South Africa - Infrastructure Development Bill

There is an old adage that says “justice delayed is justice denied”.  Can the same be said of infrastructure development; is infrastructure delayed infrastructure denied?

Image: Patrick Forbes

In South Africa the government has identified infrastructure development as a priority to realise the growth South Africa so desperately needs and to create jobs.

Part of this growth strategy is the Infrastructure Development Bill.  One of the Bill’s objectives is the identification and implementation of strategic integrated projects (SIP).  These are projects of significant economic or social importance to South Africa and the Bill, in essence, seeks to facilitate a process in which projects that have been identified as a SIP are then fast tracked to completion through a number of measures which include the appointment of Ministers to chair the relevant projects, the appointment of steering committees with the relevant expertise, technical support and the alignment and dedication of capabilities and resources.

Numerous challenges have been raised to certain provisions of the Bill, one of which is that concepts such as integrated environmental management and sustainable development, which have both seen considerable development in our law over the past 10 - 15 years in terms of the National Environmental Management Act (NEMA), the Regulations thereunder, and our courts, cannot now be overlooked in the name of rushing development of an SIP through the approval process.   

Section 18 of the Bill specifically states that should a listed activity, for which an environmental authorisation is needed, be part of a SIP, an application must be made for the necessary environmental authorisation.  At first blush this may seem to provide for the necessary integrated environmental management and sustainable development approach, but the Bill then provides strict timelines for the approval process to take place, which cannot be exceeded, although the timelines are not in accordance with those set out in NEMA.  In circumstances where the timelines would seem to be woefully inadequate given the scale of projects constituting a SIP, any decision taken must ensure that it is not only reasonable and based on the principles set out in NEMA, but is one that does not fall to be challenged. 

Infrastructure development is a key part of South Africa’s growth strategy, and the government must be lauded for identifying this as a growth opportunity, but in order that the desired growth is sustainable we cannot afford to fast-track projects that are considered strategically important economically or socially, without ensuring that the principles and procedures enshrined in NEMA are adhered to.  There is another old adage that says: Order marches with weighty and measured strides. Disorder is always in a hurry.

This article has been written by Patrick Forbes a Professional Assistant in the Litigation Department at Garlicke & Bousfield Inc.

Courtesy: Garlicke and Bousefield

For more information contact Patrick on 031 570 5421 email: [email protected]

NOTE: This information should not be regarded as legal advice and is merely provided for information purposes on various aspects of environmental law.

Distributed by: Shirley Williams Communications

Shirley Williams: 031 564 7700 or 083 303 1663

Gillian Findlay: 082 330 1477