State dithers on aliens, court told

2014-04-26 00:00

JUDGMENT was reserved in an action brought in the Durban high court yesterday by the Kloof Conservancy to force the government to implement the Invasive Alien Species (IAS) legislation.

“Nemba (The National Environment: Biodiversity Act ) was produced in 2004 but it is absolutely useless without regulations,” chairperson of the Kloof Conservancy, Paolo Candotti told The Witness last week.

“These were supposed to be promulgated on August 31, 2006, but it has never been done.”

In July 2013, amendments to Nemba were promulgated and in February a list of 352 IAS, plus draft regulations to manage them, were made available for public comment prior to them being passed into law.

Yesterday, advocates for the conservancy and the state presented their heads of argument to Judge Rashid Vahed.

Advocate Michael Smithers SC, acting on behalf of the conservancy, said the minister of the Department of Environmental Affairs (DEA) was under a constitutional obligation to “diligently and without delay” implement legislation that had been passed by Parliament.

Smithers said the minister had been “dithering” ever since 2006 and “brazenly ignored” a “statutory injunction”.

“IAS can’t be left unregulated any longer.”

Even though matters appeared to be progressing since February, Smithers pointed out that there was still no finality as to when the legislation would be implemented and that there were questions as to the competency of the DEA to enforce it.

In conclusion, Smithers said constitutional rights had been “infringed” and that to find against the state was “reasonable, fair and necessary”.

Advocate Vinay Gajoo SC, for the state, said the DEA “intends to move forward as quickly as possible” to finalise regulations and that they had previously been “hamstrung” by difficulties identified in Nemba.

He said once the amendments had been published in 2013 the minister had “acted reasonably” and published the list of Invasive Alien Species and the management regulations six months later.

Vajoo said the minister did not sit back for eight years but “took steps” and that the state was doing a lot with regard to IAS via the Working for Water programme “in hard-pressed areas” as opposed to more privileged areas, such as Kloof.

In response, Smithers said the eight-year delay was unacceptable.

“In 2004, the minister was given two years and three months,” he said. “You can’t get around time limits.”

Judge Vahed reserved judgment and Vajoo was given until May 2 to indicate whether he wished to respond to supplementary heads of argument handed in yesterday by the applicant.

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