INVASIVE ALIEN SPECIES
By
Fanie Botes
Director:
Commercial – Millers Inc
An issue seriously neglected when
drafting agreements for the sale of immovable property, is compliance with the
legislation pertaining to alien and invasive species which might be present on
the immovable property sold.
Invasive alien species are defined by
the Convention on Biological Diversity as follows:
“They
are plants, animals, pathogens and other organisms that are non-native to an
ecosystem and which may cause economic or environmental harm or adversely
affect human health. In particular they impact adversely upon diversity,
including decline or elimination of native species through competition,
predation or transmission of pathogens and the disruption of local ecosystems and
ecosystem functions”
In South Africa, under the auspices of
the Minister of Environmental Affairs, specific legislation was introduced on 1
August 2014 through publication of the Alien and Invasive Species Regulations,
which regulations came into effect as from 1 October 2014. These regulations
were promulgated in terms of National Environmental Management: Biodiversity
(NEMBA) Act 10 of 2004
A total of 559 alien species in four
different categories were then listed as invasive and a further 560 species identified
and listed as prohibited, which means that these species may not be introduced
into the country. The list includes both fauna and flora and was further
supplemented in July 2016.
The above legislation is aimed at
preventing the spreading of potentially harmful and devastating species,
preventing the introduction into the country of more alien invasive species and
introducing early detection and control by all landowners. Early detection or
prevention of the introduction of alien invasive species might assist in
timeous eradication thereof and a reduction in management costs where these
aliens have been unwisely and unintentionally introduced.
The pertinent question is how the
legislation impacts upon a landowner and in particular the seller of a property?
Regulation 29 requires that:
- If
a person, who holds a permit to have an alien specie, sells the property on
which the alien specie is present, the new owner of the property must apply for
a permit in terms of the legislation;
- Any
seller of an immovable property must, prior to conclusion of the sale
agreement, notify the prospective purchaser of such immovable property in
writing in regard to the presence of any listed alien invasive species on the
property
Apart from the notification by the
seller as aforesaid, it would also advisable that the purchaser be required to
acknowledge, as part of the sale agreement, that he has fully acquainted
himself with the extent and nature of the property as well as all vegetation
thereon and that he accepts it as such. Furthermore, the seller must be
required, once again as part of the sale agreement, to confirm that he is not
aware of the presence or holds any permit for any alien invasive species on the
property.
A standard clause to be included in all
sale agreements will typically read as follows:
The
seller hereby records that to the best of his knowledge and belief there are no
listed invasive species mentioned in terms of the Alien and Invasive Species
Regulations promulgated in terms of the National Environmental Management:
Biodiversity Act, No 10 of 2004 upon the property. It is however recorded that
as the seller is not sufficiently qualified to identify such species that the
purchaser accepts the risk inherent in purchasing the property with any listed
invasive species which might be thereon.
Some advisors argue that the above
regulations only pertains to agricultural land, but in the absence of a
definition of the term “land” in the regulations, it must be accepted that all
immovable property, irrespective whether it is agricultural land or not, is
subject to the provisions contained in the regulations.
One pertinent aspect that needs to be
highlighted, is the fact that some alien invasive plants are categorised
differently in different provinces. A specific plant may be categorised as
harmful in the Eastern Cape, but less harmful in the other provinces. Some
plants may be categorised as harmful in rural areas, but be exempted in urban
areas in the same province. Care should therefore be taken before advising on
this aspect.
For further advice, please do not hesitate to contact the writer for an appointment - 044 874 1140.