South Africa's coast lines and its ecosystems have not received the attention they should, especially since the direct benefits obtained from coastal 'goods and services' were estimated as far back as 1998 to be approximately R168 billion a year which was equivalent to 35% of our annual GDP. Fortunately, the National Environmental Management: Integrated Coastal Management Act 24 of 2008 ("NEMICMA"), which aims to conserve the coastal environment and estuaries by managing coastlines in an integrated fashion to ensure the sustainable use of the coast's natural resources, was assented to by the President on 9 February 2009.

The NEMICMA, with the exclusion of certain sections, including the sections pertaining to the repeal of the Sea-shore Act 21 of 1935 ("SSA") and the Dumping at Sea Control Act 73 of 1980 ("DSCA"), came into operation on 1 December 2010. The designated authority to implement and enforce the provisions of the NEMICMA is the Department of Environmental Affairs ("DEA") and the relevant minister is the Minister of Water and Environmental Affairs ("Minister").

The phase-in of certain more contentious provisions in the NEMICMA is due to the need for consultation between the DEA, the Department of Public Enterprises and Transnet in order to determine the best manner to deal with technical aspects relating to leases and concessions within proclaimed port areas.

coastal zone: what is this?

The NEMICMA aims to ensure that the development and the use of natural resources within the coastal zone ("Coastal Zone") is socially and economically justifiable and ecologically sustainable. Coastal Zone is defined in the NEMICMA so as to include:

• coastal public property ("CPP"), which consists of, inter alia, coastal waters, land submerged by coastal waters, natural or artificial islands within coastal waters, the seashore, the seashore of a privately owned island within coastal waters, any admiralty reserve owned by the State, any State owned land declared to be CPP in terms of section 8 of the NEMICMA and any natural resources in the CPP, the exclusive economic zone or any harbour, work or installation owned by an organ of state;
• coastal protection zone, which is the area established in terms of section 17 of the NEMICMA so as to enable the use of land adjacent to CPP or land that plays a role in a coastal ecosystem to be managed, regulated or restricted in order to, inter alia, generally protect the CPP, avoid natural hazards in the Coastal Zone and to make land close to the seashore available to perform sea rescue operations or for the temporary depositing of objects and materials washed up by the sea or tidal waters ("Coastal Protection Zone");
• coastal access land, is land that has been designated as coastal access land in terms of section 18 of the NEMICMA ("Coastal Access Land") by the relevant local municipality in order to secure public access to the CPP;
• coastal protected areas, which is defined in the NEMICMA as a protected area that is situated wholly or partially within the Coastal Zone and that is managed by, or on behalf of, an organ of state, but excludes any part of such a protected area that has been excised from the Coastal Zone in terms of section 22 of the NEMICMA;
• seashore, which is defined in the NEMICMA so as to mean the area between the low-water mark and the high-water mark ("Seashore");
• coastal waters, which is defined in the NEMICMA so as to include marine waters that form part of the internal waters or territorial waters of the Republic referred to in sections 3 and 4 of the Maritime Zones Act 15 of 1994, respectively and any estuary ("Coastal Waters"); and
• the exclusive economic zone ("EEZ").

coastal public property: who is this owned by?

The ownership of CPP is dealt with in Section 11 of the NEMICMA. Previously under the SSA, the Seashore and the sea was deemed to be the property of the State President and could be let to persons under certain circumstances. As with other similar environmental legislation, the CPP is now held in trust by the State in order to preserve, protect, extend and enhance its status for present and future generations of South Africans, as the ownership of the CPP therefore vests in the citizens of South Africa.

Section 13 of the NEMICMA deals with the access to CPP and provides that any natural person in South Africa has the right of reasonable access and is entitled to use and enjoy CPP provided that such use and enjoyment does not adversely affect the rights of other members of the public to use and enjoy the CPP, does not cause an adverse affect and does not hinder the State's performance of it's duty to protect the environment. Prohibitions and restrictions may be attached to the use and enjoyment of CPP and fees may be charged for access, but only with the consent of the Minister.

When dealing with the CPP, the SSA allowed the letting of the Seashore or sea for certain activities provided that the Minister believed that neither the interests of the general public nor their enjoyment of the Seashore and sea would be seriously affected. The Seashore could be transferred to the local authority by the State President. Any other alienation, letting or permission which was not catered for in the SSA would have to be approved by the National Assembly. The position now, in terms of Section 65 of the NEMICMA, which has not yet come into operation, is that no person may occupy any part of, or site on, or construct or erect any building, road, barrier or structure on or in CPP, without a coastal lease awarded by the Minister in terms of the NEMICMA. Furthermore, no person may claim an exclusive right to use or exploit any specific coastal resource in any part of, or that is derived from CPP unless he or she is empowered by national legislation or is authorised in terms of a coastal concession awarded by the Minister in terms of the NEMICMA or an authorisation issued under the Marine Living Resources Act 18 of 1998. A coastal lease or concession may be awarded for a maximum period of 20 years in terms of Section 66 of the NEMICMA.

The transitional provisions in relation to existing leases on, or rights to, CPP are contained in section 95 of the NEMICMA, which has not yet come into operation. This section basically states that in relation to existing leases on or rights to CPP, the following is not affected:

• a lawful lease on CPP, including a port or harbour, that existed when the NEMICMA took affect; and
• a vested right to use or exploit any specific coastal resource on or in CPP, including a right to prospect or mine minerals, or to explore for or exploit petroleum resources that existed when the NEMICMA took affect.

Any person holding a lease or right that falls within the ambit of section 95 of the NEMICMA must notify the Minister and provide the relevant documents within 24 months from commencement of the NEMICMA. Thereafter a holder of such a lease or right may continue the activity without a coastal lease or coastal concession for a maximum of 48 months from the commencement of the NEMICMA. Should the holder not comply with the notification, they may continue the activity for a maximum of 24 months. Once the maximum periods have expired, the holder must apply for a coastal lease or coastal concession in terms of the NEMICMA. The application may be refused if the granting thereof would be to the detriment of the coastal environment.

Another transitional provision which has not yet come into operation is Section 96 of the NEMICMA which deals with unlawful structures on CPP. In terms of this section, subject to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, a person who, prior to the commencement of the NEMICMA, unlawfully constructed a building or other structure on CPP or who occupied a building or other structure unlawfully built on CPP, must within 12 months of commencement of the NEMICMA apply for a coastal lease or demolish the building or structure and restore the site to the condition it was in prior to the building or structure being built, failing which, the Minister may issue a written notice for repair and removal in terms of Section 60 of the NEMICMA.

One concern with the transitional provisions as provided for in sections 95 and 96 of the NEMICMA is that the periods stipulated in such sections refer to the date of commencement of the NEMICMA and not the date of commencement of the particular section, which date is still to be proclaimed by notice in the Government Gazette and problems in the interpretation of such sections may arise.

coastal access land: how citizens can access coastal public property

Section 18 of the NEMICMA provides that each municipality must establish a by-law that designates strips of Coastal Access Land within the CPP within four years of commencement of the NEMICMA in order to secure public access to the CPP. Furthermore, Coastal Access Land is subject to a public access servitude in favour of the local municipality and land within a harbour, defence or strategic facility may not be used for Coastal Access Land without the consent of the Minister responsible for such facility. In terms of section 18(5) of the NEMICMA, a municipality may, on its own initiative or in response to a request from an organ of state or any other interested and affected party, withdraw the designation of any land as Coastal Access Land..

As is discussed below, in terms of section 59(5) of the NEMICMA, if the Minister has reason to believe that a person is carrying out, or intends to carry out, an activity that is having, or is likely to have, an adverse effect on the rights of natural persons to gain access to, use and enjoy CPP, the Minister may issue a written coastal access notice to that person prohibiting the activity if it is not already prohibited in terms of the NEMICMA; and instructing that person to take appropriate steps to allow natural persons access to CPP.

coastal zone management

Section 58 of the NEMICMA specifically incorporates the duty of care provided for in section 28 of the National Environmental Management Act 107 of 1998 ("NEMA") and provides that it applies, subject to the necessary changes, to any impact caused by any person and that has an adverse effect on the coastal environment. Section 28 of NEMA provides that 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, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment. Section 58 of the NEMICMA also allows for the Minister to determine in the Government Gazette that certain impacts or activities may be presumed to cause adverse effects until the contrary is proven. Although section 28 of NEMA applies to everyone, section 58 of the NEMICMA specifically provides that section 28 of NEMA applies to, inter alia, a user of CPP and the operator of a pipeline that ends in the coastal zone.

The NEMICMA also empowers the Minister to issue cease and desist orders in respect of the coastal environment, which is the environment within the areas which make up the Coastal Zone ("Coastal Environment"). Section 59 of the NEMICMA provides that the Minister may issue a:

• coastal protection notice to prohibit, stop or postpone an activity if he has reason to believe that a person has or may cause an adverse effect on the Coastal Environment due to such activities; or
• a coastal access notice if the right of any natural person to use, enjoy or gain access to CPP is being adversely affected by any person.

Furthermore, section 60 of the NEMICMA allows the Minister to issue a written repair or removal notice to any person responsible for a structure on or within the Coastal Zone if the structure contravenes the NEMICMA or is having or is likely to have an adverse effect on the Coastal Environment because of its condition or abandonment.

A novel provision in the NEMICMA is section 92, which provides that the Minister may issue a verbal directive to any responsible person to stay an activity if such activity poses an immediate risk or serious danger to the public or potentially significant detriment to the environment. The verbal directive must, however, be confirmed in writing within 7 days.

estuarine management

The NEMICMA also sets out provisions pertaining to the protection of estuaries, which provisions strengthen the provisions relating to estuaries as set out in the National Water Act 36 of 1998 ("NWA"). Section 33 of the NEMICMA provides that the Minister must prescribe a national estuarine management protocol ("NEMP") within four years from the commencement of the NEMICMA. The NEMP must, inter alia, achieve effective integrated management of estuaries, set standards and minimum requirements for the management of estuaries and determine who must prepare estuarine management plans as well as the process to follow. Section 34 of the NEMICMA contains the details regarding the estuarine management plan which must conform to the NEMP and the national, provincial and municipal coastal management programme. The NEMP may in turn form an integral part of the provincial or municipal coastal management programme. The heightened protection of estuaries provisions of the NEMICMA will impact on developments which fall within such an environment.

authorisations and permits

The NEMICMA provides for the requirement of a number of authorisations and permits that need to be issued prior to undertaking certain activities in respect of the Coastal Environment.

A number of activities pertaining to the Coastal Environment require an environmental authorisation to be issued in terms of the NEMA and this is recognised in the NEMICMA. In terms of section 63 of the NEMICMA, an environmental authorisation to be issued in terms of the NEMA may not be issued if the development or activity for which authorisation is sought is, inter alia:

• situated within the CPP and is inconsistent with the objective of conserving and enhancing CPP for the benefit of current and future generations;
• is situated within the Coastal Protection Zone and is inconsistent with the purpose for which such zone is established; or
• is situated within Coastal Access Land and is inconsistent with the purpose for which such land is designated;

unless the very nature of the proposed activity or development requires it to be located within CPP, the Coastal Protection Zone or Coastal Access Land; or will provide important services.

The regulation of the discharge of effluent into the sea, which was dealt with to a degree in the NWA, has been extended by the NEMICMA. In terms of section 69 of the NEMICMA, no-one may discharge effluent that originates from a source on land into Coastal Waters except in terms of a general authorisation published by the Minister in the Government Gazette in terms of section 69 of the NEMICMA ("GA") or a coastal waters discharge permit ("CWDP"). Section 69 of the NEMICMA does provide for transitional provisions in this regard and provides that a person who possessed a licence or authorisation under the NWA to discharge effluent into Coastal Waters before the commencement of the NEMICMA, such discharge may continue provided that the relevant person applies for a CWDP within 24 months of the commencement of the NEMICMA. Similarly, if the discharge is in terms of an existing lawful water use in terms of sections 32 and 33 of the NWA, a CWDP must be applied for within 36 months of the date of commencement of the NEMICMA.

Sections 70 and 71 of the NEMICMA relates to the prohibition of incineration or dumping at sea and dumping permits respectively. These sections have essentially replaced the DSCA. An important difference between the NEMICMA and the DSCA is that the NEMICMA deals with incineration at sea, which was not dealt with in the DSCA. Section 70 of the NEMICMA provides that no person may incinerate waste or any other material within the Coastal Waters or the EEZ or aboard any vessel. Furthermore, section 70 of the NEMICMA provides that no person may import any waste or other material to be dumped or incinerated at sea within the Coastal Waters or the EEZ or export any waste or other material to be dumped or incinerated on the high seas or in an area of the sea under the jurisdiction of another state. The NEMICMA does provide exemptions in this regard in the case of emergency incidents.

Sections 70 and 71 of the NEMICMA are similar to the requirements of a permit for dumping in terms of the DSCA and provides that no person may dump at sea any waste or other material within the Coastal Waters or the EEZ; or dump from a South African vessel, aircraft, platform or other man-made structure at sea, any waste or other material on the high seas, unless such person has been issued with a dumping permit issued in terms of section 71 of the NEMICMA. As with the DSCA, the NEMICMA provides that a dumping permit may not be issued in respect of certain substances, which include substances which contain levels of radioactivity greater than as defined by the International Atomic Energy Agency. Unlike the DSCA, section 71 of the NEMICMA specifies the substances for which a dumping permit may be issued and provides that a dumping permit may only be issued in respect of, inter alia, sewage; sludge; fish waste; inert inorganic geological material and organic material of natural origin.

It is important to note that the provisions pertaining to the repeal of the DSCA have not yet commenced and accordingly, both the DSCA and the NEMICMA are applicable to dumping at sea and this may give rise to some interpretational issues. Furthermore, the NEMICMA does not contain any transitional provisions in respect of permits issued in terms of the DSCA and it therefore appears that once the DSCA is repealed, any activity undertaken in terms of a permit issued in accordance with the DSCA and that is regulated by the NEMICMA will be unlawful until a permit in terms of the NEMICMA has been issued.

The NEMICMA aims to protect and maintain the Coastal Environment for present and future generations, and prescribes provisions which may place restrictions on any development or activity within the Coastal Zone. The provisions contained in the NEMICMA are further reaching than previous legislation and a person found guilty of an offence in terms of the NEMICMA is liable to a fine of up to R5 000 000, however, the effectiveness of the NEMICMA depends on its implementation and enforcement. The success of the NEMICMA will be observed closely by the private sector and environmentalists alike and only time will indicate the effectiveness of its provisions.

The Mineral and Petroleum Resources Development Act, No 28 of 2002 ("MPRDA") changed the private mineral right regime of South Africa into one of State custodianship of mineral and petroleum resources. The Mineral and Petroleum Resources Development Act, No. 28 of 2008 ("Royalty Act") provides for the compensation to the State, as custodian of mineral and petroleum resources, for South Africa’s permanent loss of renewable resources and gives affect to section 3(2)(b) of the MPRDA, which provides that "as the custodian of the nation’s mineral and petroleum resources, the State, acting through the Minister, may in consultation with the Minister of Finance, determine any levy, any fee or consideration payable in terms of any relevant Act of Parliament".

The Royalty Act was assented to on 17 November 2008 and was signed and gazetted on 24 November 2008. The Royalty Act was to commence on 1 May 2009, however, the South African Minister of Finance, in his February 2009 annual budget speech, suspended the imposition of royalties under the Royalty Act for a year. The Royalty Act came into operation on 1 March 2010, other than sections 1, 13 and 14 of the Royalty Act, which commenced on 1 November 2009.

royalty payable

In terms of section 2 of the Royalty Act, any person that wins or recovers a mineral resource from within the Republic must pay a royalty in respect of the transfer of such mineral resources ("royalty"). It is interesting to note that the Royalty Act does not refer to mineral resources won or recovered in terms of the MPRDA, and therefore the persons liable for the royalty include holders of old order mining rights as defined in Schedule II to the MPRDA, holders of mineral rights issued in terms of the MPRDA, lessees and sub-lessees of mineral rights and even persons unlawfully mining. Bearing in mind that contractors do not win mineral resources for their own account and do not obtain the proceeds of the transfer of such mineral resources, they are not liable for the royalty, however, the agents which appointed such contractors will be liable to pay the royalty on the proceeds of the mineral resources won or recovered by the contractor.

In terms of section 2 of the Royalty Act, the royalty will become payable upon "the transfer of the mineral resources". Therefore, the royalty will not become payable merely by the winning or recovery of a mineral resource, but will only become payable upon the first transfer of such mineral resource. Section 1 of the Royalty Act defines "transfer" so as to mean –

• the disposal of a mineral resource;
• the export of a mineral resource; and
• the consumption, theft, destruction or loss of a mineral resource, other than by way of flaring or other liberation into the atmosphere during exploration or production.

Therefore, the Royalty Act envisages a wide interpretation of the term "transfer" so as to include loss or theft of a mineral resource won or recovered as well as the consumption by use of the mineral resource such as the burning of coal in a furnace. A "transfer" as defined in the Royalty Act, only arises upon the initial disposal of beneficial ownership and therefore a mineral resource previously disposed of by way of "transfer" will not be subject to the royalty for a second time.

The royalty is determined by multiplying the gross sales of the mineral resource during the year of assessment by the percentage determined in accordance with the formulae set out in section 4 of the Royalty Act. The Royalty Act differentiates between refined and unrefined minerals for the purposes of calculating the royalty. Refined minerals are listed in schedule 1 to the Royalty Act and schedule 2 of the Royalty Act sets out unrefined minerals. Schedule 1 to the Royalty Act views a mineral resource as refined if that mineral resource is beneficiated into its purest form. Provision is made for those minerals which appear in both schedules 1 and 2 of the Royalty Act. Refined minerals include those minerals which are listed in both schedules 1 and 2 to the Royalty Act and have been refined to or beyond the condition specified in schedule 1 to the Royalty Act and unrefined minerals include those minerals which appear in both schedules 1 and 2 to the Royalty Act and have not been refined to or beyond the condition specified in schedule 1 to the Royalty Act.

Section 4(1) of the Royalty Act provides that the percentage by which the gross sales of refined minerals must be calculated is determined in accordance with the following formula –

0.5 + [EBIT / (gross sales in respect of refined mineral resources x 12.5)] x 100.

Section 4(2) of the Royalty Act provides that the percentage by which the gross sales of unrefined minerals must be calculated is determined in accordance with the following formula –

0.5 + [EBIT / (gross sales in respect of refined mineral resources x 9)] x 100.

Therefore the Royalty Act imposes a minimum royalty of 0.5%. Furthermore, section 4(3) of the Royalty Act provides for a maximum royalty of 5% in the case of refined minerals and 7% in the case of unrefined minerals.

As set out above, the royalty will still be payable if a mineral resource is lost, stolen, destroyed or consumed and in these instances, the calculation of the royalty requires a hypothetical arm’s length price determination. This arm’s length price determination will be the hypothetical price that would have been obtained if the mineral resource had been disposed of in the specified state.

exemptions from payment of the royalty

The Royalty Act does provide some relief to small businesses, sampling and disposals of going concerns. An extractor is exempt from the royalty if –

• the gross sales of that extractor in respect of all the mineral resources transferred does not exceed R10 million during the relevant year of assessment;
• the royalty in respect of the mineral resources transferred that would be imposed on the extractor does not exceed R100 000;
• the extractor is a resident as defined in the Income Tax Act No. 58 of 1962 ("Income Tax Act"); and
• the extractor has registered for that year pursuant to the Mineral and Petroleum Royalty (Administration) Act No. 29 of 2008, discussed further below.

The aforementioned exemption is aimed at small, standalone operations. In order to prevent a large operation of splitting into smaller parts so as to artificially obtain an exemption for each small part, the exemption for a small business operation from the royalty will not apply if any one of the following conditions are satisfied –

• if the extractor holds more than 50% of the equity or voting rights in another extractor;
• if more than 50% of the equity or voting rights of the extractor seeking exemption are held by another extractor;
• if a person other than the extractor seeking exemption holds more than 50% of the equity or voting rights of two or more extractors; or
• if the extractor is an unincorporated joint venture registered in terms of the Administration Act.

In order to encourage prospecting and exploration, the Royalty Act provides for an exemption for analysis and testing. An extractor is exempt from the royalty if the mineral resource has been won and recovered for the purposes of identification, testing, analysis and sampling pursuant to section 20 of the MPRDA pursuant to a prospecting right or exploration right issued in terms of the MPRDA, provided that the gross sales in respect of such mineral resource does not exceed R100 000 during the relevant year of assessment.

When a mining operation is sold, the royalty obligation may arise if the operation includes mineral resources not yet "transferred" as defined in the Royalty Act. In order to ensure that the royalty does not hinder business restructurings, section 9 of the Royalty Act provides an exemption from the royalty in instances of the disposal of a going concern or the disposal of a part of a going concern that is capable of separate operation from one extractor to another. However, this exemption does not result in an outright exemption and the Royalty Act goes on to provide that the extractor who acquires a mineral resource through the disposal of a going concern, is deemed to be the extractor for the purposes of the Royalty Act and is deemed to have won or recovered the mineral resource transferred. Therefore, the royalty relief provided to the transferor-extractor is offset by the assumption of the royalty liability by the transferee-extractor. Section 9(1A) of the Royalty Act provides that a disposal of a mineral resource by an extractor is deemed not to be a disposal if the mineral resource is transferred to another extractor in terms of –

• an asset-for-share transaction referred to in section 42 of the Income Tax Act;
• an amalgamation transaction referred to in section 44 of the Income Tax Act;
• an intra-group transaction referred to in section 45 of the Income Tax Act;
• a liquidation distribution referred to in section 47 of the Income Tax Act; or
• in terms of any transaction which would have constituted a transaction or distribution referred to above regardless of whether that extractor acquired that mineral resource as a capital asset or as trading stock,

provided that the extractor to whom the mineral resource is transferred, immediately after a transaction contemplated above, qualifies for registration in terms of section 2(1)(a) of the Mineral and Petroleum Resource Royalty (Administration) Act No. 29 of 2008, discussed below.

mineral and petroleum resources royalty (administration) act, no. 29 of 2008

The Mineral and Petroleum Resources Royalty (Administration) Act No. 29 of 2008 ("Administration Act") provides for the administration of matters connected with the royalty. The Administration Act commenced on 1 March 2010 other than sections 1 to 4, 7, 17, 18 and 20 which commenced on 1 November 2009. Sections 2 to 4 of the Administration Act pertain to the registration requirements, which are discussed below, while section 7 of the Administration Act pertains to the prescribing of the relevant forms by the Commissioner of the South Africa Revenue Services ("Commissioner"). Sections 17, 18 and 20 of the Administration Act, pertain to the applicability of the Income Tax Act and the right of the Minister of Finance to make regulations.

In terms of section 2 of the Administration Act, the following persons qualify for registration in terms of the Administration Act -

• a persons who is the holder of a mineral right issued in terms of the MPRDA;
• a person who holds a lease or sublease in terms of the MPRDA; or
• a person who wins or recovers a mineral resource from within the Republic.

Section 2 of the Administration Act provides further that a person who qualified for registration in terms of the Administration Act as at 1 November 2009, need to have registered with the Commissioner by 31 January 2010, alternatively, a person who qualifies for registration in terms of the Administration Act after 1 November 2009, must apply for registration with the Commissioner within 60 days after the day upon which that person qualifies for registration.

In terms of section 4 of the Administration Act all the members of an unincorporated body of persons may elect that such unincorporated body be deemed to be a person for the purposes of the Administrative Act and the Royalty Act; provided that such body has more than 2 members and such body holds a mineral right granted in terms of the MPRDA or a lease or sublease in terms of the MPRDA in its own name. In the event that the members of an unincorporated body make an election in terms of section 4 of the Administrative Act –

• the liabilities and duties imposed by the Administrative Act and the Royalty Act must be applied and performed by that body separately from its members; and
• any actions permitted by a person registered in terms of the Administrative Act in respect of such body must be performed by it separately from its members.

In terms of section 10 of the Royalty Act, an unincorporated body of which the members made an election in terms of section 4 of the Administrative Act, is deemed to be an extractor while that registration remains in effect and is subject to the royalty separate from its members. The members of such body may at any time elect to terminate the registration in terms of the Administrative Act with effect from the day after the last day of the year of assessment in which the election was made.

In terms of section 4(4) of the Administrative Act, each member of an unincorporated body which made an election in terms of section 4 of the Administrative Act is liable jointly and severally with the other members for the duties of such body in terms of the Administrative Act and the Royalty Act and the royalty imposed on such body.

Part III of the Administration Act pertains to payments and returns and provides that a person registered in terms of the Administration Act ("Registered Person") must submit and pay 2 provisional payments and a final payment together with the returns to be submitted in accordance with the Administration Act. A Registered Person must, within 6 months of the first day of the relevant assessment year, submit an estimate of the royalty payable in respect of such assessment year together with a payment of half of such estimated royalty. On the last day of the relevant year of assessment, the Registered Person must once again submit an estimate of the royalty payable for such year together with a payment equal to such royalty less any payment made in the first provisional payment. A Registered person must then submit a final return for the royalty payable within 6 months after the last day of the relevant year of assessment and if such royalty is in excess of the payments made in terms of the 2 aforesaid provisional payments, such payment must be made within 6 months after the last day of the relevant year of assessment. The Administration Act empowers the Commissioner to request justification of the estimates and to adjust such estimates if he is not satisfied therewith.

The year of assessment in terms of the Administration Act commences on 1 March and ends on the last day of February of the following year in the case of a natural person or a trust, and in the case of any other person, the period commencing on the first day of such person’s financial year and ending on the last day of such financial year. The year of assessment of an unincorporated body of which the members made an election in terms of section 4 of the Administrative Act is elected by such members, however, such year of assessment must be the same year of assessment as that of one of the members of such body.

The Royalty Act and the Administration Act impose a number of additional requirements on the mining industry and entities within this sector should take the required measures to ensure the sufficient incorporation hereof into their business. The impact of the aforesaid Acts on factors such as profit and foreign investment is still to be seen, however, the mining industry has effectively adapted to previous changes and the sector should continue to be successful.

1. department of energy

   Notice No. 580 in Government Gazette No. 32249, on 22 May 2009: National Energy Efficiency Strategy for South Africa, March 2005, reviewed October 2008.

   Notice No. 908 in Government Gazette No. 32342, on 26 June 2009: National Energy Efficiency Strategy of the Republic of South Africa.

2. electricity regulation act 4 of 2006

   Notice No. 1243 in Government Gazette No. 32837, on 31 December 2009: Determination regarding the Integrated Resource Plan and New Generation Capacity.

   Notice No. 119 in Government Gazette No. 32964, on 24 February 2010: Regulatory Rules for Power Purchase Cost Recovery.

   Notice No. 262 in Government Gazette No. 33041, on 26 March 2010: Notice of intention to apply for an expropriation.

3. gas act 48 of 2001

   Notice Regulation No. 1251 in Government Gazette No. 32849, on 31 December 2009: National Energy Regulator: Rules.

4. gas regulator levies act 75 of 2002 and petroleum pipeline levies act 28 of 2004

   Notice No. 1117 in Government Gazette No. 32748, on 27 November 2009: National Energy Regulator: Proposed levy on the Piped-Gas and Petroleum Pipeline Industries for 2010/11.

5. national environmental management act 107 of 1998

   Notice No. 719 in Government Gazette No. 32369, on 3 July 2009: Amendment of GNR 386 and GNR 387 of 21 April 2006, which deals with activities that may not commence without an environmental authorisation.

   Notice No. 971 in Government Gazette No. 32625, on 9 October 2009: Amendment of GNR 387 of 21 April 2006, which deals with activities that may not commence without an environmental authorisation.

   Notice No. 1479 in Government Gazette No. 32693, on 25 November 2009: Environmental Management Plan: Second Edition.

   Notice No. 1613 in Government Gazette No. 32795, on 11 December 2009: Environmental Implementation Plan: Second Edition.

   Notice No. 201 in Government Gazette No. 33005, on 8 March 2010: Text for Multilateral Environmental Agreements for Chemicals Management.

6. national environmental management: air quality act 39 of 2004

   Notice No. 613 in Government Gazette No. 32263, on 28 May 2009: Vaal Triangle Air-Shed Priority Area Air Quality Management Plan.

   Notice No. 614 in Government Gazette No. 32254, on 29 May 2009: Regulations for implementing and enforcing the Vaal Triangle Air-Shed Priority Area Air Quality.

   Notice No. 964 in Government Gazette No. 32394, on 15 July 2009: Draft Model Air Quality Management By-law for adoption and adaptation by municipalities.

   Notice No. 1001 in Government Gazette No. 32434, on 24 July 2009: List of activities which result in atmospheric emissions which have or may have a significant detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions or cultural heritage.

   Notice No. 1210 in Government Gazette No. 32816, on 24 December 2009: National Ambient Air Quality Standards.

   Notice No. 220 in Government Gazette No. 33041, on 26 March 2010: Sections 21, 22, 36 to 49, 51(1)(e), 51(1)(f), 51(3), 60 and 61 have come into effect as from 1 April 2010.

   Notice No. 248 in Government Gazette No. 33064, on 31 March 2010: List of activities which result in atmospheric emissions which have or may have a significant detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions or cultural heritage.

7. national environmental laws amendment act 14 of 2009

   Notice No. 65 in Government Gazette No. 32580, on 18 September 2009: Commencement of the Act excluding sections 39 and 44.

8. national environmental laws amendment act 44 of 2008

   Notice No. 902 in Government Gazette No. 32563, on 11 September 2009: Commencement of the Act.

9. national environmental management: biodiversity act 10 of 2004

   Notice No. 813 in Government Gazette No. 32474, on 3 August 2009: National Biodiversity Framework.

   Notice No. 173 in Government Gazette No. 33002, on 5 March 2010: Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Regulations.

10. national environmental management: integrated coastal management act 24 of 2008

    Notice No. 84 in Government Gazette No. 32765, on 1 December 2009: Commencement of the Act, excluding sections 11, 65, 66, 95, 96 and 98.

11. national environmental management: protected areas amendment act 15 of 2009

    Notice No. 69 in Government Gazette No. 32660, on 23 October 2009: Commencement of the Act, excluding sections 1 and 8.

    Notice No. 1175 in Government Gazette No. 32797, on 11 December 2009: Regulations for the Proper Administration of the Knysna Protected Environment.

    Notice No. 179 in Government Gazette No. 33006, on 12 March 2010: Assignment of management of Garden Route National Park to South African National Parks (SANPARKS).

12. national environmental management: waste act 59 of 2008:

    Notice No. 718 in Government Gazette No. 32368, on 3 July 2009: List of waste management activities that have or are likely to have a detrimental effect on the environment.

    Notice No. 777 in Government Gazette No. 32439, on 24 July 2009: National Policy on Thermal Treatment of General and Hazardous Waste.

13. national nuclear regulator act 47 of 1999

    Notice No. 1130 in Government Gazette No. 32753, on 4 December 2009: Notice in terms of section 28 on fees for nuclear authorisations.

14. national radioactive waste disposal institute act 53 of 2008

    Proclamation No. 83 in Government Gazette No. 32764, on 1 December 2009: Commencement of Act.

15. national water act 36 of 1998

    Notice No. 1199 in Government Gazette No. 32805, on 18 December 2009: Replacement of General Authorisation in terms of Section 39 of the National Water Act in respect of sections 21(c) and 21(i).

    Notice No. 1198 in Government Gazette No. 32805, on 18 December 2009: General Authorisation in terms of Section 39 of the Act in terms of Section 21(c) and (i) for the purpose of rehabilitating a wetland for conservation purposes.

16. petroleum pipelines act 60 of 2003

    Notice No. 1072 in Government Gazette No. 32704, on 13 November 2009: National Energy Regulator: Rules.

17. petroleum products act 120 of 1977

    Notice No. 640 in Government Gazette No. 32292, on 2 June 2009: Amendment of the regulations in respect of petroleum products.

    Notice No. 641 in Government Gazette No. 32292, on 2 June 2009: Regulations regarding levying, collection and reimbursement of incremental inland transport cost recovery levies.

    Notice No. 689 in Government Gazette No. 32331, on 24 June 2009: Licence fees payable by licensed generators of electricity.

    Notice No. 908 in Government Gazette No. 32342, on 26 June 2009: National Energy Efficiency Strategy of the Republic of South Africa.

    Notice No. 894 in Government Gazette No. 32547, on 1 September 2009: Amendment of the regulations in respect of petroleum products.

    Notice No. 970 in Government Gazette No. 32624, on 6 October 2009: Amendment of the regulations in respect of petroleum products.

    Notice No. 1133 in Government Gazette No. 32768, on 1 December 2009: Amendment of the regulations in respect of petroleum products.

    Notice Regulation No. 4 in Government Gazette No. 325857, on 5 January 2010 – Amendment of the regulations in respect of petroleum products.

    Notice No. 65 in Government Gazette No. 32926, on 2 February 2010: Amendment of the regulations in respect of petroleum products.

    Notice No. 171 in Government Gazette No. 32996, on 2 March 2010: Amendment of the regulations in respect of petroleum products.

    Notice No. 277 in Government Gazette No. 33095, on 6 April 2010: Amendment of the regulations in respect of petroleum products.

18. south african weather services act 8 of 2001

    Notice No. 126 in Government Gazette 32950, on 12 February 2010: Notice of intention to make regulations regarding fees for the provision of aviation meteorological services.

19. water research act 34 of 1971

    Notice No. 962 in Government Gazette No. 32615, on 9 October 2009: Water Research Fund: Rates and Charges.

 

our environmental law team info@ens.co.za
stephen levetan	robyn stein	lloyd christie	caroline pepermans	carlyn frittelli

No information displayed on our Web Site should be construed as legal advice from any lawyer of this firm. Professional advice should therefore be sought before any action is taken based on the information displayed on this web site. ENS disclaims any responsibility for positions taken without due consultation and no person shall have any claim of any nature whatsoever arising out of, or in connection with, the contents of this web site against ENS and/or any of its partners and/or employees.