These representations focus on the proposed amendments to Part 2 of Chapter 5 Environmental Management Biodiversity Act, 2004 or NEMBA. Chapter 5 of NEMBA is of particular concern to the trout value chain given the numerous attempts that have been made by environmental officials over the years to declare rainbow trout (oncorhynchus mykiss) and brown trout (Salmo trutta ), invasive and consequently subject to a process of prevention and/or systematic removal.

  1. The President and our government have declared that growing South Africa's aquaculture sector is a strategic project that is vital to improving South Africa food security and growing the economy. Trout production is presently South Africa's largest aquaculture industry measured by volume and the second largest when measured by value. This industry moreover supports the valuable trout tourism and recreational fishing value chain that in turn contributes significantly to the economies of areas where trout occur in South Africa.
  2. Operation Phakisa is intended to achieve this goal. The trout value chain spearheaded by Trout SA is working hard to give effect to operation Phakisa. However these efforts are being frustrated by the Department of Environmental Affairs (DEA) and some scientists employed at the South African Institute of Aquatic Biodiversity (SAIAB) who believe that fresh water aquaculture is harmful to South Africa's biodiversity. They are working hard to make it difficult if not impossible to engage in fresh water aquaculture. These efforts and their belief that trout are invasive are placing the trout value chain and the economies the communities this value chain supports at risk.
  3. This conflict between government policy on the one hand and departmental belief on the other speaks to more fundamental misalignments that exist between the Constitution, constitutional values and the rule of law on the one hand and the DEA's belief that South Africa's future lies in protecting its indigenous biodiversity on the other.
  4. This conflict is ultimately one of perspective. While the environmental right set out in Section 24 of the Constitution requires government to make and implement reasonable laws that inter alia prevent pollution and ecological degradation and promote conservation, these objectives must be balanced against the need to promote sustainable development and the overarching purpose of the environmental right which is to give South Africans an environment that is not harmful to their health and wellbeing.
  5. The DEA fail to understand this. It does not understand that section 24 of the Constitution does not oblige government to place indigenous biodiversity first. Section 24 is fundamentally a human right whose focus requires government to put people and their needs at the forefront of its concern. The constitution envisages that this must be achieved through the promotion sustainable development. Protecting indigenous biodiversity needs to be seen in this context.
  6. The overemphasis that the DEA places on protecting indigenous biodiversity misaligns their attempts to formulate and implement environmental law with the Constitution and the broader conspectus of government policy. This misalignment frustrates attempts to integrate environmental laws into our legal system. This is resulting in increasingly complex and harsh environmental laws that are increasingly frustrating development and economic growth rather than encouraging sustainable development.
  7. The 30 page submission (– click here for the document -) presented by Trout SA and FOSAF speaks in detail to this misalignment in the context of proposed amendments to Part 2 of Chapter 5 of NEMBA. This is deals with our obligation to control and eradicate the 559 species that were listed by the Minister of Environmental Affairs on 1 August 2004. These efforts by the DEA to give effect to this decision further illustrate this misalignment. They also illustrate our deepening concern that the manner in which the DEA is seeking to amend and implement environmental laws undermines the rule of law itself.
  8. There is a noticeable drift in the development of our environmental laws from a system of implementing processes to give effect to laws made by parliament to a situation where parliament is being asked to abdicate its law making functions to the Minister. This unhealthy situation is exacerbated by the DEA's reliance on so called expert scientific opinion in exercising this discretion rather than transparently and objectively applying clear and reasonable rules of general application to established facts. This is evident both in the decision to list 559 species as invasive in the first place as well as the implementation of this decision.
  9. If one applied NEMBA literally as it was originally intended property owners who possessed invasive species would have been obliged to obtain a permit from a competent authority to continue doing so or face criminal conviction and a hefty fine or lengthy periods of imprisonment.
    • That millions of ordinary South Africans were not made criminals at the stroke of the Ministerial pen was only avoided because an amendment to NEMBA enacted in 2013 enables the Minister to exempt land owners from requiring this permit which is what the Minister did in the case of most species.
    • However landowners are still required to notify the competent authority of the presence of invasive species on their properties and take steps to control and eradicate them. National, provincial and local governments are still required to prepare invasive species monitoring and implementation plans that map the location of these 559 invasive species in their jurisdiction and detail how these so called infestations are to be controlled and eradicated.
  10. No attempt has been made to determine the cost of this exercise but we do not think that we are exaggerating when we say that it will run into billions if not trillions of rands. The question needs to be asked whether this is an appropriate place to invest the nation's scarce resources.
  11. The proposed amendments attempt to further mitigate the adverse consequences of listing so many species as invasive by leaving it to the Minister to decide which landowners must notify the competent authority of the presence of listed invasive species on their properties and which of them must take steps to eradicate or control those species.
  12. This amendment is inherently discriminatory as it converts a law of general application to one which need only be implemented in the discretion of the Minister. In essence the Minister gets to decide which landowners are criminal and which are not. Thus once again the implantation of environmental laws is being left to opinion rather than the transparent application of objective and uniformly applicable rules to established facts. This undermines the rule of law.
  13. The amendments also defeat the original purpose of NEMBA which is being transformed into a law which gives the DEA carte blanch to do as it likes. The rule of law is being replaced by the rule by official.
  14. The proposed amendments will also make it impossible for national, provincial and local authorities to comply with their statutory obligation to prepare and implement invasive species monitoring and implementation plans. It begs the question; who must these authorities listen to parliament and the laws it enacts or the Minister and officials in the DEA?
  15. The Supreme Court of Appeal recently ruled that “before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist”. The DEA seems to have forgotten this believing that facts may be assumed where they can establish a consensus of scientific opinion. The Constitution, constitutional values, the rule of law and the health and wellbeing of South Africans the unfortunate victims of this process.
  16. TSA suggests that that these proposed amendments do not contribute to an enabling law that supports sustainable development and or an environment that is not harmful to our health and wellbeing. We believe that there is an urgent need to re-evaluate South Africa's environmental laws sand their implementation with a view to ensuring that common sense and reasonableness guide law making and implementation that is aligned with the Constitution and supportive of the rule of law.

Draft 13 November 2015

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