On 23 October 2026, the Minister of Forestry, Fisheries and the Environment published the Draft National Environmental Management Laws (Administrative Penalties) Amendment Bill, 2026 (the Draft Administrative Penalties Bill) for public comment (Government Notice 8083, Government Gazette 55620).
The Draft Administrative Penalties Bill proposes fixed and variable administrative penalties as an additional enforcement tool under the National Environmental Management Act 107 of 1998 (NEMA) and the specific environmental management Acts (SEMAs).
Fixed vs variable administrative penalties
Fixed penalties may apply to breaches of licence, permit, authorisation, exemption or instrument conditions that do not cause significant pollution, environmental degradation or harm to a specimen of a species or an ecosystem.
Variable penalties on the other hand may apply where such breaches may cause significant harm - actual harm need not have occurred. Fixed penalties may also apply to statutory provisions, norms or standards identified by the Minister. Other contraventions of NEMA, the SEMAs, norms or standards may attract variable penalties, unless a fixed penalty has been specified.
Fixed penalty amounts and early payment reductions would be set by Gazette notice, not by the Draft Administrative Penalties Bill. Variable penalties would be capped at R50 million per contravention, taking account of actual or potential environmental impacts, fault and financial benefit. Remediation, compliance history, voluntary reporting, cooperation and ability to pay may increase or reduce the amount.
How a business responds to non-compliance could therefore affect its variable penalty exposure. Prompt remediation, evidence preservation and appropriate cooperation matter, but do not guarantee a reduction. Voluntary reporting must not be confused with existing mandatory reporting duties.
Procedure, objections and non-payment
The fixed-penalty provisions do not expressly require prior notice or an opportunity to make representations. However, procedural fairness requirements under generally applicable administrative law still apply. Variable penalties require adequate written notice and a reasonable opportunity to make written representations to a variable administrative penalty committee.
Both penalties may be challenged by written objection within 30 days of receipt and may be confirmed, withdrawn or reduced. A variable penalty may also be increased on objection.
Once the objection period expires without objection, or an objection confirms liability, an unpaid penalty may be filed with a competent court and enforced as a civil judgment. Non-payment would also be a criminal offence, punishable on conviction by a fine of up to R5 million, imprisonment of up to five years, or both, increasing to R10 million, ten years, or both for a second or subsequent conviction.
Proposed section 31Z allows an administrative penalty only where the person has not been criminally charged for the same contravention, or the prosecution has been withdrawn or the person acquitted. The penalty is not a previous criminal conviction. Non-payment would be a separate offence.
Personal liability
Directors and public sector managers may be personally liable, alongside the firm or organ of state, where a contravention results from their failure to take all reasonable steps to prevent it. Proof of the entity’s contravention would be prima facie evidence of the director’s or manager’s liability.
“Director” includes close corporation members, partners and trustees. Employees and agents may also be liable where their conduct constitutes an employer’s contravention for which an administrative penalty may be imposed.
This adds administrative penalty exposure to existing environmental liabilities. Businesses should document both their compliance systems and the preventive steps taken by relevant individuals in addition to the organisation.
Publication of administrative penalties
Firms and organs of state would have to publish penalty details on their websites for one year, in their annual reports and as otherwise prescribed. Failure to publish a variable penalty would be an offence. Although section 31AA’s heading and the non-publication offence refer to variable penalties, its operative wording also appears to cover fixed penalties. This requires clarification.
Publication could increase scrutiny from investors, lenders, customers and other stakeholders, and prompt third-party proceedings. It would not itself establish criminal guilt. Any use of the disclosure in a private prosecution under section 33 of NEMA, including its interaction with proposed section 31Z, would require case specific assessment.
Section 24G
The Draft Administrative Penalties Bill would remove section 24G’s existing administrative fine of up to R10 million. An applicant seeking authorisation after unlawful commencement could instead face an administrative penalty or criminal proceedings, although enforcement would not be mandatory in every case. The authority could decide the application only after payment of any prescribed application fee and, where applicable, payment of the administrative penalty or conclusion of criminal proceedings following conviction, this includes exhaustion of judicial appeal or review proceedings. Applying would not prevent an inspector from imposing a penalty.
These requirements could delay project regularisation, transactions and development. Similar amendments are proposed for section 22A of the Air Quality Act. The Draft Administrative Penalties Bill provides transitional protection for pending applications and limits the new administrative penalties to contraventions committed after commencement of the new regime.
What businesses should consider now
Businesses should review compliance with permit and authorisation conditions, escalation procedures, incident response, remediation and reporting duties, and retain evidence of preventive action by directors and responsible personnel.
Comments on the Draft Administrative Penalties Bill must be submitted within 60 calendar days of publication of the Gazette notice or the corresponding newspaper advertisement, whichever is later.
Contact us to discuss the Draft Administrative Penalties Bill and its potential impact on your business.
