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Alien and Invasive Regulations

18 June 2015

Invasive Alien Plants (IAPs) are widely considered as a major threat to biodiversity, human livelihoods and economic development. IAPs cost South Africa tens of billions of rand annually in lost agricultural productivity and resources spent on management.

On 1 August 2014, the Minister of Environmental Affairs published the Alien and Invasive Species Regulations ("the Regulations") which came into effect on the 1st October 2014 in a bid to curb the negative effects of IAPs and other alien invasive species. The Regulations call on land owners and sellers of land alike to assist the Department of Environmental Affairs to conserve our indigenous fauna and to foster sustainable use of our land non-adherence to the Regulations by a land owner or a seller of land can result in a criminal offence punishable by a fine of up to R5 million (R10 million in case of a second offense) and / or a period of imprisonment of up to 10 years.

The Regulations published identified a total of 559 alien species, including 383 plant species as invasive in four different categories, and a further 560 species listed as prohibited that may not be introduced into the country. A list of Alien Invasive Species can be found at http://www.invasives.org.za/legislation.html.

Category 1a and 1b listed invasive species must be controlled and eradicated. Category 2 plants may only be grown if a permit is obtained and the property owner ensures that the invasive species do not spread beyond his or her property. The growing of Category 3 species of plant is subject to various exemptions and prohibitions. It is interesting to note that some invasive plants are categorised differently in different provinces. For example: the Spanish Broom plant is categorised as a category 1b (harmful) invasive plant in Eastern Cape and Western Cape, but it is a category 3 (less harmful) invasive plant in the other seven provinces.

Other invasive plants are categorised differently depending on whether they appear in urban or rural areas. Jacarandas serve as example: the species are classified as a category 1b invasive species in rural areas within KZN as well as in three other provinces, but in the urban areas of these provinces it is exempted from the regulations. Jacarandas situated in the urban areas of Pretoria are thus safe for now.

Depending on the identified Alien Invasive Species (AIS) and its classification in terms of the Regulations a land owner must allow an authorised official from the Department of Environmental Affairs to enter onto the land to monitor, assist or implement the combating, control or eradication of the species in accordance with the Regulations.

In terms of Regulation 29, if a permit holder sells property on which a listed AIS is under the permit holder's control, the new owner of such property must apply for a permit in terms of the Act. The seller of any immovable property must also, prior to the conclusion of the relevant sale agreement, notify the purchaser of that property in writing of the presence of listed AIS on the property.

In practice, an estate agent can add value by guiding a seller to adhere to the letter of Regulation 29. An estate agent should ask the sellers to declare in writing whether they are aware of any AISs on their properties or if they hold permits for species that require permits to be held on the property. If an enquiry of an estate agent establishes that AISs are to be found on the land for sale or that the seller holds a permit, then a copy of this confirmation must be given to a prospective purchaser and the purchaser's offer should include an acknowledgement by the purchaser that he has been advised of the invasive species on the property.

Property sales agreements subsequent to 1 October 2014, should incorporate a clause in terms of which the purchaser acknowledges that he has acquainted himself with the extent and the nature of the property he is buying and that he accepts the property as such, including the vegetation on the property.

The declaration by the seller resulting from an inquiry of an Estate Agent, and the subsequent incorporation of the facts on the ground pertaining to the fauna and flora into the deed of sale, could well assist in adhering to Regulation 29 and so avoid the heavy punishment imposed by the Regulations. An example of such a clause would read more or less as follows:

* (a) In terms of the NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 2004 (ACT NO. 10 OF 2004) ALIEN AND INVASIVE SPECIES REGULATIONS, 2014, The Seller declares that to the best of his knowledge there are no Invasive Alien Species, as per the National register of alien and listed invasive species, present on the property.

* (b) In terms of the NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 2004 (ACT NO. 10 OF 2004) ALIEN AND INVASIVE SPECIES REGULATIONS, 2014, The Seller declares that the following listed alien invasive species are present on the property:

______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

* (c) The Purchaser understands that he must apply for a permit with regards all Category 2 Alien Invasive Species in his own name in terms of the NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 2004 (ACT NO. 10 OF 2004) ALIEN AND INVASIVE SPECIES REGULATIONS, 2014 once the property has been transferred.

(*Delete what is not applicable)

(d) The purchaser acknowledges that he has acquainted himself with the extent and nature of the property and accepts the property as such, including the vegetation on the property.

So if you are buying or selling property that could contain Alien Invasive Species, consult with your conveyancer as to what steps you should take to ensure that you comply with the regulations.

Allen West
Property Law Specialist
MacRobert Incorporated

Notes – Editor
Regarding surveys, for Alien Invasive Species a basic survey fee will be charged to the seller of immovable property by a registered agent, so that a Declaration of Alien Invasive Species can be drawn up by the registered agent, and submitted by the estate agent to the buyer, as well as to a competent authority (DEA). The amount of the survey fee will depend on the m2 area of the property. Therefore, owners of farms etc will obviously pay more for a survey than a typical suburban property owner, as there will be a much greater area to survey. A registered agent will also be able to assist in acquiring permits for Category 2 alien invasive species, if required by sellers and/or buyers.

A survey of suburban gardens is very necessary and certainly not excessive, because experience has shown that most of them contain Invasive Alien Plants (IAPs). Many nurseries still stock listed prohibited IAPs and so people are still being able to acquire them. They can and do share these with friends and family and so the spread continues. Many IAPs are also distributed easily by wind etc and birds. These can and do then escape into other gardens and the wild by similar means, and could ultimately affect the biodiversity of all indigenous species (and the growing of useful alien non-invasive agricultural species) unless their spread is controlled and they are eradicated as far as possible. Most people also don't know they have IAPs in their gardens.

At present, sales of property cannot be prevented if the declaration of invasive species is not made and submitted to DEA etc. However, once sellers and buyers, with the full cooperation of estate agents and conveyancers, become educated they will be able to prevent sales from happening until the provisions of the Act are adhered to 100%. Buyers could also, if they are not notified by sellers of the presence of alien invasives, sue sellers and estate agents.

AT PRESENT, sellers are NOT required to REMOVE the alien invasive species, they are only required to NOTIFY the purchaser and a competent authority (DEA) of the presence of alien invasive species, (as they are a liability) and obtain required permits for any listed Category 2 species.

Up until now this info has not been made as clear to estate agents as should have been, which may in part have contributed to many of them ignoring the new legislation. Knowledge of this by all parties will hopefully help prevent other negative reactions to the Act as well, resulting in non-compliance.

Obviously, all Category 1a and 1b alien invasive species do need to be removed ultimately due to their nature, and therefore estate agents, and sellers and buyers of immovable property do need to be made aware of this and take responsibility for this, once a declaration of alien invasive species has been made.

Sellers and buyers can also apply to the DEA for government assistance in the removal of declared Categories 1a and 1b alien invasive species, especially so if they are situated in a riparian area (area 0m - 32m from a river).

Further note:  We have had a number of questions which will be answered in due course.

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