It’s for good reason many applauded the drafting of the National Environmental Management and Biodiversity Act of 2004 to manage and conserve South Africa’s abundant natural biodiversity and protect it from Invasive Alien Plants, which cost the economy billions of Rand annually in lost agricultural productivity and management resources.
But once the applause had died down, most of us put it out of our minds and got on with our lives. Then in August 2014 the Invasive Alien and Invasive Species Regulations and the list of invasive species were published and on 1 October the regulations were promulgated as part of the Biodiversity Act.
All good and well, but what does the protection of biodiversity and its regulations have to do with the average man on the street? Quite a lot if you are a homeowner or prospective buyer.
Land owners, whether agricultural or residential, are now called upon to assist the Department of Environmental Affairs to conserve indigenous flora. According to Section 29 of the regulations published last year, if a land owner sells a property where a specimen of an alien or listed invasive species is present, the seller needs to disclose the presence of these plants to the purchaser prior to conclusion of the sales agreement and the new owner must apply for a permit under the Act.
But before you blithely brush it off and assume that you have no such thing on the property you are about to sell, the penalties will make you think twice. Non-compliance can result in a criminal offence punishable by a fine of up to R5 million for a first offence or even a period of imprisonment of up to 10 years.
But, unfortunately, as with many new laws, there are still grey areas that need clarity and the addition of yet more paperwork to the already cumbersome property sale process can seem daunting.
Claude McKirby, co-principal of Lew Geffen Sotheby’s International Realty in Cape Town’s Southern Suburbs, says: “All our agents have been briefed on the points of the legislation which pertain to property sales and we’ve had an annexure included in all our offers to purchase since the legislation was enacted, but unfortunately certain crucial points have not been specified within the Act.”
“The legislation is vague regarding the matter of costs, leaving it as a matter of contractual responsibility between buyer and seller rather than clearly outlining what costs should be carried by which party,” says McKirby, “and it also doesn’t specify how a buyer or seller should go about identifying invasive species.”
Specialist Conveyancing Attorney Elana Hopkins of Dykes Van Heerden Inc says: “According to the legislation, the seller has a responsibility to disclose the existence of alien or listed invasive species before conclusion of the sales agreement, but the problem is that most sellers have no idea what they have to disclose or what to do with alien or listed species.”
“We are seeing many attorneys and agents attempting to deal with this issue contractually by merely inserting a clause in a sales agreement making the purchaser assume any liabilities in this regard, but as non-disclosure by the seller is a criminal offence, I cannot see how this is possible and how this assists the seller to fulfill his/her duty to disclose.”
The confusion about which party should bear the costs is also problematic and we are seeing many attorneys attempting to contract on this and make the purchaser assume this responsibility, but as contravention of the Act and transfer or sale of prohibited species is actually a crime, this in itself may be illegal.
Says Lew Geffen, Chairman of Lew Geffen Sotheby’s International Realty: “Although the legislation has clearly been drawn up with good intent, the basis of any legislation of this kind depends on policing and at this stage there appears to be no capacity to police it as it pertains to the tens of thousands of transactions of existing residential property that take place in the country every year.”
“However, as we have seen with the City of Cape Town, departments are working at educating the public and industries such as ours and, with time, the whole legislation will become a lot less daunting.”
Adrienne von Ess, Area Specialist for Lew Geffen Sotheby’s International Realty in Kalk Bay, St James, Simons Town and Glencairn where large erven are common, has concluded two sales in the past year where the Act impacted on the transaction.
“Shortly before the Act was passed, I brokered the sale of a 36.6 hectare erf in Castle Rock and the buyer was aware that he would need to clear invasive vegetation. I almost lost the sale as the quote they received to do this was almost R3 million, but fortunately a knowledgeable women who represented the Trust selling the land, was able to assist us and the sale went ahead without the exorbitant clearing fee.”
“It was definitely a learning curve and I was able to better advise both parties during the sale of the second large erf containing alien flora. But we are also lucky in our area as The Castle Rock Conservancy is now working closely with Working for Water and they have established continuous clearance of alien vegetation.”
Kassie Booysen from Inspectus, an invasive species compliance company, says that because of the enormity of the task, the Act is being implemented in stages and, although a declaration between buyer and seller is now required, in years to come it may not be possible to sell a property without the declaration being registered with the deeds office along with the deed of sale.
“Government simply does not have the manpower to police the new Act, so rely on the Green Scorpions who only act on complaints that they receive.”
However, Booysen cautions: “People should not think that because of this they can relax. Recently a Cape Town property owner was forced to sell his home after he ignored a notice to remove the alien species on his property and the Department simply came and removed the plants without his permission, then added R500,000 to his rates bill.”
Booysen further cautions that if land owners want a declaration that there are no invasive species on their properties, they should only use accredited consultants or companies.
“If the consultant is not registered with the South African Green Industries Council (SAGIC) then the declaration is not valid. All members have a membership number which can be confirmed with SAGIC.”
However, although certain points in the regulation may be unclear, what is clear is that property owners need to familiarise themselves with the new legislation and get to know their gardens a bit better.
This article “The Alien Invasion In Your Garden Could Be Costly” was issued by Lew Geffen Sotheby’s International Realty – http://www.sothebysrealty.co.za/