Alien and Invasive Regulations - II

The following questions were received and have been partly answered (some clarity is still needed following comments from readers) about the application of the National Environmental Biodiversity Act (Nemba) following the publication of Alien and invasive regulations in June.

Question 1:

What authority is there to the effect that at the moment that 1. Sales cannot be prevented without the declarations; 2. Sellers are not required to remove any AIS; and is it known as to when the provisions of the Act will be fully enforced in these two regards?

1. At present, no provision in the legislation has been made for the Declaration of Alien Invasive Species to be submitted to the Deeds Office with the other OTP documents, such as electrical COC and Insect Certificate. [see comments below regarding their eventual filing]  But once this is a specific, legal requirement, sales of property will be prevented from taking place until the Declaration of AIS is filed with the OTP docs.

Once sellers and buyers, with the full cooperation of estate agents and conveyancers, become educated about the Act and Regulations, they will be able to prevent sales from happening until the provisions of the Act are adhered to 100%. Buyers could potentially sue sellers and estate agents, if they are not notified by sellers of the presence of alien invasive species, as they are liability, and are clearly defined as such in the Act and Regulations.

2. Everyone who is made aware of AIS is required by law to control and eradicate them if they are Category 1a or 1b, and obtain permits for Category 2 species. Anyone who is not sure whether they have AIS present on their properties, should engage the services of a suitably qualified and certified/registered agent to conduct a survey of the property.

The Regulations (Chapter 2) state: Category 1a Listed Invasive Species are those species listed as such by notice in terms of section 70(1)(a) of the Act as species which must be combated or eradicated. Category 1b Listed Invasive Species are those species listed as such by notice in terms of section 70(1)(a) of the Act as species which must be controlled.

"Category 2 Listed Invasive Species are those species listed by notice in terms of section 70(1)(a) of the Act as species which require a permit to carry out a restricted activity within an area specified in the Notice or an area specified in the permit, as the case may be.

However, Chapter 7 of the Regulations states:

Sale or transfer of alien and listed invasive species: 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. This section of the regulations which deals with the sale of immovable property only states that they are notifiable to the purchaser. But once made aware of the relevant species, a landowner is still held liable to control and eradicate AIS, and/or to obtain permits as the case may be, due to the other provisions in the Act/Regulations, as mentioned in the previous paragraph.

Question 2:

Under “Notes-Editor” reference is made to a registered agent which can conduct a survey, where can we obtain the contact details of these registered agents? Would the registered agent be a person appointed by DEA?

The database of registered agents for each province will be available on the website very soon, according to sources at the DEA Biosecurity Unit.

The DEA, through the auspices of SAGIC (South African Green Industries Council) has and is presently conducting certified training in the identification of AIS and IAP. Anyone who attends this training can potentially be listed in the database of Registered Agents, once it is published.

Reader Comments:

jacques 07/08/2015:

There is at present no requirement from the Deeds Office to submit electrical certificates on lodgement of transfers.The answer to Question 1 creates the impression that,that is the case. This incorrect.

Allen West 07/08/2015:

The compliance certificates are not lodged at the Deeds Registry. All compliance certificates are obtained by the transferring conveyance and kept on file.

stefan le roux 07/08/2015:

The stipulations regarding the submission of documents such as compliance certificates are incorrect. The Deeds Office does not require these documents and these are never submitted.

Anne Greening 07/08/2015:

In a Sectional Titles Scheme, each owner jointly owns the common property in undivided shares. Thus, whenever one section is being sold, the owner will have to produce a declaration covering the whole complex. As plants have a habit of popping up overnight, this means that a declaration will have limited validity. It seems to me that a complete inspection of the complex will be required every time a section is sold (unless more than one sale is processed in one day). If this is correct, it implementation of this Regulation will put a burden on the seller - especially in a large complex.

Allen West 07/08/2015:

Anne, I would think that in Sectional Title Schemes this responsibility will rest with the Body Corporate. In the same vein, an Electrical Fence Certificate will also have to be obtained and this will have to be the duty of the Body Corporate.

Anne Greening 09/08/2015:

Thanks Allen. However, I wouldn't imagine that the cost of selling a section would be a legitimate charge on the BC's levy fund. I would see it as a cost to the section owner.

K Geyser 12/08/2015:

AIS won't work! I sent the Local Municipality an e-mail to told them there were AIS on their property (the pavement). They duly sent some of their workers who removed the indigenous plants and left the AIS. Just for the record neither an electricity certificate nor an Insect certificate is lodged with the Deeds Office. The financial institutions usually require it. Just asking?

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