Browsing by Author "Kengni Bernard"

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    The implementation of the Environmental Impact Assessment during the lifespan of mines: an evaluation of the South African legal framework
    (2023) Fanyane, Khauhelo; Mostert, Hanri; Kengni Bernard
    Under the Constitution of South Africa, the development of natural resources must not be developed at the expense of the environment. Instead, the development of minerals must be undertaken simultaneously with the protection of the environment, to safeguard the environment from becoming polluted and degraded due to mineral development. As per the National Environmental Management Act (NEMA), the Environmental Impact Assessment (EIA) provisions were enacted to safeguard the environment during the active stages of the mines. However, the administration of NEMA's provisions, including EIA, are designed by NEMA to be implemented by the Minister of Mineral Resources and Energy. This dissertation analysed whether the Department of Mineral Resources and Energy (DMRE), which is responsible for implementing NEMA provisions, is successfully implementing EIA within the mining sector in South Africa. The dissertation has two sub-inquiries; whether the legislative framework for EIA is adequate for the effective implementation of EIA and whether the existing measures for implementation, compliance monitoring, and enforcement of EIA are successful in ensuring environmental protection during the operational stages of the mines. These issues are considered in light of concerns regarding ongoing environmental degradation and air and water pollution in South Africa caused by the mining sector, despite the statutory provisions for EIA as outlined in NEMA. Some examples highlighting these concerns highlight that some mining companies evade their EIA obligations during the operational stages of the mines and abandon such mines when the minerals are depleted. Furthermore, the study found that the DMRE exacerbates this situation due to inadequate compliance enforcement measures it implements over mines during the mines' operational stages. The study argues that the use of EIA must not be administratively implemented by the DMRE, because the DMRE's main objective consists of promoting the development of minerals, which conflicts with the protection of the environment. Another argument posited by the study is that the existing legislative provisions for EIA, which do not compel mining companies to make compliance reports accessible to the public, hinder accountability by the mining companies and the DMRE, and consequently render EIA unsuccessful. As a result, the dissertation recommends that the effective implementation of EIA during the operational stages of the mines will be enhanced provided the state jointly monitors mining activities with mine rights holders and that compliance reports by mining rights holders are made available to the public by the DMRE to confirm compliance. It concludes that the monitoring and management of environmental activities for mining need to be administered by the Department of Forestry, Fisheries and the Environment, which is the department responsible for implementing NEMA environmental provisions integrating EIA, instead of the DMRE.
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    Open Access
    The outlook on the extractives upstream investment in South Africa: the environmental governance issue
    (2023) Msezane, Nondumiso Nokukhanya; Mostert, Hanri; Kengni Bernard; Cramer, Richard Henry
    Though endowed with natural resources, South Africa's upstream investment continues to deteriorate. This is partly due to the depleting reserves and the country's policy perception, which ranks South Africa as a high-risk upstream investment destination. This study focused on the country's policy perception zooming in on the environmental governance of the extractives sector. Environmental governance in South Africa was fragmented. The fragmentation occurred in policies, institutions and, ultimately, governance. The consequences of this fragmentation were regulatory duplication and inconsistencies between the regulatory institutions, which manifested in delays and uncertainty, negatively impacting South Africa's competitiveness in investment. The industry's One Environmental System (OES) was effected to eradicate this fragmentation. However, this study demonstrates through case studies that the OES implementation was haphazard, creating uncertainty, amplifying the lack of cooperative governance and introducing compromised environmental management compliance through the competent authority for the industry environmental authorisations. This study finds that policy design, implementation strategies, and environmental regulatory coordination are vital to a country's competitiveness. It argues that these elements will promote competitiveness and stimulate innovation to develop new pollution-saving technologies that offset compliance costs and improve environmental and economic performance leading to sustainable development. The study concludes with the solutions to South Africa's OES system by referring to the Organisation for Economic Co-operation and Development's (OECD) integrated environmental permitting guidelines.