The thorn in the property owner's side: The new Alien and Invasive Species Regulations

The Alien and Invasive Species Regulations, which came into force on 1 October 2014, are expected to have far reaching consequences for property owners. This is according to Terry Winstanley, Director and National Environmental  Practice Head at Cliffe Dekker Hofmeyr.

Winstanley explains that the National Environmental Management: Biodiversity Act, No. 10 of 2004 (Biodiversity Act) was enacted to provide for the management and conservation of South Africa’s biodiversity, protected species and ecosystems. The Alien and Invasive Species Regulations were implemented to support the Act’s objectives.

“The Biodiversity Act provides that anyone carrying out "restricted activities" must hold a Permit before such activities may validly be undertaken.  Importantly for property buyers and sellers, the Regulations impose various obligations on persons owning property where listed alien invasive species are growing. These include the obligation on the seller of a property, and subsequently the buyer, to apply for a Permit. The Regulations also oblige the seller of property to notify the buyer in writing of the presence of listed invasive species on that property,” she explains. 

Gareth Howard, Candidate Attorney in the Environmental Practice, notes that this stands to have potentially far-reaching consequences by requiring property owners to take steps to ensure the early detection and, if necessary, eradication of alien and invasive species on their properties. 

“Significantly,” says Howard, “penalties for non-compliance with these provisions include a fine not exceeding R5 million rand and/or imprisonment for a period not exceeding ten years; and in the case of a second or subsequent conviction, a fine not exceeding R10 million and/or imprisonment for a period not exceeding ten years.”

“It is therefore recommended that property owners intending to sell their properties as well as other players in the real estate industry (such as property developers and estate agents) ensure that an appropriate clause is included in their sale agreements, stipulating that the buyer has acquainted him or herself with the property, knows that alien invasive plants are present on the property and understands the legal implications of that,” he adds.