Comments on the Draft Appeal Regulations

Comments on the Draft Appeal Regulations

On 25 August 2023, the Minister of Forestry, Fisheries and the Environment (“the Minister”) published Draft National Appeal Regulations, 2023 (“the Draft Appeal Regulations”) calling on parties to submit their comments by 25 September 2023. The Draft Appeal Regulations seek to address some of the current deficiencies with the National Appeal Regulations, 2014 (“the Appeal Regulations”) which fail to deal with inter alia:

  • The submission of answering statements by appellants to responding statements;
  • Timeframes within which to appoint appeal panels / experts; and
  • Complex appeals.

Currently, the periods within which the appeal authority is required to consider appeals under the Appeal Regulations are seldomly met by the appeal authority. Unfortunately, the Draft Appeal Regulations contain vague language which can be manipulated to delay the appeal process. In our recent experience, the appeal authority has unilaterally extended the period within which it is required to consider appeals by as long as 7 months (and counting). These problems have not been addressed in the Draft Appeal Regulations.

Below are some of our comments on the Draft Appeal Regulations. Should you require assistance in preparing comments that are tailored to your business / industry, please do not hesitate to contact us on matt@burnellattorneys.com.

Section Draft Appeal Regulations Comment
Section 4(1)(a) and (b) read with regulation 13 An appellant must submit an appeal

  1. within 20 days from the date that the decision is sent by decision-maker, or, where applicable by the applicant to registered interested and affected parties; or
  2. within 30 days from the date that the decision is sent, where the appeal is submitted in terms of section 43(8) of the Act.
 Regulation 13 indicates the manner in which documents may be delivered under the Draft Appeal Regulations. These are more restrictive than section 47D of the NEMA. There is nothing in the NEMA which permits the Minister from restricting the manner in which documents can be delivered.

Use of the term “sent” is problematical as:

  • it may not be possible for the recipient to determine when the document was sent and thus the period from which their right to appeal commences and ends;
  • applicants could elect to send registered interested and affected parties by ordinary mail which is permitted in terms of section 47D(bC) of the NEMA. Using the ordinary postal system may result in registered interested and affected parties only receiving the notice after the 20 days has lapsed and/or with insufficient time to prepare an appeal. While these appellants can request an extension of time and/or condonation for the late filing of an appeal, in respect of appeals relating to prospecting, exploration, mining or production an extension may only be granted in “exceptional circumstances”[1] and such request must be made within 30 days of the decision by that Minister responsible for mineral resources or any person acting under his/her delegation.[2]
  • it does not align with section 43(8) of the NEMA which affords the recipient of a directive 30 days from receipt of the directive and not thirty days from the date on which the directive is sent. Section 4(1)(b) must be amended to align with the NEMA as the empowering statute. It must also be noted that under section 43(8) of the NEMA only the recipient of a directive is empowered to appeal the directive. That is, third parties that may be affected by a directive do not have the right of appeal under the NEMA.
Section 5 The applicant, where applicable, and any other person contemplated in regulation 4 may, within 10 days from the date of receipt of the appeal, submit…a statement responding to an appeal… The period to respond to is too short

The period within which to submit a responding statement to an appeal has been reduced to 10 days from 20 days. This is a very short period within which to respond to an appeal and it should be increased to 20 days.

While an application to extend this timeframe can be submitted, insofar as the responding statement relates to prospecting, exploration, mining or production, the person responding to the appeal will need to demonstrate that “exceptional circumstances” exist to warrant the extension. Furthermore, in terms of section 47CB, this period could only be extended “for a maximum period equal to the time period allowed for the action for which condonation is sought in terms of the Act.” That is, the respondent could only be granted a further 10 day extension within which to submit their responding statement.

This is particularly problematical in respect of projects where numerous appeals and/or complex appeals are lodged.

Complex appeal processes

Certain large-scale projects (such as linear infrastructure projects, off-shore oil and gas drilling, mining projects, coastal activities etc) may result in numerous appeals being submitted at different periods within the initial 20 day period contemplated in section 4 of the Draft Appeal Regulations.

Where numerous appeals are submitted, the respondent may wish to submit a consolidated response to the appeals as there may be common issues or themes in the appeals submitted. This will be impossible to do if the respondent needs to submit responding statements within 10 days of receiving the appeal. For example, if an appellant submits an appeal within 5 days of receiving the decision, the respondent will need to submit a responding statement before the period within which appeals can be submitted has lapsed.

To remedy this, it is suggested that the period within which to respond to appeals only begins to run from the date on which the 20 day period within which to submit the appeals has lapsed. Furthermore, as suggested above, the period within which to submit a responding statement must be extended to 20 days as preparing responses to numerous complex appeals cannot be completed within 10 days (or even 20 days if the extension is granted).
Section 6 The appellant may, within 20 days from the date of receipt of the responding statement, submit an answering statement to the appeal administrator to address any relevant new information contained in the responding statement which is not addressed in the appeal. It is unclear why the appellant is granted 20 days (which could be further extended by 20 days) to respond to new information. As the new information should be limited, it is recommended that this period could be reduced to 10 days.
Section 7 The appeal administrator may, within 20 days of receipt of the responding statement or answering statement, where applicable, request any party participating in the appeal process to submit additional information. The period within which the appeal administrator can request additional information is too long. It is recommended that it should be 10 days. If the appeal authority is to comply with the period to decide appeals, the appeal authority must be reviewing the appeals, responding statements and answering statements as soon as these are received and should be well-aware of outstanding information within 10 days.
Section 8(a) The appeal authority must reach a decision on an appeal…within 30 days of the expiry of the period provided for in section 5, 6 or 7, whichever is applicable By including reference to section 7 in this paragraph, the appeal authority will calculate its 30 days:

  • 20 days after the answering statement is lodged; or
  • where no answering statement is issued, 20 days after the responding statement was lodged, irrespective of whether additional information is requested or not.

Section 7 therefore merely extends the period within which appeals are considered by 20 days.

While the appeals must be decided within 30 days of the period in section 7 lapsing, in reality, the appeal authority will only start to start counting the 30 days from the date on which the information is received. Therefore, if the information is only requested on the 20th day of the period set out in section 7 and the requested party is given 20 days to provide the information, the 30 days will only begin to run 40 days after the responding statement or answering statement as the case may be.
Section 9(2) read with regulation 12 The appeal administrator must notify the appellant and the applicant, if applicable, within 5 working days of the appointment of an advisory appeal panel or expert in terms of section 43(5) of the Act, read with regulation 12 of these regulations.

Regulation 12(a) states that the appeal authority must provide the appeal panel or expert with written instruction within 10 days of being appointed.

 The Draft Appeal Regulations do not prescribe the period within which the appeal administrator must appoint an appeal panel. The result is that appeal processes get delayed the periods contemplated in the regulations only begin to run from the date on which the appeal panel / expert is appointed.

The appeal administrator should be aware, based on the number and/or complexity of the appeals submitted if an appeal panel or expert is required. The Draft Appeal Regulations must include a period within which the panel / expert is appointed. It is suggested that this period is 5 days after the responding statement is submitted.

The instructions to the appeal panel can still be given within 10 days of the panel or expert being appointed and supplemented if an answering statement or additional information is provided.
Regulation 10 The timeframes in sections 5, 6 and 7 may be extended in writing by agreement between the appeal, the appeal administrator and where applicable the applicant. The NEMA does not permit the competent authority to extend these period insofar as it relates to its own obligations. In fact, this is expressly prohibited. The current practice is that, where a party does not agree to an extension, the refusal is ignored and the timeframe is extended nonetheless.

[1] Section 47CA of the NEMA.

[2] Section 47CB(2) of the NEMA.