enclosure –

(a) is valid for the period specified in it;

(b) may at any time be suspended by the Board summarily and without prior notice to or consultation with the holder if the Board has reason to believe that the area is no longer adequately enclosed; and

(7) Any certificate issued under section 22 of the Nature Conservation Ordinance, 1965 (Ordinance 26 of 1965) prior to the repeal of that Ordinance by section 89 of the Ordinance is deemed to be a certificate of adequate enclosure issued in terms of this section, and any such certificate remains valid for the period stated therein unless it is suspended in terms of subsection (5) prior to the expiration of such period.[52]

Application of Game Theft Act

49. (1) The Game Theft Act, 1991 (Act 105 of 1991) applies –

(a) only to a wild animal (including the meat, skin, and any part of the carcass of that animal) that has been prescribed by the Provincial Minister in terms of section 67 [Declaration of wild animals as “game”] to be “game” for the purposes of that Act; and

(b) subject to the provisions of section 5 [Fundamental rights].

(2) For the purposes of the Game Theft Act, 1991 a certificate of adequate enclosure issued by the Board under section 48 [Certificate of adequate enclosure] constitutes a certificate issued on behalf of the Premier to certify that the land is sufficiently enclosed to confine to that land the species of game mentioned in the certificate as contemplated in section 2(2)(a) of that Act.

Duties in relation to fences and barriers

50. (1) No person may construct, alter, or remove a fence or other barrier, alter the ground level on one side of the fence or barrier or do any other thing in relation to it, which is likely to facilitate a wild animal entering a property or an enclosure from which it is unlikely to be able to escape.

(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions prescribed in section 127 [Penalties].

(3) If at any time a game-fence, fence or other barrier has the effect of preventing wild animals gaining access to adequate water or food, a person who is a custodian of those wild animals must either –

(a) provide supplementary food or water for them; or

(b) after consultation with the owners or occupiers of adjacent land, take appropriate measures to enable the wildlife to move through the game-fence or barrier to areas where food or water is available.

Rights of owners of adequately enclosed areas

51. (1) The owner of land that has been certified by the Board in a certificate of adequate enclosure to be sufficiently enclosed to confine the species of wild animal specified in the certificate to that land, or a person acting with the permission of the owner, may subject to any conditions specified in the certificate –

(a) release wild animals of the specified species of wild animal into the enclosed area;

(b) capture any animal of the specified species in that area and retain it in captivity within that area subject to the provisions of section 83 [General duty in respect of captive wild animals] and any regulations made under section 85 [Regulations concerning captive wild animals];

(d) sell or donate any animal of the specified species which has been so captured or the carcass of any such animal at a place within the enclosed area.

(2) Unless the certificate of adequate enclosure provides otherwise, a person referred to in subsection (1) does not require a permit under this Act to do act referred to in subsection (1).

Exemptions for large-scale conservancies and game farms

52. (1) A conservancy or the owner or manager of a registered game farm may apply to the Provincial Minister[53] for exemption from the provisions of any restriction on off-takes imposed under this Act in respect of the conservancy area or game farm, including the requirements–

(a) under section 69 [Permits to hunt, captive or disturb wild animals] to issue or obtain hunting or capture permits;

(b) under section 75 [Hunting returns], to submit game off-take returns; or

(2) The Provincial Minister may grant an exemption referred to in subsection (1) subject to the terms and conditions set out in subsection (3) and any other terms and conditions that the Provincial Minister may consider appropriate to achieve the purposes of this Act, if the Provincial Minister is satisfied that –

(a) the area in question will be managed in accordance with a management plan that is appropriate to achieve the purpose of this Act;

(b) the applicant has established an effective system for restricting the off-take of indigenous species and is able adequately to monitor and control the off-take of indigenous species from the area in accordance with any prescribed standards, guidelines or policies;

(c) the applicant has established a mechanism for identifying and marking wildlife products originating from that area in a manner that allows the Board easily and accurately to identify wildlife products as originating from that area and minimises the possibility of any person passing off wildlife products from other areas as a wildlife product from the exempted area; and

(d) the applicant has established a system of recording information concerning the integrity, health and functioning of ecological communities within the area and off-takes, that will enable the Department to assess the effectiveness of the measures taken to conserve indigenous species and ecological communities within the area with a high degree of confidence.

(3) The holder of an exemption granted under this section -

(a) must co-operate with the Board in good faith and allow access by conservation officers at all reasonable times, in order to enable the Board to assess the functioning and effectiveness of the management regime within the exempted area and the status of indigenous species and ecological communities within that area;

(b) must submit a draft management plan for the forthcoming year to the Board for approval by no later than three months before the commencement of the year in question;

(c) must not hunt or kill any wild animal within the exempted area for commercial purposes unless restriction on off-takes and management objectives in respect of that species of wild animal have been established in a management plan approved by the Board; and

(d) must not authorise any person to take, capture, hunt or kill any wild animal within the exempted area in a manner or to an extent that is contrary to any restriction on off-takes or other conditions prescribed in an approved management plan.

(4) Any person who contravenes or fails to comply with any provision of subsection (3) is guilty of an offence and is liable on conviction to the sanction provided for in section 127 [Penalties].

Regulations concerning conservancies, game-fences and game farms

53. The Provincial Minister may prescribe regulations concerning conservancies, game-fences areas and game farms, and without limiting the generality of this power, may make regulations:

(a) to exempt from the application of section 47(1) [Game-fences] certain categories of game-fences or other fences or barriers which by virtue of their nature, size or location, are unlikely to result in significant adverse effects;

(b) require the compulsory re-registration of all existing game-fences that meet specified criteria;

(d) restrict the number, density or species of wild animals that may be kept within an game-fenced area;

(e) require the removal of specified categories of fence or barrier.

chapter VII: CONSERVATION OF PLANTS

Rights of land owners

54. (1) The owner of land, any relative of such owner and any employee of such owner acting on the instructions or with the consent of such owner, does not require a permit under this Act –

(a) to pick and be in possession on that land of an indigenous species of plant growing on that land, including a protected plant; and

(b) to sell on that land any indigenous species of plant which is not a protected plant, which occurs naturally or has been propagated or cultivated on that land.

(2) The owner of land on which a protected plant is growing in a natural state, or any person acting with the written permission of the owner, does not require a permit under this Act to pick any protected plant and gather and propagate its seeds.

(3) The owner of the land, or any person authorised by the owner, may give written permission to any person to pick and possess any indigenous plant growing on that land except a protected plant.

(4) The written permission referred to in subsection (3) is only valid if it –

(a) is signed and dated by the owner of the land or the person authorised by the owner to give such permission;

(b) gives the full names and address of the owner of the land or of the person authorised by the owner to grant such permission;

(d) specifies the number and species of plant, the date or dates on which those plants may be picked and the land in respect of which permission is granted.

Restriction on picking indigenous species of plant

55. (1) Subject to section 54 [Rights of land owners] no person may pick any indigenous species of plant -

(a) in a manner that uproots the plant;

(b) on a public road or on the land on either side of such road within a distance of ninety metres from the centre of such road; or

(i) a permit under section 56 [Permits in respect of indigenous plants]; or

(ii) the written permission of the owner of the land on which the plant is growing or of any person authorised by such owner to grant such permission, given in accordance with section 54(3) and (4) [Rights of land owners].

(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions prescribed in section 127 [Penalties].

Permits and registrations in respect of indigenous plants

56. (1) Subject to section 54 [Rights of landowners], section 57 [General authorisations in respect of indigenous plants] and section 33 [Powers of management authorities], no person may -

(a) possess, gather, collect, pluck, pick parts of, cut, chop off, uproot, damage or destroy any specimen of a protected plant unless authorised to do so in terms of a harvesting permit;

(b) cultivate for sale any –

(i) indigenous plants without being registered as an indigenous plant grower;

(ii) protected plant unless authorised to do so in terms of a protected plant grower’s permit;

(i) is registered as an indigenous plant seller and does so at premises that are registered as an indigenous plant nursery or as indigenous plant retail premises or that have been designated for that purpose by a municipality in accordance with section 60 (1) [Places for sale of indigenous plants]; or

(ii) is authorised to do so in terms of a general authorisation published in terms of subsection (2); or

(iii) is authorised to do so in terms of a special permit issued in terms of section 59 [Special permit for sale of indigenous plants];

(d) offer for sale, sell, or exchange a protected plant unless that person –

(i) is registered as an indigenous plant seller, is authorised to do so in terms of a protected plant trader’s permit and does so at premises that are registered as an indigenous plant nursery or as indigenous plant retail premises or that have been designated for that purpose by a municipality in accordance with section 60 (1) [Places for sale of indigenous plants]; or

(ii) is authorised to do so in terms of a special permit issued in terms of section 59 [Special permit for sale of indigenous plants]; or

(iii) is authorised to do so in terms of a general authorisation published in terms of subsection (2);

(2) Any person who wishes to be registered or to obtain a permit referred to in subsection (1) must apply in the prescribed manner to the Board.

(3) A permit to sell indigenous plants issued to-

(a) an indigenous plant grower is valid for a period of twelve months from the date of issue, and

(b) an indigenous plant seller is valid for a period of three years from the date of issue.[54]

(4) The holder of a permit to sell cultivated protected plants must give every person to whom the permit holder sells or donates a protected plant a certificate of origin in accordance with section 88 [Certificate of origin].

(5) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

General authorisations in respect of indigenous plants

57. The Provincial Minister may publish a general authorisation in the Provincial Gazette which authorises any of the activities referred to in section 56 [Permits and registrations in respect of indigenous plants] to be undertaken in specified circumstances, at specified places or by specified categories of person, by a person who is not registered or who does not have a permit as required in terms of that section.

Applications for registration of persons and premises for cultivation and sale of indigenous plants

58. (1) Subject to section 57, [General authorisations in respect of indigenous plants] a person who wishes to cultivate indigenous plants for sale must apply to the Board in the prescribed form–

(a) for registration as an indigenous plant grower; and

(b) to register the premises at which the indigenous plants will be grown as an indigenous plant nursery, unless the premises have already been registered as such.

(2) Subject to section 57, [General authorisations in respect of indigenous plants] a person who wishes to sell cultivated indigenous plants or protected plants must apply to the Board in the prescribed form for –

(a) registration as an indigenous plant seller; and

(b) to register the premises at which the indigenous plants will be grown as an indigenous plant nursery or as indigenous plant retail premises, unless the premises are already registered as such or have been approved by the municipality in terms of section Error! Reference source not found. [Places for sale of indigenous plants] as a place at which indigenous plants may be sold;

(i) is authorised to do so in terms of a general authorisation published in terms of subsection (2); or

(ii) is authorised to do so in terms of a special permit issued in terms of section 59 [Special permit for sale of indigenous plants].

(3) The Board must inspect any premises identified in an application referred to in subsection (1) and (2) before it decides whether or not to approve the application.

(4) If the Board is satisfied that the granting of such application will be consistent with the objectives of this Act, the Board may, subject to the conditions which it considers appropriate, issue to the applicant a certificate of registration as an indigenous plant grower or an indigenous plant seller.

(5) A certificate of registration as a indigenous plant grower or indigenous plant seller is valid until –

(a) it is cancelled by the Board; or

(b) 60 days after the expiry of that person’s licence to grow or sell indigenous plants.

Special permit for sale of indigenous plants

59. The Board may, subject to such conditions and restrictions as it considers necessary issue a permit to any person authorising such person to sell indigenous plants for charitable or other purposes approved by the Board, at a time and place specified in the permit.

Places for sale of indigenous plants

60. (1) A local authority may designate places at which indigenous plants may be sold and may erect structures for that purpose.

(2) Subject to section 54 [Rights of land owners], it is an offence for any person to sell or buy an indigenous plant at any place other than –

(a) a place set aside in terms of subsection (1); or

(b) the premises of a registered indigenous plant seller or registered indigenous plant grower.

(3) It is an offence for any person-

(a) to sell any indigenous plant without a permit issued under section 58 [Registered grower and seller of indigenous plants];

(b) to sell or buy any indigenous plant at any place other than –

(i) a place designated by a municipality in terms of subsection (1); or

(ii) on the premises of a registered indigenous plant grower or registered indigenous plant seller;

(c) to sell on the premises of a registered indigenous plant grower an indigenous plant that was not propagated or cultivated or occurred in a natural state on those premises; or

(d) to sell on the premises of a registered indigenous plant seller an indigenous plant that was not lawfully obtained either from –

(i) another registered indigenous plant seller; or

(ii) a indigenous plant grower who is registered as such in relation to the premises where the plant was propagated or cultivated or occurred in a natural state.

chapter VIII: PROTECTION OF AQUATIC ECOLOGICAL COMMUNITIES

Angling right of owners and occupiers of land

61. The owner of land, the lawful occupier of land, or a person acting with the permission of the owner or lawful occupier of land, may without a fishing permit, angle for fish for recreation purposes or for private consumption in a watercourse on that land, but may not remove any such fish from the land except during the angling season for that species.

Restricted activities in relation to aquatic ecological communities

62. (1) Subject to section 61 [Angling rights of owners and occupiers of land] and section 64 [Licences in relation to aquatic species] no person may –

(a) deposit, or cause or allow to be deposited, any substance or thing in a water resource or in a place where it is likely to enter a water resource, which causes or is likely to cause, an adverse effect on aquatic ecological communities;

(b) introduce or release into a water resource, or cause or allow to be introduced or released, any live fish or other aquatic wild animal or aquatic plant except in the circumstances referred to in subsection (2);

(c) place or cause or allow to be placed in any water course any thing which will or is likely to prevent the free passage of fish through the water course;

(d) kill or injure any fish by any means whatsoever or wilfully disturb or destroy the spawn of any fish in a water resource;

(e) be injurious to any fish or fish food or which, if it were so deposited in large quantities or numbers, would be so injurious;

(f) attempt to catch, or have in his or her possession, any fish which is a protected wild animal;

(g) catch or attempt to catch any species of fish or other wild animal using a method or equipment that is prohibited in terms of section 63 [Prohibited ways of catching fish];

(h) fish in a water course for or have in his or her possession, any fish at a time when it is not the angling season for that species of fish;

(i) attempt to catch, catch, or kill more fish in a day than the daily bag limit prescribed in respect of that species;

(j) catch, kill or be in possession of any fish or aquatic animal which is of a size or mass less than the size or mass prescribed in respect of the species of such fish or aquatic animal;

(k) knowingly possess, transport, sell or buy any aquatic animal which was caught in contravention of this Act; or

(l) buy any bait for which a bait licence is required under section .

(2) The provisions of –

(a) subsection (1)(b) do not apply in respect of a live fish which is replaced into any watercourse immediately after it has been caught in that watercourse;

(b) subsection (1)(d) do not apply in respect of any fish which is killed or injured while being caught in and taken from a watercourse in accordance with the provisions of this Act; and

(3) Any person who contravenes or fails to comply with any provision of this section or any condition, requirement or restriction of any permit granted under this section, is guilty of an offence and is liable on conviction to the sanction provided for in section 127 [Penalties].

Prohibited ways of catching fish

63. (1) Subject to the provisions of section 66 [Exemption for scientific purposes], no person may catch fish in a water course –

(a) by snatching or spearing;

(b) by means of a staked net, trek-net or fyke-net which, in each case, extends over a distance of more than half the width of such inland waters at the place where such net is so used;

(d) by placing a staked net or fyke-net or by using a trek-net within a distance of thirty metres from the extremities of any other such net being used in such waters and for the purposes of this paragraph the extremities of a fyke-net shall be deemed to be the extremities of the devices, if any, used to guide fish to an opening in such net; or

(e) by angling by means of –

(i) more than two lines;

(ii) more than two single hooks attached to any line, or

(iii) a set line with more than two hooks attached thereto.

(2) Any person who contravenes or fails to comply with any provision of this section or any condition, requirement or restriction of any permit granted under this section, is guilty of an offence and is liable on conviction to the sanction provided for in section 127 [Penalties].

Licences in relation to aquatic species

64. (1) Subject to section 61 [Angling rights of owners and occupiers of land] no person may –

(a) angle in any manner for fish in a water course unless authorised to do in terms of an angling licence;

(b) use a fyke-net, crab-net, staked net, trek-net or cast-net in any watercourse unless authorised to do in terms of a netting licence;

(c) transport or sell any restricted bait or restricted aquatic species unless authorised to do so in terms of a bait licence; or

(d) transport or sell any live restricted aquatic species unless authorised to do so in terms of a transport licence for aquatic species.

(2) Any person who wishes to obtain a licence referred to in subsection (1) must apply to the Board in the prescribed form and pay the prescribed fee.

(3) Any person who contravenes subsection (1) commits and offence and is liable on conviction to the sanction provided for in section 127 [Penalties].

Board may direct aquatic animals and aquatic plants to be destroyed

65. (1) If the Board reasonably believes that any fish, other aquatic animal or aquatic plant is causing adverse effects on an ecological community in a water course, it may -

(a) in writing direct the owner of the land on which the water course is situated to take measures specified in the directive within a specified time, to catch or kill such fish, other aquatic animal or aquatic plant, and

(b) at the request of the owner, assist the owner to comply with the directive.

(2) If an owner referred to in subsection (1) refuses or fails to comply with a directive in terms of subsection (1), the Board may take the necessary measures, and recover the costs incurred in doing so from that owner.

Exemption for scientific purposes

66. (1) The Board may grant exemption from any provision of this Chapter to any person doing research.

(2) An exemption referred to in subsection (1) must be in writing and subject to whatever conditions the Board considers appropriate.

chapter IX: THE HUNTING AND CAPTURE OF WILD ANIMALS

Declaration of wild animals as “game”

67. (1) The Provincial Minister may by notice in the Provincial Gazette and with regard to the whole or any part of the Province –

(a) classify any exotic wild animal as “game” for the purposes of this Act or for the purposes of the Game Theft Act, 1991 (Act 105 of 1991);

(b) classify any species, subspecies or geographically separate population of indigenous animal, including aquatic animals, as “game” if the Provincial Minister is satisfied that –

(i) the species, subspecies or geographically separate population of wild animal exists in sufficient numbers to enable limited numbers to be hunted without prejudicing the viability of the population or undermining the purpose of this Act; and

(ii) the hunting and use of such wild animals should be regulated under the provisions of this chapter; and

(c) declassify any species, subspecies or geographically separate population of wild animal as “game”, if the Provincial Minister is no longer satisfied that it meets the criteria specified in (b).

Right of custodian to hunt game for personal consumption

68. A natural person who is the custodian of game within a contiguous area of land which is at least [500] hectares in extent and that has clearly demarcated boundaries does not require a hunting permit, to hunt game [at any time] within that area for consumption by his or her household on that land.

Permits to hunt, capture or disturb, wild animals

69. (1) Subject to and section 51 [Rights of owners of adequately enclosed areas] and subsection (2), no person may –

(a) hunt any wild animal[55] that is a protected wild animal, an exotic wild animal, or an indigenous mammal, bird or reptile, unless authorised to do so in terms of a hunting permit or a game farm permit;

(b) capture any wild animal[56] that is a protected wild animal, an exotic wild animal, or an indigenous mammal, bird or reptile, unless authorised to do so in terms of a capture permit or a game farm permit; or

(c) use any motor vehicle or aircraft to disturb, drive or stampede any wild animal in order to film or photograph the event without a special authorisation.

(2) The Provincial Minister may published in the Provincial Gazette a general authorisation which authorises any of the activities referred to in subsection (1) to be undertaken in specified circumstances, areas, places or by specified categories of person, without a permit referred to in subsection (1).

(3) Any person who wishes to obtain a permit referred to in subsection (1) must apply to the competent authority in the prescribed manner.

(4) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Registrations in respect of game farms, and the hunting and capturing of wild animals

70. (1) Subject to subsection (2), no person may –

(a) be granted a game farm hunting permit unless that person is the owner of a registered game farm;

(b) breed any wild animal that is a protected wild animal or an exotic wild animal in captivity except at a registered captive breeding facility;

(c) for any form of reward, offer to escort, or escort a client to enable the client to hunt wild animals or feral animals without being registered as a professional hunter;

(d) for any form of reward present for hunting, or organise or conduct the hunting of wild animals or feral animals for clients without being registered as a “hunting outfitter";

(e) present or conduct a prescribed course to instruct prospective professional hunters or hunting outfitters or assesses the proficiency of professional hunters or hunting outfitters without being registered as the director of a professional hunting school; or

(f) capture wild animals for any form of reward without being registered as a wild animal capturer.

(2) Any person who wishes to obtain a registration referred to in subsection (1) must apply to the Board in the prescribed manner.

(3) The Provincial Minister may –

(a) prescribe that any person who is registered in accordance with subsection (1) must also obtain a permit to undertake the activity in question;

(b) publish in the Provincial Gazette a general authorisation which authorises any of the activities referred to in subsection (1) to be undertaken in specified circumstances, at specified places or by specified categories of person, who are not registered in accordance with subsection (1).

(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Hunting areas

71. The Provincial Minister may prescribe that hunting in general, or specified kinds, forms or methods of hunting, or hunting by specified categories of person, or for specified purposes, may only take place in a registered hunting area.

Determination of hunting quotas and off-take limits

72. (1) Subject to subsection (2), the Department, after consulting with the South African National Biodiversity Institute, and the custodian of wild animals in an area, must in relation to any hunting area or area in respect of which an application for a hunting permit has been made, annually determine –

(a) the maximum permissible off-take of game or other wild animal from that area of land; and

(b) the maximum quota of each species of wild animal (if any) which the custodian of those wild animals may permit to be hunted in a specific year or hunting season.

(2) The Provincial Minister may by notice published in the Provincial Gazette exempt the Department from making a determination in accordance with subsection (1) in respect of a particular area, type of area or category of custodian, either for a defined period or indefinitely.

Competent authority in respect of hunting permits

73. (1) The competent authority in relation to hunting permits to hunt or capture –

(a) listed threatened or protected species, means the issuing authority prescribed in terms of the Biodiversity Act;

(b) protected wild animals or exotic wild animals that are not listed threatened or protected species in terms of the Biodiversity Act, means the Board;

(c) game on land enclosed by a game-proof fence, means the custodian of that game provided the custodian is in possession of a game farm permit; and

(d) any indigenous wild animal that is a mammal, bird or reptile and is not referred to in paragraphs (a), (b), or (c), means –

(i) the conservancy committee if the wild animal is within a conservancy; and

(ii) the Board in all other situations.

Form of hunting permits

74. (1) A permit to hunt or capture a wild animal must be written or printed in ink and signed and dated by or on behalf of the person granting the permit, and must contain:

(a) the name of the farm or a description of the game-fenced area to which the permit relates;

(b) the name and full residential address of the person who granted the permit;

(d) in the case of a hunting permit, the date or dates within the hunting season on which hunting under the permit is authorised;

(e) the species of game and the number of each which may be hunted or captured under the permit;

(f) the hunting or capture method(s) that may be used; and

(g) any other conditions, requirements and restrictions prescribed by regulation or necessary to comply with this Act.

(2) Any person who hunts under a hunting permit granted in terms of this section must have the hunting permit in his or her possession while hunting, unless he or she is accompanied by the person who authorised the hunting or by a custodian of the game or wild animals in question.

(3) Before any person who has hunted or captured game under a permit granted under this section leaves the farm or area to which the permit relates, that person must:

(a) endorse on the permit in ink –

(i) the species of game and the number of each such species killed or captured under the authority of the permit;

(ii) the date(s) on which the game was killed or captured; and

(iii) details of any other wildlife killed, injured or captured during the hunting or capturing process; and

(b) sign and date the permit.

(4) A person who is entitled to issue a hunting permit in terms of this section may charge a fee for doing so.

(5) Any person who contravenes or fails to comply with any provision of this section or any condition, requirement or restriction of any permit granted under this section, is guilty of an offence and is liable on conviction to the sanction provided for in section 127 [Penalties].

Hunting returns

75. (1) The custodian of any wild animal that is hunted or captured on privately owned land must provide the Board and the Department with a return in the prescribed manner and form, stating the species of wild animal, and the number and sex of each such species, which has been hunted or captured on the land since the date of the last return, including game hunted for own consumption.

(2) For the purposes of subsection (1) the custodian of land that is leased is the lessee unless the lease agreement provides otherwise.

(3) Any person who is required to make a return under this section and who hunts or captures game or authorises the hunting or capturing of game on that land while a return under subsection (1) is outstanding, is guilty of an offence and is liable on conviction to the sanction provided for in section 127 [Penalties].

(4) If the chief executive officer considers that a return that has been submitted is inadequate or incomplete in one or more material respects, the chief executive officer may notify the person in question to make an acceptable return by a date stipulated in the notice and if that person fails to do so by the date stipulated, it is an offence for that person to hunt or capture game or to authorise the hunting or capturing of game on that land until the chief executive officer has confirmed the receipt of a return acceptable to him or her.

Lease of hunting rights

76. (1) A person may lease the exclusive right to hunt or capture game –

(a) within an adequately enclosed area from the holder of a certificate of adequate enclosure in respect of that area and the game in question;

(b) within a conservancy area from the conservancy;

(c) on a game farm that is more than 1000 ha in extent from the holder of a game farm permit in respect of that game farm.

(2) Any lease contemplated in subsection (1) must –

(a) be in writing;

(b) be entered into for a period of at least six months; and

Prohibited means of hunting, killing and capturing wildlife

77. (1) Subject to subsections (2) and (3), no person, other than a conservation officer performing duties under this Act, may kill, hunt, capture or attempt to capture, any wild animal that is a mammal, bird, reptile, or amphibian –

(a) with the aid of artificial light;

(b) during the period from half an hour after sunset on any day to half an hour before sunrise on the following day;

(d) from an aircraft of moving motor vehicle;

(e) using –

(i) live animals as decoys or bait;

(ii) tape recorders;

(iii) bird lime;

(iv) electrical and electronic devices capable of killing or stunning;

(v) artificial light sources;

(vi) mirrors and other devices to dazzle animals;

(vii) explosives;

(viii) unattended explosive or firing devices;

(ix) crossbows;

(x) poisons and poisoned or anaesthetic bait;

(xi) gassing or smoking out;

(xii) automatic weapons; or

(xiii) nets or traps which are by their nature, or as a result of how they are used, non-selective in relation to the animals that they capture, including without limitation, snares, pitfalls, and spring traps; or

(f) in a manner or by any other means prohibited by the Provincial Minister in regulations.

(2) No person may lay down poison or cause or allow poison to be laid in a manner in which, or at any place where, it may be assimilated or ingested by a wild animal unless this is done to exterminate invasive alien species in accordance with regulations prescribed by the Provincial Minister.[57]

(3) If the chief executive officer is satisfied that the use of any method or means of hunting or capturing wild animals referred to in subsection (1) is reasonably necessary and proportional in the circumstances, he or she may in writing authorise its use to capture or kill an animal –

(a) which is a damage causing animal;

(b) for conservation or research purposes; or

(4) The Provincial Minister, after undertaking a consultation and public participation process in accordance with section 91 [Co-operative governance] and section 92 [Participation in decision-making][58] may publish in the Provincial Gazette a general authorisation which authorises the use of any method referred to in subsection (1) in relation to a specified species, in —

(a) specified circumstances, areas, or places; or

(b) by specified categories of person.

(5) Any person who wishes to obtain a permit referred to in subsection (1) must apply to the competent authority in the prescribed manner.

(6) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Hunting and capturing damage causing animals

78. (1) The Board may capture, hunt, or authorise the capture or hunting of any individual wild animal if the Board has substantial proof that that wild animal -

(a) poses significant threat of injury or death to humans or to the life of domesticated animals;

(b) is wounded, diseased or injured;

(d) should be captured or killed in the interests of conservation.

(2) The Board may hunt, capture or kill or authorise the hunting, capturing or killing of any species of wild animal if the Board has substantial proof that that species of wild animal –

(a) is or may have an adverse impact on indigenous species or ecological communities; or

(b) should be captured or killed in the interests of conservation.

(3) The Board owns any wild animal captured or killed during a hunt undertaken in terms of this section.

Professional hunting and game capture

79. (1) For the purposes of this section “client” means a person who wishes to hunt in the Province and who does not reside in the Republic.

(2) A client may not hunt a wild animal or a feral animal unless –

(a) the hunt is organised or conducted by a hunting outfitter; and

(b) the client is escorted by a professional hunter.

(3) A hunting outfitter may not present for hunting or organise the hunting of, a wild animal or a feral animal for a client unless the hunting outfitter is the holder of a written permission from the owner of the land on which the hunt is presented or organised.

(4) A professional hunter who escorts a client must ensure that the client does not hunt contrary to the provisions of this Act or any other legislation concerned with nature conservation or the protection of the environment and may give the client instructions –

(a) to ensure that the client complies with the law;

(b) to protect the safety or the client or other persons;

(d) to protect members of a ecological community.

(5) A client must obey a lawful instruction given in terms of subsection (4).

(6) A professional hunter may while escorting a client and if this is necessary in defence of life or property or to prevent unnecessary suffering of a wild animal or a feral animal, kill a wild animal or a feral animal.

(7) Any person who contravenes subsection (2), (3), (4) or (6) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Regulations concerning the hunting and capture of game

80. The Provincial Minister, after consulting with the Board, may prescribe regulations relating to the hunting and capture of game and other wild animals, and without limiting the generality of this power, may –

(a) prescribe the seasons during which game may be hunted or captured, including angling seasons;

(b) restrict the number of any species or sex of game that may be hunted;

(d) establish quotas and other restriction on off-takes in respect of the hunting or capturing of game throughout or in any part of the Province which has not been exempted under section 52 [Exemptions for large-scale conservancies and game-fenced areas] from complying with such provisions;

(e) prescribing the form and content of hunting permits, capture permits and other authorisations;

(f) regulate the methods that may be employed to hunt and capture game and other wild animals; and

(g) prescribe measures to promote or regulate different forms of hunting including trophy hunting and hunting for game birds.

chapter X: KEEPING AND BREEDING WILD ANIMALS IN CAPTIVITY

Permits in respect of keeping, breeding and releasing wild animals

81. (1) Subject to subsection (2), no person may –

(a) possess, exercise physical control over, or keep captive a live wild animal that is a protected wild animal, an exotic wild animal, or an indigenous mammal, bird or reptile, without a wild animal keeper’s permit, unless such possession or control is incidental to another activity for which a permit has been granted under this Act or the Biodiversity Act;

(b) breed any wild animal that is a protected wild animal or an exotic wild animal in captivity without a wild animal breeder’s permit;

(c) conveying, moving or otherwise translocating any live specimen of a protected wild animal without a wild animal transport permit unless the movement was authorised in terms of another permit issued under this Act or the Biodiversity Act; or

(d) release any exotic wild animal without a special permit.

(2) The Provincial Minister may publish a general authorisation in the Provincial Gazette which authorises any of the activities referred to in subsection (1) to be undertaken in relation to specified categories of wild animal, in specified circumstances, areas, places or by specified categories of person, without a permit referred to in subsection (1).[59]

(3) Any person who wishes to obtain a permit referred to in subsection (1) must apply to the competent authority in the prescribed manner.

(4) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Registrations in respect of the keeping, breeding and displaying of wild animals in captivity

82. (1) Subject to subsection (2) no person may –

(a) undertake a captive breeding programme in relation to exotic wild animals or protected animals except at registered breeding premises;

(b) provide a permanent home in captivity in a controlled environment for wild animals that would be unable to sustain themselves if released except at a registered animal sanctuary;

(c) keep wild animals on a temporary basis, for the purposes of treatment, recuperation, rearing, quarantine or relocation and release, except at a registered animal rehabilitation facility;

(d) display wild animals for reward except at a registered commercial exhibition facility; or

(e) trade in wild animals unless that person is a registered wildlife trader.

(2) The Provincial Minister may –

(a) prescribe that any person who is registered in accordance with subsection (1) must also obtain a permit to undertake the activity in question; and

(b) publish a general authorisation in the Provincial Gazette which authorises any of the activities referred to in subsection (1) to be undertaken in specified circumstances, at specified places or by specified categories of person, who are not registered in accordance with subsection (1).

General duty in respect of captive wild animals

83. (1) No person may keep any wild animal in captivity under conditions that –

(a) are cruel or unhealthy;

(b) unsafe for the animal or for humans;

(d) do not protect it adequately from physical or thermal discomfort, fear or distress; or

(e) do not comply with any prescribed standard.

(2) No person may at any time, restrain any wild animal by means of a rope, cord, chain or any similar contrivance.

(3) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Register of captive wildlife

84. (1) The Board must, no later than 6 months after the coming into force of this Act, establish and maintain a register of the protected wild animals held in captivity in the Province.

(2) The register must be kept in one location and be accessible for public viewing during ordinary business hours.

Regulations concerning captive wild animals

85. The Provincial Minister may make regulations concerning captive wild animals, and without limitation may make regulations –

(a) to prohibit the capturing, keeping or breeding of specified wild animal in captivity;

(b) to regulate the manner of capturing wild animals;

(d) to regulate the breeding of wild animals in captivity;

(e) to regulate the release of captive-bred or tame wild animals; and

(f) to establish minimum standards and procedures for transporting captive wildlife.

chapter XI: TRADE IN WILDLIFE AND WILDLIFE PRODUCTS

Prohibitions in relation to trade in wildlife and wildlife products

86. (1) No person may –

(a) possess, offer for sale, sell, or exchange for value –

(i) any wildlife that was captured or killed at any place, whether or not within the Republic, in contravention of the laws that applied at that place; or

(ii) any wildlife product made or derived from wildlife referred to in (a) or any wildlife product that was made in contravention of the laws that applied at the place where it was made, whether or not that place is within the Republic; or

(b) export from, or import into, the Province any species that is listed in Appendix II of CITES or any wildlife product made or derived from such a species.

(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Permits in relation to trade in wildlife and wildlife products

87. (1) Subject to subsection (2) no person may –

(a) import into the Province an exotic animal or plant unless authorised to do so by an alien species import permit;

(b) import into the Province any wildlife product unless authorised to do so by an alien species import permit;

(c) import into the Province an exotic animal or plant unless authorised to do so by an alien species import permit;

(d) export from the Province an indigenous species unless authorised to do so by an indigenous species export permit;

(e) convey, move or otherwise translocate within or from the Province any live protected wild animal unless authorised to do by a protected species transport permit or other authorisation issued under this Act or the Biodiversity Act;

(f) offer for sale, sell, or exchange for value any wild animal or protected plant in any manner unless authorised to do so by a wildlife trader’s permit; or

(g) offer for sale, sell, or exchange for value any product made or derived from a protected wild animal unless authorised to do so by a wildlife products trader’s permit.

(2) A permit under this section is not required –

(a) to export from, or to transport in or through the Province any bird which is not a protected wild animal; or

(b) to export from the Province to another province within the Republic any plant that is indigenous to both provinces provided that the person doing so is in possession of certificate of origin from a registered indigenous plant grower or registered indigenous plant seller from whom the plants were lawfully obtained.

(3) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Certificate of origin

88. (1) No person may donate or sell a wild animal (whether alive or dead), or a protected plant to any other person without giving that person a certificate of origin when delivering that wild animal, or protected plant.

(2) A certificate of origin must be signed by or on behalf of the person making the sale or donation and must reflect –

(a) the full names and addresses of both the seller or person making the donation and the buyer or person receiving the donation;

(b) the name of each species and the number of each species of wild animal or protected plants being donated or sold;

(d) a statement confirming the sale or donation.

(3) A certificate of origin given by or on behalf of the holder of a permit to sell cultivated protected plants or a permit to breed and sell wild animals must indicate the number and date of that permit.

(4) A person to whom a certificate of origin is issued must retain it, or a copy of it, while they are in possession of the wild animal or protected plant to which it refers and for [three] months thereafter.

(5) A person who transports a wild animal or protected plant within the Province must carry the certificate of origin with them and produce it on request by a conservation officer.

(6) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Biltong and biltong sausages[60]

89. (1) No person may -

(a) sell biltong or biltong sausage unless-

(i) it has been packed by the producer thereof in a securely sealed and unbroken container and such seal and container is intact; and

(ii) the names and address of the producer appear in clearly legible letters and figures on such container; and

(b) to buy any biltong or biltong sausage which does not comply with the provisions of paragraph (a)(i) or (ii).

(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction to the sanctions provided for in section 127 [Penalties].

Regulations concerning trade in wildlife and wildlife products

90. The Provincial Minister may make regulations concerning transporting and trading in wildlife and wildlife products and without limiting the generality of this power may make regulations –

(a) exempting certain categories of person in prescribed circumstances from the requirement to obtain a permit under this Chapter;

(b) prescribing categories of wildlife that may be imported into or exported from, the Province without a permit under this Act;

(c) prescribing the documentation that is to be issued and retained in connection with the transportation or trade in wildlife and wildlife products in the Province; or

(d) to regulate trade in wildlife and wildlife products.

chapter XII: CO-OPERATIVE GOVERNANCE AND DECISION-MAKING

Co-operative governance

91. (1) Before exercising a power under this Act which may significantly affect the area of responsibility of another organ of state, a competent authority –

(a) must give effect to –

(i) the principles and objects of co-operative government and inter-governmental relations contained in section 41 of the Constitution and in sections 4 and 5 of the Intergovernmental Relations Framework Act 13 of 2005; and

(i) the requirements of NEMA relating to co-operative government;

(b) consult with other organs of state whose areas of responsibility may be significantly affected by the exercise of the power, including –

(i) all members of the Executive Committee of the Province whose areas of responsibility may be affected by the exercise of the power; and

(ii) all members of the national cabinet whose areas of responsibility may be affected by the exercise of the power in accordance with the principles of co-operative governance set out in Chapter 3 of the Constitution.

(2) Other organs of state must consult with the Board before –

(a) making a decision or performing any other administrative act[61] which may result in an adverse effect;

(b) authorising any development in an ecologically sensitive area; or

(3) In making any decision under this Act, the competent authority must –

(a) within a reasonable time before making the decision send a copy of the application to all affected organs of state that may have jurisdiction over, or an interest in, any proposed activity referred to in the application;

(b) take all reasonable steps to consult with affected organs of state;

(c) if required by the relevant section of this Act, enable interested and affected parties to participate in the decision-making process in accordance with section 92 [Participation in decision-making];

(d) give effect to the requirements of administrative justice contained in the Promotion of Administrative Justice Act, and in particular –

(i) give reasonable notice of a proposed decision;

(ii) permit representations regarding the proposed decision;

(iii) ensure a fair hearing; and

(iv) give reasons for any decision made;

(e) where it does not have the technical expertise necessary to make a decision, consult with any organ of state that does have that expertise;

(f) apply the principles of co-existence; and

(g) take account of any norms or standards established in terms of national legislation.

Participation in decision-making

92. (1) Interested and affected parties have the right to participate in accordance with the procedures specified in this Act in decision-making processes under this Act, including the making of decisions concerning –

(a) the declaration of Provincial protected areas, local nature reserves and protected ecosystems or changes to the boundaries of these areas;

(b) the declaration in terms of section 42 [Invasive exotic species] of any exotic species to be an invasive species;

(i) conservation plans;

(ii) guidelines referred to in section 16(2)(d) [Role, functions and powers of Provincial Minister]; or

(iii) codes of practice referred to in section 135 [Codes of practice]; or

(d) the granting or refusal of applications for –

(i) game farm permits;

(ii) the establishment and operation of captive breeding facilities for protected wild animals; or

(iii) permits to import, export or hunt any species listed in Annex II of CITES or any wildlife product made from such a species.[62]

(2) A person who has a particular interest in participating in decision-making processes of a specific kind, may apply to the competent authority for those processes to be registered as a standing interested and affected party in relation to those processes and the competent authority must do so, subject to appropriate terms and conditions specified by it unless it has good reasons for refusing the application.

(3) A competent authority –

(a) must ensure that interested and affected parties are given a reasonable opportunity to participate effectively in the decision-making processes; and

(b) may require interested and affected parties to register as such in order to participate in a decision-making process but may not impose a registration requirement that unfairly prejudices or excludes any group of interested and affected parties;

(4) The person responsible for undertaking a public participation process must ensure that any document made available for public comment is concise and, as far as reasonably possible, written in a manner that enables interested and affected parties to understand it.

(5) A competent authority to whom written representations may be made under this Act must allow an interested person or community to present oral representations or objections instead of, or in addition to, written representations if the competent authority believes that it is necessary or desirable to do so in order to enable that person or community to participate effectively in the decision-making process.

(6) A competent authority may at any stage in a decision-making process under this Act direct an applicant for an authorisation –

(a) to send written notification to any registered participant; and

(b) to follow any guidelines published by the competent authority regarding public participation.

Public notices

93. (1) Unless prescribed or directed in writing by the competent authority, a person responsible for publishing a notice under this Act must –

(a) publish or broadcast the notice in all three official languages, in more than one form of media, and in a manner that is reasonably likely to bring it to the attention of interested and affected persons;

(b) display the notice at the site of the proposed activity in a position that is visible to passers-by and in prominent places in the area concerned and ensure that they remain there for the duration of any comment period;

(c) distribute copies of the notice to persons owning or occupying land in the vicinity of the activity to which the application relates; and

(d) if publication in the media or by the display of signs is likely to be ineffective in notifying a significant proportion of interested and affected parties, use public meetings or other means of bringing information to the attention of these parties.

(2) A notice that does not comply with this section in every respect with is nevertheless valid if the non-compliance is minor and does not materially prejudice any person.

(3) Any person who believes that he, she or it has been materially prejudiced as a consequence of the failure by another person to comply with this section may write to the Head of Department objecting to the notice and setting out the nature of the alleged non-compliance and the factual basis and reasons for the alleged prejudice.

(4) The Head of Department, after giving the person responsible for publishing the notice an opportunity to respond to any objections referred to in subsection (3), must –

(a) decide whether to reject each objection and uphold the validity of the notice, or to require the person responsible for the notice to take further measures to publicise the notice, and

(b) communicate that decision in writing to the parties concerned.

Commenting and provision of information

94. (1) If a competent authority reasonably believes that it does not have sufficient information to make a decision that it is required by this Act to make, it may at any time within the period allowed for making the decision, in writing request an organ of state, a person making an application under this Act, or any interested and affected party, to provide information or to comment within a specified period of not less than ten working days.

(2) A decision-maker may regard any person who does not provide the information requested or comment within the period specified in terms of subsection (1) as not having any comment to make or information to furnish.

(3) If this Act specifies that a decision must be made within a specific period that period is extended by ten working days or by the number of working days that it takes for the competent authority to receive a response to its request under subsection (1), whichever is the shorter period.

(4) If a decision-maker is satisfied that there are exceptional circumstances that justify the consideration of information or comments that were not provided within the period specified for doing so, the decision-maker may –

(a) grant a person an extension of time within which to provide information or comment, and

(b) consider information or comments provided after any specified period, whether or not an extension was granted.

chapter XIII: AUTHORISATIONS

Holders of authorisations

95. (1) An authorisation in terms of this Act may not be issued, continue to be held, or transferred to any person unless the competent authority has reason to be satisfied that that person is –

(a) a responsible person; and

(b) competent to perform the activities authorised by the authorisation in accordance with this Act.

(2) In determining whether or not a person is responsible for the purposes of subsection (2)(a), the competent authority must take account of all relevant factors, including whether or not that person –

(a) has been convicted of contravening this Act, the Biodiversity Act, the Protected Areas Act, the National Environmental Management Act; the National Forests Act, the Integrated Coastal Act, the Marine Living Resources Act or any other national, provincial or municipal legislation regulating the conservation or use of ecological communities;

(b) was the holder of an authorisation concerning the conservation or sustainable use of an ecological community that was revoked or suspended;

(c) has failed to comply with any authorisation or directive either issued under this Act or issued under the legislation referred to in paragraph (a) and which concerned the conservation or sustainable use of ecological communities; or

(d) was a director or senior manager of a legal person or entity referred to in paragraph (a), (b) or (c) when the offence, revocation, suspension or failure to comply with the authorisation or directive occurred.

(3) In determining whether or not a person is competent for the purposes of subsection (2)(b), the competent authority must take account of all relevant factors, including whether or not –

(a) that person has the necessary expertise and experience to undertake the activities authorised in accordance with this Act and other applicable legislation, any conditions imposed in the authorisation and in national or Provincial norms and standards; or

(b) the individuals who will manage and undertake the activities authorised by the authorisation have the necessary expertise and experience referred to in paragraph (a).

(4) An authorisation granted in terms of this Act is personal and may not be transferred to another person without the written consent of the competent authority that granted it, which consent may not be withheld unreasonably.

Applications for authorisations

96. (1) A person who wishes to obtain, renew, vary, transfer or surrender an authorisation that is required or issued under this Act, must apply in writing to the competent authority.

(2) Subject to subsection (3), an application must -

(a) be made in the form and comply with any requirements that may be prescribed;

(b) include details of the applicant and of the activity to which the application relates, including the nature and location of the activity and its actual and potential adverse effects;

(c) include any additional information prescribed or that is reasonably required by the competent authority to decide the application;

(d) include documentary evidence that a public participation process has been followed in accordance with section 92 [Participation in decision-making], if such a process is required; and

(e) be accompanied by any fee that may be prescribed.

(3) A person who is the holder of an authorisation under any other legislation which authorises that person to undertake specified activities, may apply to a competent authority to grant a corresponding authorisation under this Act and to exempt the applicant from complying with the procedures which would otherwise be applicable to obtain that authorisation.

(4) The competent authority may approve an application under subsection (3) and issue the authorisation if the competent authority is satisfied that the person who granted the authorisation under that other legislation was required to consider the factors that would have been material to a decision to grant or refuse the corresponding authorisation under this Act.

Requests for additional information or public participation

97. (1) The competent authority may request an applicant, at the applicant’s expense –

(a) to obtain and provide it by a specified date with whatever additional information and documentation the competent authority reasonably requires in order to make a decision on the application; or

(b) to take such other steps as the competent authority may direct to bring the application to the attention of relevant organs of state, interested and affected parties and the general public.

(2) The request must be made in writing and may include a request for –

(a) a report prepared by a competent and independent person that assesses the actual or potential adverse effects that may result from, or the risks associated with, the activity to which the application relates;

(b) the independent review by a person specified or approved by the competent authority of the whole or a part of an application or assessment.

(3) If an applicant fails to provide the additional information requested within the period specified by the competent authority, the competent authority may regard the application as having been withdrawn.

Deciding on applications

98. (1) When considering an application referred to in section 96 [Applications for authorisation], the competent authority must –

(a) apply the principles of co-existence and the NEMA principles;

(b) fulfil its duties under this Act; and

(i) any norms or standards prescribed by the Provincial Minister or the Minister;

(ii) any coastal management programme, bioregional plan, or biodiversity management plan, that applies to the area concerned;

(iii) any existing authorisations for the same activity

(iv) any environmental assessment or other assessment submitted by the applicant;

(v) any reports submitted by an independent reviewer appointed to review the application or an assessment;

(vi) written submissions lodged in terms of any public participation process required by section 92 [Participation in decision-making], and any responses by the applicant to those submissions;

(vii) any guidance or code of practice issued by the Provincial Minister in respect of the activity to which the application relates;

(viii) any considerations prescribed by the Provincial Minister; and

(ix) any other considerations which this Act requires the competent authority to take into account for the purpose of a specific application.

(2) The competent authority -

(a) must refuse an application if it is not satisfied that the applicant would be able to comply with the relevant standards stipulated or prescribed in terms of this Act or with the conditions to which the authorisation would be subject;

(b) must refuse an application unless it is satisfied that the activities authorised by it will further the objects of this Act and are consistent with the intrinsic rights and fundamental duties;[63]

(c) may issue any authorisation that is not specifically named in this Act or in regulations, as a “special authorisation”.

(3) The competent authority must notify in writing the applicant and those interested and affected parties that have submitted comments on the application of its decision on the application and the reasons on which it is based as soon as reasonably practicable after making it.

Integrated authorisations

99. (1) If an activity or enterprise may not be undertaken without authorisations from more than one competent authority in terms of this Act, or without one or more authorisations under this Act and an authorisation in terms of any other law, then any two or more of those authorities may exercise their respective powers jointly and may either –

(a) issue the authorisations simultaneously after having ensured that their provisions are mutually consistent; or

(b) issue a single integrated authorisation.

(2) An integrated authorisation contemplated in subsection (1)(b) may be issued only if –

(a) the relevant provisions of this Act and of any other law in respect of which an authorisation is granted, have been complied with; and

(b) the authorisation specifies –

(i) the provisions in terms of which it has been issued; and

(ii) the relevant authorities that issued it.

Terms and conditions of authorisations

100. (1) An authorisation must specify[64] -

(a) the area to which it relates;

(b) the person to whom it is issued;

(d) the conditions subject to which it is issued;

(e) the period of its duration;

(f) the review periods during which the authorisation may be reviewed under section 101 [Power to review and vary an authorisation], which must be intervals of not more than five years;

(g) the conditions attached to the authorisation; and

(h) any other provisions prescribed in regulations.

(2) The conditions of an authorisation must include all conditions the competent authority considers appropriate to further the objects of this Act and to ensure that adverse effects are effectively avoided, mitigated and remedied.

(3) The conditions of an authorisation may include conditions referring to or incorporating conditions contained in –

(a) an environmental authorisation issued under the Environment Conservation Act or the National Environmental Management Act; or

(b) a code of practice.

(4) The competent authority may not issue any authorisation or impose any conditions that will allow an authorisation holder to contravene national or Provincial norms or standards.

Power to review and vary an authorisation

101. (1) The competent authority may review any condition of an authorisation issued or given by it and may delete, amend or add any condition that the competent authority reasonably believes is appropriate to further the object of this Act –

(a) at the time intervals specified in the authorisation; and

(b) at any other time if the competent authority receives new information that gives it reason to believe that the-

(i) existing conditions may no longer be appropriate to further the object of this Act and to ensure that actual or potential adverse impacts of undertaking the activities authorised by the authorisation are effectively avoided, mitigated and remedied; or

(ii) holder may no longer be a responsible or competent person as contemplated in section 95 [Holders of authorisation].

(2) The competent authority must afford the holder of an authorisation an opportunity to make written or oral representations before deleting or amending any condition, or determining a new condition, of an authorisation.

Suspension or revocation of an authorisation

102. (1) The competent authority may suspend or revoke an authorisation if a condition in it is not complied with adequately or at all.

(2) The competent authority must afford the holder of an authorisation an opportunity to make written or oral representations before suspending or revoking the authorisation unless the competent authority has reason to believe that it must act urgently to protect human health or the integrity, health or functioning of an ecological community, in which case it may suspend an authorisation and then give the holder an opportunity to make urgent representations.

(3) An authorisation that has been suspended remains suspended until the competent authority notifies the holder in writing that the suspension has been lifted or until the authorisation expires or is cancelled, whichever occurs first.

chapter XIV: APPEALS

Appeals to be lodged with Provincial Minister

103. (1) Any person who feels aggrieved by the decision of a competent authority to issue, refuse, vary, suspend or revoke an authorisation or by a condition imposed in an authorisation may lodge with the Provincial Minister an appeal against the decision within 30 days after having been informed of the decision.

(2) The Provincial Minister must either –

(a) consider and decide the appeal; or

(b) designate a panel of persons to consider and decide the appeal.

(3) An appeal does not suspend the decision against which the appeal is lodged unless the Provincial Minister or appeal panel considering the appeal directs otherwise.

Appeal panels

104. (1) If the Provincial Minister decides that the appeal must be considered and decided by an appeal panel, the Provincial Minister must designate –

(a) a minimum of two and a maximum of six persons with appropriate knowledge as members of the panel; and

(b) one of the panel members as the presiding member.

(2) The presiding member of the appeal panel decides when and where the panel meets.

(3) An appeal panel must –

(a) consider and decide the appeal in accordance with a prescribed procedure; and

(b) keep a record of its proceedings and decisions.

Appeal decisions

105. (1) The Provincial Minister or appeal panel considering an appeal may –

(a) either uphold or refuse the appeal; and

(b) when upholding or refusing the appeal, make such other orders as may be appropriate.

(2) If the appeal is upheld against –

(a) a refusal to issue an authorisation, the Provincial Minister or appeal panel may issue the authorisation unconditionally or subject to conditions;

(b) a condition subject to which an authorisation was issued, the Provincial Minister or appeal panel may withdraw or amend the condition; or

chapter XV: COMPLIANCE AND ENFORCEMENT

Enforcement of intrinsic rights and duties

106. (1) Any person may, on behalf of any ecological community or member of an ecological community within the Province that is unable to represent itself –

(a) request the Council to investigate the matter in accordance with section 11(2) [Provincial Conservation Council], to express an opinion as to whether or not a person has infringed an intrinsic right or breached a fundamental duty of custody, and if so, to make recommendations regarding how best to remedy the situation; and

(b) institute an action before a competent court to enforce an intrinsic right on behalf of an ecological community or member of an ecological community and to recover damages on behalf of that ecological community or member in respect of any infringement of that right.

(2) A court may order any person who has infringed an intrinsic right to take specified actions to remedy any harm that occurs as a consequence of that infringement to an ecological community or a member of an ecological community, or to pay an amount in damages that can be used to do so.

(3) Unless the court directs otherwise, any damages awarded by a court in respect of the infringement of an intrinsic right must be paid into the Fund and must be used to fund measures aimed at restoring the health of any ecological community that was damaged as a consequence of the infringement.

Appointment of nature conservation officers

107. (1) The Board may for the purpose of implementing and enforcing this Act –

(a) designate –

(i) as a nature conservation officer any appropriately qualified person employed by the Board or by any provincial organ of state other than the Board;

(ii) as nature conservation ranger any appropriately qualified person employed by a municipality in the Province who is nominated by that municipality; or

(iii) as an honorary nature conservation ranger any appropriately qualified person; and

(b) at any time withdraw a designation made in terms of paragraph (a) in accordance with the Human Resources Policies and procedures of the Board in force at the time.

(2) A designation in terms of subsection (1) may only be made by agreement between the Provincial Minister and the relevant Provincial organ of state or municipality.

Identity card and certificate of appointment

108. (1) When designating a nature conservation officer, the Board must issue an identity card and a certificate of appointment in the prescribed form to any nature conservation officer that it designates in terms of section 107.

(2) When exercising any powers or performing any duties in terms of this Act, a nature conservation officer must, on demand by a member of the public, produce the identity card and the certificate of appointment or a certified copy of the certificate.

(3) The certificate of appointment must indicate the extent of the powers of the nature conservation officer and in particular must indicate whether –

(a) the officer has been appointed by the Provincial Minister as an EMI under section 31C of NEMA;

(b) the mandate of the officer for the purposes of section 31D of NEMA, is limited to the enforcement of this Act; and

(c) there is any specific limitation on the mandate or powers of the officer, including any limitations in respect of area, offences, or species.

(4) The validity of the certificate of appointment issued under subsection (1) ends when –

(a) the officer leaves the employ of the Board, municipality, or other organ of state which employed him or her when appointed;

(b) the certificate is withdrawn by the Board; or

Functions of nature conservation officers

109. A nature conservation officer within his or her mandate as set out in his or her certificate of appointment –

(a) must monitor and enforce compliance with this Act and any other law the administration of which has been assigned to the Board; and

(b) may investigate any act or omission in respect of which there is a reasonable suspicion that it might constitute –

(i) an offence in terms of this Act or any other law, the administration of which has been assigned to the Board;

(ii) a breach of the provisions of this Act or any other law, the administration of which has been assigned to the Board; or

(iii) a breach of a term or condition of an authorisation issued in terms of this Act or any other law the administration of which has been assigned to the Board.

Duties of nature conservation officers

110. A nature conservation officer must carry out his or her functions and exercise his or her powers –

(a) in accordance with his or her certificate of appointment;

(b) subject to any limitations and in accordance with any procedures that may be prescribed; and

(c) notwithstanding the provisions of section 113(2) in a way that minimises any damage to, loss of, or the deterioration of any premises or thing.

General powers of nature conservation officers

111. (1) A nature conservation officer may, subject to any limitation on his or her powers imposed by his or her certificate of appointment –

(a) demand the name, address, identity number and any other information necessary for the identification of any person –

(i) who has committed an offence under this Act or any other law the administration of which has been assigned to the Board;

(ii) whom he or she reasonably suspects of having committed an offence under this Act or any other law the administration of which has been assigned to the Board; or

(iii) who he or she reasonably believes will be able to furnish evidence in connection with an offence committed or which he or she reasonably believes to have been committed under this Act or any other law the administration of which has been assigned to the Board,

(b) if a person referred to in paragraph (a) gives a name or address which the nature conservation officer reasonably believes to be false, arrest that person without warrant and detain that person until either the name and address has been verified, or twelve hours has expired, whichever occurs first;

(i) demand that any vehicle, vessel, boat, craft, float, aircraft, animal or other means of conveyance be brought to a standstill and be kept stationary until he or she has completed such questioning; or

(ii) if necessary and possible, force the person in charge of such vehicle, vessel, boat, craft, float, aircraft, animal or other means of conveyance to stop or land, as the case may be.

(d) inspect or question a person about, any document, book or record or any written or electronic information which may be relevant for the purposes of paragraph (a) or which this Act relates;

(e) copy or make extracts from, any document, book or record or any written or electronic information referred to in paragraph (d), or remove such document, book, record or written or electronic information in order to make copies or extracts;

(f) require a person to produce or deliver to a place specified by the nature conservation officer, any document, book or record or any written or electronic information referred to in paragraph (d) for inspection;

(g) inspect, question a person about, and if necessary remove any specimen, article, substance or other item which, on reasonable suspicion, may have been used in –

(i) committing an offence under this Act or any other law the administration of which has been assigned to the Board;

(ii) breaching the provisions of this Act or any other law the administration of which has been assigned to the Board; or

(iii) breaching a term or condition of any authorisation issued under this Act or any other law the administration of which has been assigned to the Board.

(h) instruct any person to leave land or premises at which that person contravened or failed to comply with a provision of this Act, of any other law administered by the Board, or of an authorisation granted under this Act or such other law;

(i) confiscate or, if necessary, destroy a dog that is not under the direct control of its owner, which is not used in lawful hunting and which is pursuing or searching for a wild animal on land declared as a protected area in terms of this Act or land under control or management of the Board for any other reason;

(j) in the exercise of a power or performance of a function in terms of this Act or any other law the administration of which has been assigned to the Board, make use of an interpreter and, if necessary, of one or more other persons, and such an interpreter or other person is deemed to be a nature conservation officer while acting under control of the nature conservation officer;

(k) conduct any investigation in terms of any provision of this Act or any other law the administration of which has been assigned to the Board;

(l) take photographs or make audio-visual recordings of anything or any person that is relevant for the purposes of an investigation;

(m) dig or bore into the soil if it is relevant for the purposes of an investigation;

(n) take samples of any substance, article, wildlife product, plant or animal that may be relevant for the purposes of an investigation; or

(o) carry out any other prescribed duty that is not inconsistent with this Act.

(2) Any nature conservation officer appointed as a peace officer in terms of section 334 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), has the following powers in terms of that Act –

(a) the arrest without a warrant of any person in terms of section 40(1)(a);

(b) the execution of warrants of arrest in terms of section 44;

(d) the serving of summons in a criminal case upon an accused issued in terms of section 54;

(e) the serving of subpoenas in terms of section 180; and

(f) the administration of dockets in relation to contraventions of this Act or any other law assigned to the Board.

Written notices

112. (1) A nature conservation officer may issue a written notice, in accordance with subsection (2) to a person who refuses to answer questions put to that person terms of the provisions of this Chapter requiring that person to answer questions put to him or her in terms of said provisions.

(2) A written notice issued in terms of subsection (1) must be in the prescribed format and must require a person to answer specified questions either orally or in writing, and either alone or in the presence of a witness and may require that questions are answered under oath or affirmation.

(3) A person who receives a written notice in terms of subsection (1), must answer all questions put to him or her truthfully and to the best of his or her ability, notwithstanding that an answer might incriminate him or her, but any answer that incriminates such person may not be used against him or her in any subsequent criminal proceedings for an offence in terms of this Act or any other law the administration of which has been assigned to the Board.

Powers and functions of nature conservation officers pertaining to search, seizure, entry and arrest.

113. (1) A nature conservation officer may subject to any limitation on his or her powers imposed by his or her certificate of appointment –

(a) without a search warrant search any person, premises, pack-animal or container for the purpose of seizing and confiscating anything which he or she reasonably suspects –

(i) is used or has been used or is intended to be used in;

(ii) concerns, or has formed an element in; or

(iii) will afford evidence of,

the commission of any offence under this Act, provided that –

(a) the person concerned consents to the search for and seizure of the article in question; or

(b) such officer on reasonable grounds believes –

- that a search warrant will be issued to him or her if he or she applies for such warrant; and

- that the delay in obtaining such warrant would defeat the object of the search;

(b) where he or she reasonably suspects that a person who may furnish information with regard to an offence or omission, or an alleged offence or omission in terms of this Act or any other corresponding law assigned to the Board, is on or in any premises, without a warrant enter such premises for the purpose of questioning such person and obtaining a statement from him or her, provided that such officer may not enter any private dwelling without the consent of the occupier thereof;

(c) where he or she reasonably suspects that anything contemplated in paragraph (a), is or was in or on a vessel, aircraft, pack-animal or vehicle or such a vessel, aircraft, pack-animal or vehicle is being or has been used for the purpose of or in connection with the commission of an offence in terms of this Act or any other law assigned to the Board, at any time stop such vessel, aircraft, pack-animal or vehicle, or order the person in charge thereof to stop;

(d) remove and seize, or cause to be removed and seized, any trap, holding pen, set gun, setline, poison or other device or means which is presumably being used to hunt or capture a wild animal or fish unlawfully or, if it cannot be removed or seized, destroy it or render it harmless, or cause it to be destroyed or rendered harmless; or

(e) seize any livestock or other animal trespassing on land under the control or management of the Board and, notwithstanding the provisions of any other law relating to pounds, retain such livestock or other animal on such land.

(2) A nature conservation officer who may lawfully search any person or premises or who may enter premises under subsection (1), may subject to section 110(c) [Duties of nature conservation officers] use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises, provided that such nature conservation officer shall first audibly demand admission to the premises and notify the occupier of said premises of the purpose for which he or she seeks entry to such premises.

(3) The provisions of this section may not derogate from any power conferred by any other law to enter any premises or to search such person, container or premises or to seize any matter, or to declare any matter forfeited or to dispose of any matter.

Search warrant

114. (1) A search warrant must be issued –

(a) on written application by a nature conservation officer setting out under oath or affirmation that it is necessary to enter the specified residential premises for the purposes of ascertaining compliance with this Act or any other law the administration of which has been assigned to the Board;

(b) by a magistrate or justice of peace, if it appears to such magistrate or justice of peace from information on oath that there are reasonable grounds for believing that any such article is in the possession of or under the control of, or upon any person or upon or at any premises within his or her jurisdiction;

(c) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article is in possession of or under control of any person or upon or at any premises and is required in evidence at such proceedings.

(2) A search warrant issued under subsection (1) shall require a nature conservation officer to seize the article in question and shall to that end authorise such officer to search any person identified in such warrant and to search any premises identified in such warrant and to search any person found on or at such premises.

(3) A search warrant must be executed during the day, unless the person issuing the warrant authorises the execution thereof during the night.

(4) A search warrant may be issued on any day and shall be of force until it is executed or cancelled by the person who issued it or, if such person is not available, by any person with like authority.

(5) A nature conservation officer executing a warrant issued under this section must, upon demand of any person whose rights in respect of any search or seizure under such warrant are affected, hand to him or her a copy of the warrant.

Seizure of items

115. (1) When an item is seized in terms of this Act or any other law the administration of which has been assigned to the Board, the nature conservation officer may request the person who was in control of the item immediately before the seizure of the item, to take it to a place designated by the nature conservation officer, and if the person refuses to take the item to the designated place, the officer may do so.

(2) In order to safeguard a vehicle, vessel or aircraft that has been seized, the nature conservation officer may immobilise it by removing a part.

(3) An item seized in terms of this Act, including a part of a vehicle, vessel or aircraft referred to in subsection (3), must be kept in such a way that it is secured against damage.

(4) A nature conservation officer must –

(a) provide a receipt for any document, book, record or written or electronic information or any specimen, article, substance or thing seized or removed in terms of this Act; and

(b) return anything removed within a reasonable period or, if it is required for a criminal trial and the court does not order it to be forfeited to the state, at the conclusion of any relevant criminal proceedings;

(5) The provisions of sections 30 to 34 of the Criminal Procedure Act, 1977, apply to the disposal of anything seized in terms of this Act, subject to such modifications as the context may require.

Routine inspections

116. (1) A nature conservation officer may subject to any limitation on his or her powers imposed by his or her certificate of appointment and for the purposes of ascertaining compliance with –

(a) this Act or any other law the administration of which has been assigned to the Board; or

(b) a term or condition of an authorisation issued in terms of the laws this Act or such other law,

at any reasonable time, without a warrant and whenever possible after notifying the owner or occupier enter any premises in respect of which an authorisation or exemption has been issued in terms of this Act or such other law, or any premises on which a person to whom an authorisation or exemption has been issued in terms of this Act or such other law regularly exercises the rights so conferred.

(2) A nature conservation officer may not enter and inspect any residential premises without a warrant, unless –

(a) the person in control of the premises consents to the entry and inspection; or

(b) the nature conservation officer has reasonable grounds to believe that an application for a warrant would be successful, but by the time this had been done, the purpose of the entry or inspection would have been defeated.

(3) A nature conservation officer may during a routine inspection in terms of subsection (1) –

(a) exercise any of the powers set out in section 111 [General powers of nature conservation officers];

(b) seize or remove anything contemplated by section 111(1)(a) during a routine inspection in which case the provisions of section 115 [Seizure of items] applies with the changes the context requires;

(c) stop any vessel on waters or land under control or management of Board, for the purposes of this Act any other law the administration of which has been assigned to the Board, or stop any vehicle on such land and inspect such vessel or such vehicle to ascertain whether it complies with the requirements prescribed or determined in terms of this Act or any other law the administration of which has been assigned to the Board;

(d) apply to the Provincial Commissioner of Police for written authorisation in terms of section 13(8) of the South African Police Service Act, 1995 (Act 68 of 1995) to establish a roadblock or a checkpoint;

(e) demand from any person who is required in terms of this Act any other law the administration of which has been assigned to the Board to keep or carry with him or her any register, record, book, document, writing, authorisation or exemption or electronic information, to produce it for inspection;

(f) demand from any person who performs an act or in respect of whom it is reasonably suspected that he or she has performed or will perform an act for which an authorisation or exemption is necessary in terms of this Act any other law the administration of which has been assigned to the Board, to produce any such authorisation or exemption, as the case may be;

(g) where any person has performed or he or she reasonably suspects any person of having performed on any land any act which may only be performed on land in respect of which a certificate of adequate enclosure has been issued under section 48 [Certificate of adequate enclosure], demand from the owner of such land the production of such certificate;

(h) copy, or make extracts from, any document, book or record, or any written or electronic information or other thing, referred to in paragraphs (e), (f) or (g), or remove any such document, book, record, or written or electronic information or other thing in order to make copies or extracts;

(i) inspect, or question a person about, any document, book or record or any written or electronic information –

(i) which may be relevant for the purposes of paragraph (a); or

(ii) to which this Act or another law the administration of which has been assigned to the Board relates;

(j) require a person to produce or deliver to a place specified by the inspector, any document, book or record or any written or electronic information referred to in paragraph (c) for inspection;

(k) inspect, question a person about, and if necessary remove any specimen, article, substance or other item which the officer reasonably suspects may have been used in –

(i) an offence in terms of this Act; or

(ii) a breach of this Act or of a term or condition of an authorisation issued in terms of this Act or other law the administration of which has been assigned to the Board;

(l) take photographs or make audio-visual recordings of anything or any person that is relevant for the purposes of an investigation;

(m) dig or bore into the soil;

(n) take samples, other than samples of an archaeological or palaeontological nature;[65] and

(o) carry out any other prescribed duty that is not inconsistent with this Act.

Powers of honorary nature conservation officers

117. (1) A honorary nature conservation officer has all the powers and duties conferred on a nature conservation officer by sections 111(a) (without the powers of arrest contained in that section), 111(j); 113(d) and 116(3)(e), (f) and (g);

(2) When an honorary nature conservation officer takes with him or her an interpreter or assistant as contemplated by section 111(j) such interpreter or assistant is deemed to be an honorary nature conservation officer.

Powers of nature conservation rangers

118. (1) Any local authority may, subject to the law governing the appointment of employees of such local authority, nominate for appointment by the Board so many persons as it may deem expedient as nature conservation rangers for the carrying out of the provisions of this Act within the area of jurisdiction of such local authority.

(2) A nature conservation ranger has all the powers and duties conferred by sections 111 to 116 and may exercise such powers within the area of jurisdiction of the local authority which appointed him or her.

(3) When a nature conservation ranger takes with him or her an interpreter or assistant as contemplated by section 111(1)(i), such interpreter or assistant is deemed to be a nature conservation ranger.

Powers of custodians

119. (1) The custodian of a wild animal who discovers a person hunting, fishing for, or capturing that wild animal, may –

(a) direct that person to produce his or her authorisation to do so;

(b) direct any such person who is unable to produce such authorisation to give his or her name and address and immediately leave the land concerned; and

(c) arrest any person referred to in paragraph (b) who does not give his or her name or address or gives a name or address that the custodian has reason to believe is false.

(2) A custodian who arrests any person referred to in subsection (1) must as soon as possible turn that person over to a nature conservation officer or police officer.

(3) Any person who fails to comply with a directive given by a custodian or who resists arrest by the custodian who is acting in terms of subsection (1), commits an offence and is liable on conviction to the sanction prescribed in section 127 [Penalties].

Cost Orders

120. (1) If any person fails to comply with a requirement to take measures specified in an authorisation issued under this Act or a directive from the Board, the competent authority who issued the authorisation or the Board in the case of a directive, may cause the required measures to be taken and may issue a cost order requiring that person to reimburse the competent authority or the Board for the reasonable cost of taking the measures.

(2) The Board may use money from the Fund to fund the taking of measures referred to in subsection (1) and if it does, any amounts reimbursed in accordance with subsection (1) must be paid back into the Fund.

(3) A person served with such a cost order may request the Council to review the decision to issue the costs order, in which case the cost order is suspended until the review has been decided.

(4) A cost order may be enforced as if it were an order of court.

Power to issue compliance notices

121. A nature conservation officer subject to any limitation on his or her powers imposed by his or her certificate of appointment, may issue a compliance notice in the prescribed form and following a prescribed procedure if there are reasonable grounds for believing that a person has not complied with –

(a) this Act;

(b) any other law relating to the use or conservation of ecological communities which has been assigned to the Board; or

Objections to compliance notice

122. (1) Any person who receives a compliance notice in terms of section 121 [Power to issue compliance notices] may object to the notice by making representations, in writing, to the Board, within 30 working days of receipt of the notice, or within such longer period as the Board may determine.

(2) After considering any representations made in terms of subsection (1) and any other relevant information, the Board –

(a) may confirm, modify or cancel a notice or any part of a notice; and

(b) must specify the period within which the person who received the notice must comply with any part of the notice that is confirmed or modified.

Failure to comply with compliance notice

123. (1) A person who fails to comply with a compliance notice commits an offence and is liable on conviction to the sanction provided for in section 127 [Penalties].

(2) If a person fails to comply with a compliance notice, the nature conservation officer must report the non-compliance to the Board and the Board may –

(a) revoke or change the relevant authorisation or other instrument which is the subject of the compliance notice;

(b) take any necessary steps and recover the costs of doing so from the person who failed to comply; and

Access to information

124. A competent authority must give any person prompt access to any information relating to the administration and implementation of this Act to which that person is entitled in terms of the Promotion of Access to Information Act, 2000 (Act 2 of 2000).

chapter XVI: LEGAL PROCEEDINGS, OFFENCES AND PENALTIES

Application of NEMA to legal proceeding to enforce Act

125. (1) The provisions of section 32 (Legal standing to enforce environmental laws) and section 33 (Private Prosecutions) of NEMA apply to proceedings to enforce this Act and, for the purposes of those sections, this Act constitutes a statutory provision concerned with the protection of the environment or the use of natural resources.

(2) The provisions of section 34 (Criminal proceedings) of NEMA[66] apply to criminal proceedings instituted under this Act as if the offences listed in section 126 [Offences] of this Act were listed in Part (b) of Schedule 3 of NEMA.[67]

Offences

126. (1) A person is guilty of a category one offence if that person –

(a) commits an offence referred to in sections 69(4) [Permits to hunt, capture or disturb wild animals]; 70 [Registrations in respect of game farms and the hunting and capturing of wild animals], 77(6) [Prohibited means of hunting, killing and capturing wildlife], 79(7) [Professional hunting and game capture], 86(2) [Prohibition in relation to trade in wildlife and wildlife products]; 87(3) [Permits in relation to trade in wildlife and wildlife products], 88(6) [Certificate of origin];

(b) alters, fabricates or forges –

(i) any authorisation, certificate or other document issued or required for the lawful performance of any act in terms of this Act;

(ii) any official logo, letterhead, stamp, hallmark or date stamp of the Board, or the signature of any person their capacity as an agent or employee of the Board;

(c) is in possession of any altered or false document purporting to be an authorisation, or attempts to pass off such a document as a valid authorisation or certificate issued under this Act ;

(d) obtains or applies for any authorisation or document in terms of this Act –

(i) under a false name; or

(ii) while prohibited by an order of court from being the holder of such an authorisation or document;

(e) knowingly makes a false statement in any application made, or document furnished in terms of this Act;;

(f) processes, prepares, cures, tans or in any manner whatsoever treat the carcass of a protected wild animal for the purpose of –

(i) mounting it;

(ii) exhibiting it or any article manufactured from it, or

(iii) manufacturing any article from it; or

(g) conceals, removes from any premises, destroys or disposes of any thing or evidence to prevent it being seized or the detection of any offence under this Act, including any wildlife, wildlife product or any book, register, document, vehicle, machinery, implement, container, firearm, weapon, explosive, or poison.

(2) A person is guilty of a category two offence if that person –

(a) commits an offence referred to in sections 20(5) [Measures on private land]; 47(1) [Game fences];55(2) [restriction on picking indigenous species of plant], 62(3) [Restricted activities in relation to aquatic ecological communities], 63(2) [Prohibited ways of catching fish], 75(3) [Hunting returns] 81(4) [Permits in respect of keeping, breeding and releasing wild animals] 82(3) [Registrations in respect of the keeping, breeding and displaying of wild animals in captivity], 83(3) [General duty in respect of captive wild animals]; or

(b) fails to comply with a directive issued in terms of section 36(1) [Directive to owners and occupiers of land adjacent to rivers bordering protected areas];

(i) to be a nature conservation officer, nature conservation ranger, honorary nature conservation officer, employee or agent of the Board;

(ii) to be a registered indigenous plant grower, indigenous plant seller,

(iii) that any premises are registered as an indigenous plant nursery or as an indigenous plant retail premises or have been designated by a municipality as a place at which indigenous plants may lawfully be offered for sale;

(d) in relation to a nature conservation officer, nature conservation ranger, honorary nature conservation officer, member of an appeals panel, person in possession of the written authority of the Board issued under section Error! Reference source not found.(1)[Measures on private land], employee or agent of the Board or of a competent authority who is exercising powers or performing functions or duties in terms of this Act -

(i) knowing gives that person false or misleading information;

(ii) assaults, hinders, obstructs, resists, intimidates or interferes with that person or incites any other person to do so;

(iii) uses threatening language or behaves in a threatening or insulting manner or uses abusive language or insulting gestures;

(iv) without good cause refuses or fails on demand to furnish that person with his or her name and address or with any information or document required by that person for the purposes of this Act, or

(v) refuses or fails to comply with an order, instruction or demand made by that person,

(e) after being stopped by a nature conservation officer in terms of section 111(c)(i), ; departs without the permission of the nature conservation officer

(f) trespasses on land on which there is or is likely to be any wild animal while in possession of a weapon or article that could be used to hunt, capture or kill wild animals including poison, a fire-arm having a barrel exceeding one hundred millimetres in length, a bow or crossbow, a fishing rod, trap, net, gin, snare, birdlime, or cage ;

(g) is found in possession of any wild animal species whether alive or dead or any wildlife product and is unable to give a satisfactory account of such possession;

(h) coerces any other person or allows any person to commit an act or omission in contravention of this Act.

(3) A person who is the holder of an authorisation, certificate or exemption issued under this Act is guilty of a category two offence if that person –

(a) contravenes or fails to comply with a term or condition of that authorisation, exemption or certificate;

(b) is not in possession of such an authorisation, exemption or certificate while performing an act which this Act prescribes may only be performed while in possession of that authorisation or certificate;

(c) contravenes section 52(1) [Exemptions for large-scale conservancies and game-farms],56(5) [Permits and registrations in respect of indigenous plants], 60(3) [Places for sale of indigenous plants] 64(3) [Permits in relation to aquatic species], 74(5) [Form of hunting permits]; or

(d) permits or allows any other person to do, or to omit to do, anything which is an offence in terms of paragraphs (a), (b) or (c).

(4) A person is guilty of a category three offence if that person –

(a) contravenes any other provision of this Act which is not referred to in subsection (1), (2) or (3);

(b) commits an offence referred to in section Error! Reference source not found.(4) [Use of term “nature reserve”], 89(2) [Biltong and biltong sausages];

(i) a directive under section 65(1) [Board may direct aquatic animals and aquatic plants to be destroyed]; or

(ii) a compliance notice; issued under section 121 [Power to issue compliance notices]; or

(d) gives an answer to a question from an conservation officer or member of an appeals panel which to her or his knowledge is false.

(5) By virtue of the provisions of section 125(2) as read with subsections (5), (6), (7) and (9) of section 34 (Criminal proceedings) of NEMA[68] an employer, a manager, an agent, an employee, and a director of a firm (as defined in section 34(9) of NEMA) may all be convicted in relation to the commission of a single offence under this Act.

Penalties

127. (1) A person convicted of a category one offence referred to in section 126 [Offences] may be sentenced to –

(a) a fine of up to five million Rand;

(b) imprisonment for a period of up to ten years; or

(2) A person who is guilty of a category two offence referred to in section 126 [Offences] may be sentenced on a first conviction for that offence to a fine of up to R500, 000 (five hundred thousand Rands) or to imprisonment or community service for a period of up to five years, or to a combination of a fine, imprisonment and community service.

(3) A person who is guilty of a category three offence referred to in section 126 [Offences] may be sentenced on a first conviction for that offence to a fine of up to R20,000 (twenty thousand Rands) or community service for a period of up to six months or to both a fine and such service. [69]

(4) A person who is guilty of a category two or three offence may be sentenced on a second conviction for that offence as if he or she has committed a category one or two offence, respectively.

(5) A court that sentences any person-

(a) to community service for an offence in terms of this Act must impose a form of community service which benefits ecological communities, unless it is not possible to impose such a sentence in the circumstances; and

(b) for any offence in terms of this Act, may suspend, revoke or cancel an authorisation granted to the offender under this Act.

(6) If any penalty prescribed by this Act –

(a) specifies a fine but not a corresponding jail sentence, the penalties prescribed by Section 287 of the Criminal Procedures Act, 1977, (Act 51 of 1977), apply; and

(b) specifies a jail sentence but not a corresponding fine, the fine must be calculated according to the ratio between periods of imprisonment and fines established by the Adjustment of Fines Act, 1991 (Act 101 of 1991).

(7) If any offence involving the capture, killing, harvesting, possession, offering for sale, sale, import or export of wildlife or a wildlife product, then in addition to the penalties prescribed above, the court may impose –

(a) in relation to a protected wild animal or protected plant, or a wildlife product made from such a plant or animal, a fine that does not exceed three times the market value of that wild animal, plant or product; and

(b) in relation to other wildlife and wildlife products, a fine that does not exceed twice their market value.

(8) If, when calculating the market value of a species of wildlife or type of wildlife product for the purposes of determining an appropriate penalty for an offence under this Act at any time, there are different market values for that species or product, whether nationally or internationally, then the market value may be taken to be the average of any three market values at any time during the preceding three months.

(9) Despite anything to the contrary in any other law, a magistrate's court may impose any penalty provided for in this Act.

(10) Fines imposed in terms of this Act must be paid into the Fund.

Continuing offences

128. (1) A person who has been convicted of an offence under this Act, and who persists in the course of conduct which resulted in their being convicted, is guilty of a continuing offence and is liable on conviction to imprisonment for a period not exceeding three months or to a fine calculated in accordance with section 127(6) or to both, for each day on which that person persists or has persisted in that conduct.

(2) A person who fails to comply with a compliance notice is liable, in addition to the provisions of section 127 [Penalties], to pay an infringement charge of [R500.00] per day for every completed day after either:

(a) the date on which the compliance notice was issued; or

(b) if an objection was made to the compliance notice, the date on which the Board confirmed the compliance notice.

Documentary evidence

129. In any proceedings under this Act –

(a) an official document that on the face of it appears to have been signed by the Provincial Minister, the Head of Department, the chief executive officer or a conservation officer, must be accepted by a court as evidence proving, in the absence of evidence to the contrary, the facts stated in the document without proof of the signature or position of the person who appears to have signed the document;

(b) a statement in an affidavit deposed to by an employee of a newspaper, television channel or radio station, that a notice has been published by the deponent’s employer in a newspaper that circulates in a particular area, or has been broadcast via television or radio to a particular area, must in the absence of evidence to the contrary, be accepted by a court as evidence proving those facts.[70]

Presumptions[71]

130. (1) If in the course of any legal proceedings in connection with an alleged offence under this Act it is proved that –

(a) a wild animal, an indigenous plant, restricted bait or restricted aquatic species referred to in section 64 [Licences in relation to aquatic species], a wildlife product, poison, or any device or thing referred to in section 63 [Prohibited ways of catching fish ] or section 77(1) [Prohibited means of hunting, killing and capturing wildlife], is found in a vehicle, vessel or aircraft or other means of transport, it is prima facie proof that the person who was in charge of that means of transport at the time was in possession of that item;

(b) a person was in possession of a recently killed wild animal or part of such an animal and in possession of a weapon, trap or other instrument which could have been used to kill that animal, it is prima facie proof that that person killed that wild animal;

(c) a person removed or was attempting to remove a wild animal from a trap, snare, pitfall, net, birdlime or similar device, it is prima facie proof that that person prepared, laid or set that device in order to capture such a wild animal.[72]

Defences

131. (1) It is a defence for any person charged with having failed to comply with a request or a directive under this Act by the deadline specified in the request or directive to prove that –

(a) the deadline was unreasonable in the circumstances; and

(b) he or she complied with the request or directive as soon as reasonably possible.

(2) It is a defence for any person charged with having transported wildlife or wildlife product in contravention of this Act to prove that he or she did not know, and could not reasonably have been expected to know that he or she was transporting wildlife or a wildlife product.

Administrative penalties

132. (1) If the Provincial Minister considers that an offence under this Act could appropriately be dealt with by way of an administrative penalty, the Provincial Minister may by regulation specify that offence to be a prescribed offence for the purposes of this section and must specify the penalty payable under this section in respect of that offence but the amount of any maximum and minimum penalties prescribed must be at least one quarter of the amount of the maximum and minimum penalties prescribed elsewhere in this Act and that would otherwise apply in respect of that offence.

(2) For the purposes of this section a prescribed offence means an offence which has been prescribed in regulations made by the Provincial Minister under subsection (1) as an offence in respect of which an administrative penalty notice may be served.

(3) An inspector who has reasonable grounds to believe that a person has committed a prescribed offence under this Act may serve an administrative penalty notice in the prescribed form on the alleged offender.^{^[73]}

(4) The alleged offender must within 25 working days of receiving the administrative penalty notice, either –

(a) deny the offence by notice in writing to the Head of Department, attaching a copy of the administrative penalty notice; or

(b) admit the offence by notice in writing to the Head of Department.

(5) If the alleged offender admits the offence, he or she must —

(a) pay the administrative penalty into court in accordance with the notice; and

(b) send proof of payment under sub-paragraph (i) to the Head of Department within five working days of payment.

(6) The prosecuting authorities may prosecute an alleged offender on whom an administrative penalty notice under this section if that person –

(a) denies having committed the offence as described in the notice;

(b) admits the offence but fails to pay the administrative penalty into court in accordance with subsection (5)(a); or

(7) If an administrative penalty is paid into court in accordance with subsection (5), the bringing of proceedings and the imposition of penalties are prevented to the same extent as they would be if the alleged offender had been convicted by a court and punished for the alleged offence.

Powers of the court on conviction

133. (1) A court convicting a person of an offence in terms of this Act may exercise the powers set out in -

(a) section 34 of NEMA to order the person convicted to pay –

(i) costs incurred or likely to be incurred in rehabilitating the environment or preventing damage to the environment;

(ii) damages, compensation or a fine equivalent to the monetary value of any advantage gained or likely to be gained by the person convicted as a consequence of committing the offence; or

(iii) the reasonable costs incurred by the prosecutor and the organ of state concerned in the investigation and prosecution of the offence;

(b) section 34B of NEMA to order the payment of a reward to an informant;

(c) section 34C of NEMA to order authorisations and permits issued under this Act to be withdrawn and the person convicted to be disqualified from obtaining a permit or other authorisation;

(d) section 115 [Seizure of items], as read with Part 2 of Chapter 7 of NEMA, to declare any item seized in terms of the Act, including but not limited to any specimen, container vehicle, vessel, aircraft, document, equipment or other thing, that was used for the purpose of or in connection with the commission of the offence, to be forfeited to the State;^{^[74]} or

(e) section 34F of NEMA, to order the release of a vehicle, vessel or aircraft on the provision of security.[75]

(3) The provisions of section 35 (3) and (4) of the Criminal Procedure Act, 1977 (Act 51 of 1977), apply with necessary modifications to any declaration of forfeiture under this section.

(4) A declaration of forfeiture under subsection (1)(d) does not affect the rights which a person other than the convicted person may have to the thing concerned, unless it is proved that that person knew, or ought reasonably to have known, that that thing would be used for the purpose of or in connection with the commission of the offence concerned.

chapter XVII: GENERAL AND TRANSITIONAL PROVISIONS

Regulations and notices

134. (1) The Provincial Minister may make regulations –

(a) regarding any matter that may or must be prescribed in terms of this Act;[76]

(b) concerning the establishment, appointment of members and functioning of the Council, the Fund, conservation committees and advisory committees for protected areas;

(i) a plan or programme to be a conservation plan in terms of section 24(5);

(ii) certain indigenous animals to be domestic animals, either generally or in specified circumstances;

(iii) certain activities to be ecologically unsustainable;

(d) that prohibit or restrict activities (including uses of land) that may have an adverse effect;

(e) that specify the processes and procedures to be followed (including consultation and public participation processes) and the fees to be paid in connection with any application for an authorisation;

(f) that limit and guide the exercise by competent authorities, conservation officers and other persons of powers granted or delegated to them in terms of this Act;

(g) that regulate the content and form of any document used for the purposes of this Act;

(h) the conditions subject to which competent authorities may issue authorisations or exemptions in terms of this Act, including in relation to the period of validity of authorisations, the transferability of authorisations, and the duties of the authorisation holders;

(i) the methods, procedures and conditions of enforcing compliance with the conditions of a authorisation;

(j) the giving of security in respect of any obligation imposed by an authorisation, and the form of that security;

(k) the procedure to be followed and the fees to be paid in connection with the lodging and consideration of appeals;

(l) setting norms, standards, and performance indicators for the performance of any functions contemplated in this Act and for the monitoring and enforcement of those norms and standards, including performance indicators with regard to the management of provincial and local protected areas and the conservation of ecological communities within those areas;

(m) that establish rules, norms, standards, procedures, forms, or codes of practice in relation to any matter dealt with in this Act; or

(n) regarding any other matter which it is necessary or expedient to prescribe for the proper administration and implementation of this Act.

(2) Regulations made in terms of this Act may -

(a) restrict or prohibit any act either absolutely or conditionally;

(b) apply –

(i) generally throughout the Province or only in a specified area or category of areas;

(ii) generally to all persons or only to a specified category of persons;

(iii) generally with respect to all species or members of an ecological community or only to a specified species or category of species or members; or

(iv) generally with respect to all authorisations or appeals or only to a specified category of authorisations or appeals; or

(i) areas or categories of areas;

(ii) persons or categories of persons;

(iii) species or categories of species;

(iv) ecological communities or categories of ecological communities

(v) members of ecological communities or categories of members; or

(vi) categories of authorisations or appeals.

(3) Regulations made in terms of this Act may provide that any person who contravenes or fails to comply with a regulation is guilty of an offence and liable on conviction to –

(a) imprisonment for a period not exceeding five years;

(b) an appropriate fine; or

(4) Any regulation with direct fiscal implications may be made only with the concurrence of the Provincial Minister responsible for finance.

(5) Before publishing any regulations or making any substantial change to regulations, the Provincial Minister must follow a consultative and participatory process in accordance with sections 91 [Co-operative governance] and 92 [Participation in decision-making].

(6) The Provincial Minister may publish a notice in the Provincial Gazette –

(a) regarding any matter that this Act provides may be dealt with by way of a notice;[77]

(b) to issue, adopt, amend or revoke a code of practice;

(c) to announce any matter related to the administration of this Act including the establishment of institutions or person, appointments and registrations of persons, the granting or delegation of powers or the commencement of regulations;

(d) to deem –

(i) a plan or programme to be a conservation plan in terms of section 24(5);

(ii) certain indigenous animals to be domestic animals, either generally or in specified circumstances;

(iii) certain activities to be ecologically unsustainable;

(e) to amend or withdraw any notice previously published.

Codes of practice

135. (1) The Provincial Minister may, by notice in the Provincial Gazette, issue codes of practice for the purposes of this Act, or adopt a code of practice prepared by another body, and may amend or revoke them in the same manner.

(2) A code issued under this section -

(a) may incorporate by reference any other relevant document, either as it is in force at the time the code is issued or as it may be subsequently amended; and

(b) may provide that in any criminal proceedings relating to an alleged contravention of a provision of this Act, proof of compliance with the relevant provisions of the code constitutes a defence.

(3) Before issuing or making any substantial change to a code of practice the Provincial Minister must follow a consultative process in accordance with sections 91 [Co-operative governance] and 92 [Participation in decision-making].

(4) A failure on the part of any person to follow any guidance contained in a code issued under this section shall not of itself render that person liable to criminal proceedings of any kind.

(5) If it is alleged in a proceeding that a person has contravened a provision of this Act in relation to which a code of practice was in effect at the time of the alleged contravention, the code of practice is admissible in evidence in that proceeding and proof that the person complied with the relevant provision of the code may be relied on by the defence as tending to establish the person’s innocence and conversely, proof that the person failed to comply with the relevant provision of the code may be relied on by the prosecution as tending to establish the person’s guilt.

(6) The Provincial Minister must cause any code issued or revised under this section to be printed and distributed, including making copies of it available for sale to the public and available for inspection at the head office of the Department.

Limitation of liability

136. (1) Subject to subsection (2), neither the State nor any other person is liable for any damage or loss caused by a person who –

(a) exercises a power or performs a duty in terms of this Act;

(b) acts in the mistaken belief that they are validly exercising a power or performing a duty in terms of this Act; or

(2) Subsection (1) does not protect the State or any other person from liability if the person who caused the damage or loss acted negligently or in bad faith.

Repeal of laws and savings

137. (1) The laws referred to in Schedule 1 are repealed to the extent indicated in the third column of that Schedule.

(2) Anything done in terms of a law or provision repealed by this Act-

(a) remains valid if it is consistent with this Act, until repealed or overridden; and

(b) is deemed to be administrative action in terms of the corresponding provision of this Act.

(3) Anything else done in terms of legislation repealed in terms of subsection (1) which can or must be done in terms of this Act must be regarded as having been done in terms of this Act.

(4) Any regulation made in terms of a law repealed by this Act -

(a) remains valid if it is consistent with this Act, until it is repealed by the Provincial Minister; and

(b) is deemed to be a regulation made in terms of section 134 [Regulations and notices] of this Act.

Transitional provisions

138. (1) Any person who was appointed in terms of sections 20, 22 and 23 of the Ordinance as a nature and environmental conservation officer, honorary nature and environmental conservation officer or a nature and environmental conservation ranger or by virtue of section 25A of the Ordinance was regarded as having been appointed as such, is deemed to have been appointed as such under this Act.

(2) If an application for a licence or permit under the Ordinance has been made but has not been decided by the date of commencement of this Act, the application must be regarded as an application for the corresponding authorisation under this Act.

(3) Despite any other provisions of this Act, a person who must be registered or whose premises must be registered under this Act in order to carry on an activity which he or she was lawfully undertaking when this Act commenced, may continue to undertake that activity for a period of six months after the commencement of this Act without the registration.

Short title and commencement

139. This Act is called the Western Cape Nature Conservation Act, 2010 and comes into operation on a date determined by the Premier by proclamation in the Provincial Gazette.

SCHEDULE 1: REPEALS AND AMENDMENTS[78]

(section 137[Repeal of laws and savings])

Number and year	Title	Extent of repeal
26 of 1965	Nature Conservation Ordinance, 1965	The whole
16 of 1967	Nature Conservation Amendment Ordinance, 1967	The whole
30 of 1968	Nature Conservation Amendment Ordinance, 1968	The whole
32 of 1970	Nature Conservation Amendment Ordinance, 1970	The whole
19 of 1974	Nature and Environmental Conservation Ordinance, 1974	The whole
21 of 1935	The Sea-shore Act, 1932	All provisions that had been assigned to the Province

SCHEDULE 2: STATUTORY PLANS IN RELATION TO WHICH THE DEPARTMENT AND THE BOARD MUST BE CONSULTED

(section 91(2)(c) [Co-operative governance])

(1) The Provincial Growth and Development Strategy and the Provincial Spatial Development Framework and any similar strategic plans that may be adopted to replace them.

(2) Any land use management scheme, plan or rules prepared by a World Heritage Site authority in relation to an area within the Province.

(3) Integrated Development Plans (IDPs) and Spatial Development Frameworks prepared by municipalities within the Province.

(4) Any environmental management framework referred to in section 24(3) of NEMA prepared in relation to an area within the Province.

(5) Any plans or strategies prepared by the Provincial government or a municipality which relates to climate change or large-scale infrastructure for energy, water or transport in any area outside of the urban edge.

(6) The national water resource strategy established under section 5 of the National Water Act.

(7) Any catchment management strategy established under section 8 of the National Water Act for a catchment that is partially or wholly within the Province.

(8) The national biodiversity framework and the national biodiversity strategy and action plan prepared in terms of Chapter 3 of the Biodiversity Act.

(9) Any bioregional plan prepared in accordance with sections 40 to 42 of the Biodiversity Act for a bioregion that is partially or wholly within the Province.

(10) The national land transport strategic framework and the provincial land transport framework prepared in accordance with section 19 of the National Land Transport Transition Act 22 of 2000.

(11) National, provincial and municipal air quality frameworks made under chapter 2 of the National Environmental Management: Air Quality Act 39 of 2004 insofar as they relate to the Province.[79]

(12) National, provincial and municipal coastal management programmes established under chapter 6 of the Integrated Coastal Management Act insofar as they relate to areas within the Province.

(13) Integrated waste management plans prepared by the Provincial department responsible for waste or by a municipality in terms of section 11 of the National Environmental Management: Waste Act, 2008 (Act 59 of 2008) insofar as they relate to areas outside the urban edge of any municipality within the province.

[1] The Title of the Bill should signal that the Bill is not merely a revision of the Nature and Environmental Conservation Ordinance but is based on a fundamentally different approach in which humans are understood to be within, rather than separate from, ecological communities. From this perspective, the paramount objective is to maintain the health, integrity and functioning of ecological communities rather than the preservation of specific species or areas.

[2] The Provincial Minister may issue guidelines under section 16(2)(d) [Role, function and powers of Provincial Minister] or codes of practice under section 138 [Codes of practice] to provide further clarity on what will be considered to be an “adverse impact” in particular circumstances.

[3] This definition is taken verbatim from section 1 of the Biodiversity Act.

[4] Section 1 of the Biodiversity Act states that “”ecological community” means an integrated group of species inhabiting a given area” and ““ecosystem” means a dynamic system of plant, animal and micro-organism communities and their non-living environment interacting as a functional unity.” This definition is wider in that it includes inorganic and biophysical aspects of ecosystems (see definition of “member”) but does not conflict with the definition in the Biodiversity Act.

[5] Section 1 of the National Water Act provides that: “'wetland' means land which is transitional between terrestrial and aquatic systems where the water table is usually at or near the surface, or the land is periodically covered with shallow water, and which land in normal circumstances supports or would support vegetation typically adapted to life in saturated soil”.

[6] Section 1 of the National Water Act provides that: “'watercourse' means- (a) a river or spring; (b) a natural channel in which water flows regularly or intermittently; (c) a wetland, lake or dam into which, or from which, water flows; and (d) any collection of water which the Minister may, by notice in the Gazette, declare to be a watercourse, and a reference to a watercourse includes, where relevant, its bed and banks”.

[7] Discussions with DWAF will be required to ensure that this is the correct terminology and how one determines the status of the river (e.g. is it indicated on a catchment management plan and if so, where can it be accessed?)

[8] Section 1 of the National Water Act provides that: “'riparian habitat' includes the physical structure and associated vegetation of the areas associated with a watercourse which are commonly characterised by alluvial soils, and which are inundated or flooded to an extent and with a frequency sufficient to support vegetation of species with a composition and physical structure distinct from those of adjacent land areas”.

[9] This includes ecosystems that are listed as; critically endangered, endangered, vulnerable or protected ecosystems.

[10] This definition of “environment” is the same as the definition in section (1)(1) of NEMA. It does not include the built environment.

[11] Wild animals that are indigenous to South Africa but not to the Province, would be exotic wild animals for the purposes of this Act.

[12] This definition is the same as the definition of “indigenous species” in the Biodiversity Act except that “the Republic” has been replaced with “the Province”.

[13] This will include constitutional rights, including the right to an environment not harmful to health and wellbeing, and is therefore wider than it first appears.

[14] The following species are currently restricted under the Ordinance: live carp (Cyprinus carpio), atavistic or wild form of the goldfish (Carassius auratus), crucian carp (Carassius carrassius) and any other fish of the carp family that are not indigenous to the Province, bluegill sunfish (genus Lepomis macrochirus), trout (genus Salmo or genus Salvelinus), black bass (genus Micropterus), banded tilapia and exotic invertebrate freshwater fauna.

[15] This definition is from section 1 of the National Water Act (NWA).

[16] This definition is from section 1 of the NWA. The NWA also contains the following relevant definitions: 'aquifer' means a geological formation which has structures or textures that hold water or permit appreciable water movement through them;

'estuary' means a partially or fully enclosed body of water- (a) which is open to the sea permanently or periodically; (b) within which the sea water can be diluted, to an extent that is measurable, with fresh water drained from land;

[17] This section sets out what the Bill seeks to achieve in order to guide how it is interpreted.

[18] This section deals with conflicts of national and provincial legislation. This subsection could be deleted since the constitutional provisions apply irrespective of whether we include reference to them or not. The inclusion of a reference does make easier reading and assists non-lawyers in reading legislation.

Furthermore, section 44(2) of the Constitution empowers the Parliament to intervene and pass legislation in relation to areas of exclusive provincial competence (i.e. those listed in Schedule 5), when it is necessary –

to maintain national security;

to maintain economic unity;

to maintain essential national standards;

to establish minimum standards required for the rendering of services; or

to prevent unreasonable action taken by a province which is prejudicial to the interest of another province or to the country as a whole.

[19] This would include maintaining predator-prey relationships and other food chains.

[20] Although much of this section merely draws attention to legal obligations that already exist under other legislation, it has been included to draw attention to the fundamental importance of balancing land use rights against duties in relation to land because this is often poorly understood. In fact few people who own or occupy land appreciate the extent of their duties in relation to that land.

[21] Section 28 of NEMA provides that: “(1) Every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment.

(2) Without limiting the generality of the duty in subsection (1), the persons on whom subsection (1) imposes an obligation to take reasonable measures, include an owner of land or premises, a person in control of land or premises or a person who has a right to use the land or premises on which or in which- (a) any activity or process is or was performed or undertaken; or (b) any other situation exists, which causes, has caused or is likely to cause significant pollution or degradation of the environment.”

[22] Section 19 of the NWA provides that: “(1) An owner of land, a person in control of land or a person who occupies or uses the land on which- (a) any activity or process is or was performed or undertaken; or (b) any other situation exists, which causes, has caused or is likely to cause pollution of a water resource, must take all reasonable measures to prevent any such pollution from occurring, continuing or recurring.”

[23] The Conservation of Agricultural Resources Act, 1983 imposes these obligations on “land users” and provides that: “land user” means the owner of land, and includes- (a) any person who has a personal or real right in respect of any land in his capacity as fiduciary, fideicommissary, servitude holder, possessor, lessee or occupier, irrespective of whether he resides thereon; (b) any person who has the right to cut trees or wood on land or to remove trees, wood or other organic material from land; and (c) in relation to land under the control of a local authority, that local authority, but not a person who carries on prospecting or mining activities;” CARA and regulations made under CARA regulate a wide range of activities including: the cultivation of virgin soil and steeply sloping land, the protection of cultivated land against erosion by water and wind; the prevention of waterlogging and salination of irrigated land, the utilisation and protection of veld, the prevention and control of veld fires, and the control of weeds and invader plants.

[24] The Biodiversity Act imposes a duty on owners of land on which an invasive species occurs, to notify the competent authority and to take steps to control and eradicate any listed invasive species, to prevent it from spreading and to prevent or minimise harm to biodiversity, as required by section 73 of the Biodiversity Act. The Act provides that: “’invasive species’ means any species whose establishment and spread outside of its natural distribution range (a) threatens ecosystems, habitats or other species or have demonstrable potential to threaten ecosystems, habitats or other species or (b) may result in economic or environmental harm or harm to human health and “listed invasive species” means any invasive species listed in terms of section 70(1);”

[25] Certain species of indigenous flora and fauna are protected under the Biodiversity Act (which also provides for the protection of certain ecosystems).

[26] Consideration should be given to whether or not the Board should be the custodian of ecological communities (or protected species) in relation to all land vested in the Province.

[27] Section 3 of the Protected Areas Act states: “State trustee of protected areas.—In fulfilling the rights contained in section 24 of the Constitution, the State through the organs of state implementing legislation applicable to protected areas must—(a)act as the trustee of protected areas in the Republic; and (b)implement this Act in partnership with the people to achieve the progressive realisation of those rights.”

[28] Section 3 of the Integrated Coastal Management Act states: “State’s duty to fulfil environmental rights in coastal environment.—In fulfilling the rights contained in section 24 of the Constitution of the Republic of South Africa, the State –(a) through its functionaries and institutions implementing this Act, must act as the trustee of the coastal zone; and (b) must, in implementing this Act, take reasonable measures to achieve the progressive realisation of those rights in the interests of every person.”

[29] The restorative justice approach is characteristic of African customary law and was also applied by the Truth and Reconciliation Commission (albeit in a different context).

[30] One of the NEMA principles is that: “ the interests, needs and values of all interested and affected parties must be taken into account; and this includes recognising all forms of knowledge, including traditional and ordinary knowledge

[31] Consideration should be given to whether or not members should be restricted to serving a maximum number of consecutive years on the Council.

[32] Further discussion regarding the composition of the Council is required.

[33] Further discussion regarding the composition of the Council is required.

[34] It is envisaged that permits in relation to alien species used in agriculture would be issued by the Department of Agriculture but this aspect requires further investigation and discussion.

[35] It is envisaged that permits in relation to listed invasive species that are marine species would be issued by the national department responsible for environmental affairs but this aspect requires further investigation and discussion

[36] It is envisaged that DEAT would retain responsibility for administering permits for bioprospecting.

[37] The provisions in this section could be included in the Western Cape Nature Conservation Board Act.

[38] This section creates new obligations for municipalities which they may resist on the basis that these are new mandates. However these functions are directly related to and affect, other responsibilities of municipalities, including the responsibility to give effect to the environmental right in section 24 of the Constitution.

[39] If the draft land use planning legislation in the Western Cape is enacted it will enable the Department to prepare integrated plans for bioregions (i.e. plans which deal with all spatial issues within the bioregion and not just the conservation of biological diversity). Such a bioregional plan could be deemed to be a conservation plan if it included the necessary provisions.

[40] For example and integrated development plan (IDP) which is required in terms of the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000) could be deemed to be a conservation plan if it included the necessary provisions.

[41] The NEMPAA section 43(2) empowers the Provincial Minister to establish indicators in this regard.

[42] For example the Protected Areas Act requires the Provincial Minister to follow a consultation process prescribed in sections 32, 33 and 34.

[43] This is currently provided for in section 6(1A) of the Ordinance.

[44] See the Protected Areas Act, sections 39, 40 and 41

[45] Should municipalities be exempt in respect of local protected areas?

[46] See the Protected Areas Act, section 43.

[47] This section is modelled on section 50 of the Protected Areas Act which defines powers of the management authorities of national parks, nature reserves and world heritage sites. However it does not follow section 50(1) which inexplicable authorises these management authority to do certain things “despite any regulation or by-law referred to in section 49 ..”.

[48] See Protected Areas Act section 53.

[49] If the Board were to establish these advisory boards it would have to fund them.

[50] It is envisaged that the mandate would specify issues such as the term of office of members. Alternatively these issues could be dealt with in regulations.

[51] This section essentially reiterates section 51 of the Protected Areas Act and could be deleted. It has been included here for the sake of completeness and ease of reference.

[52] Further discussion is required to determine whether or not this subsection is necessary.

[53] Further discussion is required as to whether or not this function should be performed by the Department as opposed to the Board.

[54] It may be preferable to include these details in regulations.

[55] It may be necessary to restrict this to certain types of wild animals.

[56] It may be necessary to restrict this to certain types of wild animals.

[57] The Ordinance allows poison to be used for the purpose of exterminating rodents, Redwinged Starlings, European Starlings, English Sparrows or Colies.

[58] This provision could be used for example, to authorise the use of poison to kill rats in and around places where people live and work.

[59] This provision could be used to make regulations that prescribe that certain species of wild animal may be kept and bred in captivity without a permit and may prescribe conditions subject to which those wild animals must be kept.

[60] It may be advisable to put these details in regulations.

[61] The Promotion of Administrative Justice Act defines what constitutes an administrative act.

[62] This list is incomplete and requires further discussion. A balance must be struck between facilitating public participation and creating an overly slow and bureaucratic system.

[63] This provision requires further discussion.

[64] This section is modelled on section 28 of the NWA.

[65] The terms “archaeological” and “palaeontological” are defined in section 1 of the NHRA.

[66] Section 34 of NEMA contains provisions that allow a number of different parties to be convicted in respect of the same offence. Depending on circumstances, these could include a member of the board, executive committee or managing body of a corporate body, a member of a close corporation, a partner in the partnership and a manager, agent or employee.

[67] It would be advisable for the Provincial Minister to exercise her powers under section 34(10)(b) of NEMA to make regulations to amend Part (b) of Schedule 3 of NEMA to include offences under this Act.

[68] Section 34 of NEMA contains provisions that allow a number of different parties to be convicted in respect of the same offence. Depending on circumstances, these could include a member of the board, executive committee or managing body of a corporate body, a member of a close corporation, a partner in the partnership and a manager, agent or employee.

[69] Further discussion concerning the levels of penalties will be required.

[70] This paragraph is intended to avoid the need for witnesses to appear in court to testify that a notice was published or broadcast.

[71] Presumptions are also provided for in section 6 [Duty to respect intrinsic rights] and section 7 [Duty of custody]. Subsections 6(2) and (3) contain presumptions in relation to what does or does not constitutes adequate justification to infringe intrinsic rights Subsection 7(7) contains a presumption that undertaking an EIA constitutes reasonable measures to determine whether or not a proposed development may have an adverse effect.

[72] Further discussions with enforcement officers and prosecutors would assist to finalise this section.

[73] See regulations for content of penalty notice.

[74] This section is based on section 34D of NEMA.

[75] This section will require updating if recently published proposed amendments to NEMA are published.

[76] Various sections of the Act empower the Provincial Minister to make regulations in relation to: protected areas, conservancies, game-fenced areas and game-proof fences, protected ecosystems, protected natural features, protected plants, protected wild animals, invasive exotic species, game, captive wild animals, the hunting and capturing of wild animals, the breeding of wild animals, trade in wildlife and wildlife products, permits, licences, registrations, exemptions and general authorisations.

[77] These include: the listing of species as protected or invasive, the delegation or granting of powers by the Provincial Minister, the declaration of an area as a registered conservancy etc.

[78] Further discussion is required before finalising this schedule.

[79] Section 15(2) of the Air Quality Act requires municipalities to include air quality management plans in their IDPs and consequently it is not necessary to refer to these specifically here.

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chapter I: INTRODUCTORY PROVISIONS

Definitions and interpretation

Objects[17]

Application

Conflicts with other legislation

chapter II: INTRINSIC RIGHTS, FUNDAMENTAL DUTIES AND PRINCIPLES

Intrinsic rights of ecological communities and their members

Duty to respect intrinsic rights

Duty of custody

Duty of State as trustee

Principles of co-existence

Application of principles of co-existence

chapter III: ADMINISTRATION

Provincial Conservation Council

Composition of Council

Meetings of the Council

Powers of the Council

Local and bioregional conservation committees

Role, function and powers of Provincial Minister

Role and functions of Department

Role and functions of Board

Powers of Board[37]

Measures on private land

Role and functions of municipalities[38]

Delegation

chapter IV: CONSERVATION PLANNING AND MONITORING

Bioregions

Conservation Plans

Monitoring systems

chapter V: PROTECTION OF AREAS, ECOSYSTEMS, NATURAL FEATURES AND SPECIES

Establishment of Provincial nature reserves

Establishment of Provincial protected environments

Agreements with private landowners and municipalities

Establishment of local protected areas

Use of term “nature reserve”

Management authorities

Prohibition and regulation of activities within protected areas or protected environments

Powers of management authorities

Access to protected areas[48]

Advisory boards for protected areas[49]

Directive to owners and occupiers of land adjacent to rivers bordering protected areas

Regulations and by-laws concerning protected areas

Protected ecosystems

Protected natural features

Protected plants

Protected wild animals

Invasive exotic species

chapter VI: CONSERVANCIES AND GAME-FENCED AREAS

Declaration of conservancies

Rights and duties of conservancies

Conservancy management plans

Amendment or withdrawal of conservancy declaration

Game-fences

Certificate of adequate enclosure

Application of Game Theft Act

Duties in relation to fences and barriers

Rights of owners of adequately enclosed areas

Exemptions for large-scale conservancies and game farms

Regulations concerning conservancies, game-fences and game farms

chapter VII: CONSERVATION OF PLANTS

Rights of land owners

Restriction on picking indigenous species of plant

Permits and registrations in respect of indigenous plants

General authorisations in respect of indigenous plants

Applications for registration of persons and premises for cultivation and sale of indigenous plants

Special permit for sale of indigenous plants

Places for sale of indigenous plants

chapter VIII: PROTECTION OF AQUATIC ECOLOGICAL COMMUNITIES

Angling right of owners and occupiers of land

Restricted activities in relation to aquatic ecological communities

Prohibited ways of catching fish

Licences in relation to aquatic species

Board may direct aquatic animals and aquatic plants to be destroyed

Exemption for scientific purposes

chapter IX: THE HUNTING AND CAPTURE OF WILD ANIMALS

Declaration of wild animals as “game”

Right of custodian to hunt game for personal consumption

Permits to hunt, capture or disturb, wild animals