5.5 South Africa: Compliance Mechanisms

Measures to promote an access permit holder’s compliance are found in the Bioprospecting, Access and Benefit Sharing Regulations. These measures are not discriminatory in terms of the nature of the permit a holder possesses. Thus, whether the permit in question is a bioprospecting permit, an integrated export and bioprospecting permit, or an export permit for research other than bioprospecting, a requirement to submit status reports is found in each of these permits (Rules 11(2)(f)(ii), 12(2)(f)(ii) and 13(2)(f) (v)). Another compliance measure found in all these permits relates to the imposition of liability for the costs of mitigating or remedying the impact of access on the environment. Therefore a holder of any of these permits agrees to be liable for these mitigation costs to remedy the impact of access to the environment (Rules 11(2)(f)(iii), 12(2)(f)(iii) and 13(2)(f)(iii)).

On the issuing authority’s part (whether it is the Minister or MEC) section 93 of the National Environmental Management: Biodiversity Act, 2004 grants the relevant authority power to cancel a permit if the permit was issued as a result of misleading or false representations by the applicant, or if, after issuance, the permit holder fails to comply with any condition of the permit, the provisions of the South African law or the provisions of any foreign law governing the permitted activity.

The regulations also create offences and penalties under Rule 20. These offences relate to the undertaking of certain activities without a permit. These activities include bioprospecting and the export of indigenous biological resources. Conviction of an offence under the regulations may lead to a fine, imprisonment or both (Rule 21).

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