National Environmental Management Biodiversity Act 2004 (Act No. 10 of 2004), South Africa, WIPO Lex

Main text(s)

English National Environmental Management Biodiversity Act 2004 (Act No. 10 of 2004)

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

(English text signed by the President.)

(Assented to 31 May 2004.)

ACT To provide for the management and conservation of South Africa's biodiversity

within the framework of the National Environmental Management Act, 1998; the

protection of species and ecosystems that warrant national protection; the

sustainable use of indigenous biological resources; the fair and equitable sharing of benefits arising from bioprospecting involving indigenous biological resources; the

establishment and functions of a South African National Biodiversity Institute; and for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

TABLE OF CONTENTS

Section

CHAPTER 1

INTERPRETATION, OBJECTIVES AND APPLICATION OF ACT

1. Definitions

2. Objectives of Act

3. State's trusteeship of biological diversity

4. Application of Act

5. Application of international agreements

6. Application of other biodiversity legislation

7. National environmental management principles

8. Conflicts with other legislation

9. Norms and standards

CHAPTER 2

SOUTH AFRICAN NATIONAL BIODIVERSITY INSTITUTE

Part 1

Establishment, powers and duties of Institute

10. Establishment

11. Functions

12. General powers

Part 2

Governing board, composition and membership

13. Composition

14. Qualifications

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

15. Appointment procedure

16. Chairperson

17. Term of office

18. Conditions of appointment

19. Conduct of members

20. Termination of membership

21. Removal from office

22. Filling of vacancies

Part 3

Operating procedures of Board

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

Meetings

Procedures

Quorum and decisions

Committees

Delegation of powers and duties

Part 4

Administration of Institute

Appointment of Chief Executive Officer

Employment of staff

Part 5

Financial matters

Financial accountability

Funding

Investments

Part 6

National botanical gardens

33. Declaration

34. Amendment or withdrawal of declarations

Part 7

General

35. Minister's supervisory powers

36. Absence of functional Board

CHAPTER 3

BIOJMVERSITY PLANNING AND MONITORING

37. Purpose of Chapter

Part 1

Biodiversity planning

38. National biodiversity framework

39. Contents of national biodiversity framework

40. Bioregions and bioregional plans

41. Contents of bioregional plans

42. Review and amendment of bioregiorial plans

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

43. Biodiversity management plans 44. Biodiversity management agreements 45. Contents of biodiversity management plans 46. Review and amendment of biodiversity management plans 47. Consultation

Part 2

Co-ordination and alignment of plans, monitoring and research

48. Co-ordination and alignment of biodiversity plans 49. Monitoring 50. Research

CHAPTER 4

THREATENED OR PROTECTED ECOSYSTEMS AND SPECIES

51. Purpose of Chapter

Part 1

Protection of threatened or protected ecosystems

52. Ecosystems that are threatened or in need of protection 53. Threatening processes in listed ecosystems 54. Certain plans to take into account protection of listed ecosystems 55. Amendment of notices

Part 2

Protection of threatened or protected species

56. Listing of species that are threatened or in need of national protection 57. Restricted activities involving listed threatened or protected species 58. Amendment of notices

Part 3

Trade in listed threatened or protected species

59. Functions of Minister 60. Establishment of scientific authority 61. Functions of scientific authoriyt 62. Annual non-detriment findings

Part 4

General provisions

63. Consultation

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

CHAPTER 5

SPECIES AND ORGANISMS POSING POTENTIAL THREATS TO

BIODIVERSITY

64. Purposes of Chapter

Part l

Alien species

65. Restricted activities involving alien species

66. Exemptions

67. Restricted activities involving certain alien species totally prohibited

68. Amendment of notices

69. Duty of care relating to alien species

Part 2

Invasive species

70. List of invasive species

71. Restricted activities involving listed invasive species

72. Amendment of notices

73. Duty of care relating to listed invasive species

74. Requests to competent authorities to issue directives

75. Control and eradication of listed invasive species

76. Invasive species control plans of organs of state

77. Invasive species status reports

Part 3

Other Threats

78. Genetically modified organisms

Part 4

General provisions

79. Consultation

CHAPTER 6

BIOPROSPECTING ACCESS AND BENEFIT-SHARING

80. Purpose and application of Chapter

81. Bioprospecting involving indigenous biological resources

82. Benefit-sharing agreements

83. Export of listed indigenous biological resources

84. Material transfer agreements

85. Establishment of Bioprospecting Trust Fund

86. Exemptions

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

CHAPTER 7

PERMITS

87. Purpose of Chapter

Part 1

Permit system

88. Application for permits

89. Risk assessments and expert evidence

90. Permits

91. Additional requirements relating to alien and invasive species

92. Integrated permits

93. Cancellation of permits

Part 2

Appeals

94. Appeals to be lodged with Minister

95. Appeal panels

96. Decisions

CHAPTER 8

ADMINISTRATION OF ACT

Part 1

Regulations

97. Regulations by Minister

98. General

Part 2

Consultation process

99. Consultation

100. Public participation

CHAPTER 9

OFFENCES AND PENALTIES

101. Offences

102. Penalties

CHAPTER 10

MISCELLANEOUS

103. Repeal of Act 122 of 1984

104. Savings

105. Existing bioprospecting projects

106. Short title and commencement

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

CHAPTER 1

INTERPRETATION, OBJECTIVES AND APPLICATION OF ACT

Definitions

1. (1) in this Act, unless the context indicates otherwise-

"alien species" means-

(a) a species that is not an indigenous species; or

(b) an indigenous species translocated or intended to be translocated to a place

outside its natural distribution range in nature, but not an indigenous species

that has extended its natural distribution range by natural means of migration

or dispersal without human intervention;

"benefit", in relation to bioprospecting involving indigenous biological resources, means any benefit, whether commercial or not, arising from bioprospecting

involving such resources, and includes both monetary and non-monetary returns;

"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 includes

diversity within species, between species, and of ecosystems;

"bioprospecting", in relation to indigenous biological resources, means any

research on, or development or application of, indigenous biological resources for

commercial or industrial exploitation, and includes-

(a) the systematic search, collection or gathering of such resources or making

extractions from such resources for purposes of such research, development or

application;

(b) the utilisation for purposes of such research or development of any

information regarding any traditional uses of indigenous biological resources

by indigenous communities; or

traditional uses, for commercial or industrial exploitation;

"bioregion" means a geographic region which has in terms of section 40(1) been

determined as a bioregion for the purposes of this Act;

"Board" means the board referred to in section 13;

"competent authority", in relation to the control of an alien or invasive species, means-

(a) the Minister;

(b) an organ of state in the national, provincial or local sphere of government

designated by regulation as a competent authority for the control of an alien

species or a listed invasive species in terms of this Act; or

"components", in relation to biodiversity, includes species, ecological communi-

ties, genes, genomes, ecosystems, habitats and ecological processes;

"control", in relation to an alien or invasive species, means-

(a) to combat or eradicate an alien or invasive species; or

(b) where such eradication is not possible, to prevent, as far as may be practicable,

the recurrence, re-establishment, re-growth, multiplication, propagation,

regeneration or spreading of an alien or invasive species;

"critically endangered ecosystem" means any ecosystem listed as a critically

endangered ecosystem in terms of section 52(2);

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

'critically endangered species" means any indigenous species listed as a

critically endangered species in terms of section 56;

"delegation", in relation to a duty, includes an instruction to perform the duty;

"Department" means the national Department of Environmental Affairs and

Tourism;

"derivative", in relation to an animal, plant or other organism, means any part,

tissue or extract, of an animal, plant or other organism, whether fresh, preserved or

processed, and includes any chemical compound derived from such part, tissue or

extract;

"Director-General" means the Director-General of the Department;

"ecological community" means an integrated group of species inhabiting a given

area;

"ecosystem" means a dynamic complex of animal, plant and micro-organism

communities and their non-living environment interacting as a functional unit;

"endangered ecosystem" means any ecosystem listed as an endangered

ecosystem in terms of section 52(2);

"endangered species" means any indigenous species listed as an endangered

species in terms of section 56;

"environmental management inspector" means a person authorised in terms of

the National Environmental Management Act to enforce the provisions of this Act;

"export", in relation to the Republic, means to take out or transfer, or attempt to

take out or transfer, from a place within the Republic to another country or to

international waters;

"Gazette", when used -

(a) in relation to the Minister, means the Government Gazette; or

(b) in relation to the MEC for Environmental Affairs of a province, means the

Provincial Gazette of that province;

"genetic material" means any material of animal, plant, microbial or other

biological origin containing functional units of heredity;

"genetic resource" includes-

(a) any genetic material; or

(b) the genetic potential or characteristics of any species; "habitat" means a place where a species or ecological community naturally

occurs;

"import", in relation to the Republic-

'(a) means to land on, bring into or introduce into the Republic, or attempt to land

on, bring into or introduce into the Republic; and

(b) includes to bring into the Republic for re-export to a place outside the

Republic;

"indigenous biological resource" -

(a) when used in relation to bioprospecting, means any indigenous biological

resource as defined in section 80(2); or

(b) when used in relation to any other matter, means any resource consisting of -

(i) any living or dead animal, plant or other organism of an indigenous

species;

(ii) any derivative of such animal, plant or other organism; or

(iii) any genetic material of such animal, plant or other organism;

"indigenous species" means a species that occurs, or has historically occurred,

naturally in a free state in nature within the borders of the Republic, but excludes

a species that has been introduced in the Republic as a result of human activity;

"Institute" means the South African National Biodiversity Institute established in

terms of section 10;

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

"introduction", in relation to a species, means the introduction by humans,

whether deliberately or accidentally, of a species to a place outside the natural

range or natural dispersal potential of that species;

"introduction from the sea",in relation to a specimen of any species, means the

transportation into the Republic of a specimen taken from a marine environment

not under the jurisdiction of any state;

"invasive species" means any species whose establishment and spread outside of

its natural distribution range-

(a) threaten ecosystems, habitats or other species or have demonstrable potential

to threaten ecosystems, habitats or other species; and

(b) may result in economic or environmental harm or harm to human health;

"issuing authority", in relation to permits regulating the matters mentioned in

section 87, means-

(a) the Minister; or

(b) an organ of state in the national, provincial or local sphere of government

designated by regulation in terms of section 97 as an issuing authority for

permits of the kind in question;

"listed ecosystem" means any ecosystem listed in terms of section 52(1);

"listed invasive species" means any invasive species listed in terms of section 70(1);

"listed threatened or protected species" means any species listed in terms of

section 56(1);

"local community" means any community of people living or having rights or interests in a distinct geographical area;

"management authority", in relation to a protected area, means an authority to whom the management of a protected area has been assigned;

"MEC for Environmental Affairs" means a member of the Executive Council of

a province who is responsible for the conservation of biodiversity in the province;

"migratory species"means the entire population or any geographically separate

part of the population of any species or lower taxon of wild animals, a significant

proportion of whose members cyclically and predictably cross one or more national

jurisdictional boundaries;

"Minister" means the Cabinet member responsible for national environmental

management;

"municipality" means a municipality established in terms of the Local Govern-

ment: Municipal Structures Act, 1998 (Act No. 117 of 1998);

"national botanical garden" means land declared or regarded as having been declared as a national botanical garden in terms of section 33, and includes any land

declared in terms of section 33 as part of an existing botanical garden;

"National Environmental Management Act" means the National Environmen -

tal Management Act, 1998 (Act No. 107 of 1998):

"national environmental management principles"means the principles referred

to in section 7;

"non-detriment findings" means the determination of the non-detrimental impact

of an action on the survival of a species in the wild;

"organ of state" has the meaning assigned to it in section 239 of the Constitution;

"permit" means a permit issued in terms of Chapter 7;

"prescribe" means prescribe by regulation in terms of section 97;

"protected area" means a protected area defined in the Protected Areas Act ; "Protected Areas Act" means the National Environmental Management: Pro- tected Areas Act, 2003;

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

"protected ecosystem" means any ecosystem listed as a protected ecosystem in terms of section 52(2);

"protected species" means any species listed as a protected species in terms of section 56;

"Public Finance Management Act" means the Public Finance Management Act,

1999 (Act No. 1 of 1999);

"re-export", in relation to a specimen of a listed threatened or protected species,

means the export from the Republic of a specimen of a listed threatened or

protected species previously imported into the Republic;

"restricted activity"-

(a) in relation to a specimen of a listed threatened or protected species, means-

(i) hunting, catching, capturing or killing any living specimen of a listed

threatened or protected species by any means, method or device

whatsoever, including searching, pursuing, driving, lying in wait, luring,

alluring, discharging a missile or injuring with intent to hunt, catch, capture or kill any such specimen;

(ii) gathering, collecting or plucking any specimen of a listed threatened or

protected species;

(iii) picking parts of, or cutting, chopping off, uprooting, damaging or

destroying, any specimen of a listed threatened or protected species;

(iv) importing into the Republic, including introducing from the sea, any

specimen of a listed threatened or protected species;

(v) exporting from the Republic, including re-exporting from the Republic,

any specimen of a listed threatened or protected species;

(vi) having in possession or exercising physical control over any specimen of

a listed threatened or protected species;

(vii) growing, breeding or in any other way propagating any specimen of a

listed threatened or protected species, or causing it to multiply;

(viii) conveying, moving or otherwise translocating any specimen of a listed

threatened or protected species;

(ix) selling or otherwise trading in, buying, receiving, giving, donating or

accepting as a gift, or in any way acquiring or disposing of any specimen

of a listed threatened or protected species; or

(x) any other prescribed activity which involves a specimen of a listed

threatened or protected species; and

(b) in relation to a specimen of an alien species or listed invasive species,

means-

(i) importing into the Republic, including introducing from the sea, any

specimen of an alien or listed invasive species;

(ii) having in possession or exercising physical control over any specimen of

an alien or listed invasive species;

(iii) growing, breeding or in any other way propagating any specimen of an

alien or listed invasive species, or causing it to multiply:

(iv) conveying, moving or otherwise translocating any specimen of an alien

or listed invasive species;

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

(v) selling or otherwise trading in, buying, receiving, giving, donating or

accepting as a gift, or in any way acquiring or disposing of any specimen

of an alien or listed invasive species; or

(vi) any other prescribed activity which involves a specimen of an alien or

listed invasive species;

"species" means a kind of animal, plant or other organism that does not normally

interbreed with individuals of another kind, and includes any sub-species, cultivar,

variety, geographic race, strain, hybrid or geographically separate population;

"specimen" means-

(a) any living or dead animal, plant or other organism;

(b) a seed, egg, gamete or propagule or part of an animal, plant or other organism

capable of propagation or reproduction or in any way transferring genetic

traits;

(d) any goods which-

(i) contain a derivative of an animal, plant or other organism; or

(ii) from an accompanying document, from the packaging or mark or label,

or from any other indications, appear to be or to contain a derivative of

an animal, plant or other organism;

"stakeholder" means-

(a) a person, an organ of state or a community contemplated in section 82(1)(a);

(b) an indigenous community contemplated in section 82(1)(b);

"subordinate legislation", in relation to this Act, means- (a) any regulation made in terms of section 97; or

(b) any notice published in terms of section 9, 33, 34, 40(1), 42(2), 43(3). 46(2),

52(1), 53(1), 55, 56(1), 57(2), 58, 66(1), 67(1), 68, 70(1), 72, 86(1) or 100(1)

"sustainable", in relation to the use of a biological resource, means the use of such resource in a way and at a rate that-

(a) would not lead to its long-term decline;

(b) would not disrupt the ecological integrity of the ecosystem in which it occurs;

and

and future generations of people;

"this Act" includes any subordinate legislation issued in terms of a provision of

this Act;

"threatening process" means a process which threatens, or may threaten-

(a) the survival, abundance or evolutionary development of an indigenous species

or ecological community: or

(b) the ecological integrity of an ecosystem,

and includes any process identified in terms of section 53 as a threatening process;

"vulnerable ecosystem" means any ecosystem listed as a vulnerable ecosystem in

terms of section 52(2):

"vulnerable species"means any indigenous species listed as a vulnerable species

in terms of section 56.

(2) In this Act, words or expressions derived from words or expressions defined in

subsection (1) have corresponding meanings unless the context indicates that another

meaning is intended.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

Objectives of Act

2. The objectives of this Act are-

(a) within the framework of the National Environmental Management Act, to

provide for-

(i) the management and conservation of biological diversity within the

Republic and of the components of such biological diversity ;

(ii) the use of indigenous biological resources in a sustainable manner; and

(iii) the fair and equitable sharing among stakeholders of benefits arising

from bioprospecting involving indigenous biological resources;

(b) to give effect to ratified international agreements relating to biodiversity

which are binding on the Republic;

(d) to provide for a South African National Biodiversity Institute to assist in

achieving the objectives of this Act.

State's trusteeship of biological diversity

3. In fulfilling the rights contained in section 24 of the Constitution, the state through

its organs that implement legislation applicable to biodiversity, must-

(a) manage, conserve and sustain South Africa's biodiversity and its components

and genetic resources; and

(b) implement this Act to achieve the progressive realisation of those rights.

Application of Act

4. (1) This Act applies-

(a) in the Republic, including-

(i) its territorial waters, exclusive economic zone and continental shelf

described in the Maritime Zones Act, 1994 (Act No. 15 of 1994); and

(ii) the Prince Edward Islands referred to in the Prince Edward Islands Act.

1948 (Act No. 43 of 1948); and

(b) to human activity affecting South Africa's biological diversity and its

components.

(2) This Act binds all organs of state-

(a) in the national and local spheres of government; and

(b) in the provincial sphere of government, subject to section 146 of the

Constitution.

Application of international agreements

5. This Act gives effect to ratified international agreements affecting biodiversity to

which South Africa is a party, and which bind the Republic.

Application of other biodiversity legislation

6. (1) This Act must he read with any applicable provisions of the National

Environmental Management Act.

(2) Chapter 4 of the National Environmental Management Act applies to the

resolution of conflicts arising from the implementation of this Act.

National environmental management principles

7. The application of this Act must be guided by the national environmental

management principles set out in section 2 of the National Environmental Management

Act.

No. 26436 GOVERNMENT GAZETTE. 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

Conflicts with other legislation

8. (1) In the event of any conflict between a section of this Act and-

(a) other national legislation in force immediately prior to the date of commence -

ment of this Act, the section of this Act prevails if the conflict specifically

concerns the management ofbiodiversity or indigenous biological resources;

(b) provincial legislation, the conflict must be resolved in terms of section 146 of

the Constitution; and

(2) In the event of any conflict between subordinate legislation issued in terms of this

Act and-

(a) an Act of Parliament, the Act of Parliament prevails;

(b) provincial legislation, the conflict must be resolved in terms of section 146 of

the Constitution; and

prevails.

(3) For the proper application of subsection (2)(b) the Minister must, in terms of

section 146(6) of the Constitution, submit all subordinate legislation issued in terms of

this Act which affects provinces to the National Council of Provinces for approval.

Norms and standards

9. (1) The Minister may, by notice in the Gazette- (a) issue norms and standards for the achievement of any of the objectives of this

Act, including for the-

(i) management and conservation of South Africa's biological diversity and

its components;

(ii) restriction of activities which impact on biodiversity and its components;

(b) set indicators to measure compliance with those norms and standards; and

(2) (a) Before publishing a notice in terms of subsection (1), the Minister must follow

a consultative process in accordance with sections 99 and 100.

(b) A consultative process referred to in paragraph (a) need not apply to a

non-substantial change to the notice.

(3) Norms and standards may apply -

(a) nationwide;

(b) in a specific area only, or

(4) Different norms and standards may be issued for-

(a) different areas; or

(b) different categories of biodiversity.

CHAPTER 2

SOUTH AFRICAN NATIONAL BIODIVERSITY INSTITUTE

Part 1

Establishment, powers and duties of Institute

Establishment

10. (1) The South African National Biodiversity Institute is established by this Act.

(2) The Institute is a juristic person.

Functions

11. (1) The Institute-

(a) must monitor and report regularly to the Minister on-

(i) the status of the Republic's biodiversity;

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

(ii) the conservation status of all listed threatened or protected species and

listed ecosystems; and

(iii) the status of all listed invasive species;

(b) must monitor and report regularly to the Minister on the impacts of any

genetically modified organism that has been released into the environment,

including the impact on non -target organisms and ecological processes,

indigenous biological resources and the biological diversity of species used

for agriculture;

biodiversity to organs of state and other biodiversity stakeholders;

(d) must coordinate and promote the taxonomy of South Africa's biodiversity;

(e) must manage, control and maintain all national botanical gardens;

(f) may establish, manage, control and maintain-

(i) herbaria; and

(ii) collections of dead animals that may exist;

(g) must establish facilities for horticulture display, environmental education,

visitor amenities and research;

(h) must establish, maintain, protect and preserve collections of plants in national

botanical gardens and in herbaria;

(i) may establish, maintain, protect and preserve collections of animals and

micro-organisms in appropriate enclosures;

(j) must collect, generate, process, coordinate and disseminate information about

biodiversity and the sustainable use of indigenous biological resources, and

establish and maintain databases in this regard;

(k) may allow, regulate or prohibit access by the public to national botanical

gardens, herbaria and other places under the control of the Institute, and

supply plants, information, meals or refreshments or render other services to

visitors;

(l) may undertake and promote research on indigenous biodiversity and the

sustainable use of indigenous biological resources;

(m) may coordinate and implement programmes for-

(i) the rehabilitation of ecosystems; and

(ii) the prevention, cohtrol or eradication of listed invasive species;

(n) may coordinate programmes to involve civil society in-

(i) the conservation and sustainable use of indigenous biological resources;

and

(ii) the rehabilitation of ecosystems;

(o) on the Minister's request, must assist him or her in the performance of duties

and the exercise of powers assigned to the Minister in terms of this Act;

(p) on the Minister's request, must advise him or her on any matter regulated in

terms of this Act, including -

(i) the implementation of this Act and any international agreements

affecting biodiversity which are binding on the Republic;

(ii) the identification of bioregions and the contents of any bioregional plans:

(iii) other aspects of biodiversity planning:

(iv) the management and conservation of biological diversity; and

(v) the sustainable use of indigenous biological resources;

(q) on the Minister's request, must advise him or her on the declaration and

management of, and development in, national protected areas; and

(r) must perform any other duties-

(i) assigned to it in terms of this Act; or

(ii) as may be prescribed.

(2) When the Institute in terms of subsection (1) gives advice on a scientific matter, it

may consult any appropriate organ of state or other institution which has expertise in that

matter.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

General powers

12. The Institute may for the purpose of performing its duties-

(a) appoint its own staff, subject to section 29;

(b) obtain, by agreement, the services of any person, including any organ of state,

for the performance of any specific act, task or assignment;

or let any property;

(d) open and operate its own bank accounts;

(e) establish a company which has as its object the production and supply of

goods or the rendering of services on behalf of the Institute, subject to the

Public Finance Management Act;

(f) invest any of its money, subject to section 32;

(g) borrow money, subject to section 66 of the Public Finance Management Act;

(h) charge fees-

(i) for access to national botanical gardens, herbaria and other places under

its control;

(ii) for any work performed or services rendered by it, except for any such

work performed or services rendered in terms of section 11 (1)(m), (n) or

(o); or

(iii) for access to the results of, or to other information in connection with,

any research performed by it;

(i) collect royalties resulting from any discoveries, inventions or computer

programmes;

(j) insure itself against -

(i) any loss, damage or risk; or

(ii) any liability it may incur in the application of this Act;

(k) perform legal acts, including acts in association with, or on behalf of, any

other person or organ of state; and

(l) institute or defend any legal action.

Part 2

Governing board, composition and membership

Composition

13. (1) The Institute is governed by a Board consisting of -

(a) not fewer than seven and not more than nine members appointed in terms of

section 15;

(b) the Director-General or an official of the Department designated by the

Director-General; and

(2) The Minister-

(a) must determine the number of members to be appointed in terms of subsection

(b) may alter the number determined in terms of paragraph (a), but a reduction in

the number may be effected only when a vacancy in the Board occurs.

(3) The Board takes all decisions in the performance of the duties and exercise of

powers of the Institute, except -

(a) those decisions taken in consequence of a delegation in terms of section 27; or

(b) where the Public Finance Management Act provides otherwise.

Qualifications

14. (1) A member of the Board must-

(a) be a fit and proper person to hold office as a member; and

(b) have appropriate qualifications and experience in the field of biodiversity.

(1)(a); and

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

(2) The following persons are disqualified from becoming or remaining a member of

the Board:

(a) A person holding office as a member of Parliament, a provincial legislature or

a municipal council; or

(b) a person who has been removed from office in terms of section 21.

Appointment procedure

15. (1) Whenever it is necessary to appoint members of the Board referred to in

section 13(1)(a), the Minister must-

(a) through advertisements in the media circulating nationally and in each of the

provinces, invite nominations for appointment as such a member; and

(b) compile a list of the names of persons nominated, setting out the prescribed

particulars of each individual nominee.

(2) Any nomination made pursuant to an advertisement in terms of subsection (1)(a)

must be supported by-

(a) the personal details of the nominee;

(b) nominee's qualifications or experience; and

(3) The Minister must, subject to subsection (4), appoint -

(a) the required number of persons from the list compiled in terms of subsection

(1)(b); and

(b) if such list is inadequate, any suitable person.

(4) When making appointments the Minister must-

(a) consult the MECs for Environmental Affairs; and

(b) have regard to the need for appointing persons to promote representivity.

(5) Appointments must be made in such a way that the Board is composed of persons

covering a broad range of appropriate expertise in the field of biodiversity.

Chairperson

16. (1) Whenever necessary the Minister must appoint a member of the Board as the

Chairperson of the Board.

(2) The Chairperson is appointed for a period which is determined by the Minister

which may, in the case of a member referred to in section 13(1)(a), not extend beyond

the period of his or her term as a member.

(3) The Minister may appoint a member of the Board as acting chairperson of the

Board if-

(a) the Chairperson is absent for a substantial period; or

(b) the appointment of a Chairperson is pending.

Term of office

17. Members of the Board referred to in section 13(1)(a)-

(a) are appointed for a period of three years or, if section 22(2) applies, for a term

determined in terms of that section;

(b) on completion of that term. are eligible for reappointment for one additional

term of three years; and

Minister for a specific period not exceeding one year.

Conditions of appointment

18. (1) The Minister must determine the conditions of employment of members of the Board referred to in section 13(1)(a).

(2) (a) The Minister may, with the concurrence of the Minister of Finance, determine

the terms and conditions of employment of members of the Board who are not in the

employment of the Government.

(b) Their remuneration and allowances are paid by the Institute.

(3) (a) Members who are in the employ of the Government are not entitled to

remuneration and allowances, but must be compensated for out of pocket expenses by

the Institute.

(b) Such members are appointed on a part-time basis.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

Conduct of members

19. (1) A member of the Board-

(a) must perform the duties of office in good faith and without favour or

prejudice;

(b) must disclose to the Board any personal or private business interest that that

member, or any spouse, partner or close family member of that Board

member, may have in any matter before the Board, and must withdraw from

the proceedings of the Board when that matter is considered, unless the Board

decides that the interest of that Board member in the matter is trivial or

irrelevant;

gain or to improperly benefit another person; and

(d) may not act in any other way that compromises the credibility, impartiality,

independence or integrity of the Institute.

(2) A member of the Board who contravenes or fails to comply with subsection (1) is

guilty of misconduct.

Termination of membership

20. (1) A member of the Board referred to in section 13(1)(a) ceases to be a member

when that person -

(a) is no longer eligible in terms of section 14 to be a member;

(b) resigns: or

(2) A member may resign only by giving at least three months' written notice to the

Minister, but the Minister may accept a shorter period in a specific case.

Removal from office

21. (1) The Minister may remove a member of the Board referred to in section

13(1)(a) from office, but only on the ground of-

(a) misconduct. incapacity or incompetence:

(b) absence from three consecutive meetings of the Board without the prior

permission of the Board except on good cause shown;

(d) conviction of a criminal offence without the option of a fine.

(2) A member of the Board may be removed from office on the ground of misconduct

or incompetence only after a finding to that effect has been made by a board of inquiry

appointed by the Minister.

(3) The Minister may suspend a member under investigation in terms of this section.

Filling of vacancies

22. (1) A vacancy in the Board is filled-

(a) in the case of a vacating Chairperson, by appointing another member in terms

of section 16(1) as the Chairperson: and

(b) in the case of a vacating member referred to in section 13(1)(a), by following

the procedure set out in section 15.

(2) A person appointed to fill a vacancy holds office for the remaining portion of the

term of the vacating Chairperson or member.

Part 3

Meetings

Operating procedures of Board

23. (1) The Chairperson of the Board decides when and where the Board meets, but

a majority of the members may request the Chairperson in writing to convene a Board

meeting at a time and place set out in the request.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

(2) The Chairperson presides at meetings of the Board, but if the Chairperson is

absent from a meeting, the members present must elect another member to preside at the

meeting.

Procedures

24. (1) The Board may determine its own procedures subject to the provisions of this

Act.

(2) The Board must keep records of its proceedings and of decisions taken.

Quorum and decisions

25. (1) A majority of the members of the Board serving at any relevant time

constitutes a quorum for a meeting of the Board.

(2) A matter before the Board is decided by the votes of a majority of the members

present at the meeting.

(3) If on any matter before the Board there is an equality of votes, the member

presiding at the meeting must exercise a casting vote in addition to that person's vote as

a member.

Committees

26. (1) The Board may establish one or more committees to assist it in the

performance of its duties or the exercise of its powers.

(2) When appointing members to a committee, the Board is not restricted to members

of the Board.

(3) The Board-

(a) must determine the duties of a committee;

(b) must appoint a chairperson and other members of the committee;

account the provisions of the Promotion of Administrative Justice Act, 2000

(Act No. 3 of 2000); and

(d) must determine a working procedure of a committee. -

(4) The Board may dissolve a committee at any time.

(5) (a) Section 18 read with the necessary change as the context may require, applies

to the terms and conditions of employment of committee members.

(b) A staff member of the Institute appointed to a committee serves on the committee

subject to the terms and conditions of that person's employment.

Delegation of powers and duties

27. (1) When necessary for the proper performance of its duties, the Board may,

subject to subsection (2), delegate any of its powers or duties to -

(a) a member of the Board;

(b) a committee referred to in section 26; or

(2) The following powers and duties may not be delegated by the Board:

(a) The appointment or reappointment of a person as the Chief Executive Officer

in terms of section 28(1) or (2);

(b) the determination of the terms and conditions of service of the Chief

Executive Officer in terms of section 28(3);

(d) the setting of financial limits in terms of section 29(2)(a) or (3).

(3) A delegation in terms of subsection (1) -

(a) is subject to any limitations, conditions and directions that the Board may

impose;

(b) must be in writing;

delegated power or the performance of the delegated duty; and

(d) does not prevent the exercise of the delegated power or the carrying out of the

delegated duty by the Board.

(4) The Board may confirm, vary or revoke any decision taken in consequence of a

delegation in terms of this section, subject to any rights that may have accrued to a

person as a result of the decision.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

Part 4

Administration of Institute

Appointment of Chief Executive Officer

28. (1) The Board, acting with the concurrence of the Minister, must appoint a person

with appropriate qualifications and experience as the Chief Executive Officer of the

Institute.

(2) The Chief Executive Officer-

(a) is appointed for a term not exceeding five years; and (b) may be reappointed by the Board with the concurrence of the Minister, but

only for one additional term not exceeding five years.

(3) The Chief Executive Officer is employed subject to such terms and conditions of

employment as the Board may determine in accordance with a policy approved by the

Minister with the concurrence of the Cabinet member responsible for finance.

(4) The Chief Executive Officer-

(a) is responsible for the management of the institute;

(b) must perform such duties and may exercise such powers as the Board may

delegate to him or her; and

and the exercise of powers, at such times or intervals and in such manner, as

the Board may determine.

(5) (a) The Chairperson of the Board may appoint another employee of the Institute

as acting Chief Executive Officer for a period not exceeding six months, whenever -

(i) the Chief Executive Officer if for any reason absent or unable to perform his

or her duties; or

(ii) there is a vacancy in the office of the Chief Executive Officer.

(b) Whilst acting as Chief Executive Officer, such employee-

(i) has the powers and duties of the Chief Executive Officer; and

(ii) is employed subject to such terms and conditions of employment as the

Chairperson may determine in accordance with the policy referred to in

subsection (3).

Employment of staff

29. (1) The Board, acting with the concurrence of the Minister, must determine an

employment policy for the Institute.

(2) The Chief Executive Officer-

(a) within the financial limits set by the Board, must determine a staff

establishment necessary for the work of the Institute; and

(b) may appoint persons in posts on the staff establishment.

(3) An employee of the Institute is employed subject to the terms and conditions of

employment determined by the Chief Executive Officer in accordance with the

employment policy of, and within the financial limits set by, the Board.

(4) (a) A person in the service of another organ of state may be seconded to the

Institute by agreement between the Chief Executive Officer and such organ of state.

(b) Persons seconded to the Institute perform their duties under the supervision of the

Chief Executive Officer.

(5) A person in the service of the Institute may, with the consent of that person, be

seconded to another organ of state by agreement between the Chief Executive Officer

and such organ of state.

Part 5

Financial matters

Financial accountability

30. The Institute is a public entity for the purposes of the Public Finance Management

Act, and must comply with the provisions of that Act.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

Funding

31. The funds of the Institute consist of-

(a) income derived by it from the performance of its duties and the exercise of its

powers;

(b) money appropriated by Parliament;

(d) voluntary contributions, donations and bequests;

(e) money borrowed in terms of section 12(g);

(f) income derived from investments referred to in sections 32; and

(g) money derived from any other source, subject to the Public Finance

Management Act.

Investments

32. The Institute may invest any of its funds not immediately required -

(a) subject to any investment policy that may be prescribed in terms of section 7

(4) of the Public Finance Management Act; and

(b) in such a manner that the Minister may approve.

Part 6

National botanical gardens

Declaration

33. (1) The Minister, acting with the approval of the Cabinet member responsible for

the administration of the land in question may, by notice in the Gazette, declare any state

land described in the notice as a-

(a) national botanical garden; or

(b) part of an existing national botanical garden.

(2) The Minister, acting in accordance with an agreement with the owner of the land

described in that agreement may, by notice in the Gazette declare that land as a-

(a) national botanical garden; or

(b) part of an existing national botanical garden.

(3) A notice in terms of subsection (i)(a) or (2)(a) must assign a name to the national

botanical garden.

(4) The sites described in Schedule ito the Forest Act, 1984 (Act No. 122 of 1984),

must be regarded as having been declared as national botanical gardens in terms of this

section.

Amendment or withdrawal of declarations

34. (1) The Minister may, by notice in the Gazette-

(a) amend or withdraw a notice referred to in section 33, subject to subsection (2);

(b) amend the name assigned to a national botanical garden.

(2) The declaration of state land as a national botanical garden, or part of an existing

national botanical garden, may not be withdrawn and a part of a national botanical

garden on state land may not be excluded from it except by resolution of each House of

Parliament.

Part 7

General

Minister's supervisory powers

35. (1) The Minister-

(a) must monitor the exercise and performance by the Institute of its powers and

duties;

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

(b) may set norms and standards for the exercise and performance by the Institute

of its powers and duties;

procedural issues to ensure its effective and efficient functioning;

(d) must determine limits on fees charged by the Institute in the exercise and

performance of its powers and duties; and

(e) may identify land for new botanical gardens and extensions to existing

botanical gardens.

(2) The Institute must exercise its powers and perform its duties subject to any norms

and standards, directives and determinations issued by the Minister in terms of

subsection (1).

Absence of functional Board

36. In the event of absence of a functional Board, the powers and duties of the Board

revert to the Minister who, in such a case, must exercise those powers and perform those

duties until the Board is functional again.

CHAPTER 3

BIODIVERSITY PLANNING AND MONITORING

Purpose of Chapter

37. The purpose of this Chapter is to -

(a) provide for integrated and co-ordinated biodiversity planning;

(b) provide for monitoring the conservation status of various components of

South Africa's biodiversity; and

Part 1

Biodiversity planning

National biodiversity framework

38. (1) The Minister-

(a) must prepare and adopt a national biodiversity framework within three years

of the date on which this Act takes effect;

(b) must monitor implementation of the framework;

(d) may, when necessary. amend the framework.

(2) The Minister must, by notice in the Gazette, publish the national biodiversity framework and each amendment of the framework.

Contents of national biodiversity framework

39. (1) The national biodiversity framework must-

(a) provide for an integrated, co-ordinated and uniform approach to biodiversity

management by organs of state in all spheres of government, non-

governmental organisations, the private sector, local communities, other

stakeholders and the public;

(b) be consistent with-

(i) this Act;

(ii) the national environmental management principles; and

(iii) any relevant international agreements binding on the Republic;

protected areas; and

(d) reflect regional co-operation on issues concerning biodiversity management

in Southern Africa.

(2) The national biodiversity framework may determine norms and standards for

provincial and municipal environmental conservation plans.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

Bioregions and bioregional plans

40. (1) The Minister or the MEC for environmental affairs in a province may, by

notice in the Gazette-

(a) determine a geographic region as a bioregion for the purposes of this Act if

that region contains whole or several nested ecosystems and is characterised

by its landforms, vegetation cover, human culture and history; and

(b) publish a plan for the management of biodiversity and the components of

biodiversity in such region.

(2) The Minister may determine a region as a bioregion and publish abioregional plan

for that region either-

(a) on own initiative but after consulting the MEC for Environmental Affairs in

the relevant province; or

(b) at the request of a province or municipality.

(3) The MEC for environmental affairs may determine a region as a bioregion and

publish a bioregional plan for that region only with the concurrence of the Minister.

(4) Any person or organ of state may, on the request of the Minister or MEC for

Environmental Affairs, assist in the preparation of a bioregional plan.

(5) The Minister-

(a) may enter into an agreement with a neighbouring country to secure the

effective implementation of the plan; and

(b) must submit to Parliament a copy of any agreement entered into in terms of

paragraph (a).

Contents of bioregional plans

41. A bioregional plan must-

(a) contain measures for the effective management of biodiversity and the

components of biodiversity in the region;

(b) provide for monitoring of the plan; and

(i) this Act;

(ii) the national environmental management principles;

(iii) the national biodiversity framework; and

(iv) any relevant international agreements binding on the Republic.

Review and amendment of bioregional plans

42. (1) The Minister or the MEC for Environmental Affairs in the relevant province,

as may be appropriate, must review a bioregiorial plan published in terms of section

40(1)(b) at least every five years, and assess compliance with the plan and the extent to

which its objectives are being met.

(2) The Minister or MEC for Environmental Affairs may, when necessary, by notice

in the Gazette, amend a bioregional plan or the boundaries of the bioregion. (3) The MEC for Environmental Affairs may amend a bioregional plan or the

boundaries of the bioregion only with the concurrence of the Minister.

Biodiversity management plans

43. (1) Any person, organisation or organ of state desiring to contribute to biodiversity management may submit to the Minister for his or her approval a draft management plan

for-

(a) an ecosystem-

(i) listed in terms of section 52; or

(ii) which is not listed in terms of section 52 but which does warrant special

conservation attention;

(b) an indigenous species-

(i) listed in terms of section 56; or

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 200 4

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

(ii) which is not listed in terms of section 56 but which does warrant special

conservation attention; or

international agreement binding on the Republic.

(2) Before approving a draft biodiversity management plan, the Minister must

identify a suitable person, organisation or organ of state which is willing to be

responsible for the implementation of the plan.

(3) The Minister must-

(a) publish by notice in the Gazette a biodiversity management plan approved in

terms of subsection (1);

(b) determine the manner of implementation of the plan; and

organisation or organ of state identified in terms of subsection (2).

Biodiversity management agreements

44. The Minister may enter into a biodiversity management agreement with the

person, organisation or organ of state identified in terms of section 43(2), or any other

suitable person, organisation or organ of state, regarding the implementation of a

biodiversity management plan, or any aspect of it.

Contents of biodiversity management plans

45. A biodiversity management plan must-

(a) be aimed at ensuring the long-term survival in nature of the species or

ecosystem to which the plan relates;

(b) provide for the responsible person, organisation or organ of state to monitor

and report on progress with implementation of the plan; and

(i) this Act;

(ii) the national environmental management principles;

(iii) the national biodiversity framework;

(iv) any applicable bioregional plan;

(v) any plans issued in terms of Chapter 3 of the National Environmental

Management Act;

(vi) any municipal integrated development plan;

(vii) any other plans prepared in terms of national or provincial legislation that

is affected; and

(viii) any relevant international agreements binding on the Republic.

Review and amendment of biodiversity management plans

46. (1) The Minister must review a biodiversity management plan published in terms of section 43(3) at least every five years, and assess compliance with the plan and the

extent to which its objectives are being met.

(2) The Minister, either on own initiative or on request by an interested person,

organisation or organ of state, may by notice in the Gazette amend a biodiversity

management plan published in terms of section 43(3).

(3) Before amending a biodiversity management plan, the Minister must consult-

(a) any person, organisation or organ of state implementing the plan; and

(b) any organ of state whose activities are affected by the implementation of the

plan.

Consultation

47. (1) Before adopting or approving a national biodiversity framework, a bioregional

plan or a biodiversity management plan, or any amendment to such a plan, the Minister

must follow a consultative process in accordance with sections 99 and 100.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

(2) Before adopting a bioregional plan, or any amendment to such a plan, the MEC for

Environmental Affairs in the relevant province must follow a consultative process in

accordance with sections 99 and 100.

Part 2

Co-ordination and alignment of plans, monitoring and research

Co-ordination and alignment of biodiversity plans

48. (1) The national biodiversity framework, a bioregional plan and a biodiversity

management plan prepared in terms of this Chapter may not be in conflict with-

(a) any environmental implementation or environmental management plans

prepared in terms of Chapter 3 of the National Environmental Management

Act;

(b) any integrated development plans adopted by municipalities in terms of the

Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);

use management, land development and spatial planning administered by the

Cabinet member responsible for land affairs; and

(d) any other plans prepared in terms of national or provincial legislation that are

affected.

(2) An organ of state that must prepare an environmental implementation or

environmental management plan in terms of Chapter 3 of the National Environmental

Management Act, and a municipality that must adopt an integrated development plan in

terms of the Local Government: Municipal Systems Act, 2000, must-

(a) align its plan with the national biodiversity framework and any applicable

bioregional plan;

(b) incorporate into that plan those provisions of the national biodiversity

framework or a bioregional plan that specifically apply to it, and

applicable bioregional plan may be implemented by that organ of state or

municipality.

(3) The Institute may -

(a) assist the Minister and others involved in the preparation of the national

biodiversity framework, a bioregional plan or a biodiversity management plan

to comply with subsection (1); and

(b) make recommendations to organs of states or municipalities referred to in

subsection (2) to align their plans referred to in that subsection with the

national biodiversity framework and any applicable bioregional plan.

Monitoring

49. (1) The Minister must for the purposes of this Chapter designate monitoring

mechanisms and set indicators to determine-

(a) the conservation status of various components of South Africa's biodiversity;

and

(b) any negative and positive trends affecting the conservation status of the

various components.

(2) The Minister may require any person, organisation or organ of state involved in

terms of subsection (1) in monitoring the matters referred to in that subsection to report

regularly to the Minister on the results of such monitoring measured against the

predetermined indicators.

(3) The Minister must-

(a) annually report to Parliament on the information submitted to the Minister in

terms of subsection (2); and

(b) make such information publicly available.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

Research

50. (1) The Minister must promote research done by the Institute and other institutions

on biodiversity conservation, including the sustainable use, protection and conservation

of indigenous biological resources.

(2) Research on biodiversity conservation may include-

(a) the collection and analysis of information about-

(i) the conservation status of the various components of biodiversity;

(ii) negative and positive trends affecting the conservation status of various

components; and

(iii) threatening processes or activities likely to impact on biodiversity

conservation;

(b) the assessment of strategies and techniques for biodiversity conservation;

(d) the sustainable use, protection and conservation of indigenous biological

resources.

CHAPTER 4

THREATENED OR PROTECTED ECOSYSTEMS AND SPECIES

Purpose of Chapter

51. The purpose of this Chapter is to-

(a) provide for the protection of ecosystems that are threatened or in need of

protection to ensure the maintenance of their ecological integrity;

(b) provide for the protection of species that are threatened or in need of

protection to ensure their survival in the wild;

regulating international trade in specimens of endangered species; and

(d) ensure that the utilisation of biodiversity is managed in an ecologically

sustainable way.

Part 1

Protection of threatened or protected ecosystems

Ecosystems that are threatened or in need of protection

52. (1) (a) The Minister may, by notice in the Gazette, publish a national list of

ecosystems that are threatened and in need of protection.

(b) An MEC for environmental affairs in a province may, by notice in the Gazette,

publish a provincial list of ecosystems in the province that are threatened and in need of

protection.

(2) The following categories of ecosystems may be listed in terms of subsection (1):

(a) critically endangered ecosystems, being ecosystems that have undergone

severe degradation of ecological structure, function or composition as a result

of human intervention and are subject to an extremely high risk of irreversible

transformation;

(b) endangered ecosystems, being ecosystems that have undergone degradation

of ecological structure, function or composition as a result of human

intervention, although they are not critically endangered ecosystems;

significant degradation of ecological structure, function or composition as a

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

result of human intervention, although they are not critically endangered

ecosystems or endangered ecosystems; and

(d) protected ecosystems, being ecosystems that are of high conservation value or

of high national or provincial importance, although they are not listed in terms

of paragraphs (a), (b) or (c).

(3) A list referred to in subsection (I) must describe in sufficient detail the location of

each ecosystem on the list.

(4) The Minister and the MEC for environmental affairs in a relevant province,

respectively, must at least every five years review any national or provincial list

published by the Minister or MEC in terms of subsection (1).

(5) An MEC may publish or amend a provincial list only with the concurrence of the

Minister.

Threatening processes in listed ecosystems

53. (1) The Minister may, by notice in the Gazette, identify any process or activity in a listed ecosystem as a threatening process.

(2) A threatening process identified in terms of subsection (1) must be regarded as a

specified activity contemplated in section 24(2)(b) of the National Environmental

Management Act and a listed ecosystem must be regarded as an area identified for the

purpose of that section.

Certain plans to take into account in protection of listed ecosystems

54. An organ of state that must prepare an environmental implementation or

environmental management plan in terms of Chapter 3 of the National Environmental

Management Act, and a municipality that must adopt an integrated development plan in

terms of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000),

must take into account the need for the protection of listed ecosystems.

Amendment of notices

55. The Minister or the MEC for Environmental Affairs in any relevant province may,

by notice in the Gazette, amend or repeal any notice published by him or her in terms of section 52(1) or 53(1).

Part 2

Protection of threatened or protected species

Listing of species that are threatened or in need of national protection

56. (1) The Minister may, by notice in the Gazette, publish a list of-

(a) critically endangered species, being any indigenous species facing an

extremely high risk of extinction in the wild in the immediate future;

(b) endangered species, being any indigenous species facing a high risk of

extinction in the wild in the near future, although they are not a critically

endangered species;

No 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

risk of extinction in the wild in the medium-term future, although they are not

a critically endangered species or an endangered species; and

(d) protected species, being any species which are of such high conservation

value or national importance that they require national protection, although

they are not listed in terms of paragraph (a), (b), or (c).

(2) The Minister must review the lists published in terms of subsection (1) at least

every five years.

Restricted activities involving listed threatened or protected species

57. (1) A person may not carry out a restricted activity involving a specimen of a listed

threatened or protected species without a permit issued in terms of Chapter 7.

(2) The Minister may, by notice in the Gazette, prohibit the carrying out of any activity-

(a) which is of a nature that may negatively impact on the survival of a listed

threatened or protected species; and

(b) which is specified in the notice,

or prohibit the carrying out of such activity without a permit issued in terms of

Chapter 7.

(3) Subsection (1) does not apply in respect of a specimen of a listed threatened or

protected species conveyed from outside the Republic in transit through the Republic to

a destination outside the Republic, provided that such transit through the Republic takes

place under the control of an environmental management inspector.

Amendment of notices

58. The Minister may by notice in the Gazette amend or repeal any notice published

in terms of section 55(1) or 56(2).

Part 3

Trade in listed threatened or protected species

Functions of Minister

59. The Minister-

(a) must monitor-

(i) compliance with section 57(1) insofar as trade in specimens of listed

threatened or protected species is concerned; and

(ii) compliance in the Republic with an international agreement regulating

international trade in specimens of endangered species which is binding

on the Republic;

(b) must consult the scientific authority on issues relating to trade in specimens of

endangered species regulated by such an international agreement;

Republic's obligations in terms of such an international agreement;

(d) may provide administrative and technical support services and advice to

organs of state to ensure the effective implementation and enforcement in the

Republic of such an international agreement;

(e) may make information and documentation relating to such an international

agreement publicly available; and

(f) may, prescribe a system for the registration of institutions, ranching

operations, nurseries, captive breeding operations and other facilities.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

Establishment of scientific authority

60. (1) The Minister must establish a scientific authority for purpose of assisting in

regulating and restricting the trade in specimens of listed threatened or protected

species.

(2) The Institute must provide logistical, administrative and financial support for the

proper functioning of the scientific authority.

Functions of scientific authority

61. (1) The scientific authority must -

(a) monitor in the Republic the legal and illegal trade in specimens of listed

threatened or protected species;

(b) advise the Minister and any other interested organs of state on the matters that

it monitors;

referred to in section 57(1) or (2);

(d) make non-detriment findings on the impact of actions relating to the

international trade in specimens of listed threatened or protected species;

(e) advise the Minister on-

(i) the registration of ranching operations, nurseries, captive breeding

operations and other facilities;

(ii) whether an operation or facility meets the criteria for producing species

considered to be bred in captivity or artificially propagated;

(iii) the choice of a rescue centre or other facility for the disposal of forfeited

specimens;

(iv) any amendments to a notice published in terms of section 56(1) or 57(2);

(v) the nomenclature of species; or

(vi) any other matter of a specialised nature;

(f) assist the Minister or an environmental management inspector in the

identification of specimens for the purpose of enforcing the provisions of this

Act;

(g) issue certificates in which the identification of a specimen is verified as being

taxonomically accurate;

(h) perform any other function that may be-

(i) prescribed; or

(ii) delegated to it by the Minister in terms of section 47D of the National

Environmental Management Act; and

(i) deal with any other matter necessary for, or reasonably incidental to, its

powers and duties.

(2) In performing its duties, the scientific authority must -

(a) base its findings, recommendations and advice on a scientific and professional

review of available information; and

(b) consult, when necessary, organs of state, the private sector, non-governmental

organisations, local communities and other stakeholders before making any

findings or recommendations or giving any advice.

Annual non-detriment findings

62. (1) The scientific authority must publish in the Gazette any annual non-detriment

findings on trade in specimens of listed threatened or protected species in accordance

with an international agreement regulating international trade in specimens of listed

threatened or protected species which is binding on the Republic.

(2) Any interim findings of the scientific authority must be published in the Gazette

for public information within 30 days after the decision has been made.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

Part 4

General provisions

Consultation

63. (1) Before publishing a notice in terms of section 52(1), 53(1), 56(1) or 57(2), or

amending or repealing such a notice in terms of section 55 or 58, the Minister must

follow a consultative process in accordance with sections 99 and 100.

(2) Before publishing a notice in terms of section 52(1), or amending or repealing

such a notice in terms of section 55, the MEC for environmental affairs in the relevant

province must follow a consultative process in accordance with sections 99 and 100.

CHAPTER 5

SPECIES AND ORGANISMS POSING POTENTIAL THREATS TO

BIODIVERSITY

Purposes of Chapter

64. (1) The purpose of this Chapter is-

(a) to prevent the unauthorized introduction and spread of alien species and

invasive species to ecosystems and habitats where they do not naturally occur;

(b) to manage and control alien species and invasive species to prevent or

minimize harm to the environment and to biodiversity in particular;

where they may harm such ecosystems or habitats; and

(d) to ensure that environmental assessments for purposes of permits in terms of

the Genetically Modified Organisms Act, 1997 (Act No. 15 of 1997), are

conducted in appropriate cases in accordance with Chapter 5 of the National

Environmental Management Act.

(2) For the purpose of this Chapter, "specimen" has the meaning assigned to it in

paragraphs (a) and (b) of the definition of "specimen" in section 1(1).

Part 1

Alien species

Restricted activities involving alien species

65. (1) A person may not carry out a restricted activity involving a specimen of an

alien species without a permit issued in terms of Chapter 7.

(2) A permit referred to in subsection (1) may be issued only after a prescribed

assessment of risks and potential impacts on biodiversity is carried out.

Exemptions

66. (1) The Minister may, by notice in the Gazette, exempt from the provisions of

section 65 -

(a) any alien species specified in the notice; or

(b) any alien species of a category specified in the notice.

(2) Any person may carry out a restricted activity involving a specimen of an

exempted alien species without a permit mentioned in section 65(1).

(3) The Minister must regularly review a notice published in terms of subsection (1).

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 2004

Restricted activities involving certain alien species totally prohibited

67. (1) The Minister may, by notice in the Gazette, publish a list of those alien species

in respect of which a permit mentioned in section 65(1) may not be issued.

(2) A person may not carry out any restricted activity involving a specimen of an alien

species published in terms of subsection (1).

(3) The Minister must regularly review a list published in terms of subsection (1).

Amendment of notices

68. The Minister may, by notice in the Gazette, amend or repeal any notice published

in terms of section 66(1) or 67(1).

Duty of care relating to alien species

69. (1) A person authorised by permit, in terms of section 65(1), to carry out a

restricted activity involving a specimen of an alien species must-

(a) comply with the conditions under which the permit has been issued; and

(b) take all required steps to prevent or minimise harm to biodiversity.

(2) A competent authority may, in writing, direct any person who has failed to comply

with subsection (1), or who has contravened section 65(1) or 67(2), to take such steps -

(a) as may be necessary to remedy any harm to biodiversity caused by the actions

of that person; and

(b) as may be specified in the directive.

(3) If that person fails to comply with a directive issued in terms of subsection (2), the

competent authority may-

(a) implement the directive; and

(b) recover from that person all costs incurred by the competent authority in

implementing the directive.

(4) Should an alien species establish itself in nature as an invasive species because of

the actions of a specific person, a competent authority may hold that person liable for

any costs incurred in the control and eradication of that species.

Part 2

Invasive species

List of invasive species

70. (1) (a) The Minister must within 24 months of the date on which this section takes

effect, by notice in the Gazette, publish a national list of invasive species in respect of

which this Chapter must be applied nationally.

(b) The MEC for environmental affairs in a province may, by notice in the Gazette,

publish a provincial list of invasive species in respect of which this Chapter must be

applied in the province.

(2) The Minister or the MEC for environmental affairs in a relevant province must

regularly review the national list or any provincial list published in terms of subsection

(1), as may be appropriate.

(3) An MEC for Environmental Affairs may only publish or amend a provincial list in

terms of subsection (1) or (2) with the concurrence of the Minister.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

Restricted activities involving listed invasive species

71. (1) A person may not carry out a restricted activity involving a specimen of a listed invasive species without a permit issued in terms of Chapter 7.

(2) A permit referred to in subsection (1) may be issued only after a prescribed

assessment of risks and potential impacts on biodiversity is carried out.

Amendment of notices

72. The Minister or the MEC for environmental affairs in any relevant province may,

by notice in the Gazette, amend or repeal any notice published by him or her in terms of

section 70 (1).

Duty of care relating to listed invasive species

73. (1) A person authorised by permit in terms of section 71(1) to carry out a restricted

activity involving a specimen of a listed invasive species must take all the required steps

to prevent or minimise harm to biodiversity.

(2) A person who is the owner of land on which a listed invasive species occurs

must-

(a) notify any relevant competent authority, in writing, of the listed invasive

species occurring on that land;

(b) take steps to control and eradicate the listed invasive species and to prevent it

from spreading; and

(3) A competent authority may, in writing, direct any person who has failed to comply

with subsection (1) or (2). or who has contravened section 7 1(1), to take such steps -

(a) as may be necessary to remedy any harm to biodiversity caused by-

(i) the actions of that person; or

(ii) the occurrence of the listed invasive species on land of which that person

is the owner; and

(b) as may, be specified in the directive.

(4) If that person fails to comply With a directive issued in terms of subsection (3), a

competent authority may -

(a) implement the directive; and

(b) recover all costs reasonably incurred by a competent authority in implement -

ing the directive-

(i) from that person; or

(ii) proportionally from that person and any other person who benefited from

implementation of the directive.

Requests to competent authorities to issue directives

74. (1) Any person may request a competent authority, in writing, to issue a directive

in terms of section 73(3).

(2) A competent authority must reply to the request, in writing, within 30 days of

receipt of the request.

(3) Should a competent authority fail to respond to the request within the stated period

or refuses the request, the person who made the request may apply to a court for an order

directing that competent authority to issue the directive.

Control and eradication of listed invasive species

75. (1) Control and eradication of a listed invasive species must be carried out by

means of methods that are appropriate for the species concerned and the environment in

which it occurs.

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

(2) Any action taken to control and eradicate a listed invasive species must be

executed with caution and in a manner that may cause the least possible harm to

biodiversity and damage to the environment.

(3) The methods employed to control and eradicate a listed invasive species must also

be directed at the offspring, propagating material and re-growth of such invasive species

in order to prevent such species from producing offspring, forming seed, regenerating or

re-establishing itself in any manner.

(4) The Minister must ensure the coordination and implementation of programmes for

the prevention, control or eradication of invasive species.

(5) The Minister may establish an entity consisting of public servants to coordinate

and implement programmes for the prevention, control or eradication of invasive

species.

Invasive species control plans of organs of state

76. (1) The management authority of a protected area preparing a management plan

for the area in terms of the Protected Areas Act must incorporate into the management

plan an invasive species control and eradication strategy.

(2) (a) All organs of state in all spheres of government must prepare an invasive

species monitoring, control and eradication plan for land under their control, as part of

their environmental plans in accordance with section 11 of the National Environmental

Management Act. "

(b) The invasive species monitoring, control and eradication plans of municipalities

must be part of their integrated development plans.

(3) The Minister may request the Institute to assist municipalities in performing their

duties in terms of subsection (2).

(4) An invasive species monitoring, control and eradication plan must include-

(a) a detailed list and description of any listed invasive species occurring on the

relevant land;

(b) a description of the parts of that land that are infested with such listed invasive

species;

(d) a status report on the efficacy of previous control and eradication measures

(e) the current measures to monitor, control and eradicate such invasive species;

and

(f) measurable indicators of progress and success, and indications of when the

control plan is to be completed.

Invasive species status reports

77. (1) The management authority of a protected area must at regular intervals prepare

and submit to the Minister or the MEC for Environmental Affairs in the province a report

on the status of any listed invasive species that occurs in that area.

(2) A status report must include-

(a) a detailed list and description of all listed invasive species that occur in the

protected area;

(b) a detailed description of the parts of the area that are infested with listed

invasive species;

(d) a report on the efficacy of previous control and eradication measures.

Part 3

Other threats

Genetically modified organisms

78. (1) If the Minister has reason to believe that the release of a genetically modified

organism into the environment under a permit applied for in terms of the Genetically

No. 26436 GOVERNMENT GAZETTE. 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

Modified Organisms Act, 1997 (Act No. 15 of 1997), may pose a threat to any

indigenous species or the environment, no permit for such release may be issued in

terms of that Act unless an environmental assessment has been conducted in accordance

with Chapter 5 of the National Environmental Management Act as if such release were

a listed activity contemplated in that Chapter.

(2) The Minister must convey his or her belief referred to in subsection (1) to the

authority issuing permits in terms of the Genetically Modified Organisms Act, 1997,

before the application for the relevant permit is decided.

(3) For the purposes of subsection (1) "release" means trial release or general release

as defined in section 1 of the Genetically Modified Organisms Act, 1997.

Part 4

General provisions

Consultation

79. (1) Before publishing a notice in terms of section 66(1), 67(1) or 70(1), or

amending or repealing such a notice in terms of section 68 or 72, the Minister must

follow a consultative process in accordance with sections 99 and 100.

(2) Before publishing a notice in terms of section 70(1), or amending or repealing

such a notice in terms of section 72, the MEC for environmental affairs in the relevant

province must follow a consultative process in accordance with sections 99 and 100.

CHAPTER 6

BIOPROSPECTING, ACCESS AND BENEFIT-SHARING

Purpose and application of Chapter

80. (1) The purpose of this Chapter is

(a) to regulate bioprospecting involving indigenous biological resources;

(b) to regulate the export from the Republic of indigenous biological resources for

the purpose of bioprospecting or any other kind of research; and

from bioprospecting involving indigenous biological resources.

(2) In this Chapter -

"indigenous biological resources" -

(a) includes-

(i) any indigenous biological resources as defined in paragraph (b) of the

definition of "indigenous biological resource" in section 1, whether

gathered from the wild or accessed from any other source, including any

animals, plants or other organisms of an indigenous species cultivated,

bred or kept in captivity or cultivated or altered in any way by means of

biotechnology:

(ii) any cultivar, variety, strain, derivative, hybrid or fertile version of any

indigenous species or of any animals, plants or other organisms referred

to in subparagraph (i): and

(iii) any exotic animals, plants or other organisms, whether gathered from the

wild or accessed from any other source which, through the use of

biotechnology, have been altered with any genetic material or chemical

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

compound found in any indigenous species or any animals, plants or

other organisms referred to in subparagraph (i) or (ii); but (b) excludes-

(i) genetic material of human origin;

(ii) any exotic animals, plants or other organisms, other than exotic animals,

plants or other organisms referred to in paragraph (a)(iii); and

(iii) indigenous biological resources listed in terms of the International Treaty on Plant Genetic Resources for Food and Agriculture

Permits

81. (1) No person may, without a permit issued in terms of Chapter 7-

(a) engage in bioprospecting involving any indigenous biological resources; or

(b) export from the Republic any indigenous biological resources for the purpose

of bioprospecting or any other kind of research.

(2) Before any application for a permit referred to in subsection (1) may be considered

by a relevant issuing authority, the applicant must at the request of the issuing authority,

disclose to the issuing authority all information concerning the proposed bioprospecting

and the indigenous biological resources to be used for such bioprospecting that is

relevant for a proper consideration of the application.

Certain interests to be protected before permits are issued

82. (1) Before a permit referred to in section 81(1)(a) or (b) is issued, the issuing

authority considering the application for the permit must in accordance with this section

protect any interests any of the following stakeholders may have in the proposed

bioprospecting project:

(a) A person, including any organ of state or community, providing or giving access to the indigenous biological resources to which the application relates; and

(b) an indigenous community-

(i) whose traditional uses of the indigenous biological resources to which

the application relates have initiated or will contribute to or form part of

the proposed bioprospecting; or

(ii) whose knowledge of or discoveries about the indigenous biological

resources to which the application relates are to be used for the proposed

bioprospecting.

(2) If a stakeholder has an interest as set out in subsection (1)(a), an issuing authority

may issue a permit only if-

(a) the applicant has disclosed all material information relating to the relevant

bioprospecting to the stakeholder and on the basis of that disclosure has

obtained the prior consent of the stakeholder for the provision of or access to

such resources:

(b) the applicant and the stakeholder have entered into-

(i) a material transfer agreement that regulates the provision of or access to

such resources; and

(ii) a benefit-sharing agreement that provides for sharing by the stakeholder

in any future benefits that may be derived from the relevant

bioprospecting: and

benefit-sharing and material transfer agreements.

(3) If a stakeholder has an interest as set out in subsection (1)(b), an issuing authority

may issue a permit only if-

(a) the applicant has disclosed all material information relating to the relevant

bioprospecting to the stakehplder and on the basis of that disclosure has

obtained the prior consent of the stakeholder to use any of the stakeholder's

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

knowledge of or discoveries about the indigenous biological resources for the

proposed bioprospecting;

(b) the applicant and the stakeholder have entered into a benefit-sharing

agreement that provides for sharing by the stakeholder in any future benefits

that may be derived from the relevant bioprospecting; and

agreement.

(4) An issuing authority-

(a) may engage the applicant and stakeholder on the terms and conditions of a

benefit-sharing or material transfer agreement;

(b) may facilitate negotiations between the applicant and stakeholder and ensure

that those negotiations are conducted on an equal footing;

agreed upon between the applicant and stakeholder is fair and equitable;

(d) may make recommendations to the Minister; and

(e) must perform any other functions that may be prescribed.

Benefit-sharing agreements

83. (1) A benefit-sharing agreement must-

(a) be in a prescribed format;

(b) specify-

(i) the type of indigenous biological resources to which the relevant

bioprospecting relates;

(ii) the area or source from which the indigenous biological resources are to

be collected or obtained;

(iii) the quantity of indigenous biological resources that is to be collected or

obtained;

(iv) any traditional uses of the indigenous biological resources by an

indigenous community; and

(v) the present potential uses of the indigenous biological resources;

(d) set out the manner in which and the extent to which the indigenous biological

resources are to be utilised or exploited for purposes of such bioprospecting;

(e) set out the manner in which and the extent to which the stakeholder will share

in any benefits that may arise from such bioprospecting;

(f) provide for a regular review of the agreement by the parties as the

bioprospecting progresses; and

(g) comply with any other matters that may be prescribed.

(2) A benefit-sharing agreement or any amendment to such an agreement-

(a) must be submitted to the Minister for approval; and

(b) does not take effect unless approved by the Minister.

Material transfer agreements

84. (1) A material transfer agreement must-

(a) be in a prescribed format;

(b) specify-

(i) particulars of the provider, and the exporter or recipient, of the

indigenous biological resources;

(ii) the type of indigenous biological resources to be provided or to be given

access to;

(iii) the area or source from which the indigenous biological resources are to

be collected, obtained or provided;

(iv) the quantity of indigenous biological resources that is to be provided,

collected, obtained or exported;

(v) the purpose for which such indigenous biological resources are to be

exported;

(vi) the present potential uses of the indigenous biological resources; and

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

(vii) conditions under which the recipient may provide any such indigenous

biological resources, or their progeny, to a third party.

(2) A material transfer agreement or any amendment to such an agreement -

(a) must be submitted to the Minister for approval; and

(b) does not take effect unless approved by the Minister.

Establishment of Bioprospecting Trust Fund

85. (1) ABioprospecting Trust Fund is established into which all moneys arising from

benefit-sharing agreements and material transfer agreements, and due to stakeholders,

must be paid, and from which all payments to, or for the benefit of, stakeholders must be

made.

(2) All money paid into the bioprospecting trust fund is trust money within the

meaning of section 13(1)(f)(ii) of the Public Finance Management Act.

(3) The Director-General-

(a) must manage the Fund in the prescribed manner; and

(b) is accountable for the money in the Fund in terms of the Public Finance

Management Act.

Exemptions

86. (1) The Minister may by notice in the Gazette-

(a) declare that this Chapter does not apply to indigenous biological resources

specified in the notice or to an activity relating to such indigenous biological

resources; and

(b) amend or withdraw a notice referred to in paragraph (a).

(2) Before publishing a notice in terms of subsection (1) the Minister must follow a

consultative process in accordance with sections 99 and 100.

CHAPTER 7

PERMITS

Purpose of Chapter

87. The purpose of this Chapter is to provide for the regulation of the issuing of

permits authorising-

(a) restricted activities involving specimens of-

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

(ii) alien species in terms of section 65(1); or

(iii) listed invasive species in terms of section 71(1);

(b) activities regulated in terms of a notice published in terms of section 57(2);

81(1): or

(d) the export of indigenous biological resources for bioprospecting or any other

type of research in terms of section 81(1).

Part 1

Permit system

Application for permits

88. (1) A person may apply for a permit by lodging an application on the prescribed

form to the authority.

(2) An issuing authority may-

(a) request the applicant to furnish any additional information before it considers

the application;

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

(b) require the applicant to comply with such reasonable conditions as it may

impose before it grants the application;

(d) refuse a permit.

(3) A decision of the issuing authority to issue or refuse a permit or to issue it subject

to conditions, must be consistent with-

(a) the applicable provisions of this Act;

(b) the national environmental management principles;

(d) any other relevant plans adopted or approved in terms of Chapter 3;

(e) any applicable international agreements binding on the Republic;

(f) the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000);

(g) any requirements that may be prescribed.

(4) If compulsory conditions are prescribed for any kind of permit, an issuing

authority may not issue a permit of that kind other than subject to those conditions.

(5) If an application is rejected, the issuing authority must give reasons for the

decision in writing to the applicant.

Risk assessments and expert evidence

89. Before issuing a permit, the issuing authority may in writing require the applicant td furnish it, at the applicant's expense, with such independent risk assessment or expert

evidence as the issuing authority may determine.

Permits

90. (1) A permit -

(a) must specify-

(i) the purpose for which it is issued;

(ii) the period for which it will remain valid; and

(iii) any other matters that may be prescribed;

(b) may be issued on conditions specified in the permit; and

(2) A permit issued in terms of section 91 does not absolve the holder or any other

person from complying with the provisions of any other applicable law.

Additional requirements relating to alien and invasive species

91. An issuing authority may issue a permit for a restricted activity involving a

specimen of an alien species or of a listed invasive species only if-

(a) adequate procedures have been followed by the applicant to assess the risks

and potential impacts associated with the restricted activity;

(b) the relevant species has been found to have negligible or no invasive potential;

associated with preventing or remedying any resultant damage to the

environment or biodiversity; and

(d) it is satisfied that adequate measures have been taken by the applicant to

prevent the escape and spread of the species.

Integrated permits

92. (1) If the carrying out of an activity mentioned in section 90 is also regulated in

terms of other law, the authority empowered under that other law to authorise that

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

activity and the issuing authority empowered under this Act to issue permits in respect

of that activity may-

(a) exercise their respective powers jointly; and

(b) issue a single integrated permit instead of a separate permit and authorisation.

(2) An authority empowered under that other law may issue an integrated permit for

the activity in question if that authority is designated in terms of this Act also as an

issuing authority for permits in respect of that activity.

(3) An integrated permit may be issued only if-

(a) the relevant provisions of this Act and that other law have been complied with; and

(b) the permit specifies the-

(i) provisions in terms of which it has been issued; and

(ii) authority or authorities that have issued it.

Cancellation of permits

93. An issuing authority which issued a permit may cancel the permit if -

(a) the permit was issued as a result of misleading or false representations by the

applicant or a person acting on behalf of the applicant; or

(b) the applicant or permit holder has contravened or failed to comply with-

(i) any condition of the permit;

(ii) any provision of this Actor other law governing the permitted activity; or

(iii) any foreign law governing the permitted activity.

Part 2

Appeals

Appeals to be lodged with Minister

94. (1) An applicant who feels aggrieved by the decision of an issuing authority in terms of section 88(2)(c) or (d), or a permit holder whose permit has been cancelled in

terms of section 93, may lodge with the Minister an appeal against the decision withi n

30 days after having been informed of the decision.

(2) The Minister must either-

(a) consider and decide the appeal;

(b) redirect the appeal to the MEC for Environmental Affairs in the relevant

province to consider and decide the appeal; or

(3) An appeal does not suspend the decision against which the appeal is lodged unless

the Minister, MEC for Environmental Affairs or appeal panel considering the appeal

directs otherwise.

Appeal panels

95. (1) If the Minister decides that the appeal must be considered and decided by an

appeal panel, the Minister must designate-

(a) a number of 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.

Decisions

96. (1) The Minister, MEC for Environmental Affairs or appeal panel considering an

appeal may-

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

(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 a permit, the Minister, MEC for Environmental Affairs or

appeal panel may issue the permit unconditionally or subject to conditions;

(b) a condition subject to which the permit was issued, the Minister, MEC for

Environmental Affairs or appeal panel may withdraw or amend the condition; or

appeal panel may restore the permit.

CHAPTER 8

ADMINISTRATION OF ACT

Part 1

Regulations

Regulations by Minister

97. (1) The Minister may make regulations relating to-

(a) the monitoring of compliance with and enforcement of norms and standard s

referred to in section 9;

(b) (i) the designation of organs of state which may be issuing authorities for

permits referred to in section 57(1) or (2);

(ii) the facilitation of the implementation and enforcement of section 57(1)

or any notice published in terms of section 57(2);

(iii) the carrying out of a restricted activity involving a specimen of a listed

threatened or protected species;

(iv) the facilitation of the implementation and enforcement of an interna-

tional agreement regulating international trade in specimens of listed

threatened or protected species which is binding on the Republic;

(v) the minimising of the threat to the survival in the wild of a listed

threatened or protected species;

(vi) the minimising of the threat to the ecological integrity of a listed

ecosystem;

(vii) the composition and operating procedure of the scientific authority; or

(viii) the ecologically sustainable utilization of biodiversity;

permits referred to in section 67(1) or 71(1):

(ii) the designation of organs of state which may be competent authorities for

implementing and enforcing the provisions of this Chapter;

(iii) the facilitation of the implementation and enforcement of section 65, 67

or 71;

(iv) the prescription of compulsory conditions for any permit issued in terms

of section 65(1) or 71(1):

(v) the assessment of risks and potential impacts on biodiversity of restricted

activities involving specimens of alien species or of listed invasive

species; and

(vi) the control and eradication of listed invasive species;

(d) biosafety and the environment;

(e) (i) the designation of organs of state that may be issuing authorities for

permits referred to in section 81; -

(ii) the form and contents of, and the requirements and criteria for,

benefit-sharing agreements and material transfer agreements;

(iii) moneys payable in connection with benefit-sharing agreements and

material transfer agreements; and

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

(iv) the administration of the Bioprospecting Trust Fund;

(f) (i) the conditions subject to which issuing authorities may issue permits in

terms of this Act;

(ii) the procedure to be followed and the fees to be paid in connection with

the lodging and consideration of applications for permits;

(iii) the powers of issuing authorities when considering and deciding such

applications;

(iv) the conditions with which applicants must comply before or after the

lodging of their applications;

(v) appropriate consultation processes;

(vi) the authorities whose consent is required before permits may be issued;

(vii) the factors that must be taken into account when deciding applications;

(viii) the circumstances in which applications must be refused or may be

approved;

(ix) the form and contents of permits;

(x) the conditions on which permits must be issued, or guidelines for

determining conditions on which permits may be issued;

(xi) methods, procedures and conditions of enforcing compliance with the

conditions of a permit;

(xii) the giving of security in respect of any obligation that may arise from

carrying out a restricted activity authorised by a permit, and the form of

such security;

(xiii) the period of validity of permits;

(xiv) the transferability of permits;

(xv) the duties of the permit holders; and

(xvi) the procedure to be followed and the fees to be paid in connection with

the lodging and consideration of appeals;

(g) any other matter that may be prescribed in terms of this Act; and

(h) any other matter that maybe necessary to facilitate the implementation of this

Act.

(2) Any regulation with direct fiscal implications may be made only with the

concurremie of the Minister of Finance.

(3) Before publishing any regulations in terms of subsection (1), or any amendment

to the regulations, the Minister must follow a consultative process in accordance with

sections 99 and 00.

(4) Subsection (3) need not be applied to a non-substantial change to the regulations.

General

98. (1) Regulations made in terms of section 97 may -

(a) restrict or prohibit any act either absolutely or conditionally;

(b) apply-

(i) generally throughout the Republic or a province, as the case may be, 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 only to a specified species or

category of species; or

(iv) generally with respect to all permits or appeals or only to a specified

category of permits or appeals; or

(i) areas or categories of areas;

(ii) persons or categories of persons;

(iii) species or categories of species; or

(iv) categories of permits or appeals.

(2) Regulations made in terms of section 97 may provide that any person who

contravenes or fails to comply with a provision thereof is guilty of an offence and liable

on conviction to-

(a) imprisonment for a period not exceeding five years;

(b) an appropriate fine; or

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

Part 2

Consultation process

Consultation

99. (1) Before exercising a power which, in terms of a provision of this Act, must be

exercised in accordance with this section and section 100, the Minister must follow an

appropriate consultative process in the circumstances.

(2) The Minister must, in terms of subsection (1) -

(a) consult all Cabinet members whose areas of responsibility may be affected by

the exercise of the power;

(b) in accordance with the principles of co-operative governance set out in

Chapter 3 of the Constitution, consult the MEC for Environmental Affairs of

each province that may be affected by the exercise of the power; and

Public participation

100. (1) The Minister must give notice of the proposed exercise of the power referred

to in section 99 -

(a) in the Gazette; and (b) in at least one newspaper distributed nationally, or if the exercise of the power

may affect only a specific area, in at least one newspaper distributed in that

area.

(2) The notice must-

(a) invite members of the public to submit to the Minister, within 30 days of

publication of the notice in the Gazette, written representations on, or objections to, the proposed exercise of the power; and

(b) contain sufficient information to enable members of the public to submit

meaningful representations or objections.

(3) The Minister may in appropriate circumstances allow any interested person or

community to present oral representations or objections to the Minister or a person

designated by the Minister.

(4) The Minister must give due consideration to all representations or objections

received or presented before exercising the power.

CHAPTER 9

OFFENCES AND PENALTIES

Offences

101. (1) A person is guilty of an offence if that person contravenes or fails to comply

with a provision of-

(a) section 57(1), 65(1), 67(2), 71(1) or 81(1):

(b) a notice published in terms of section 57(2); or

(2) A person who is the holder of a permit is guilty of an offence if that person -

(a) contravenes or fails to comply with a provision of section 69(1) or 73(1);

(b) performs the activity for which the permit was issued otherwise than in

accordance with any conditions subject to which the permit was issued; or

an offence in terms of paragraph (a) or (b).

(3) A person is guilty of an offence if that person-

(a) fraudulently alters any permit;

(b) fabricates or forges any document for the purpose of passing it as a permit;

document purporting to be a permit; or

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT:

BIODIVERSITY ACT, 2004

(d) knowingly makes any false statement or report for the purpose of obtaining a

permit.

Penalties

102. (1) A person convicted of an offence in terms of section 101 is liable to a fine, or

to imprisonment for a period not exceeding five years, or to both fine and such

imprisonment.

(2) A fine in terms of subsection (1) may not exceed-

(a) an amount prescribed in terms of the Adjustment of Fines Act, 1991 (Act No.

101 of 1991); or

(b) if a person is convicted of an offence involving a specimen of a listed

threatened or protected species, an amount determined in terms of paragraph

(a) or which is equal to three times the commercial value of the specimen in

respect of which the offence was committed, whichever is the greater.

CHAPTER 10

MISCELLANEOUS

Repeal of Act 122 of 1984

103. The Forest Act, 1984 (Act No. 122 of 1984), is repealed by this Act.

Savings

104. (1) Anything done in terms of the Forest Act, 1984 (Act No. 122 of 1984), which

may or must be done in terms of this Act must be regarded as having been done in terms

of this Act.

(2) A person who immediately before the repeal of the Forest Act, 1984, by section

100 of this Act was -

(a) a member of the board of the National Botanical Institute, becomes a member

of the Board of the South African National Biodiversity Institute and remains

such a member until the Minister appoints the members of the Board in terms

of section 15;

(b) the chief executive officer of the National Botanical Institute becomes the

acting chief executive officer of the South African National Biodiversity

Institute and remains the acting chief executive officer until the Board

appoints a person as the chief executive officer of the Institute in terms of

section 29; and

officer, must be regarded as having been appointed in terms of section 30 as

employees of the South African National Biodiversity Institute subject to the

same conditions of services which applied to them immediately before the

repeal of the Forest Act, 1984.

(3) Subsection (2)(c) does not affect pension, leave and other benefits which accrued

to employees referred to in that subsection before the repeal of the Forest Act, 1984, and

such benefits must be respected as if there was no break in their service and no change

of employer.

(4) As from the date of repeal of the Forest Act, 1984-

(a) all assets and liabilities and all rights and obligations of the National Botanical

Institute are vested in the South African National Biodiversity Institute; and

(b) any balance in the National Botanical Institute Fund referred to in section 64

of that Act must be paid to the South African National Biodiversity Institute.

Existing bioprospecting projects

105. (1) Any party involved at the commencement of Chapter 6 in a bioprospecting

project which concerns any interests to be protected in terms of section 82, may despite

No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004

Act No. 10, 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

that section continue with the project pending the negotiation and entry into force of an

appropriate benefit-sharing agreement in terms of that Chapter.

(2) Subsection (1) lapses one year after Chapter 6 takes effect.

Short title and commencement

106. This Act is called the National Environmental Management: Biodiversity Act,

2004, and takes effect on a date determined by the President by proclamation in the

Gazette.

National Environmental Management Biodiversity Act 2004 (Act No. 10 of 2004), South Africa

Available Materials