On 1 October 2014 some regulations were published which list plants which are not permitted to be grown in South Africa and to place a burden on property owners to deal with these plants in accordance with the Regulations. 

The Minister of Environmental Affairs published the Alien and Invasive Species Regulations, 2014, read in conjunction with the Alien and Invasive Species Lists, 2014, and which followed from the National Environmental Management Biodiversity Act, 2004.  As mentioned, the Alien and Invasive Species Lists sets out various species that fall under various categories of risk and control.  

Category 1a are Listed Invasive Species that must be combated or eradicated, Category 1b are Listed Invasive Species that must be controlled, Category 2 are Listed Invasive Species that are allowed with a permit subject to restrictions and Category 3 are Listed Invasive Species that are exempted. However it is necessary to note that the various categories of species differ from the type of property and from province to province. The detailed Alien and Invasive Species List can be found on the Department of Environmental Affair’s website www.environment.gov.za.  

The purpose of this law is to provide for the protection of the country’s natural ecosystems and for the maintenance of their ecological integrity in a sustainable manner and also to give effect to South Africa’s obligation under international agreements.  However with the advent of the aforesaid publication land owners have been placed with the onerous responsibility and accountability of fauna and flora on their property. In particular in terms of Chapter 7, Regulation 29 of the Regulations deals with the sale of immovable property which inadvertently results in the sale or transfer of alien and listed invasive species found on the property and reads as follows:- 

(1) “If a permit-holder sells a specimen of an alien (which means a species that is not indigenous i.e. occurring naturally in a free state in nature in the Republic of South Africa) or listed invasive species (means any species whose establishment and spread is outside of its natural distribution range and is harmful to our natural ecosystems), or sells the property on which a specimen of an alien or listed invasive species is under the permit-holders control , the new owner of such specimen or such property must apply for a permit in terms of Chapter 7 of the Act.”

(3) “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 that property”.  

It is interesting to note that items on the list are not limited to plants (flora) but there are also some animals and insects etc listed (fauna).

Our interpretation of this is that as from 1 October 2014, a property owner must ascertain what fauna and flora are on his or her property and deal with them in accordance with the Act.  The Act mentions that assistance from an Inspector but who knows if there are any such staff appointed in terms of the Act at this point.

In respect of a property transfer / sale the onus of the Seller appears to be limited to merely a notification to the Purchaser. Once transfer has taken place then these plants become the responsibility of the Purchaser. This poses a number of issues, such as, if the Seller does not take responsibility and comply with the Act, he is passing on this problem to the Purchaser for him to be prosecuted and bare the expense of eradicating them or obtaining a permit.

Should a Listed Invasive Species be found on your property a competent authority may hold you liable for the costs incurred in the control or eradication, as may be required by the list and category of the species.  The penalties for non-compliance are set out in Chapter 8, Regulation 35 of the Regulation and range from fines to imprisonment or both. 

The enactment is new and very broad based and may be difficult to implement and enforce and therefore may need further clarity from possibly the Courts or the Minister to decide on the extent of liability of the land owner and purchaser and to clarify the position in respect of private residential property.   In terms of Chapter 4, Clause 8, the Minister has one year to develop guidelines for the monitoring, control and eradication.  

Should the property be a Sectional Title Scheme, owned by a Shareblock, or a Development with a Home Owners Association then the Body Corporate, Shareblock Company and Home Owners Association shall be responsible for the common areas.

In conclusion, we are of the view that when you take a listing you need to notify the Seller of this “new law” and encourage them to become familiar of what is on their property and what their obligations are.  We further suggest that a clause in the sale agreement is inserted to deal with this issue. 

Courtesy: da Costa Inc.

Should you require any assistance therewith then please feel free to contact us

Annabelle J. da Costa (LLB) 

DIRECTOR

Tel: 031 502 6902

Fax: 086 594 9819

Cell: 082 941 6447

[email protected]