5.4.3 Addressing non-compliance

5.4.3(1)
When a possible contravention is identified, a waste impact report may be requested. Waste impact reports are a discretionary reporting instrument provided for by section 66 of the Act. Either an EMI or a WMO may request a waste impact report where there is a suspected contravention of the Act, license conditions, or exemption conditions that are likely to be detrimental to health or the environment. The findings of the waste impact report may trigger an enforcement procedure to correct the illegal activity. An enforcement procedure may also be triggered by the findings of the compliance monitoring activities described above, without a waste impact report.

5.4.3(2)
In the event that a contravention is suspected, the enforcement procedure is initiated by the compilation of an audit, which is based on the conditions of the license, NEMA section 28 (duty of care) and NEMA section 30. A waste impact report may fulfil the function of this audit. The procedure followed once a problem has been confirmed by the waste impact report differs for organs of state and the private sector.

5.4.3(3)
In the case of the private sector, once the audit report has been compiled and submitted to the offending party, the latter has 30 days in which to respond verbally. Thereafter an enforcement strategy is prepared, which may either follow a criminal route, or require the preparation of a pre-directive followed by a directive.  If the directive is not complied with, the matter becomes a criminal one.

5.4.3(4)
In the absence of aggravating factors such as clear evidence of bad faith on the part of the offending party, the preferred route is always to achieve compliance rather than pursue prosecution.

5.4.3(5)
Directives take the form of a compliance notice that is issued by the relevant EMI, which has to be done in writing in accordance with a prescribed procedure. NEMA Chapter 7 makes it a criminal offence to fail to comply with a compliance notice.

5.4.3(6)
If a person fails to comply with a compliance notice issued by an EMI, the Minister or relevant MEC may revoke or change that person’s license, take the necessary remedial steps and recover the costs from the offender, and refer the matter to the National Prosecuting Authority for prosecution.

5.4.3(7)
In addition, NEMA Chapter 7 provides that all offences under NEMA or any specific environmental management act are now Schedule 1 offences under the Criminal Procedure Act, 55 of 1977.

5.4.3(8)
The court convicting a person of an offence in terms of NEMA or the Waste Act can withdraw any license or authorisation under NEMA or the Waste Act if the rights under that license have been abused. The courts can also disqualify that person from obtaining a license or other authorisation for up to five years, and notify all other licensing authorities of this disqualification.

5.4.3(9)
With respect to non-compliance by organs of state, the Constitutional provisions for cooperative governance require that every reasonable effort must be made to settle a dispute and all remedies to be applied before a matter is taken to court for resolution. The Constitution also governs the ability of a sphere of government to interfere in the affairs of another sphere of government. A Standard Operating Procedure has been developed consisting of an eleven step process that will eventually culminate in prosecution if the offending practice is not averted. The procedure also allows for the development of an action plan to address the illegal practice.