NEMA — National Environmental Management Act 107 of 1998 ELW360S / BEE370S | 2026

National Environmental Management Act

(NEMA) — Act 107 of 1998

ELW360S / Unit 2 — Management & Environmental Law for Chemical Engineers

1. Background and Context

1.1 Why NEMA Was Introduced

Before NEMA, South Africa relied on the Environmental Conservation Act of 1989, which was deemed
inadequate to address:

• Enforcement of environmental obligations

• Administration of environmental governance structures
• Comprehensive governance of all environmental aspects

NEMA (Act 107 of 1998) was introduced to give effect to Section 24 of the Constitution and to provide a
coherent overarching framework for environmental governance in South Africa.

1.2 Constitutional Foundation — Section 24

Section 24 of the Constitution grants everyone the right:

• (a) To an environment that is not harmful to their health or well-being

• (b) To have the environment protected, for the benefit of present and future generations, through
reasonable legislative and other measures that:
• (i) Prevent pollution and ecological degradation
• (ii) Promote conservation
• (iii) Secure ecologically sustainable development and use of natural resources while promoting
justifiable economic and social development

2. Purpose of NEMA

Section 2(1): The purpose of NEMA is to provide for cooperative environmental governance by
establishing principles, institutions, and procedures that promote sustainable development and
ensure the protection of the environment while advancing social and economic development.

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NEMA — National Environmental Management Act 107 of 1998 ELW360S / BEE370S | 2026

This purpose reflects the need to balance three competing interests: environmental protection, social
development, and economic development — the three pillars of sustainability.

3. Key Definition — "Environment" (Section 1)

The Act defines "environment" as the surroundings within which humans exist, made up of:

• (i) The land, water, and atmosphere of the earth

• (ii) Micro-organisms, plant, and animal life
• (iii) Any part or combination of (i) and (ii) and the interrelationships among and between them
• (iv) The physical, chemical, aesthetic, and cultural properties and conditions of the foregoing that
influence human health and well-being

This is a deliberately broad definition — it encompasses not just the natural world but also
cultural and aesthetic considerations and the interconnections between all living and non-living
components.

4. The Three Pillars of Sustainability under NEMA

Sustainability is defined as the ability of a current generation to meet its present developmental
needs without compromising the ability of future generations to meet their needs. Under NEMA, this
is achieved through three interconnected pillars:

4.1 Social Viability (People) — Section 2(2) and 2(4)(c)–(f)

What the Act requires:

• Environmental management must place people and their needs at the forefront
• Environmental justice must be pursued
• Equitable access to environmental resources must be ensured
• Participation of Interested and Affected Parties (I&APs) is mandatory

What social viability means in practice:

Development must:
• Improve quality of life
• Not disproportionately harm vulnerable or disadvantaged communities
• Respect human health, safety, and cultural heritage
• Enable meaningful public participation in decision-making

Example — Mining project near a rural community:

A mine must consult the local community through a Public Participation Process (PPP) as part of its
Environmental Impact Assessment (EIA). Measures must be implemented to prevent dust and noise
impacts on nearby households, protect water sources used for drinking and farming, and provide local

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NEMA — National Environmental Management Act 107 of 1998 ELW360S / BEE370S | 2026

employment or skills development where feasible.

NB: Even if a project is profitable, NEMA does not permit it if it causes unacceptable social
harm.

4.2 Economic Viability (Prosperity) — Section 2(4)(a) and 2(4)(i)

What the Act requires:

• Development must be socially, environmentally, and economically sustainable
• The polluter pays principle applies — environmental costs must be internalised into project
economics
• Projects must generate long-term economic value, not short-term gain
• Resources must be used efficiently to support future generations
• Economic benefits must not come at the expense of environmental collapse

Example — Industrial processing plant:

The plant must budget for effluent treatment systems, air pollution control equipment, and waste
management and rehabilitation costs. If environmental damage occurs, the company is legally responsible
for all remediation costs.

NB: A project that is only profitable because it ignores environmental compliance is not
economically viable under NEMA.

4.3 Environmental Protection (Planet) — Section 2(4)(a), (b), (r), and (o)

What the Act requires:

• Avoidance or minimisation of pollution and degradation
• Application of the precautionary principle
• Protection of ecosystems and biodiversity
• Sustainable use of natural resources

What environmental protection means in practice:

• Ecosystems must be conserved
• Pollution must be prevented, not merely cleaned up after the fact
• Biodiversity loss must be avoided
• Natural resources must not be irreversibly depleted

NEMA's Tools for Environmental Protection:

Environmental Impact Assessments (EIA), Environmental Audit Licences, Waste Management
Regulations, and setting environmental standards (e.g., for air and water quality).

Example — EIA for a Manufacturing Plant near a River:

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NEMA — National Environmental Management Act 107 of 1998 ELW360S / BEE370S | 2026

A company wanting to set up a factory near a river must conduct a rigorous EIA demonstrating how it will
treat industrial effluent (not release it into the river), manage air emissions, and handle hazardous waste.
This directly protects water quality, aquatic life, and the health of downstream communities.

5. Environmental Management Instruments (Section 1)

NEMA recognises the following tools as formal environmental management instruments:

• (i) Environmental management framework

• (ii) Strategic environmental assessment
• (iii) Spatial tool
• (iv) Environmental management programme
• (v) Environmental risk assessment
• (vi) Environmental feasibility assessment
• (vii) Norm or standard
• (viii) Minimum information requirements
• (ix) Any other relevant environmental management instrument as may be developed

6. Key NEMA Principles

6.1 Principle of Sustainable Development — Section 2(3) and 2(4)(a)

Text: Development must be socially, environmentally, and economically sustainable.

Application for chemical engineers: When designing a new chemical plant, the engineer must evaluate
not only capital and operational costs but also:
• Long-term environmental costs of emissions, waste disposal, and raw material depletion
• Social impacts such as job creation and community health

6.2 Pollution Prevention, Waste Minimisation & the Polluter Pays Principle — Section
2(4)(a)(ii), (iv) and (p)

Text: Pollution and waste must be avoided, minimised, and remedied. The costs of remedying pollution
must be paid by those responsible for harming the environment.

Application: Instead of designing a wastewater stream for treatment, a chemical engineer should first
explore process modifications to reduce or eliminate the toxic effluent at source. If a spill occurs, the
company (and potentially the engineers involved) is financially liable for the full clean-up cost.

Relevant case: Minister of Water Affairs and Forestry v Stilfontein Gold Mining Company Ltd (2006) —
highlighted the polluter pays principle in the context of acid mine drainage (AMD). Courts can and will
hold companies accountable for environmental degradation caused by their operations.

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NEMA — National Environmental Management Act 107 of 1998 ELW360S / BEE370S | 2026

6.3 Duty of Care and Remediation of Environmental Damage — Section 28

Text: Every person who causes, has caused, or may cause significant pollution or degradation of the
environment must take reasonable measures to prevent such pollution or degradation from occurring or
recurring.

Application for chemical engineers: An engineer overseeing a mineral processing plant must ensure
that acid mine drainage (AMD) is properly treated. If AMD is out of specification, there is a legal duty to
immediately contain it, report it, and remediate the contaminated soil and water.

This duty is continuous and proactive — it applies before, during, and after pollution events,
and extends to persons who may cause future pollution.

6.4 Integrated Environmental Management & the Precautionary Principle — Section 23

and Section 2(4)(a)(vii)

Text: Requires the integration of environmental considerations into all decision-making. The
precautionary approach mandates caution where knowledge is incomplete — where there is uncertainty
about potential harm, action to prevent degradation must still be taken.

Relevant case: MEC: Department of Agriculture, Conservation and Environment v HTF Developers (Pty)
Ltd (2008) ZACC 5 — reinforced that the EIA process is a critical tool for integrated environmental
management and that authorities must rigorously apply NEMA's principles when evaluating applications.

6.5 Life Cycle Responsibility — Section 2(4)(e)

Text: Responsibility for the environmental health and safety consequences of a policy, programme,
project, product, process, service, or activity exists throughout its life cycle.

Application for chemical engineers: A chemical engineer designing a plastic polymer must consider not
only the efficiency of the polymerisation process but also:
• The recyclability or biodegradability of the final product
• The environmental impact of catalysts and solvents used in production
• End-of-life disposal and decomposition implications

7. Case Law

7.1 Fuel Retailers Association of Southern Africa v Director-General: Environmental

Management, Department of Agriculture, Conservation and Environment, Mpumalanga
Province, and Others (2007) ZACC 13

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Facts:
• A developer applied for environmental authorisation to construct a new filling station in Mpumalanga
• The Director-General granted environmental approval under NEMA
• The Fuel Retailers Association of Southern Africa (FRASA), representing existing fuel retailers,
challenged the approval
• FRASA argued that environmental authorities failed to consider socio-economic factors, particularly
the impact on existing filling stations
• FRASA contended that over-supply could lead to closure of existing stations, resulting in abandoned
and polluted sites and long-term environmental degradation
• The High Court and Supreme Court of Appeal both dismissed the challenge; the matter was taken to
the Constitutional Court

Legal Question:
Does NEMA require environmental authorities to consider socio-economic factors (including need,
desirability, and cumulative economic impacts) when deciding whether to grant environmental
authorisation?

Reasoning (Ngcobo J):

• The Constitution recognises the interrelationship between environmental protection and
socio-economic development
• It contemplates the integration of both, to be balanced through the ideal of sustainable
development
• Sustainable development acts as a mediating principle — reconciling environmental and
developmental considerations
• The obligation to consider socio-economic factors includes the obligation to consider the impact of
the proliferation of filling stations on existing ones
• Unsustainable developments are in themselves detrimental to the environment — if a
development may have a substantial impact on the environment through its closure or abandonment, it
cannot be authorised without considering that impact
• The underground infrastructure of a closed filling station poses a long-term environmental risk (soil
and groundwater contamination)
• The objective of considering impact on existing developments is not to stamp out competition, but
to ensure economic, social, and environmental sustainability of all developments

Finding:
The Constitutional Court set aside the authorisation granted by the Director-General. The decision was
unlawful and invalid because:
• It failed to comply with the principles of sustainable development and integrated environmental
management as mandated by NEMA
• The public participation process was inadequate and thus procedurally unfair

Significance: This is a landmark case establishing that NEMA's requirement of sustainable

development obliges decision-makers to consider socio-economic factors — not just
biophysical environmental impacts — when granting environmental authorisations.

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NEMA — National Environmental Management Act 107 of 1998 ELW360S / BEE370S | 2026

8. Key Sections at a Glance

Section Content

s.1 Definitions — including "environment" and

environmental management instruments

s.2(1) Purpose of NEMA — cooperative environmental

governance

s.2(2) Environmental management must place people and

their needs at the forefront

s.2(3) Sustainable development — current generation must

not compromise future generations

s.2(4)(a) Sustainable, integrated development; polluter pays;

avoidance of pollution

s.2(4)(c)–(f) Environmental justice; equitable access; public

participation

s.2(4)(e) Life cycle responsibility

s.2(4)(i) Internalisation of environmental costs; polluter pays

s.2(4)(p) Polluter pays principle

s.2(4)(a)(vii) Precautionary principle

s.23 Integrated environmental management

s.28 General duty of care and remediation

9. Summary: NEMA vs Environmental Conservation Act 1989

Feature Environmental Conservation Act NEMA (1998)

(1989)

Scope Narrower; focused mainly on Comprehensive; covers all aspects

conservation of environmental governance

Enforcement Weak enforcement mechanisms Stronger enforcement; clear duties

and penalties

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NEMA — National Environmental Management Act 107 of 1998 ELW360S / BEE370S | 2026

Feature Environmental Conservation Act NEMA (1998)

(1989)

Public participation Limited Mandatory — I&APs must be

included

Sustainable development Not a central principle Foundational — the core organising

principle

Constitutional alignment Pre-constitutional Directly gives effect to s.24 of the

Constitution

Polluter pays Not clearly articulated Explicitly included — s.2(4)(p)

Duty of care Not clearly defined Clearly defined — s.28

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