biodiversity and provides the framework for managing alien species and invasive
species. It creates an overlapping regulatory regime with that contained in CARA
(King et al. 2018). The purpose of the Chapter includes—
• preventing the unauthorised introduction and spread of alien species and invasive
species to ecosystems and habitats where they do not naturally occur;
• managing and controlling alien species and invasive species to prevent or minimise harm to the environment and to biodiversity in particular; and
• eradicating alien species and invasive species from ecosystems and habitats
where they may harm such ecosystems or habitats.
The Biodiversity Act differentiates between ‘alien species’ and ‘invasive species’. An alien species is one that is not native, or which is native but is found outside
its normal distribution range; whereas an invasive species is a species that
“(a) threatens ecosystems, habitats or other species or has demonstrable potential
to threaten ecosystems, habitats or other species; and (b) may result in economic or
environmental harm or harm to human health” (section 1). This distinction caters
for the dualistic approach mentioned in Sect. 18.6.4 above and allows government to
adopt different approaches to regulating species that pose a risk or threat to the
environment and those that do not.
Chapter 5 adopts a four-pronged approach to the management of these species
insofar as the public is concerned in a system of permit requirements, prohibitions,
exemptions and duties of care. There are strong enforcement mechanisms to secure
compliance with these provisions, including administrative enforcement directives
which can be issued to compel compliance with the two duties of care and criminal
sanctions of up to ZAR 10 million and/or imprisonment of up to 10 years, in addition
to any supplementary penalties that can be imposed in terms of NEMA. However,
because the Biodiversity Act itself is of a framework nature, it requires further
mechanisms such as Regulations and Notices to be passed in order to operationalise
and ‘give teeth’ to the Chapter (cf sections 66, 67, 70 and 97). These are currently
found in the Alien and Invasive Species Regulations (GNR 598, GG 37885, 1 August
2014) and the Alien and Invasive Species Lists (GN 599, GG 37885, 1 August 2014,
as amended by GN 864, GG 40166, 29 July 2016). The intention of the Regulations
is to set out the more detailed rules and procedures that must be followed in respect
of alien and invasive species, whereas the Lists (Notices)—as the name implies—
sets out lists of taxa that are regulated and indicates the form of control that will be
applicable to the species. As of the 2016 revised lists, 556 taxa which are considered
to be present in South Africa are regulated, and 563 taxa which are considered to be
absent from South Africa are prohibited from being imported; see Kumschick et al.
(2020), Chap. 20 for more details of how the lists were developed.
The key to understanding the regulatory approach is the concept of ‘restricted
activities’ and its relationship with the Lists. There are 13 restricted activities which
relate to alien and invasive species. Five of these are set out in section 1 of the Act
and include the importation, possession, growing, breeding, moving or otherwise
translocating, selling, buying, donating or in any way acquiring or disposing of a
species. The Regulations add a further seven activities:
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P. Lukey and J. Hall
species. It creates an overlapping regulatory regime with that contained in CARA
(King et al. 2018). The purpose of the Chapter includes—
• preventing the unauthorised introduction and spread of alien species and invasive
species to ecosystems and habitats where they do not naturally occur;
• managing and controlling alien species and invasive species to prevent or minimise harm to the environment and to biodiversity in particular; and
• eradicating alien species and invasive species from ecosystems and habitats
where they may harm such ecosystems or habitats.
The Biodiversity Act differentiates between ‘alien species’ and ‘invasive species’. An alien species is one that is not native, or which is native but is found outside
its normal distribution range; whereas an invasive species is a species that
“(a) threatens ecosystems, habitats or other species or has demonstrable potential
to threaten ecosystems, habitats or other species; and (b) may result in economic or
environmental harm or harm to human health” (section 1). This distinction caters
for the dualistic approach mentioned in Sect. 18.6.4 above and allows government to
adopt different approaches to regulating species that pose a risk or threat to the
environment and those that do not.
Chapter 5 adopts a four-pronged approach to the management of these species
insofar as the public is concerned in a system of permit requirements, prohibitions,
exemptions and duties of care. There are strong enforcement mechanisms to secure
compliance with these provisions, including administrative enforcement directives
which can be issued to compel compliance with the two duties of care and criminal
sanctions of up to ZAR 10 million and/or imprisonment of up to 10 years, in addition
to any supplementary penalties that can be imposed in terms of NEMA. However,
because the Biodiversity Act itself is of a framework nature, it requires further
mechanisms such as Regulations and Notices to be passed in order to operationalise
and ‘give teeth’ to the Chapter (cf sections 66, 67, 70 and 97). These are currently
found in the Alien and Invasive Species Regulations (GNR 598, GG 37885, 1 August
2014) and the Alien and Invasive Species Lists (GN 599, GG 37885, 1 August 2014,
as amended by GN 864, GG 40166, 29 July 2016). The intention of the Regulations
is to set out the more detailed rules and procedures that must be followed in respect
of alien and invasive species, whereas the Lists (Notices)—as the name implies—
sets out lists of taxa that are regulated and indicates the form of control that will be
applicable to the species. As of the 2016 revised lists, 556 taxa which are considered
to be present in South Africa are regulated, and 563 taxa which are considered to be
absent from South Africa are prohibited from being imported; see Kumschick et al.
(2020), Chap. 20 for more details of how the lists were developed.
The key to understanding the regulatory approach is the concept of ‘restricted
activities’ and its relationship with the Lists. There are 13 restricted activities which
relate to alien and invasive species. Five of these are set out in section 1 of the Act
and include the importation, possession, growing, breeding, moving or otherwise
translocating, selling, buying, donating or in any way acquiring or disposing of a
species. The Regulations add a further seven activities:
538
P. Lukey and J. Hall