Reviewing South Africa’s 'one environmental system': challenges and opportunities

Bogapa, Tsoseletso Tshegedi
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On 8 December 2014, the One Environmental System (OES) replaced South Africa’s fragmented environmental management system for mining, a system that had often resulted in excessive lead times, regulatory uncertainty and constraints on investment. The integrated system was introduced to improve the way of doing business and the global competitiveness of South Africa as a mining investment jurisdiction. The advent of the OES, however, has also come with challenges. There is an African saying that one cannot have two bulls in the same kraal. Shortly interpreted or unpacked, this saying means that you cannot have two regulators regulating one thing as conflicts would be inevitable. In the past, the relationship between the Department of Mineral Resources and Energy1 (DMRE) and the Department of Environment, Forestry and Fisheries (DEFF)2 has been defined by tensions over which Environmental Authorisations (EA) a mining company had to apply for prior to the commencement of mining operations, when such EAs were required and who was the competent authority in this respect. The tension was exacerbated by a fragmented regulatory framework which gave rise to administrative ineffectiveness, duplication and contradictions.3 The mining sector is heavily reliant on foreign direct investment and the general perception has been that the South African mining and environmental regulatory framework is overly regulated and convoluted.4 The two main pieces of legislation causing the fragmentation were the National Environmental Management Act 107 of 1998 (NEMA) and the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), including their respective regulations. The process of having to deal with different departments at different levels was cumbersome and not necessarily coordinated. In certain instances, these processes resulted in litigation, which further prolonged the processes and resulted in protracted delays in development.
A research report submitted in partial fulfilment of the requirements for the degree of Master of Laws by Coursework to the Faculty of Commerce, Law and Management at the University of the Witwatersrand, Johannesburg, 2022