CHAPTER 1: INTRODUCTION
2.1.4. Other guiding legislation and its relevance
National Environmental Management Act, 1997 (Act No. 107 of 1997)
The legislation requires an Environmental Impact Assessment for any greenfield development to ensure that appropriate measures are taken into account for any development that will affect the natural systems protected in terms of this legislation. The concept of sustainability is applied as one of the measures to minimise the environmental impact of the development and its impact on the public and the future generations. Furthermore, NEMA also assigns the duty to all the organs of the state to play a role in taking care of the environmental issues more seriously. As for the District municipality and the Local Municipality, they are required to establish an Environmental Management Framework and also a Strategic Environmental Plan. This ensures that environmental matters are taken into account in development or strategic plans of the Local Municipality.
National Water Act, 1998 (Act No. 36 of 1998)
National Water Act (NWA) states that any developer establishing a township is required to provide 1 in 100 flood line data to avoid encroachment into these inundating areas causing harm to the lives, investments, and properties of humans. The importance of zoning of these lands for water’s right of way (conservation) has proven to be very important as those that continue to stay in these areas comesat a high price, as many of the costs cannot be recovered (Mandela cited on Ladysmith Gazette, 1994, Jah et al, 2012, and Ali et al, 2013).
According to the NWA, the wetlands and associated riparian habitats, are protected and should be zoned as the no-go areas in terms of development on site. However, an exception is made when there is high demand (eg. public good associated with the development) such as in the case when the development would impact positively on the environment. In this particular case, the rezoning of the wetland and its riparian area can happen but must take into account the guidelines for the effective management of wetlands or at least comply with the low impact development guidelines. The following should be taken into account:
(a) The wetlands should be retained for the ecosystem goods and services they supply, and only the rehabilitation and conservation activities may be proposed within this zone.
(b) In cases where wetland impacts cannot altogether be avoided or acceptably mitigated on- site, consideration must be given to establishing off-site (e.g. the wetland offsets) that would result in a positive impacts for wetland management in the region.
32 | P a g e (c) A 32m confidence buffer will be established around each wetland as an on-site delineation of
wetlands.
In the case of Ladysmith, South Africa there is no total restriction of the wetland development proposal as long as the proposed development resides harmoniously with nature or at least has a minimal impact (i.e. the reviewed risk management plans for mitigating the negative environmental impacts).
Conservation of Agricultural Resources Act, 1983 (Act No. 43 of 1983)
In terms of Conservation of Agricultural Resources Act, it is stated that there should be a 10m buffer as the objective of protecting stream banks from erosion and head cuts and general overgrazing of immediate riparian zone. This is an important guideline for the farming and grazing practices done in the inundation areas. This was important because it guided the researcher when he was doing a participant observation and taking notes about the land uses that caused the flood risks. There is also an ongoing battle between the proposed “Preservation and Development of Agricultural Land Framework Bill: Draft” currently in attempt of repealing the Agricultural Land Act, 1970 (Act No. 70 of 1970) but due to limited scope of the study, this legislation will not be discussed.
KZN Ingonyama Trust Amendment Act, 1997 (Act No. 15 of 1997)
KZN Ingonyama Trust Amendment Act is important in this research because one of the case studies (the Emachibini, ward 7 and 14) is administered by the Ingonyama Trust namely, the Abathembu Tribal Authority. This area is enlisted in the Ingonyama Trust Land Act of 1994. In terms of gate keeping in areas outside of the scheme, the Induna was identified as a custodian or key stakeholder to be consulted first before entering and doing research in the rural village of Emachibini because the land is under control of the traditional authority. Due to its governance under both the Ingonyama Trust Board and the municipality, the development regulation is that developers must apply to the Ingonyama Trust Board to lease these lands as no one is permitted to own the property. After obtaining the authorisation to use the land, the developer is expected to fulfil the requirements of the local authority in the municipality in terms of meeting the requirements of the traditional Land Use Management System expected when using the land outside of the scheme.
Spatial Planning and Land Use Management Act, 2013 (Act No. 16 of 2013)
This is the current planning legislation guiding all the municipalities (and the role of other organs of the state) and it follows the Development Facilitation Act No. 67 of 1995 (DFA) which is deemed to be unconstitutional. In terms of the Spatial Planning and Land Use Management Act (SPLUMA), more
33 | P a g e planning control is given to local municipalities. Most of the decisions relating to land development in the municipality fall under the mandate of the municipality who is expected to create by-Laws of SPLUMA. Currently, the municipalities are in the process of creating the categories of land development application and the by-Laws relating to SPLUMA. These have already taken effect since July 2015, but there are many challenges faced by the municipalities in the implementation of this national spatial planning legislation.
Among other development principles, SPLUMA in Chapter 2, section 7 (d) speaks about the principle of spatial resilience which is relevant in the subject of flooding. This development principle found in SPLUMA states that there must be flexibility in spatial plans in terms of policies and land use management systems as they must be accommodated to ensure sustainable livelihoods in communities most likely to suffer the impacts of economic and environmental shocks.
With this in place, the planners at the local level will be in a better position to influence decision making in the sense that they can understand with the knowledge of various stakeholders and thus advise the developers, mayors, councillors, and the community, among others about the spatial use of land for optimal benefit. This will help integrate the work of the spatial planners with those of environmentalists and other professionals to take into consideration the issues of sustainability and climate change affecting their places.
KZN Heritage Act, 1997 (Act No.10 of 1997)
While the South African Heritage Resources Agency prevails over the administration of heritage resources in all the provinces in accordance with the National Heritage Resources, 1999 (Act No. 25 of 1999), the principal legislation guiding cultural heritage sites in KwaZulu–Natal is the KwaZulu-Natal Heritage Act, 1996 (Act No. 10 of 1997). This information is important as any initiative concerning heritage resources in the province, as defined or protected in the Act, must be approved by Amafa aKwaZulu-Natali. In terms of the Act, the proposed development in the ELLM (and KZN) must prevent the violation of the historical, palaeontological, and archaeological sites aligning with the report or specialist studies such as those of the Heritage Impact Assessment.
34 | P a g e