National Environmental Management: Protected Areas Amendment Act 2004 (No. 31 of 2004)

Government Gazette REPUBLIC OF SOUTH AFRICA Vol. 476 Cape Town 11 February 2005 No. 27274 THE PRESIDENCY No. 131 11 February 2005 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 31 of 2004: National Environmental Management: Protected Areas Amendment Act, 2004. AIDS HELPLINE: 0800-123-22 Prevention is the cure 2 No. 21214 GOVERNMENT GAZETTE, FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT. 2004 GENERAL EXPLANATORY NOTE: Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments. (English text signed by the President.) (Assented to 7 February 2005.) ACT To amend the National Environmental Management: Protected Areas Act, 2003, to provide for the application of that Act in relation to national parks and marine protected areas; and to provide for matters connected therewith. E. .IT by the Parliament of the Republic of South Africa, as B Amendment of section 1 of Act 57 of 2003 1. Section 1 of the National Environmental Management: Protected Areas Act, 2003 (a) by the insertion, after the definition of “biological resource”, of the following ‘Board’ means the Board of South African National Parks referred to in section 57; ‘Chief Executive Officer’ means the Chief Executive Officer of South African National Parks appointed in terms of section 72;”; (b) by the insertion, after the definition of “management authority”, of the ‘marine protected area’ means an area declared as a marine protected area in terms of section 43 of the Marine Living Resources Act, 1998 (Act No. 18 of 1998);”; (c) by the insertion, after the definition of “national environmental management (hereinafter referred to as the principal Act), is hereby amended definitions: following definition: principles”, of the following definitions: ‘national park’ means (a) an area which was a park in terms of the National Parks Act, 1976 (Act No. 57 of immediately before the repeal of that Act by section 90( 1) of this Act, and includes a park established in terms of an agreement between a local community and the Minister which has been ratified by Parliament; or 5 10 15 [ , .. ;.J~N~<;1'ED follows: " 11 1976), 4 No. 21214 GOVERNMENT GAZETTE. 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT, 2004 (b) an area declared or regarded as having been declared in terms of and includes an area declared in terms of section 20 as part of an area referred to in paragraph (a) or (b) above; ‘National Parks Land Acquisition Fund’ means the fund established by section 12A of the National Parks Act, 1976 (Act No. 57 of 1976);”; (d) by the insertion in the definition of “national protected area”, after paragraph section 20 as a national park, (a), of the following paragraph: a national park; or”; ( e ) by the substitution for the definition of “protected environment” of the following definition: ‘protected environment’ means (a) an area declared, or regarded as having been declared, in terms of section 28 as a protected environment; [or] (b) an area which before or after the commencement of this Act was or is declared or designated in terms of provincial legislation for a purpose for which that area could in terms of section be declared as a protected an area which was a lake area in terms of the Lake Areas Development Act, 1975 (Act No. 39 of immediately before the repeal of that Act by section 90( 1) of this Act, and includes an area declared in terms of section as of an area referred to in paragraph (a) [or], above;”; and by the insertion, after the definition of “subordinate legislation”, of the following definition: ‘the Fund’ means the National Parks Land Acquisition Fund;”. Amendment of section 2 of Act 57 of 2003 2. Section 2 of the principal Act is hereby amended (a) by the deletion of “and” at the end of paragraph ( e ) and the addition of “and” (b) by the addition of the following paragraph: at the end of paragraph and to provide for the continued existence of South African National Parks.” Amendment of section 9 of Act 57 of 2003 3. Section 9 of the principal Act is hereby amended (a) by the substitution for paragraph (a) of the following paragraph: “ (a) special nature reserves, national parks, nature reserves (including areas) and protected environments;”; and by the insertion of the following paragraph after paragraph (b): marine protected areas;”. Insertion of section 14 in Act 57 of 2003 4. The following section is hereby inserted in the principal Act after section 13: “Marine protected areas 14. Chapter this Chapter and section 48 apply to marine protected areas. (2) The other provisions of this Act do not apply to marine protected areas, but if a marine protected area has been included in a special nature reserve, national park or nature reserve, such area must be managed and regulated as part of the special nature reserve, national park or nature reserve in terms of this Act.”. 5 10 15 20 25 30 35 40 50 "(b) C (f) wilderness (b) C (1) (j); 1, environment· or i = (b) or (c) 28(2) 1975), 28(1) part 6 No. 27274 GOVERNMENT GAZETTE, FEBRUARY 2005 Act No. 31,2004 NATIONAL MANAGEMENT PROTECTED AREAS AMENDMENT ACT, 2004 Amendment of section 15 of Act 57 of 2003 5. Section 15 of the principal Act is hereby amended by the substitution for subsection “(2) The other provisions of this Act do not apply to specially protected forest areas, forest nature reserves or forest wilderness areas, but if any such area has been declared as or included in a special nature reserve, national park or nature reserve, such area must be managed as or as part of the, special nature reserve, national park or nature reserve in terms of this Act in accordance with an agreement concluded between the Minister and the Cabinet member responsible for forestry.”. (2) of the following subsection: Insertion of Part 2 in Chapter 3 of Act 57 of 2003 6. The following Part is hereby inserted in Chapter 3 of the principal Act after section 19: “Part 2 National parks Declaration of national parks 20. (1) The Minister may by notice in the Gazette (a) declare an area specified in the (i) as a national park; or (ii) as part of an existing national park; and (b) assign a name to the national park. (a ) protect (2) A declaration under subsection (1) (a ) may only be issued (i) the area if the area is of national or international biodiversity importance or is or contains a viable, representative sample of South Africa’s natural systems, scenic areas or cultural heritage sites; or (ii) the ecological integrity of one or more ecosystems in the area; (b) prevent exploitation or occupation inconsistent with the protection of (c) provide spiritual, scientific, educational, recreational and tourism contribute to economic development, where feasible. (3) A notice under subsection may bc issued in respect of land if the owner has consented to the declaration by way of a written agreement with the Minister or South African National Parks. (4) The Minister must notify the relevant MEC of any declaration of an area in terms of subsection (1). (5) An area which was a national park when this section took effect must for purposes of this section be regarded as having been declared as such in terms of this section. the ecological integrity of the area; opportunities which are environmentally compatible; and 5 10 15 20 25 30 35 40 11 ENVIRONMENTAL notice to (d) (l)(a) 8 No. 27274 GOVERNMENT GAZETTE, FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED AREAS AMENDMENT ACT. 2004 Withdrawal of declaration or exclusion of part of national park 21. A declaration under section 20 may only be (a ) by resolution of the National Assembly; or (b) in terms of subsection (2) . (2) If the Minister or South African National Parks, as the case may be, or the other party to an agreement referred to in section withdraws from the agreement, the Minister must withdraw the declaration in terms of which the land in question was declared a national park or part of an existing national park. Designation of national park as wilderness area 10 22. The Minister may by notice in the Gazette designate any national (2 ) A designation under subsection may only be park, or part thereof, as a wilderness area. (a ) to protect and maintain the natural character of the environment, biodiversity, associated natural and cultural resources and the provi sion of environmental goods and services; to provide outstanding opportunities for solitude; to control access which, if allowed, may only be by non-mechanised (3) Before designating a national park as a wilderness area, the Minister means. must consult the management authority of the park.”. Amendment of section 23 of Act 57 of 2003 7. Section 23 of the principal Act is hereby amended ( a ) by the insertion in subsection (2 ) of the following paragraph: by the substitution for subsection (4) of the following subsection: “(a) to supplement the system of national parks in South Africa;”; and “(4) No area which is or forms part of a special nature reserve national park may be declared as a nature reserve or as part of an existing nature reserve.”. 15 20 25 Amendment of section 28 of Act 57 of 2003 30 8. Section 28 of the principal Act is hereby amended ( a ) by the substitution for paragraph (a) of subsection ( 2 ) of the following “(a) to regulate the area as a buffer zone for the protection of a special paragraph: nature reserve, national park, world heritage site or nature 35 reserve;”; (b) by the substitution for paragraph (d) of subsection (2) of the following “(d) to protect a specific ecosystem outside of a special nature reserve, (c) by the substitution for paragraph of subsection (2 ) of the following to control change in land use in the area if the area is earmarked for declaration as, or inclusion in, a national park or nature reserve.”; “(4) area which is or forms part of a special nature reserve, national park or nature reserve may be declared as a protected environment or as part of an existing protected environment.”; and paragraph: national park, world heritage site or nature reserve;”; 40 paragraph: (d) by the substitution for subsection (4) of the following subsection: 45 (b) (b) (c) (1) (l) "(f) (f) No 11 withdrawn 20(3), (1) issued or No. 27274 GOVERNMENT GAZETTE, 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT, 2004 (e) by the substitution for subsection (6) of the following subsection: “(6) An area ceases to be a protected environment if that area is declared as, or included into, a national park or nature reserve or part thereof.”. Amendment of section 31 of 57 of 2003 9. Section 3 1 of the principal Act is hereby amended by the substitution for the words “Subject to section 34, before issuing a notice under section 19, 22( 23( 1), 24( 26( 28( 1) or 29, the Minister may follow such consultative process as may be appropriate in the circumstances, but must-”. preceding paragraph (a) of the following words: Amendment of section 34 of Act 57 of 2003 10. Section 34 of the principal Act is hereby amended by the substitution in subsection “If it is proposed to declare an area under section 18( 1) or 20( 1) as a special nature reserve or a national park, or as part thereof, and that area consists of or includes-”. (1) for the words preceding paragraph (a) of the following words: Amendment of section 35 of Act 57 of 2003 11. Section 35 of the principal Act is hereby amended (a) by the substitution for subsection (1) of the following subsection: “(1) The declaration of private land as a special nature reserve, national park, nature reserve or protected environment, or as part thereof, may be initiated either by the Minister or the MEC or the owners of that land acting individually or collectively.”; and (b) by the substitution for paragraph (a) of subsection (3) of the following “ (a) The terms of any written agreement entered into between the Minister, South African National Parks or MEC and the owner of private land in terms of section or are binding on the successors in title of such owner.”. paragraph: Amendment of section 36 of Act 57 of 2003 12. Section 36 of the principal Act is hereby amended by the substitution for “( 1) The Minister or the MEC, as the case may be, must in writing notify the Registrar of Deeds whenever an area is declared as a special nature reserve, national park, nature reserve or protected environment, or as part thereof, or whenever a declaration in respect thereof is withdrawn or altered.”. subsection (1) of the following subsection: Substitution of section 37 of Act 57 of 2003 13. The following section is hereby substituted for section 37 of the principal Act: “Application of Chapter 37. Except where expressly stated otherwise in this Chapter, this Chapter only applies to a protected area which is a special nature reserve, national park, nature reserve or protected environment, and the expressions ‘protected area’, ‘national protected area’, ‘provincial protected area’, ‘local protected area’ and ‘protected environment’ must be construed accordingly in this Chapter.”. 5 10 15 20 25 30 35 40 45 10 Act 18(1), 20(1), 11 1), 1), an 18(3), 20(3)- 23(3) 12 No. 21214 GOVERNMENT GAZETTE. 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT. 2004 Amendment of section 38 of Act 57 of 2003 14. Section 38 of the principal Act is hereby amended (a) by the deletion of “and” at the end of paragraph (a) of subsection (1); and (b ) by the insertion after paragraph of subsection (1) of the following must assign the management of a national park to South African National Parks or another suitable person, organisation or organ of state; and”. paragraph: Amendment of section 42 of Act 57 of 2003 15. Section 42 of the principal Act is amended by the substitution for Where the Minister or MEC in terms of subsection (4) cancels a co-management agreement forming a material term of an agreement contemplated in section or the withdrawal of the declaration of the protected area or exclusion contemplated in section or 29, respectively, [apply] applies.”. subsection ( 5 ) of the following subsection: Substitution of section 46 of Act 57 of 2003 16. The following section is hereby substituted for section 46 of the principal Act: “Access to national park, nature reserve and world heritage site 46. (1) Despite any other legislation, no person may without the written permission of the management authority of a national park, nature reserve or world heritage site enter or reside in the park, reserve or site. (a) an official of the Department or of another organ of state designated by the Minister or, in the case of a provincial or local nature reserve, a person designated by the MEC, to monitor (i) the state of conservation of the park, reserve or site or of the (ii) the implementation of the management plan and this Act; (2) Subsection (1) does not apply biodiversity in the park, reserve or site; or (b) an official of the management authority [to perform] performing any police, customs or excise officer entering the park, reserve or site the holder of a vested right to enter the park, reserve or site; or (e) a person travelling through the park, reserve or site by rail, as long as that person stays on the train or within the precincts of any railway station. (3) If the management authority of a national park, nature reserve or world heritage site refuses permission to an official of an organ of state to enter the park, reserve or site for the performance of official duties, the Minister (a ) reconsider the matter; and either confirm the refusal or grant the permission.”. official duties in the park, reserve or site; in the performance of official duties; Amendment of section 47 of 57 of 2003 17. Section 47 of the principal Act is hereby amended (a ) by the substitution for the heading to that section of the following heading: “Use of aircraft in special nature reserve, national park or world heritage site”; and 10 15 20 25 30 40 45 "(5) "aA 20(3), 23(3) 28(3), (c) (d) (b) may Act (a) 5 hereby 21(2), 24(2) to 35 No. 21274 GOVERNMENT GAZETTE. FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT. 2004 by the substitution for subsections (2) and (3) of the following “(1) A special nature reserve, national park or world heritage site includes the air space above the reserve- or site to a level of 2 500 feet above the highest point of the r e s e r v e d or site. (2) No person may land or take off in an aircraft in a special nature reserve, national park or world heritage site, except (a) on or from a landing field designated by the management authority of that special nature reserve, national park or world heritage site; and (b) with the permission of, and on conditions determined by, the management authority. (3) No person may fly over a special nature reserve, national park or world heritage site at [an altitude] a level of less than 2 500 feet its highest point, except as may be necessary for the purpose of subsection subsections, respectively: Amendment of section 48 of Act 57 of 2003 18. Section 48 of the principal Act is hereby amended ( a ) by the substitution for paragraph ( a ) of subsection of the following paragraph: “(a) in a special nature reserve, national park or nature reserve;”; and by the substitution for paragraph (c) of subsection (1) of the, following “(c) in a protected area referred to in section or paragraph: Amendment of section 50 of Act 57 of 2003 19. Section 50 of the principal Act is hereby amended ( a ) by the substitution for the heading to that section of the following heading: “Commercial and community activities in national park, nature reserve and world heritage site”; (b) by the substitution for subsections (2) and (3) of the following “( 1) The management authority of a national park, nature reserve and world heritage site may, despite any regulation or by-law referred to in section 49, but subject to the management plan of the park, reserve or (a ) carry out or subsections: (i) a commercial activity in the park, reserve or site; or (ii) an activity in the park, reserve or site aimed at raising revenue; (b) enter into a written agreement with a local community inside or adjacent to the park, reserve or site to allow members of the community to use in a sustainable manner biological resources in the park, reserve or site; and (c) set norms and standards for any activity allowed in terms of paragraph (a ) or (b). (2) An activity allowed in terms of subsection or (b) may not negatively affect the survival of any species in or significantly disrupt the integrity of the ecological systems of the national park, nature reserve or world heritage site. (3) The management authority of the national park, nature reserve or world heritage site must establish systems to monitor (a) the impact of activities allowed in terms of subsection or on the park, reserve or site and its biodiversity; and 5 20 25 30 35 40 45 50 14 11 (bJ (1), above 15 (2).". (1) (b) 9(b)J!J. (d).". (1), site allow (l)(a) (l)(a) (b) 16 No. 21214 GOVERNMENT GAZETTE, FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT, 2004 (b) compliance with (i) any agreement entered into in terms of subsection and (ii) any norms and standards set in terms of subsection and by the substitution for subsection (5) of the following subsection: 5 “(5) No development, construction or farming may be permitted in a national park, nature reserve or world heritage site without the prior written approval of the management authority.”. Amendment of section 52 of Act 57 of 2003 20. Section 52 of the principal Act is hereby amended by the substitution for 10 “(1) The management authority of a national park, nature reserve or world heritage site may, in accordance with prescribed norms and standards, make rules for the proper administration of the area.”. subsection (1) of the following subsection: Insertion of Chapter 5 in Act 57 of 2003 15 21. The following Chapter is hereby inserted in the principal Act after section 53: “CHAPTER 5 SOUTH AFRICAN NATIONAL PARKS Part 1 Continued existence and functions South African National Parks 20 Continued existence 54. (1) South African National Parks established by section 5 of the National Parks Act, 1976 (Act No. 57 of continues to exist as a juristic person despite the repeal of that Act by section 90 of this Act. National Parks functions in terms of this Act. Functions ( 2 ) As from the repeal of the National Parks Act, 1976, South African 25 55. (1) South African National Parks must (a) manage the national parks and other protected areas assigned to it in terms of Chapter 4 and section 92 in accordance with this Act; (b) protect, conserve and control those national parks and other protected areas, including their biological diversity; and (c) on the Minister’s request, advise the Minister on any matter (i) the conservation and management of biodiversity; and (ii) proposed national parks and additions to or exclusions from on the Minister’s request, act as the provisional managing authority of (2) South African National Parks may in managing national (a) manage breeding and cultivation programmes, and reserve areas in a existing national parks; and protected areas under investigation in terms of this Act. park as breeding places and nurseries; 30 35 40 (c) of concerning (d) 11 1976, (l)(b); (l)(c)."; parks 18 No. 27274 GOVERNMENT GAZETTE, 11 FEBRUARY 2005 Act No. 31.2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT, 2004 sell, exchange or donate any animal, plant or other organism occurring in a park, or purchase, exchange or otherwise acquire any indigenous species which it may consider desirable to re-introduce into a specific undertake and promote research; control, remove or eradicate any species or specimens of species which it considers undesirable to protect and conserve in a park or that may negatively impact on the biodiversity of the park; carry out any development and construct or erect any works necessary for the management of a park, including roads, bridges, buildings, dams, fences, breakwaters, seawalls, boathouses, landing stages, mooring places, swimming pools, oceanariums and underwater tunnels; allow visitors to a park; take reasonable steps to ensure the security and well-being of visitors and staff provide accommodation and facilities for visitors and staff, including the provision of food and household supplies; carry on any business or trade or provide other services for the convenience of visitors and staff, including the sale of liquor; determine and collect fees for (i) entry to or stay in a park; or (ii) any service provided by it; authorise any person, subject to such conditions and the payment of such fees as it may determine, t o on any business or trade, or provide any service, which South African National Parks may carry on or provide in terms of this section; and (ii) provide the infrastructure for such business, trade or service; (i) a municipality, provide any service in a park which that municipality may or must provide in terms of legislation; or (ii) any other organ of state, perform a function in a park which that organ of state may or must perform in terms of legislation; or by agreement (m) perform such other functions as may be prescribed. ( 3 ) Subsection ( 2 ) applies also to other protected areas managed by South African National Parks, and the powers contained in that subsection may be exercised by it to the extent that those powers are consistent with the purpose for which any such area was declared as a protected area. General powers 5 15 20 25 30 35 40 56. South African National Parks may for the purpose of performing its ( a ) appoint its own staff, subject to section 73; (b) obtain, by agreement, the services of any person, including any organ 45 of state, for the performance of any specific act, task or assignment; (c) acquire or dispose of any right in or to movable or immovable property, or hire or let any property; open and operate its own bank accounts; ( e ) invest, subject to section 76, any of its money, including money in the 50 borrow money, subject to section 66 of the Public Finance Manage charge fees for any work performed or services rendered by it or ( h ) insure itself fund referred to in section 77; ment Act; collect fees resulting from any intellectual property rights; 55 any loss, damage or risk; or (b) ( c) (d) (e) (j) (g) (h) (i) (j) (k) park; (i) carry functions (d) (j) (g) (i) with against 20 No. 27274 GOVERNMENT GAZETTE, 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT. 2004 (ii) any liability it may incur in respect of Board members or staff (i) perform legal acts, including acts in association with or on behalf of institute or defend any legal action. members in the application of this Act; any other person or organ of state; and Part 2 Governing board, composition and membership Composition 57. (1) South African National Parks is governed by a board consisting ( a ) no fewer than nine and no more than 12 members appointed in terms of section 59; (b) the Director-General or an official of the Department designated by the Director-General; and (c ) the Chief Executive Officer. ( a ) must determine the number of members to be appointed in terms of subsection and (b) may alter from time to time the number determined in terms of paragraph (a), but a reduction in the number may be effected only when a vacancy in the Board occurs. (3) The Board takes all decisions in the performance of the functions of South African National Parks, ( a ) those decisions taken in consequence of a delegation in terms of (b) where the Public Finance Management Act provides otherwise. (2) The Minister section 7 1 or Qualifications 58. (1) A member of the Board must ( a ) be a fit and proper person to hold office as a member; and (b) have appropriate qualifications or experience. ( 2 ) A person is disqualified from becoming or remaining a member of the Board if that person (a ) is holding office as a member of Parliament or a provincial legislature; (b) has been removed from office in terms of section 65. Appointment procedure or 59. (1) Whenever it is necessary to appoint a member of the Board, the Minister must ( a ) through advertisements in the media circulating nationally and in each (b) compile a list of the names of persons nominated, setting out the (2) Any nomination made pursuant to an advertisement in terms of of the provinces, invite nominations; and prescribed particulars of each individual nominee. subsection must be supported (a ) the personal details of the nominee; (b) particulars of the nominee’s qualifications or experience; and (c) any other information that may be prescribed. (3) The Minister must make the required number of appointments from the list referred to in subsection but if the list is inadequate, the Minister may appoint any suitable person. (4) When making an appointment the Minister must have regard to the need for appointing persons disadvantaged by unfair discrimination. ( 5 ) Appointments must be made in such a way that the Board is composed of persons covering a broad range of appropriate expertise. 5 30 35 40 45 50 of (l)(a); except (1)( a) by (l)(b), 22 No. 27274 GOVERNMENT GAZETTE, FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT. 2004 Chairperson 60. (1) The Minister must appoint a member of the Board as the Chairperson. (2) The Chairperson is appointed for such period as the Minister may determine which may, in the case of a member referred to in section 57( not extend beyond his or her term as a member. (3) The Minister may appoint a member of the Board as acting chairperson of the Board (a ) the Chairperson is absent for a substantial period; or (b) the appointment of a Chairperson is pending. Term of office 61. (1) Members of the Board referred to in section 57( (a) appointed for a term of three years or, if section applies, for a term determined in terms of that section; on completion of any term contemplated in paragraph (a), eligible for reappointment for one additional term of three years; and (c) after a break of at least three years after a term has ended, eligible for appointment in terms of paragraph (a ) again and, if appointed, eligible for reappointment in terms of paragraph (b). (2) Any appointment in terms of subsection (1) may be extended by the Minister for a specific period not exceeding one year. Conditions of appointment 62. (1) The Minister must determine the conditions of appointment of members of the Board referred to in section (2) (a) The conditions of appointment of members who are not in the employ of a national, provincial or local organ of state may provide for the payment of remuneration and allowances determined by the Minister with the concurrence of the Cabinet member responsible for finance. (b) Such remuneration and allowances are payable by South African National Parks. (3) Members who are in the employ of a national, provincial or local organ of state are not entitled to remuneration and allowances, but must be compensated for out of pocket expenses by South African National Parks. (4) Members are appointed part-time. 5 10 15 20 Conduct of members 35 63. (1) A member of the Board (a) must perform the functions of office in good faith and without favour or prejudice; (b) must disclose to the Board any personal or private business interest that that member, or any spouse, partner or close family member of 40 that member, may have in any matter before the Board, and must withdraw from the proceedings of the Board when that matter is considered, unless the Board decides that the interest of that Board member in the matter is trivial or irrelevant; may not use the position, privileges or knowledge of a member for 45 private gain or to improperly benefit another person; and may not act in any other way that compromises the credibility, impartiality, independence or integrity of South African National Parks. (2) A member of the Board who contravenes or fails to comply with 50 subsection (1) is guilty of misconduct. 11 1 )( a), if ------------------,;;~l)~(a!l.)~ar~e=- (b) 66(2) (c) (d) 57(l)(a). 24 No. 27274 GOVERNMENT GAZETTE, 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT. 2004 Termination of membership 64. (1) A person referred to in section 57( ceases to be a member of the Board when that person (a) is no longer in terms of section 58 to be a member; (b) resigns; or ( c ) is removed from office in terms of section 65. (2) A member may resign by giving at least three months’ written notice to the Minister, but the Minister may accept a shorter period in a specific case. 5 Removal from office 10 65. (1) The Minister may remove a member of the Board referred to in section from office on the ground (a) misconduct, incapacity or incompetence; (b) absence from three consecutive meetings of the Board without the insolvency; or conviction of a criminal offence without the option of a fine. (2) A member of the Board may be removed from office on the ground of misconduct or incompetence only after a finding to that effect has been made by a board of inquiry appointed by the Minister. 20 (3) The Minister may suspend a member under investigation in terms of prior permission of the Board, except on good cause shown; 15 this section. Filling of vacancies 66. (1) A vacancy in the Board is ( a ) in the case of a vacating Chairperson, by appointing another member in the case of a vacating member referred to in section by (2) A person appointed to fill a vacancy holds office for the unexpired in terms of section as the Chairperson; and following the procedure set out in section 59. portion of the term of the vacating Chairperson or member. Part 3 Operating procedures Board Meetings 67. (1) The Chairperson of the Board decides when and where the Board meets, but a majority of the members may request the Chairperson in writing to convene a meeting at a time and place-set out in the request. (2) The Chairperson presides at meetings of the Board, but if absent from a meeting, the members present must elect another member to preside at the meeting. Procedures 68. (1) The Board may determine its own procedures subject to the other (2) The Board must keep a record of its proceedings and of decisions provisions of this Act. taken. 25 30 35 40 (c) (d) (b) 51(I)(a) eligible 60(1) I)(a) 0 filled 57(1)(a). I of 26 No. 27274 GOVERNMENT GAZETTE, 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED AREAS AMENDMENT ACT, 2004 Quorum and decisions 69. (1) A majority of the serving members of the Board constitutes a quorum for a meeting of the Board. (2) A matter before the Board is decided by the votes of a majority of the members present at the meeting. (3) If on any matter before the Board there is an equality of votes, the member presiding at the meeting must exercise a casting vote in addition to that person’s vote as a member. Committees 70. (1) The Board may establish one or more committees to assist it in the performance of its functions. (2) When appointing members to a committee, the Board is not restricted (3) The Board to members of the Board. (a ) must determine the functions of a committee; must appoint the chairperson and other members of the committee; (c) may remove a member of a committee from office at any time; and (d) may determine a committee’s procedure. (4) The Board may dissolve a committee at any time. ( 5 ) (a) Section 62 applies with the changes required by the context to the conditions of appointment of committee members. A staff member of South African National Parks appointed to a committee serves on the committee subject to the terms and conditions of that person’s employment. Delegation of powers and assignment of duties 71. When necessary for the proper performance of its functions the Board may delegate any of its powers or assign any of its duties, excluding those mentioned in subsection ( a ) a Board member; (b) a committee referred to in section 70; or (c) a member of South African National Parks. (2) The following powers and duties may not be delegated or assigned by the Board: (a) The appointment or reappointment of a person as the Chief Executive (b) the determination of the conditions of service of the Chief Executive the determination of an employment policy in terms of section 73( the setting of financial limits in terms of section or (3); and ( e ) the approval of the budget. (a ) must be in writing; (b) is subject to such limitations, conditions and directions as the Board may impose; (c) does not divest the Board of the responsibility concerning the exercise of the delegated power or the performance of the assigned duty; and does not prevent the exercise of the assigned power or the performance of the assigned duty by the Board. (4) The Board may confirm, vary or revoke any decision taken in consequence of a delegation or assignment in terms of this section, subject to any rights that may have accrued to a person as a result of the decision. Officer in terms of section 72( 1) or (2); Officer in terms of section (3) A delegation or assignment in terms of subsection 10 15 20 25 30 35 40 45 50 (b) (b) (c) (d) (d) (1) staff (2), to 72(3); 13(2)(a) (I) 5 1); 28 No. 27274 GOVERNMENT GAZETTE, 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED AREAS AMENDMENT ACT. 2004 Part 4 Administration South African National Parks Appointment of Chief Executive Officer Executive Officer of South African National Parks. (a ) is appointed for a term not exceeding five years; and (b) may be reappointed by the Board with the concurrence of the Minister. (3) The Chief Executive Officer is employed subject to such terms and conditions of employment as the Board may determine in accordance with a policy approved by the Minister with the concurrence of the Cabinet member responsible for finance. (a) is responsible for the management of South African National Parks; (b) must perform such duties and may exercise such powers as the Board may assign or delegate to the Chief Executive Officer; and (c) must report to the Board on aspects of management, the performance of duties and the exercise of powers at such frequency and in such manner as the Board may determine. ( 5 ) (a ) Whenever the Chief Executive Officer is for any reason absent or unable to perform his or her functions, or whenever there is a vacancy in the office of the Chief Executive Officer, the Chairperson of the Board may appoint another staff member of South African National Parks as acting Chief Executive Officer for a period not exceeding six months. (i) has the powers and duties of the Chief Executive Officer; and (ii) is employed subject to such terms and conditions of employment as the Chairperson of the Board may determine in accordance with the policy referred to in subsection (3). (2) The Chief Executive Officer (4) The Chief Executive Officer Whilst acting as Chief Executive Officer, such staff Employment of staff I 5 15 73. (1) The Board, acting with the concurrence of the Minister, must (2) The Chief Executive Officer determine an employment policy for South African National Parks. (a ) within the financial limits set by the Board, must determine a staff 35 establishment necessary to enable South African National Parks to perform its functions; and (b) may appoint persons in posts on the staff establishment. (3) An employee of South African National Parks is employed subject to the and conditions of employment determined by the Chief Executive 40 Officer in accordance with the employment policy of and within the financial limits set by the Board. (4) (a) A person in the service of another organ of state may be seconded to South African National Parks .by agreement between the Chief Executive Officer and such organ of state. 45 (b) Persons seconded to South African National Parks perform their functions under the supervision of the Chief Executive Officer. ( 5 ) A person in the service of South African National Parks may, with the consent of that person, be seconded to another organ of state by agreement between the Chief Executive Officer and such organ of state. 50 of 72. ( l) The Board, acting with the concurrence of the Minister, must appoint a person with appropriate qualifications and experience as the Chief (b) member terms 10 lO 25 30 30 No. 27274 GOVERNMENT GAZETTE. 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED AREAS AMENDMENT ACT. 2004 Part 5 Financial matters Financial accountability 74. South African National Parks is a public entity for the purposes of the Public Finance Management Act, and must to that end comply with the 5 provisions of that Act. Funding 75. The funds of South African National Parks consist ( a ) income derived from the performance of its functions; (b) money appropriated for its purposes by Parliament; (c) grants received from organs of state; (d) voluntary contributions, donations and bequests; ( e ) money borrowed in terms of section income derived from investments; fines received or recovered in respect of offences committed within (h) money derived from any other source, with the approval of the Cabinet national parks; and member responsible for finance. Investments 10 76. South African National Parks may invest any of its funds not 20 immediately ( a ) subject to any investment policy that may be prescribed in terms of (b) in accordance with any criteria set by the Minister. section of the Public Finance Management Act; and National Parks Land Acquisition Fund 77. The National Parks Land Acquisition Fund established by section 12A of the National Parks Act, 1976 (Act No. of continues to exist as a separate fund under the administration of South African National Parks despite the repeal of that Act by section 90 of this Act. (2) The Fund is administered by South African National Parks and consists (a) any voluntary contributions, donations and bequests received by South African National Parks for the purpose of the Fund; (b) money appropriated by Parliament for the purpose of the Fund; (c) the proceeds of land sold by South African National Parks which it has (d) income derived from investing any credit balances in the Fund; (e) money borrowed by South African National Parks in terms of section money derived from any other source for the purpose of the Fund. ( a ) to acquired in terms of section 8 1 for the purpose of the Fund; and (3) The money in the Fund may be (i) the acquisition of private land or a right in or to private land in (ii) the cancellation of a servitude or a right in land in terms of (b) to defray expenses incurred by South African National Parks in terms of section 80 or 81; or section 82 or 83; or connection with the management of the Fund. (4) The Chief Executive Officer must 25 30 35 40 45 (f) (g) required 74 of 56(!) (f) finance of 56(!); 15 57 1976), used 32 No. 21274 GOVERNMENT GAZETTE, 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED AREAS AMENDMENT ACT, 2004 (a) keep account of the Fund separately from the other money of South (b) comply with the Public Finance Management Act in administering the African National Parks; and Fund. Part 6 5 General Minister’s supervisory powers 78. The Minister (a) must monitor the performance by South African National Parks of its (b) may determine norms and standards for the performance by South (c) may issue directives to South African National Parks on measures to may determine limits on fees charged by South African National Parks ( e ) may identify land for new national parks and extensions to existing 15 (2) South African National Parks must perform its functions subject to functions; African National Parks of its functions; 10 achieve those norms and standards; in the performance of its functions; and national parks. the norms and standards, directives and determinations issued by the Minister in terms of subsection (1). 20 Absence of functional Board 79. In the absence of a functional Board, the functions of the Board revert to the Minister who, in such a case, must perform those functions until Board is functional again.”. Insertion of section 81 in Act 57 of 2003 22. The following section is hereby inserted in the principal Act after section 80: “Acquisition of private land by South African National Parks 81. (1) South African National Parks, with the approval of the Minister acting with the concurrence of the Cabinet member responsible for land affairs, may acquire private land, or any right in or to land, which has been or is proposed to be declared as or included in a national park (a) by purchasing the land or right; or if the land or right is donated or bequeathed to it, by accepting the (2) If the parties fail to agree on a purchase price for the land or right contemplated in subsection the Minister may on behalf of South African National Parks or the State expropriate the land or right in accordance with the Expropriation Act, 1975 (Act No. 63 of subject to section 25 of the Constitution.”. donation or bequest. 25 30 35 40 (1) (d) the private (b) (l)(a), 1975), 34 No. 21214 GOVERNMENT GAZETTE, 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED AREAS AMENDMENT ACT, 2004 Insertion of section 83 in Act 57 of 2003 23. The following section is hereby inserted in the principal Act after section 82: “Cancellation of servitude on, or privately held right in or to, land owned by South African National Parks 83. (1) South African National Parks may take any steps necessary to cancel a servitude on land owned by South African National Parks, or a privately held right in or to such land, which has been or is proposed to be declared as or included in a national park. (2) If South African National Parks fails to reach an agreement with the owner of the property in whose favour the servitude is registered or with the person holding the right, the Minister may on behalf of South African National Parks or the State expropriate the servitude or right in accordance with the Expropriation Act, 1975 (Act No. 63 of subject to section 25 of the Constitution.”. 5 10 Substitution of section 84 of Act 57 of 2003 15 24. The following section is hereby substituted for section 84 of the principal Act: “Mineral right 84. The Minister may in accordance with section [or], or and the MEC may in accordance with section or acquire or cancel a mineral right by way of expropriation only with the 20 concurrence of the Cabinet member responsible for mineral and energy affairs.”. Amendment of section 85 of Act 57 of 2003 25. Section 85 of the principal Act is hereby amended (a) by the addition to subsection (1) of the following paragraph: 25 by the addition of the following subsection: “(b) the Fund, by agreement with South African National Parks.”; and “(2) South African Parks may finance the acquisition of private land or a right in or to private land in terms of section 8 or the cancellation of a servitude on, or a privately held right in or to, land owned by South African National Parks in terms of section 83, from (a) the funds of South African National Parks; or the Fund, by agreement with the Minister.”. Insertion of section 91 in Act 57 of 2003 26. The following section is hereby inserted in the principal Act, after section 90: “Savings 91. (1) Anything done in terms of a law repealed by section 90 which can or must be done in terms of this Act must be regarded as having been done in terms of this Act. (2) A person who, immediately before the repeal of the National Parks Act, 1976 (Act No. 57 of was (a) a board member of South African National Parks becomes a member of the Board for the unexpired part of the term for which that person was appointed as a member of South African National Parks; or 30 35 40 1975}, 80(1 )( C) ~ 82(3) 83(2), 80(2) 82(3), (b) National 1, b 1976), 36 No. 21214 GOVERNMENT GAZETTE. I I FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED AREAS AMENDMENT ACT. 2004 (b) the Chairperson of South African National Parks becomes the Chairperson of the Board for the unexpired part of the term for which that person was appointed as the Chairperson of South African National Parks.”. Amendment of section 92 of Act 57 of 2003 5 27. Section 92 of the principal Act is hereby amended ( a ) by the insertion of the following subsection before subsection (2): “( 1) South African National ( a ) is the management authority for any protected area it managed immediately before this section took effect, unless otherwise assigned by the Minister in terms of this Act; and (b) must manage such area in accordance (i) this Act and any management plan in terms of Chapter 4 for the area; and (ii) any condition and agreement which existed immediately before this section took effect and which were applicable to the area.”; and by the substitution for subsection ( 2 ) of the following subsection: (2) The organ of state managing a protected area immediately before this section took effect, other than a protected area referred to in subsection must continue managing the area until the management of the area is assigned either to it or another management authority in terms of Chapter 4.”. 10 15 20 Substitution of Schedule to Act 57 of 2003 28. The following Schedule is hereby substituted for the Schedule to the principal 25 Act: Parks with (b) to 38 No. 27274 GOVERNMENT GAZETTE. 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED AREAS AMENDMENT ACT. 2004 No. and year of Act Act No. 39 of 1975 Act No. 57 of 1976 Act No. 60 of 1979 Act No. 9 of 1980 Act No. 13 of 1982 Act No. 23 of 1983 Act No. 43 of 1986 Act No. 11 1 of 1986 Act No. 60 of 1987 Act No. 73 of 1989 Act No. 23 of 1990 Act No. 52 of 1992 Act No. 91 of 1992 Act No. 38 of 1995 Act No. 70 of 1997 Act No. 106 of 1998 Act No. 54 of 2001 “SCHEDULE REPEAL OF LAWS (Section 90) Short title of Act Lake Areas Development Act, 1975 National Parks Act, 1976 National Parks Amendment Act, 1979 Lake Areas Development Amend ment Act, 1980 National Parks Amendment Act, 1982 National Parks Amendment Act, 1983 National Parks Amendment Act, 1986 National Parks Second Amend ment Act, 1986 National Parks Amendment Act, 1987 Environment Conservation Act, 1989 National Parks Amendment Act, 1990 National Parks Amendment Act, 1992 National Parks Second Amend ment Act, 1992 National Parks Amendment Act, 1995 National Parks Amendment Act, 1997 National Parks Amendment Act, 1998 National Parks Amendment Act, 200 1 Extent of repeal The repeal of the whole The repeal of the whole, except section 1) and Schedule 1 The repeal of the whole The repeal of the whole The repeal of the whole The repeal of the whole The repeal of the whole The repeal of the whole The repeal of the whole The repeal of sections 16, 17 and 18 The repeal of the whole The repeal of the whole The repeal of the whole The repeal of the whole The repeal of the whole The repeal of the whole The repeal of the whole”. 10 15 20 25 30 35 40 5 2( 40 No. 21214 GOVERNMENT GAZETTE. 11 FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED AREAS AMENDMENT ACT. 2004 Substitution of long title of Act 57 of 2003 29. The following long title is hereby substituted for the long title of the principal Act: “To provide for the protection and conservation of ecologically viable areas representative of South Africa’s biological diversity and its natural landscapes and seascapes; for the establishment of a national register of 5 all national, provincial and local protected areas; for the management of those areas in accordance with national norms and standards; for intergovernmental co-operation and public consultation in matters concerning protected areas; for the continued existence, governance and functions of South African National Parks; and for matters in connection 10 therewith.”. Amendment of Arrangement of Sections in Act of 2003 30. The Arrangement of Sections after the long title of the principal Act is hereby amended (a) by the insertion after “13. World heritage sites” of the following: 15 “14. Marine protected areas”; by the insertion after “19. Withdrawal of declaration or exclusion of part of special nature reserve” of the following: “Part 2 National parks 20 20. Declaration of national parks 21. Withdrawal of declaration or exclusion of part of national park 22. Designation of national park as wilderness area”; by the substitution for “46. Access to nature reserve and world heritage site” of the following: 25 “46. Access to national park, nature reserve and world heritage site”; by the substitution for “47. Use of aircraft in special nature reserve or world “47. Use of aircraft in special nature reserve, national park or world ( e ) by the substitution for “50. Commercial and community activities in nature “50. Commercial and community activities in national park, nature heritage site” of the following: heritage site”; 30 reserve and world heritage site” of the following: reserve and world heritage site”; by the insertion after “53. Certain rights and entitlements to be respected” of 35 the following: “CHAPTER 5 SOUTH AFRICAN NATIONAL PARKS Part Continued existence and functions of South African National Parks 40 54. Continued existence 55. Functions 56. General powers 57 (b) (c) (d) (f) 1 42 No. 21214 GOVERNMENT GAZETTE, FEBRUARY 2005 Act No. 31,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS AMENDMENT ACT. 2004 Part 2 Governing board, composition and membership 57. Composition 58. Qualifications 59. Appointment procedure 60. Chairperson 6 1. Term of office 62. Conditions of appointment 63. Conduct of members 64. Termination of membership 65. Removal from office 66. Filling of vacancies Part 3 Operating procedures of Board 67. Meetings 68. Procedures 69. Quorum and decisions 70. Committees 71. Delegation of powers and of duties Part 4 Administration South African National Parks 72. Appointment of Chief Executive Officer 73. Employment of staff Part 5 Financial matters 74. Financial accountability 75. Funding 76. Investments 77. National Parks Land Acquisition Fund Part 6 10 15 20 25 30 General 78. Minister’s supervisory powers 79. Absence of functional Board”; by the insertion after “80. Acquisition of private land by State” of the following: 35 “81. Acquisition of private land by South African National Parks”; and by the insertion after “82. Cancellation of servitude on, or privately held right in or to, state land” of the following: “83. Cancellation of servitude on, or privately held right in or to, land 40 owned by South African National Parks”; Short title and commencement 31. This Act is called the National Environmental Management: Protected Areas Amendment Act, 2004, and takes effect on a date determined by the President by proclamation in the Gazette. 45 II 5 assi1mment of (g) (h)