Introduction
Every person has a right to a protected environment and legislative and other
measures should ensure that conservation is promoted, pollution and ecological
degradation are prevented and that sustainable development and the use of natural
resources are secured.1This can only be achieved through effective and efficient
conservation management by government bodies and organs of state like South
African National Parks and the provincial conservation authorities.
Intergovernmental Relations and Organs of State
The success of intergovernmental relations is a function of the level of participation
by the key role-players in the system, and that the extent of participation, whether of
a competitive or co- operative nature, finally determines the state of the system of
intergovernmental relations. Intergovernmental relations are interactions occurring
between governmental institutions of all types and in all spheres. The nature of the
interaction between different spheres of government varies constantly in terms of the
degree of co-operation, depending on the dynamics of the system and the roleplayers involved at any given time and in accommodating and managing
interdependence, geographical and social diversity, as well as ongoing
comprehensive transformation.2
Organs of state concerned with conservation management, such as the South
African National Parks as well as the provincial conservation authorities in KwaZuluNatal and Mpumalanga, need to interact and co-operate with one another to ensure
that conservation goals are attained. A system of checks and balances exists
between the three branches of government and includes organs of state. Sadly such
a system of checks and balances is lacking within conservation legislation resulting
in situations where no cross-checks are done prior to approving permit applications
and different requirements in different provinces exist. Uniformity with regards to
certain aspects such as permit applicants and requirements for approval should be in
place to ensure that entities are in alignment with their actions. If certain
requirements are needed to approve an application, those requirements should be
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2
Constitution of the Republic of South Africa s24 (b).
Brynard & Malan Conservation management 103.
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met, irrespective of the province in which the application is made. Organs of state
are established by legislation to ensure that conservation goals are attained and
managed for the promotion of the general welfare of present and future societies. An
organ of state is defined as any department of state or administration in the national,
provincial or local spheres of government or any functionary or institution that
exercises power or performs a function in terms of the national or provincial
constitutions or in terms of legislation. The South African National Parks, KwaZuluNatal Nature Conservation Service and KwaZulu-Natal Nature Conservation Board
as well as the Mpumalanga Parks Board are included in the definition of an organ of
state.3 Since organs of state are legislative bodies, it stands to reason that they are
obliged to implement the provisions of NEMBA and TOPS. They are obliged to give
effect to the section 24 right in the Constitution and to do so by enforcing and
implementing the enacted conservation laws.
Every competent authority, including organs of the state and the provinces, who has
the authority or power by law to influence the environment, should exercise that
authority or power in accordance with the policy for environmental management and
conservation.4 Governmental bodies and organs of state should support a coordinated approach towards conservation and environmental management. Existing
legislation and regulations regarding conservation and environmental management
should be improved, co-ordinated and consolidated to avoid duplication and
conflicting interpretation. Policy proposals should have an impact on most national
government departments and should also influence provincial and local governments
and organs of state. People in governmental bodies and organs of state concerned
with conservation management should therefore have knowledge of management
functions and skills in order to address the challenges they face, including the
challenge of promoting intergovernmental relations through effective structures.5
Where conflict exists between national and provincial legislation, NEMBA is clear in
section 8. This section states that were there is conflict between a section of
NEMBA and national legislation, this section of the Act prevails if the conflict
specifically concerns the management of biodiversity or indigenous biological
3
Brynard & Malan Conservation management 104.
National Environmental Management Act 107 of 1998.
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Malan Conservation management and intergovernmental relations 102.
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resources. Where there is conflict with provincial legislation, then section 146 of the
Constitution must be used to resolve the conflict. If there is conflict with a municipal
by-law, the section of the Act prevails. The section further states that if there is any
conflict between subordinate legislation issued in terms of the Act and an Act of
Parliament, the Act of Parliament will prevail. If there is conflict between subordinate
legislation and provincial legislation, then the conflict must be resolved in terms of
section 146 of the Constitution and if there is conflict with a municipal by-law, the
subordinate legislation issued in terms of the Act will prevail. Furthermore, where
conflict cannot be resolved, then section 148 of the Constitution should be applied in
that the national legislation prevails over the provincial legislation or provincial
constitution. This further emphasises the importance and the obligation of
authorities to implement national legislation.
Autonomy of Conservation Boards
Conservation boards are established to represent the public interest in conservation
and must exist and operate according to statute. For example, the Western Cape
Nature Conservation Board Western was established in terms of the Cape Nature
Conservation Board Act 15 of 1998. Although no mention in the Act is made of
accountability towards the provincial MEC and accountability in general, Chapter 2,
section 2 of the Act which deals with the establishment and composition of the
Board, states that it will be a body corporate that is capable of being sued. The
author is of the opinion that this measure should thus be used when a conservation
board fails to comply with its mandate and fails to report to the MEC as required.
Accountability in law is there to ensure that entities perform their activities and report
on them to ensure transparency and responsibility for actions taken. The author is of
the opinion that a limited governance role for conservation boards should be put in
place as well as a system of checks and balances to govern their relationship with
the Department of Environmental Affairs.
Capacity and Competency
The importance of having officials that are both conversant with conservation
legislation and capable of applying that legislation cannot be overemphasised. It is
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important to not only have sufficient officials but to have them capable of
implementing the provisions of the relevant legislation. Training of these officials is
thus of paramount importance.
On assessment of the latest National Environmental Compliance and Enforcement
Report submitted by the Department of Environmental Affairs for 2016/17, there is a
great deal of emphasis on training aimed specifically at Environmental Management
Inspectors (“EMI’s”). These training interventions were aimed at improving their
awareness, knowledge and skills. The training programme included two Department
of Environmental Affairs hosted EMI basic training courses for officials that require
EMI designation in order to undertake their function, as well as basic training courses
presented to field rangers that required EMI Grade 5 designation. The basic training
course content specifically dealt with legislation (NEMA, SEMA’s, as well as relevant
provisions of the CPA and PAJA); theoretical and practical training in so far as the
proper legal execution of an inspection; taking administrative enforcement against
non-compliant individuals and/or companies, and the proper procedures to be
followed during this process and criminal investigation and associated court
procedures.6
This knowledge will aid Environmental Management Inspectors to better perform
their functions. It is thus important that when new inspectors are appointed, that
these training programmes become mandatory to arm those Environmental
Management Inspectors with the knowledge necessary to fulfil their roles. The
author is thus of the opinion that officials in the provincial offices could also benefit
from a similar training programme. One which reiterates the importance of
assessing permit applications and making sure that they are assessed correctly and
in line with relevant legislation. Also, if the same training programmes are
implemented across the different provinces, it will be a step to achieving uniformity
during the permit application process.
Conclusion
Fragmentation, the lack of co-ordination and the duplication of efforts need to be
addressed through sound intergovernmental relations pertaining to conservation
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National Environmental Compliance and Enforcement Report 2017.
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management. The fragmented nature of institutional arrangements for conservation
management in South Africa, especially institutions involved in the management of
protected areas, may negatively influence intergovernmental relations between these
institutions. Institutions and structures for intergovernmental relations should be used
effectively to eliminate factors hampering conservation management in South Africa.
Conservation management is about when and how to get involved and is thus a
human issue where man intervenes to strengthen protected areas and national parks
by trying to satisfy needs, such as wildlife and resource protection, recreation,
tourism, education, research as well as cultural survival.
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