On 13 March 2025, the Minister of Forestry, Fisheries and the Environment gazetted the ‘National Appeal Regulations’ under the National Environmental Management Act, 1998 (“NEMA”). The National Appeal Regulations are applicable to any appeal submitted in respect of a decision taken in terms of NEMA, or a specific environmental management Act that is subject to the appeal authority as provided for in NEMA.
Importantly, the new National Appeal Regulations repeal the National Appeal Regulations, 2014 as well as the National Environmental Management: Integrated Coastal Management Act Appeal Regulations.
Chapter 2 of the new National Appeal Regulations provides for the application of regulations, the manner and timeframe in which an appeal must be submitted as well as the manner and timeframe in which any responding statement to an appeal is to be made. Most notably, the time period to lodge an appeal in respect of a directive issued in terms of section 24(8) of NEMA will be 30 calendar days from the date that the decision is received, as opposed to 20 calendar days from when the decision is sent – which is the time period applicable for the submission of all other appeals.
The new National Appeal Regulations also oblige the applicant (in instances where for example, its environmental authorisation is being appealed) to notify, and make a copy of the appeal available, to all registered interested and affected parties (as well as organs of state) within 5 calendar days of the appeal being submitted. The applicant must also provide proof of the notification to the appeal administrator.
Additionally, the new National Appeal Regulations specifically empower the appeal administrator to request additional information from any person or affected organ of state for purposes of the appeal. Decisions on appeal must now be taken within 50 calendar days of the last day on which the responding statement to the appeal is to be filed (unless the appeal is considered ‘complex’).
Chapter 3 of the new National Appeal Regulations applies to ‘complex’ appeals and allows for extended timeframes in which the appeal is to be determined, and sets parameters for what constitutes a complex appeal. An appeal is now deemed to be complex where an advisory appeal panel or expert is required to assist the appeal authority to decide an appeal, or where the appeal administrator is required to undertake a site inspection to properly advise the appeal authority, or where more than one appeal administrator is required to process the appeal due to the volume of its documents or technical nature of the appeal.
The provisions of the new National Appeal Regulations regarding the advisory appeal panel have also been expanded on, with specific provisions regarding qualifications and appointment of members of the advisory appeal panel or expert being implemented, as well as disqualification criteria for panel members. Dissenting opinions of advisory appeal panel members are now required to be recorded in the written report of the panel.
Unusually, the new National Appeal Regulations prescribed that only “a municipal council” may extend or condone failure by a person to comply with the timeframes prescribed for lodging an appeal or responding statement. It appears that all other appeal authorities are not specifically empowered with this authority, which is something which we anticipate will be the subject of much contestation.
Transitional arrangements in respect of appeals that have already been submitted have also been implemented.
Appeals lodged after 08 December 2014 against a decision taken in relation to a waste management licence under the National Environmental Management: Waste Act, 2008, or integrated environmental authorization under the Environmental Impact Assessment Regulations, 2006 or 2010, must be dispensed with in terms of those particular regulations, despite their repeal.
Additionally, where a decision was taken after 08 December 2014, but before the publication of the National Appeal Amendment Regulations, 2015, and the applicant was informed to follow a different process other than the process indicated in (i) above, the appeal process in the decision must be followed.
Finally, for all other decisions other than the decisions taken in terms of (i) and (ii), above, an appeal submitted after 08 December 2014 against a decision taken before 08 December 2014 must follow the appeal process applicable at the time of the decision.
The new National Appeal Regulations seek to provide more clarity to the appeal process under NEMA, however, we anticipate that there may be a few regulations which may be challenged.
For all information in relation to the new National Appeal Regulations, please contact Warren Beech warren@bv-inc.co.za / Chantal Murdock chantal@bv-inc.co.za / Bryan White bryan@bv-inc.co.za.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For tailored guidance, please consult one of our legal professionals.