1. What NEMBA should achieve
NEMBA aims to prevent the increase in alien invasive plant species coming into and settling on South African soil and to halt the spread of potentially devastating species.
This is obviously important as Invasive Alien Plants (IAPs), as these are referred to in the legislation, are a major threat to biodiversity, human livelihoods and economic development. Many of these IAPs may be the innocent result of unwise and unintentional plant introductions. NEMBA presupposes that if new invasions are discovered before they become well established, eradication is possible and management costs are greatly reduced.
A second main focus of NEMBA is on the early detection of and swift response to emerging invasive species. These are listed in the Act – specified in Category 1a - and require immediate control by all land owners.
The third main focus is to address the established invasive species that are most harmful and destructive.
2. How the regulations work
First, the identified alien plants are categorized. A total of 559 alien species are listed in the regulations as invasive in four different categories. Then some 560 species are listed as prohibited and which may not be introduced into the country. Some plants are categorised differently in different provinces. For example the Brazilian Pepper Tree is categorised as a category 1b (harmful) in KZN, Eastern Cape, Limpopo and Mpumalanga, but it is a category 3 (less harmful) in the other 5 provinces. Some are categorised differently whether they appear in urban or rural areas, such as Jacarandas, which are classified as category 1b in rural areas within KZN and in three other provinces, but in the urban areas of these provinces they are exempted from the regulations.
Secondly, duties are ascribed to owners in respect of these categories. The duties range from just allowing government officials on the property to monitor the situation, to allowing such officials to implement eradication procedures. In other instances the land owner is required to obtain permits or to otherwise notify others if he is aware of the existence of such species.
Then the regulations go further and list certain activities which are termed “restricted activities”, which prohibit an owner from spreading or assisting the growth of listed invasive species. There are also provisions regarding certain species which may only be grown/allowed on a property if the owner has a permit.
Lastly, the regulations deal with non-compliance and impose fines and penalties not exceeding R10 million or imprisonment not exceeding 10 years. From the regulations it appears that government’s idea is to obtain co-operation from landowners rather than fining them. Fines and penalties will only become applicable if the landowner refuses an authorised official from the Department of Environmental Affairs to enter onto the land to monitor, assist or implement the combating; control or eradication of the species; or flatly refuses to comply with the regulations after due notice.
3. General duties of owners not selling
With effect from 1 October 2014 onwards:
· Category 1a species: an owner is required to take steps as provided for in the Act to eradicate the plants and the owner must also allow an authorised official from the Department to enter onto the land to monitor, assist or implement the combating or eradication of the species. Examples of these are the Kangaroo Thorn or Kangaroo Wattle and the Bluebell Creeper.
· Category 1b species must be controlled and the land owner must allow an authorised official from the Department to enter onto the land, to assist with or implement the control of the listed invasive species. Examples are the Golden Wattle, Port Jacksons and the Coral Bush.
· Category 2 species require the person in control of the specie to have a permit to allow him to carry out a restrictive activity within an area specified in the notice, or the area specified in the permit. No person may carry out a restrictive activity of a Category 2 invasive species without a permit. A land owner on whose land an invasive species Category 2 occurs must ensure that the specimens do not spread outside of the land or the area specified in the notice or permit. Examples of category 2 species are the Old Man Saltbush, White Poplar and the Grey Poplar.
· Category 3 species are a further category where certain exemptions apply.
The lists of categories are some 81 pages long. Attached at the end of these notes are some examples from the lists, just for interest. Anyone with a specific query can access the lists at http://www.invasives.org.za/legislation.html.
4. How will the regulations impact upon the seller of a property?
In terms of Regulation 29:
1. If a permit holder sells the property on which an alien listed invasive species is under the permit holder's control, the new owner of such property must apply for a permit in terms of the Act. The new owner must also be advised of the existence of a permit. (Permits relate to the category 2 species.)
2. The seller of any immovable property must, prior to the conclusion of the relevant sale agreement, notify the purchaser of that property in writing of the presence of listed invasive species on the property.
Most land owners (nor the conveyancers or estate agents) would not know a Cardiospermum grandiflorum (balloon vine which is a Category 1b species) from a Cardiospermum halicacabum (lesser balloon vine is a Category 3 species), unless one is told! Fortunately the wording of the regulations do not appear to place an obligation on a seller to actively acquaint him- or herself to this effect or to provide certification to this effect, prior to concluding a sale agreement.
What would be good practice though is for buyers to request from sellers to confirm in writing whether they are aware of, or hold any permits in respect of any alien invasive species located on the property. If a seller advises that he/she is honestly unaware of the presence of a listed invasive species, then that should be in order and there should lie no claim against the seller should it appear later that there are invasive species on the property sold. Where the seller acts fraudulently, however, a claim may follow.
After promulgation of these regulations, some estate agencies have started including additional clauses in their sale agreements to the effect that a reference to plants and vegetation is included in the acknowledgements by the purchaser. Such provisions generally require the purchaser to acknowledge that he has acquainted himself fully with the extent and nature of the property he is buying, including the fauna and flora thereon, and that he accepts it as such. Or a clause is included in which the seller states that he has no knowledge of the existence of listed invasive species of plants on his property and therefore does not guarantee that there are no such species on the property being sold.
In the event that the seller advises that he is aware of any listed invasive species on the property, or confirms that he holds a permit, then the estate agent must give a copy of this confirmation to the prospective purchaser. The offer to purchase should include an acknowledgment by the purchaser to the effect that the purchaser has been advised of the invasive species presence on the property.
Contact your conveyancer at email@example.com should you require assistance in your property transaction.