MAY 2019

Dear Clients,

Below please find a summary of selected relevant environmental, health and safety and foodstuffs legal developments that took place during May 2019.


1) Standards Act

• SANS 1728:2009 – The requirements for the marking and identification of degradable plastics
This new standard was published in April 2019 and governs the requirements for the marking and identification of degradable plastics. It is obviously aimed at manufacturers of degradable plastics and in our opinion is long overdue as it helps to regulate such claims.

• SANS 19011:2019 – Guidelines for auditing management systems
This new standard provides guidance on auditing management systems, including the principles of auditing, managing an audit programme and conducting management system audits, as well as guidance on the evaluation of competence of individuals involved in the audit process. These activities include the individual(s) managing the audit programme, auditors and audit teams. It is applicable to all organizations that need to plan and conduct internal or external audits of management systems or manage an audit programme.

It is not a law but guideline or standard, and essentially aimed more at “official” audits carried out by certification bodies.
2) Air Quality Act

• Draft National Climate Change Adaptation Strategy
This lengthy draft Strategy was published for comment. It is a high level document aimed at measures the government needs to, or wants to, implement. According to the Introduction it provides a common vision of climate change adaptation and climate resilience for the country, and outlines priority areas for achieving this vision.

The NCCAS’s vision draws on South Africa’s National Climate Change Response Policy NCCRP) (DEA 2011), the National Development Plan (NDP) (NPC 2011), the adaptation commitments included in its Nationally Determined Contributions (NDC), sector adaptation plans, provincial adaptation plans and local government adaptation plans.

• Draft amendment – 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, GN R 893 of 2013
This list sets out the various activities which require an atmospheric emission licence as well as emission limits. Category 1.1 (solid fuel combustion installations) was amended in October 2018 by inserting paragraph a(iii) [this actually should have been (iv), but was published as such in the Government Gazette] which reads that: “Existing plants shall comply with a new plant emission standard of 1000 mg/Nm3 for sulphur dioxide (SO2)”.

This paragraph was now repealed. According to the Department of Environmental Affairs media statement from 23 May 2019 this was done due to the objections and complaints received in respect of perceived inadequate public consultation on this specific provision.

As part of the public consultation process paragraph a(iii) was now published as DRAFT (with the same previous wording) for comment by the public.

Comments may be submitted to the Department until 23 June 2019 to Olebogeng Matshediso (omatshediso@environment.gov.za) or Elizabeth Masekoameng (no email address was published for her in the Gazette).

Just to reiterate: the proposed sulphur dioxide limit for solid fuel combustion installations is a DRAFT at this stage and not yet a law.

• Strategy to address Air Pollution in Dense Low-income Settlements
This strategy was published.

3) Marine Spatial Planning Act
This Act is not yet in force and its commencement date will be proclaimed in due course in the Government Gazette. The objectives of the Act are to:

• develop and implement a shared marine spatial planning system to manage a
changing environment that can be accessed by all sectors and users of the
• promote sustainable economic opportunities which contribute to the development of the South African ocean economy through coordinated and integrated planning
• conserve the ocean for present and future generations
• facilitate responsible use of the ocean
• provide for the documentation, mapping and understanding of the physical,
chemical and biological ocean processes and opportunities in, and threats to,
the ocean
• give effect to South Africa’s international obligations in South African waters.

Any right, permit, permission, licence or any other authorisation issued in terms of
any other law must be consistent with the approved marine area plans.

The following principles apply to marine spatial planning and should be applied
and considered having regard to the precautionary approach:

• the sustainable use, growth and management of the ocean and its resources
• the identification of economic opportunities which contribute to the development of the ocean economy
• the promotion of collaboration and responsible use of the ocean through
consultation and cooperation
• the advancement of an ecosystem and earth system approach to ocean
management which focuses on maintaining ecosystem structure and functioning within a marine area
• adaptive management, which takes into account the dynamics of the
ecosystems and the evolution of knowledge and of activities in South African
• the principle of spatial resilience and flexibility
• the promotion of equity between and transformation of sectors
• the reliance on the best available scientific information
• the equitable resolution of conflict scenarios including the implementation of
trade-offs, relocations and other available resolutions
• the principle of efficiency, whereby decision-making procedures are designed
to minimise negative financial, social, economic or environmental impacts
• the principle of good administration coherent and holistic planning and
• South Africa’s international obligations and cross-border cooperation.

The Act further establishes a National Working Group on Marine Spatial Planning comprising of competent officials who are nominated from the departments responsible for defence, energy, environmental affairs, fisheries, mineral resources, planning monitoring and evaluation, public enterprises, science and technology, telecommunications, tourism, transport, rural development and land affairs.

4) National Environmental Management Act

• Proposed Minimum Standards for the Consideration of Environmental Aspects in the Preparation and Review of Municipal Spatial Development Frameworks (SDFs)
These proposed minimum standards were published for public comment.

• Proposed Procedures to be followed for the Assessment and Minimum Criteria for Reporting of Identified Environmental Themes
These proposed minimum standards were published for public comment. They deal with general requirements for undertaking an initial site sensitivity verification and for protocols for the assessment and minimum reporting requirements of environmental impacts for environmental themes for activities requiring an environmental authorisation.

Identified environmental themes are:

– Agriculture
– Avifauna
– Biodiversity
– Noise
– Defence
– Civil aviation.

• Proposed Regulations pertaining to Financial Provisioning for the Rehabilitation and Remediation of Environmental Damage caused by Reconnaissance, Prospecting, Exploration, Mining or Production Operations
These extensive draft Regulations dealing with mining related activities were published for comment.

5) National Water Act

• Proposed Classes of Water Resource and Resource Quality Objectives for the Berg Catchment
This lengthy, technical draft document was published for comment.

6) Foodstuffs, Cosmetics and Disinfectants Act

• Amendment – Regulations regarding Food, Drugs and Disinfectants, GN R 575 of 28 March 1930
These Regulations were amended by repealing the following parts (the balance of the Regulations remain, however, in force):

– Ice cream and ice-cream products (Reg 11)
– Meat and fish and their preparations: Edible fats and edible oils (Reg 14, except for Reg 14(4)(iii) which was not repealed)
– Tea (Reg 15)
– Coffee, coffee mixtures and preparations of coffee (Reg 16)
– Chicory (Reg 17)
– Cocoa and chocolate (Reg 18)
– Sugar, confectionery, dextrose and icing sugar (Reg 27)
– Edible gelatine (Reg 39 bis)

No new Regulations dealing with the above were promulgated and it is therefore expected that this will happen soon to fill the void.

• Amendment – Regulations relating to the Reduction of Sodium in Certain Foodstuffs and Related Matters
The above Regulations were amended by extending the dates by which prescribed reduced limits (mg/Na) for maximum total sodium per 100 g foodstuff apply. The actual limits were not changed, only the dates were postponed. The following foodstuffs categories are affected:

– Category 7: Processed meat (classes 1, 4 and 5) where products in category 5 relates to cured as per Annexure 1 of the Regulations: new limit 1150 on 30 April 2020
– Category 8: Processed meat (classes 2, 3 and 5) where products in category [sic – no number stated in the Gazette] relates to uncured as per Annexure 1 of the Regulations: new limit 650 on 30 April 2020
– Category 9: Raw processed meat sausages (all types) and similar products: new limit 600 on 30 April 2020

Classes 1 to 4 are:

– 1: Comminuted, cured, heat treated products
– 2: Comminuted, uncured, heat treated product
– 3: Reformed, uncured, no partial heat treated product
– 4: Reformed, cured, heat treated.

Class 5 is unspecified in the original Regulations.

7) Mine Health and Safety Act

• Guidance Note on Medico-Legal Investigations of Mine Deaths
This Guidance Note was published. It specifically states that it is a guidance only and that it must be read together with and subject to various other national criminal, mining and health related legislation. Its various steps should, however, be followed when conducting such an investigation.

8) Marine Living Resources Act

• Invitation for Comments on the Proposed Resource Split in the Traditional Line Fish and Squid Fishing Sectors and Proposal to classify White Mussel, Oysters and Hake Hand Line Fishing as Small-scale Fishing Species
This draft proposal was published for public comment.

9) Carbon Tax Act
After many years this Act was now finally passed by Parliament on 23 May 2019. It entered into force on 1 June 2019 and is a highly technical Act and a full discussion of its scope is certainly beyond the scope of this update report.

Schedule 2 of the Act sets out various activities/sectors (with their IPCC Code – (Intergovernmental Panel on Climate Change of the UN)), and for some their threshold (ie. when they become applicable, eg. 10 MW (th), 100 000 liters per year), as well as the different tax allowances (in %) mentioned above.

These thresholds are in line with the National Greenhouse Gas Emission Reporting Regulations, GN 275 of 2017, under the Air Quality Act, and which Regulations must be read together with the Carbon Tax Act.

Where no threshold is stated it states either “none” or “N/A”. In the case of “none” it means there is no threshold and the tax will automatically apply. Where it is stated “N/A” no tax is currently payable.

Schedule 2 was included as appendix to this report for ease of reference.

A tax of R 120.00 is applicable per tonne carbon dioxide equivalent of the greenhouse gas emissions. The calculation of the tax payable is based on an elaborate formula which is too complicated to repeat and explain in this update.

Various tax allowances are provided for meaning that the actual amount per tonne will be less than R 120.00. Allowances include:

• Fossil fuel combustion
• Industrial process emissions
• Fugitive emissions
• Trade exposure
• Performance allowance
• Carbon budget allowance
• Offset allowance.

The total allowances may not, however, exceed 95 % of the total greenhouse gas emissions in respect of a tax period as determined in terms of the column “Maximum total allowances %” in Schedule 2 of the Act. The Act defines a tax period as:

• Commencing on 1 June 2019 and ending on 31 December 2019; and
• Subsequent periods as running from 1 January to 31 December.

Taxpayers will be required to submit yearly environmental levy accounts and payments as prescribed by rules in terms of the Customs and Excise Act, 1964, for every tax period.

The rate of tax will be increased by the amount of the consumer price inflation (CPI) plus 2 % for the preceding tax period as determined by Statistics South Africa per year until 31 December 2022.

Thereafter the rate of tax must be increased by the amount of the CPI for the preceding tax year as determined by Statistics South Africa.

This means, broadly, that for the first phase (ie. until 31 December 2022) that tax free emission allowances can range from 60 % to 95 %.

This includes a:
• basic tax-free allowance of 60 % for all activities
• 10 % process and fugitive emissions allowance
• maximum 10 % allowance for companies using carbon offsets to reduce their tax liability
• performance allowance of up to 5 % for companies reducing the emissions intensity of their activities
• 5 % carbon budget allowance for complying with the reporting requirements
• maximum 10 % allowance for trade exposed sectors.

Please note that in terms of the National Greenhouse Gas Emission Reporting Regulations the liability to pay tax applies to the highest level of a company. In other words, if one is dealing with a group of companies then the holding company is responsible.

The National Greenhouse Gas Emission Reporting Regulations define a data provider (who for purposes of the Carbon Tax Act would be the tax payer) in a nutshell as a holding company/corporation/legal entity, all it subsidiaries and legally held operations, as well as facilities generally over it has operational control.

Therefore, when for instance a threshold of 10 MW (th), or another figure, is listed in Schedule 2, this relates not to individual capacity (of eg. only one boiler), but the total installed capacity of the site (where one is dealing with a one site company) or the sum total of all sites forming part of a group.

Schedule 1 Table 1 of the Carbon Tax Act deals with the following fuel combustion emission factors:

• stationary source categories
• non-stationary / mobile source category activities

Both contain a long list of different fuels and gases as well as their corresponding carbon dioxide, methane gas and nitrous oxide values and their default calorific value.

Schedule 1 Table 2 deals with fugitive emissions factors for various source category activities (eg. solid fuels, coal mining and handling, gas production – to name just some examples) and listing their IPCC Code. Corresponding values for carbon dioxide, methane gas and nitrous oxide are listed for each activity.

Table 3 covers industrial processes and product use (IPPU) emission factors and again various source category activities are listed. Tonne carbon dioxide/tonne product values are provided for most activities in this table. There are five more columns for tonne methane/tonne product, tonne nitrous oxide/tonne product, tonne hexafluoroethane/tonne product, tonne tetrafluoromethane/tonne product (also known as carbon tetrafluoride or R-14), and tonne sulfur [sic] hexafluoride/tonne product. Figures are only listed for a few of the latter five, and then mainly under the methane heading.

In so far as petrol and diesel are concerned carbon tax is not payable by a company as the tax was already built into the purchase price. Currently this is 9c per liter of petrol and 10c per liter of diesel. The carbon tax calculation formula takes this into account to prevent double taxation.

To conclude:
The Act is technical, but essentially Schedule 2 is the trigger. Therefore, when evaluating whether carbon tax is payable the following steps should be taken:

• determine whether an activity/source falls under Schedule 2
• If not, no carbon tax is payable
• If it does, then determine whether:
– there is a value in the threshold column (eg. 10 MW (th)) – if activities are equal to or greater than the threshold tax will be payable
– it states “N/A” in which case tax is currently not payable
– it states “none” in which case tax is payable regardless of the actual emissions
• If the liability to pay tax is triggered through the above assessment then take note of the various allowances mentioned above to arrive at the actual % payable.

A copy of the Act can be downloaded from our website from the following link:

10) Customs and Excise Act
In order to give effect to the requirements of the Carbon Tax Act the Customs and Excise Act was amended to deal with the following:

• the allowances prescribed in the Carbon Tax Act must be administered as rebates, refunds or drawbacks in terms of the Customs and Excise Act
• a taxpayer as defined in the Carbon Tax Act must in terms of section 54E (of the Customs and Excise Act) license any premises on which emissions as defined in the Carbon Tax Act occur, in a manner and subject to requirements as may be prescribed by rule
• any administrative actions, requirements and procedures for purposes of submission and verification of accounts, collection and payment of carbon tax, to the extent not prescribed in the Carbon Tax Act, must be prescribed by the Commissioner by rule.

11) Protected Areas Act

• Declaration of Marine Protected Areas (MPA’s)
20 MPA’s were declared by the Minister of Environmental Affairs on 23 May 2019. No fishing, mining etc may be conducted in these areas as they are now nature reserves (ie. protected areas).

12) Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act

• Proposed Prohibition Notice regarding the Use of Nitrofurans, Nitromidazoles, Carbadox and Diethylstilbestrol in Food Producing Animals
This draft Notice prohibiting the use of the above substances for food producing animals was published for public comment.

• Correction Notice – Proposed Regulations regarding Stock Remedies
Draft Regulations were initially published for comment in March 2019. A correction notice for these was now published. Should the draft Regulations enter into force they will repeal the 1971, 1983 and 2006 Regulations dealing with stock remedies.

13) National Health Act

• Code of Conduct for Inspectors
A Code of Conduct for Inspectors was already published on 18 January 2019. Two seemingly identical Codes were now published on 31 May 2019 (GN 817 and GN 818) – it is unsure why. The earlier Code was not repealed, and a cursory comparison of this with the two new Codes also does not show any differences. As such it is confusing which one would now actually apply.

14) Private Security Industry Regulation Act

• Draft Amendment – Regulations in terms of the Act
Two draft amendments to the Regulations were published for comment, namely GN 292 and GN 295 of 2019.

• Draft Amendment – Code of Conduct for Security Service Providers
Draft amendments were published for comment.

• Draft Regulations relating to Working Animals in the Private Security Industry
Draft amendments were published for comment.


15) North West Province

• Draft Business Licencing Regulations
These draft Regulations were published for comment.

No other relevant provincial legislation was published during this month.


16) uMhlathuze Local Municipality
The Spatial Planning and Land Use Management By-law was amended.

17) Mantsopa Local Municipality
Waste Management By-laws were published, but these will only take effect on a date to be determined by the municipality.

18) Mtubatuba Local Municipality
The following new by-laws were published:

• Traffic and Crime Prevention By-laws
• Nuisances and Behaviour in Public Places By-laws

19) Modimolle-Mookgophong Local Municipality
The Spatial Planning and Land Use Management By-laws were published.

20) Polokwane Municipality
The Waste Management By-law was promulgated and took effect on 31 May 2019. It repeals and replaces the Refuse (Solid Waste) and Sanitary By-laws from 1983.

If you have any questions please feel free to contact us.

Kind regards