ALIEN AND INVASIVE SPECIES –  Obligations of the seller according to the National Environmental Management: Biodiversity Act

 

On 1 August 2014, the Minister of Environmental Affairs published the Alien and Invasive Species (“AIS”) Regulations (“the Regulations”) which came into effect on the 1 October 2014. The primary aim of the National Environmental Management: Biodiversity Act (“NEMBA”) and its Regulations are to prevent the introduction and spread of AIS in South Africa.

The Regulations place AIS into four different categorise that must be managed, controlled or eradicated;

• Category 1a which must be controlled and eradicated by the property owner;
• Category 1b which must be controlled, and if possible eradicated by the property owner;
• Category 2 AIS which may only be grown with a permit and assurance from the property owner that the AIS will not spread beyond their property; and
• Category 3 AIS are those subject to exemptions and prohibitions of section 71.

If an AIS is classified as Category 1 a or b, an authorised official from the Department of Environmental Affairs (“DEA”) is required to be granted access to enter the property to monitor, assist with or implement control of the species if requested.

These categories relevant to the transfer of a property in the context of Regulation 29 which requires the following;

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; and
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.

However, it is unlikely that the seller is aware of the specific species and categorisation of plants on their property. This makes it difficult to comply with the Regulation and unfair to hold the seller responsible after the sale of the property.

We therefore recommend the following:

1. That reference to plants and vegetation be included in the acknowledgement by the purchaser that they have acquainted themselves fully with the extent and nature of the property they are buying and that they accept it as such; and / or
2. As is becoming the trend, acquiring a compliance certificate from a registered Invasive Species compliance officer who has inspected the property as this will reduce or possibly eliminate the Sellers liability under Regulation 29.

Thus, compliance with Regulation 29 can currently be fulfilled with either the declaration by the Purchaser or a formal compliance certificate from an Invasive Species compliance officer.  It is important to remember that the compliance certificate is not obligatory (as in the case of an electrical compliance certificate) but merely a mechanism by which the Seller can ensure that he/she incurs no liability under the Act.

 

Prepared by Michael Campbell