entrench most of these principles in the legislation. All these moves have significantly contributed to making environmental justice become more realizable.
3.7. SOME PRACTICAL CHALLENGES IN THE USE OF EIA IN SOUTH AFRICA
suspension, unless the Minister or MEC directs otherwise. This undermines the credibility of the appeal process, for it means that the dismissal of the appeal is almost a foregone conclusion. This might discourage any prospective appellant with good grounds from filing an appeal and consequently allow some ill-conceived decisions to find their way into existence.
Post-authorisation and monitoring is also a difficulty in the South African EIA regime. The fact that most EIA applications are authorized with certain conditions to ensure mitigation of environmental damage, as may have been identified, necessitates a compliance follow-up.
However, due to understaffing and underfunding of provincial and local authorities,142 such follow-ups are often not possible. Post-authorisation monitoring, which has now been strengthened by making it an offence to fail to comply with a condition of the authorisation, also means the need for more officers.143 Once more, the credibility of the EIA process as a whole would be negatively affected by the lack of enforcement of these provisions. These challenges reveal how far the government has to go in its commitment to making the process effective. The success of this process, as Kidd puts, it is „predicated on political will‟.144
The 2006 EIA regulations under NEMA go some way to solving these long-term concerns.
One example is with the regulations that now divide applications into two main groups.
These are applications that are subject to basic assessment only and those that will be subjected to scoping and EIA. The criteria for determining what type of assessment would be required in each case are provided for in the regulations.145 The significance of this division lies in the realisation that some applications are not as complicated or detailed as others, and as such the classification assists in fast tracking those that deserve to be treated quickly so that minimal time may be spend on the rest. Generally these improvements seem to usher in speedy and effective EIA machinery than has hitherto been the case; however, actual improvements generated by these regulations are yet to be seen.
From the discussion held in this chapter it has emerged that South Africa has laid a strong legal basis for its EIA practice. The country‟s Constitution and the environmental framework of legislation clearly support the EIA procedures. This has been achieved by
142 See C Wood ‘Pastiche or Postiche? Environmental Impact Assessment in South Africa’ (1999) 81 South African Geographical Journal, 52 - 56 .
143 Regulations 79 ( 2) read with 81 (1) ( c).
144 M Kidd Environmental Law (2008) 206.
145 See chapter( 3) part( 1) section( 21) of the 2006 regulations.
using judicially enforceable EIA regulations. Though there are still some practical weaknesses in the system, it can be argued that the system is impacting much more than it did when it was merely voluntary. These seem to be the basic factors that underlie the differences between South African EIA and that of Lesotho, which will be the subject of Chapter Four.
CHAPTER FOUR
EIA LEGISLATION IN LESOTHO 4.1 INTRODUCTION
The promulgation of the Environment Act no 10 of 2008 in Lesotho resuscitated the hope that Lesotho would finally have a legally mandatory EIA process as part of its environmental laws. This Act repealed its predecessor, the Environmental Act no 15 of 2001, which, though entrenching the EIA provisions was not operational until it was wholly repealed in 2008.
There may be many other reasons why the Environmental Act of 2001 was repealed, but the main one appears to be the financial and the autonomous implications of running the Lesotho Environmental Authority constituted under the Act.
The 2001 Act was meant to be the first framework environmental law in Lesotho. It made provision for compulsory EIA, section 27 (1). It also sought to establish, under section nine, what would be called the Lesotho Environment Authority (LEA). This Authority was to be a body corporate entrusted with the execution of the Act and all environmental policies of Lesotho.
There were no less than 25 functions which were entrusted to the Authority under Section 10 of the Act. These included EIA authorisation and monitoring.
Understandably, LEA would have to marshal a great number of personnel, equipment and other administrative infrastructure to be able to execute this mandate. After commissioning a study into the transformation of the National Environmental Secretariat (NES) which had hitherto been responsible, inter alia for EIA Authorisation, into the LEA, the government seems to have run short of the political will to establish this Authority. According to the report for the transformation from NES to LEA, the staff complement of LEA for the first five years would be between 37 and 50.146
The Minister of the Environment, when asked to explain the reason for the Act not being in force, said it was due to the high cost of establishing the LEA. As she put it,
“Most of the money would go to address peripheral issues like salaries and other
146 National Environment Secretariat. ‘Transformation of NES into LEA (Draft Report)’ (2003 ) 20.
expenditure rather than actual environmental problems.147 This response was given in parliament during the discussion of the Environmental Bill 2007, which was finally enacted as the 2008 Environment Act.
Before this repeal, the EIA practice in Lesotho was ad hoc and voluntary.148 Even during the British colonial administration of Lesotho, the interventions that were introduced in the physical environment merely have some relevance to the contemporary EIA.149
Since the 2001 Act, which was the first legislation to introduce the concept of EIA into the environmental jurisprudence of Lesotho, was not successful, the Environment Act 2008 was therefore the second attempt to make the EIA practice mandatory in Lesotho. This time around, all indications are that this Act will soon be functional, for its commencement notice has already been issued.150 It must be pointed out however, that more than a year after the said notice of commencement, the necessary regulations for its enforcement are yet to come into being.151 In the meantime the EIA regime in Lesotho relies on the 2010 EIA Guidelines.
These are essentially the old EIA guidelines under which the voluntary EIA practice had been based in Lesotho. They have been reworked to accord with the new 2008 Environment Act and appear to derive authority from sect 21(4) of the new Act. No such provision for guidelines existed under the repealed Act. Until the Minister, under section 113 (1) exercises his power to make the EIA regulations, the new EIA compulsory practice shall rely on the EIA provisions of the Act, that is sections 19 to 27 of the Act and the 2010 EIA guidelines.
147 NA Debates (Lesotho) 15 October 2007-17 (trans mine).
148 See L Mokhehle, and R Diab ‘Evolution of Environmental Impact Assessment in a small developing Country: A preview of Lesotho case studies from 1980 to 1999’ (1 March 2001) 19
Impact Assessment and Project Appraisal volume 9-18
Also accessed at http://www.ingetaconnect .com/content/beech/iapa/2001/000000919/00000001/art 0003/
Accessed on 10/5/2010.
See also John O. Kakonge ‘ “EIA in Lesotho Prospects and Challenges’’ ‘ (1997-17) Environment Impact Assessment Review 109-121.
148 K Showers and G Malahlela . “Historical Environmental Impact Assessment: A tool for analysis of Past intervention in landscapes.’’ (1993)
149 Ibid.
150 This is the Legal Notice no 47 of 2009, which appointed 16 June 2009 as the day on which the Act comes into operation.
151 The director in the Ministry of Tourism, Environment and Culture, Mr. Stanley Damane, in an interview with the researcher on 5-10-2010, revealed a copy of an advertisement for consultancy service for the implementation of this Act, including the drafting of the Regulations.