PART ONE: THE LEGAL RESPONSIBILITY OF A PROPERTY USER/OWNER FOR PLANTS
In the last year that I have been participating in the hack and as a committee member of the branch, my knowledge of plants of the area has slowly been increasing. With the help of experienced hackers and colleagues who are willing to share their knowledge openly I have started to feel more confident about identifying some of the more onerous aliens of the area. Having said that, as a land owner, there is a lot of legislation and requirements to wade through regarding the responsiblities of iradicating alien vegetation.
So here follows the first part of a two part series on the legal responsibility of land owners/users with regards to plants on their property. The information has been collected and the salient points have been compiled below by my fellow committee member and ardent hacker, Jan Joubert.
– Jeannie Harning
INTRODUCTION
With the introduction of new legislation regarding invasive alien plants and property ownership, there are several important aspects to keep in mind.
There are two major types of plants in this respect;
- Plants you have to protect (Protected plants, or PP).
- Plants that may not occur on a property, or in exceptional circumstances, under controlled conditions (Invasive Alien Plants, afterwards called IAP).
In some instances common law and the law on property transactions may become applicable in certain cases and circumstances.
The below extract of a scientific paper of 2001 shows just how serious the problem of Invasive Alien Plants (IAPs) is.
“Abstract. The invasion of natural ecosystems by alien plants is a serious environmental problem that threatens the sustainable use of benefits derived from such ecosystems. Most past studies in this field have focussed on the history, ecology and management of invasive alien species and little work has been done on the economic aspects and consequences of invasions. This paper reviews what is known of the economic consequences of alien plant invasions in South Africa. These economic arguments have been used to successfully launch the largest environmental management programme in Africa.
“Ten million hectares of South Africa has been invaded by 180 alien species, but their impacts are not
fully understood, although they are undoubtedly significant. The indications are that the total costs of these
impacts are substantial. Selected studies show that invasions have reduced the value of fynbos ecosystems by over US$ 11.75 billion; that the total cost of invasion would be about US$ 3.2 billion on the Agulhas Plain alone; that the net present cost of invasion by black wattles amounts to US$ 1.4 billion; that invasions by red water fern have cost US$ 58 million; and that the cost to clear the alien plant invasions in South Africa is around US$ 1.2 billion. These few examples indicate that the economic consequences of invasions are huge.”
THE ECONOMIC CONSEQUENCES OF ALIEN PLANT INVASIONS: EXAMPLES OF IMPACTS AND APPROACHES TO SUSTAINABLE MANAGEMENT IN SOUTH AFRICA INVASIVE ALIEN PLANTS (IAP) BOW VAN WILGEN et al, CSIR Division of Water, Forestry and Environmental Technology, 2001
IAP’s also have a serious impact on our water resources, they can absorb up to 30% of the water supply in a heavily infested area.
Because of the copious amounts of volatile juices in some IAP’s, especially the Acacia family (e.g. Rooikrans, Port Jackson, all wattles), all Pines, and all Blue gums burn at a much higher temperature. Some experts state up to ten times higher than the fynbos or their died namesakes. Nice and green and alive they are a greater fire risk than dried out.
INVASIVES: WHAT THE LAW SAYS
Regarding Invasive Alien Plants:
The National Environmental Management Biodiversity Act (NEMBA), Act 107 of 1998’ classifies IAP’s in three categories, with small variations. Remember that the below is given for the urban, and peri-urban landowner of our municipal area:
| CAT | NEMBA |
| 1a | Report to Dept. of Environmental affairs (DEA) Eradicate when instructed |
| 1b | May not be on a property. Eradicate |
| 2 | Permit required having on property. Permit only applicable to commercial operations, NOT urban areas. Not within 32m of wetland, river, lake, dam, estuary, or 1:1000 year flood line |
| 3 | As for 2. However if it is already present in some cases you make keep it but is still responsible to control any propagation thereof |
The law IS applicable to the land user, whether he be the owner, lessee, or used for a purpose like gathering firewood. It is equally applicable to land belonging to the National, provincial, or local authorities.
Category 1 plants may not be sold, and Category 2/3 only to a holder of an applicable permit. Plants in these categories may also not be given away or transplanted. Permits are only applicable for commercial or scientific research purposes. For the average urban property owner, it means that you may not give seeds or plant material to another person.
The landowner must also remember that for any category of IAP he will be responsible for the clearing of any propagated offspring on his own property, or any other property. With modern DNA techniques it is easy to prove the origin of a plant.
Regarding Clearing of properties:
| EXTRACT OF APPENDIX I OF NATIONAL ENVIRONMENTAL MANAGEMENT ACT (Act 107 of 1998) Referred to as LISTING NOTICE 3:- Activities that require a basic assessment (EIA) in specific identified geographical areas only (R546 of 2010). | |||
| Activity | Activity description | Geographical areas based on environmental attributes | Identification of competent authority |
| 12 | The clearance of an area of 300 square meters or more of vegetation where 75% or more of the vegetative cover constitutes indigenous vegetation | (a) Within any critically endangered or endangered ecosystem listed in terms of section 52 of the NEMBA or prior to the publication of such a list, within an area that has been identified as critically endangered in terms of the National Spatial Biodiversity Assessment of 2004:(b) Within critical biodiversity areas identified in bioregional plans;
(c) Within the active littoral zone of 100m inland of the sea or an estuary, whichever distance is the greater, excluding where such removal will occur behind the development setback line on erven in urban areas |
The competent authority in respect of the activities listed in this part of the schedule is the environmental authority in the province in which the activity is to be undertaken unless it is an application for an activity contemplated in terms of section 24C (2) of the Act, in which case the competent authority is the Minister or an organ of state with delegated powers in terms of section 42(1) (d) of the Act. |
If you work through Notice R546 of 2010 you will find that the total area of the Overstrand Municipality (Including the Overberg District Municipality) falls under this regulation
In the clearing of properties NRMBA (Act 10 of 2003) requires the following:
(1) Control and eradication of a listed invasive species must be carried out by means of methods that are appropriate for the species concerned and the environment in which it occurs.
(3) The methods employed to control and eradicate a listed invasive species must also be directed at the offspring, propagating material and re-growth of such invasive species in order to prevent such species from producing offspring, forming seed, regenerating or re-establishing itself in any manner.
Most all of the “troublesome IAP’s in our area will re-sprout if not cut as low as possible above the ground, and herbicide is not applied to the cut stem.
Penalties
NEMBA does not play around, it is up to a maximum of R10m, or 10 years imprisonment.
The above is a layman’s view of the situation for more information Google: – Act 107 of 1998 and make sure it is the Aug 2014 version.
In part two, we will look at other legal implications and Protected Plants (PP).
– Jan Joubert