National Environmental Management Act, 1998 (Act No. 107 of 1998)RegulationsFinancial Provisioning Regulations, 2015Chapter 4 : Transitional Arrangements17. Transitional arrangements |
| (1) | Any actions undertaken in terms of regulations 53 and 54 relating to financial provision in the Mineral and Petroleum Resources Development Regulations, 2004 which can be undertaken in terms of a provision of these Regulations must be regarded as having been undertaken in terms of the provision of these Regulations. |
| (2) | Financial provision submitted in terms of regulations 53 and 54 of the Mineral and Petroleum Resources Development Regulations, 2004 for which approval is pending when these Regulations take effect, must despite the repeal of regulations 53 and 54 of the Mineral and Petroleum Resources Development Regulations, 2004 be dispensed with in terms of regulations 53 and 54 the Mineral and Petroleum Resources Development Regulations, 2004 as if regulations 53 and 54 of the Mineral and Petroleum Resources Development Regulations, 2004 were not repealed. |
| (3) | Where an approved financial provision is under review in terms of the Mineral and Petroleum Resources Development Regulations, 2004 when these Regulations come into operation, the approved financial provision must be reviewed as if regulations 53 and 54 of the Mineral and Petroleum Resources Development Regulations, 2004 are not repealed and may be approved as if the Mineral and Petroleum Resources Development Regulations, 2004 were not repealed. |
| (4) | A financial provision approved in terms of the Mineral and Petroleum Resources Development Regulations, 2004 must be regarded to be the financial provision approved in terms of these Regulations, on condition that a holder that operates in terms of a financial provision approved in terms of the Mineral and Petroleum Resources Development Act, 2002 at the time of the coming into operation of these Regulations, must review and align such approved financial provision with the provisions of these Regulations, after the coming into operation of these Regulations, as set out in sub-regulations (5) to (10), and annually thereafter as set out in regulations 9 and 11, read with the necessary changes. |
| (5) | [Regulation 17(5) deleted by section 2 of Notice No. 1314 of 2016] |
| (6) | If a holder fails to comply with sub-regulation (5), such holder will be regarded as being in noncompliance with section 24P of the Act, unless a payment agreement as contemplated in subregulations (7) to (9) has been entered into. |
| (7) | If, after the assessment of the adequacy of the financial provision contemplated in subregulation (5) of these Regulations, the holder is not able to increase the assessed and audited financial provision to cover an identified shortfall, the Minister responsible for mineral resources may, after considering the financial stability and operating methodology of holder, enter into a payment agreement with the holder for a period not exceeding five years to bring the financial provision in line with the assessed and audited financial provision, by using any of the financial vehicles contemplated in regulation 8 of these Regulations, and such payment agreement must be reviewed annually to ensure adequacy of the financial provision. |
| (8) | The Minister responsible for mineral resources may request any information that may be relevant to the decision on the payment agreement contemplated in sub-regulation (7) from the holder. |
| (9) | The payment agreement contemplated in sub-regulation (7), as well as any indication of compliance with such agreement, must be included in the annual review and assessment of the adequacy of the financial provision and must be submitted together with the plans and reports as required in terms of subregulation (5). |
| (10) | On receipt of the updated financial provision contemplated in sub-regulation (5), the Minister responsible for mineral resources must, within 30 days, consider the updated financial provision and─ |
| (a) | approve the updated financial provision for implementation by the holder; |
| (b) | refer the updated financial provision back to the holder for further revision; or |
| (c) | not approve the updated financial provision. |
| (11) | If the updated financial provision is approved, the holder must make the approved financial provision contemplated in sub-regulation (10)(a) within 30 days after the date of approval by using any of the financial vehicles contemplated in regulation 8. |
| (12) | If the updated financial provision is referred back as contemplated in sub-regulation (10)(b), the holder must review, assess and adjust the updated financial provision as directed by the Minister responsible for mineral resources and re-submit within 30 days for further consideration and approval by the Minister responsible for mineral resources. |
| (13) | On receipt of the updated financial provision contemplated in sub-regulation (12), the Minister responsible for mineral resources must approve for implementation, or not approve the updated financial provision. |
| (14) | If the updated financial provision is referred back as contemplated in sub-regulation (10)(b) and the holder does not submit an updated financial provision, such holder will be regarded as being in non-compliance with section 24P of the Act. |
| (15) | If the updated financial provision is not approved, as contemplated either in sub-regulation (10)(c) or (13)— |
| (a) | the holder will be regarded as being in non-compliance with section 24P of the Act; |
| (b) | the Minister responsible for mineral resources must provide reasons for not approving such an updated financial provision; and |
| (c) | the Minister responsible for mineral resources may appoint an independent assessor, at the cost of the holder, to confirm the review and assessment of the financial provision or to revise the review and assessment and to adjust the financial provision to the satisfaction of the Minister responsible for mineral resources, in consultation with the holder. |
| (16) | Should the review and assessment contemplated in subregulation (15)(c) indicate— |
| (a) | a shortfall in the financial provision, the holder must increase the financial provision to meet the reviewed, assessed and audited financial provision within 90 days from the date of signature on the auditor’s report and must provide proof of increasing the financial provision to the Minister responsible for mineral resources; |
| (b) | an excess, the amount in excess must be deferred against subsequent assessments. |
| (17) | In the event that a bank or financial institution intends to withdraw a financial guarantee to support a financial provision approved prior to the coming into effect of these Regulations, in terms of the Mineral and Petroleum Resources Development Act, 2002, regulation 8(3), (4), (5) and (6) applies. |
| (18) | A holder that is acting in accordance with a directive issued in terms of section 52(3)(a) of the Mineral and Petroleum Resources Development Act, 2002 when these Regulations come into effect must give effect to such directive. |
| (19) | A holder must— |
| (a) | make any approved amendment of an environmental management programme available and accessible as contemplated in regulation 13(1)(a), (b) and (c); and |
| (b) | comply with regulations 13(2) and (3). |
| (20) | The powers and responsibilities contained in regulation 14(2), (3), (4) and (5) apply similarly to a holder, read with the necessary changes. |