The Buzz around alien invasive species

23 May 2017  |  by Natalie Luck

Alien Invasive Species (AIS’s) cause a large amount of damage to South Africa’s economy each year: water hyacinth in dams, for example.  Invasive Alien Plants (IAP’s) pose a direct threat to our country’s biodiversity, water security and the functions of vital ecosystems.  Should these threats not be dealt with they may take over natural areas and heritage sites which could further detrimentally affect not only the façade of our beautiful landscapes but also the agricultural and tourism industries. 

This all sounds terrible but, you may ask, how does this affect me and my property dealings?

What regulations apply?

On the 1st August 2014 the Minister of Environmental Affairs published the National Environmental Management: Biodiversity regulations relating to Alien Invasive species which came into effect on the 1st October 2014 .They are intended to prevent any more alien species being brought into South Africa and also to prevent the further spread of such species by ensuring early detection and response. 

These Regulations divides the Alien Invasive Species into four separate categories:

  • Category 1a - These listed species are to be controlled and eradicated;
  • Category 1b - Species listed in these categories are to be controlled;

Both these categories require that an authorised official from the Department of Environmental affairs be allowed to enter onto the land to monitor, assist with or implement the control of the species

  • Category 2 - Permits are required for these species;
  • Category 3 - Various exemptions and prohibitions relate to these species.

So, what is their effect on property transactions?

Regulation 29 relates specifically to the transfer of a property and requires that the Seller notifies the Purchaser in writing of any AIP’s present on the property and any permits which the purchaser may be required to obtain. 

The Regulation only requires the seller to notify the Purchaser of any AIS’s present on the property.  It is advisable that a clause is contained in the sale agreement to the effect that the Seller acknowledges that to the best of his/her knowledge that there are no AIP’s on the property, or alternatively that there are in which case these should be listed and state whether permits are required.  The purchaser should then acknowledge that he/she is satisfied with the nature and extent of the property and its vegetation and (if applicable) that the relevant permits will be obtained. 

What are the Parties’ responsibilities?

In most instances, it is right to assume that the Seller, Purchaser and Estate Agent involved in the transaction are not experts in the field of Horticulture and thus would not be aware that the Wattle plant in the back yard is in fact an Acacia decurrens which is listed in Category 2 and thus requires a permit.

It is slowly becoming a trend that, where any doubt exists in respect of whether a plant is categorised as an AIS, the Seller obtains a compliance certificate from a registered Invasive Species compliance officer who has inspected the property.  Having this compliance certificate will reduce or even eliminate the Seller’s liability under Regulation 29.

Currently it is acceptable to have either the declaration by the Seller (included in the Sale agreement) or alternatively a formal compliance certificate from an AIS officer.  However, in the future an Environmental compliance certificate may become a requirement prior to registration such as the electrical, entomology, gas and electric fence certificates.

It appears that the Department of Environmental Affairs are not yet actively enforcing Regulation 29.  However, it is the Estate agent’s and conveyancer’s duty to ensure that the Agreement of Sale complies with applicable legislation.  It will thus be mandatory that this Regulation be complied with when entering into an agreement of sale.

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