The New Appeal Regulations came into effect on the date of their publication, finalising a process that has been ongoing since August 2023 with the publication of the then ‘Draft’ National Appeal Regulations, 2023.

This alert focuses on changes introduced by the New Appeal Regulations that prospective appellants, and indeed applicants for environmental authorisations (EA), should be aware of.

Key changes under the New Appeal Regulations

The New Appeal Regulations, which replace the 2014 NEMA appeal regulations of the same name and repeal the 2016 appeal regulations published under the National Environmental Management: Integrated Coastal Management Act 24 of 2008, contain the procedures and requirements governing all internal appeals against a decision made in terms of NEMA or one of the specific environmental management acts. In practical terms, this means any appeals related to decisions such as to grant or refuse an EA under NEMA or a waste management licence under the National Environmental Management: Waste Act 59 of 2008.

Although the majority of the provisions under the New Appeal Regulations remain the same, several key changes have been made.

Regulation 4(1): Separation of appeals against duty of care directives under NEMA

Whereas all appeals were previously required to be submitted within 20 calendar days from the date that the notification of the decision was sent by the decision-maker or applicant, as the case may be, the New Appeal Regulations make an exception in respect of appeals against a duty of care directive issued in terms of section 43(8) of NEMA.

Appellants against duty of care directives may now submit their appeal within 30 calendar days of receipt of such a directive. The prescribed period of 20 calendar days remains in respect of all other appeals.

Applicant notification obligation

Where an appeal has been submitted, the new Regulation 4(4) introduces an obligation for the applicant (i.e. the person to whom the EA has been granted) to: (i) notify registered interested and affected parties (“Registered I&APs”) and provide a copy of the appeal to those I&APs within five days of the expiry of the 20-day prescribed appeal period under Regulation 4(1), and (ii) submit proof of that notification to the appeal administrator within five calendar days of the last notification.

This new notification obligation should serve to circumvent the problem regularly faced by appellants (who are not the applicant) of having to resort to submitting information requests under the Promotion of Access to Information Act 2 of 2000 for the details of other I&APs in order to inform them of the appeal.

Removal of “organ of state” notification requirements

The erstwhile obligation of appellants and applicants to submit a copy of an appeal or responding statement, as applicable, to “any organ of state with interest in the matter” has been removed under the New Appeal Regulations.

Requests for additional information

The appeal administrator may now request additional information from any person or affected organ of state for the purposes of an appeal under Regulation 6.

Decision-making periods

The new streamlined Regulation 7 provides that the period allowed to the appeal authority to decide on an appeal is 50 calendar days after the expiry of the prescribed 20-day period for submission of a responding statement. In this regard, although the decision-making period ultimately remains the same from the perspective of an appellant, the New Appeal Regulations have done away with the provisions concerning recommendations by the appeal administrator.

Therefore, in the ordinary course, the maximum period for a decision to be reached on an appeal, from date of submission of that appeal, is 70 calendar days. This period may be extended where an appeal is deemed to be “complex”, as discussed below. 

Chapter 3: General Provisions

Chapter 3 introduces several new regulations concerning (i) the processing of an appeal; (ii) condonation by a “municipal council” for failure to comply with prescribed periods; (iii) extension of decision-making periods for “complex” appeals; and (iv) the appointment and composition of an advisory appeal panel for such complex appeals.

As detailed in Regulation 10(2), an appeal is considered complex where it requires (i) the appointment of an advisory appeal panel or an expert; (ii) the appeal administrator to undertake a site inspection; or (iii) more than one appeal administrator to process the appeal due to the size or technical nature of that appeal.

The New Appeal Regulations contain several transitional arrangement provisions, most notably that any appeals which were submitted prior to 13 March 2025 and are still pending are to be dealt with under the appeal regulations which were in force at the time of submission of the appeal.

These new regulations have provided some welcome clarity on appeal processes.