By Mikaella Bodeux and Carolynn Kistadoo, Warburton Attorneys Inc

Over the course of March and April 2026, the Department of Forestry, Fisheries and the Environment (DFFE), together with the Department of Mineral and Petroleum Resources (DMR), conducted a multi-stakeholder consultation across South Africa to discuss the reform of the current Environmental Impact Assessment (EIA) process within the Republic. Central to these consultations was the proposal for a “flexible EIA system” which seeks to improve efficiency and “modernise and strengthen the country’s environmental governance framework, towards […] sustainable development”.[1]

Current EIA Framework

There are two processes which may be followed in order to obtain environmental authorisation (EA) for activities, namely:

1. The Basic Assessment Report (BAR) process provided for at Part 2 of the EIA Regulations, 2014 (EIA Regulations), promulgated under the National Environmental Management Act (107 of 1998) (NEMA); and
2. The Scoping and Environmental Impact Report (S&EIR) process, provided for at Part 3 of the EIA Regulations.

In order to determine which process would apply to an applicant for an EA, reference has to be made to the three Listing Notices published under the EIA Regulations. Those activities falling under Listing Notices 1 and 3, which are typically expected to have a relatively low impact on the environment, require a BAR process to be followed in order to obtain an EA for such activities. Those activities falling under Listing Notice 2, which are anticipated to have a high impact on the environment, require that a full S&EIR process be conducted pursuant to an application for an EA for such activities. This is a rigid system which, in practice, potentially fails to take into account the strategic context of most activities and the specific sensitivities of the receiving environment.

The Proposed Flexible EIA System

The proposed system would introduce a three-step process to determine which assessment route must be followed. This includes a pre-application consultation stage, screening stage, and assessment stage. As part of the pre-application consultation phase, applicants will be required to submit a pre-application form in respect of identified activities and may be required to meet with the competent authority.

The competent authority will then conduct screening based on the submissions made as part of the pre-application and consultation stage. As part of this, the DFFE would be required to take into account the nature and scale of the proposed development, as well as the sensitivity of the receiving environment. Based on the screening criteria, the competent authority will then determine the route (i.e., Statement of No Significant Impact, Environmental Impact Statement, Scoping Report or Environmental Impact Report) or type (specialist opinions or studies) of assessment to be followed, after which the assessment stage will follow.

Key Issues – Legal Certainty

A key concern arising from this proposed shift is that the screening process, while enhancing flexibility and allowing for a more tailored assessment, also introduces a degree of technical and procedural uncertainty for applicants owing to the broad discretionary powers afforded to the competent authority.  If not carefully regulated and guided, such discretion could give rise to administrative law challenges.

Although the doctrine of stare decisis (i.e., to stand by things already decided) is not directly applicable in administrative decision-making, the broader principle of consistency and equal treatment remains fundamental to such processes. Situations in which similar applications are subjected to materially different assessment requirements or processes could expose decisions to review under the principles of lawful, reasonable and procedurally fair administrative action. In particular, it is a significant concern that a level of discretion will be exercisable in respect of the requirements for public participation – a process already mired by uncertainty and the subject of several litigious matters in South Africa. Without clear benchmarks, guidelines, or decision-making criteria, this discretion risks compromising procedural fairness and transparency. It also raises questions about how decisions will be standardised, reviewed, or challenged, particularly where different authorities may apply divergent interpretations.

The DFFE has indicated that such discretion will be grounded in science, supported by decision-making tools, and informed by existing systems such as geographic information systems (GIS) and other spatial datasets. While this intention is commendable, it does not allay all concerns. The reliance on multiple tools and data sources, without clearly prescribed thresholds or binding criteria, risks creating an overly flexible and subjective framework.

Overburdening the System

Those familiar with the appeal process under NEMA will also no doubt be aware of the fact that the DFFE is already overburdened under the current EIA regime. Likely having regard to this fact, and the delays caused to projects as a result, the DFFE has recommended that screening decisions be regarded as “in process” decisions and that no provision be made for appeals on screening decisions.

However, owing to the ramifications which such decisions will have on the nature and type of assessment to be conducted, as well as the public participation process conducted pursuant to that process, such decisions will have significant legal rights implications and could accordingly be found to amount to an administrative decision under the Promotion of Administrative Justice Act (3 of 2000). In seeking to avoid delays caused by internal appeals, this may in fact form a shortcut to court, which could see DFFE or DMR, as the case may be, becoming embroiled in lengthy and costly litigation centred around the review of screening decisions.

While still at a proposal stage, the DFFE acknowledges that the proposed system is not without its shortcomings. Practically, it should be possible to expand and refine our existing framework, so that it can be made more responsive to environmental sensitivities while retaining predictability and legal certainty. Interested and affected stakeholders are accordingly encouraged to identify key issues and propose potential solutions to address these challenges. If you would like to contribute your thoughts on the proposed flexible EIA system, written submissions may be made to the following address: FlexiEIA@dffe.gov.za.

[1] DFFE “Environmental sector launches national consultation on proposed flexible EIA Reform” (9 March 2026) accessible at: https://www.dffe.gov.za/mediarelease_eiareform.

www.warburtons.co.za
admin@warburtons.za