Buying or Selling Property? Don’t Overlook the Invasive Plant Clause

My property, my plants and my trees? Think again.

Property owners in South Africa have a legal obligation to control vegetation on their property. Sellers, purchasers and property practitioners should be aware of the importance of including the NEMBA Clause in an Offer to Purchase (OTP). This clause ensures compliance with the National Environmental Management: Biodiversity Act 10 of 2004 and the Alien and Invasive Species Regulations, 2014.

The Legal Duty of Property Owners

Property owners have a duty of care and are legally obliged to control, and where necessary eradicate listed invasive species on their property.  In the event of a sale, written disclosure by the seller to the purchaser of any listed invasive species present on the property is required.

Non-disclosure can expose both parties to future disputes, compliance notices and financial liability.

Why Invasive Alien Plants Matter

Invasive alien plants pose a serious threat to indigenous habitats, natural water sources and soil chemistry, while also increasing fire risk. Certain species, such as Eucalyptus, consume large amounts of water and release chemicals that restrict the growth of indigenous plants.

Fynbos regeneration depends on controlled fire cycles, but invasive plants fuel hotter fires that their seeds can survive, while damaging or destroying indigenous seed banks. The devastating fires in the Western and Eastern Cape illustrate this risk.

The effects of invasive alien species go far beyond just plants growing in the wrong places. They impact biodiversity, ecosystems, livelihoods and can even take a toll on our emotional wellbeing. Which highlights the clear need for regulation.

Categories of Invasive Species

The Alien and Invasive Species Regulations classify listed species into four categories:

1. Category 1a - Species that must be immediately eradicated.

Examples: Brisbane, Kangaroo and Screw-pod Wattle.

2. Category 1b – Species that must be controlled and removed to prevent spreading.

Examples: Pompom Weed, Water Hyacinth and Famine Weed.

3. Category 2 - Species that requires a permit.

Examples: Certain commercial plantations of gums and pines.

4. Category 3 – Existing species may remain, but no further planting or trade is allowed.

Examples: Jacaranda trees.

Specific categories differ by province and are monitored by the South African Biodiversity Institute (SANBI) and the Department of Forestry, Fisheries and Environment. For more information visit http://www.invasives.org.za/legislation.html.  

Permits and Ongoing Compliance

Where the Seller holds permits for certain species, the Purchaser is also required to obtain the required permits on transfer of the property.

Property owners must also allow authorised officials access to manage or monitor these species. The State may order removal of invasive species, and non-compliance may make the owner liable for costs.

Penalties for Non-Compliance

Non-compliance can result in severe penalties:

• Criminal prosecution

• Fines of up to R5 million for a first offence

• Fines of up to R10 million for a second offence

• Imprisonment of up to 10 years.

Including the NEMBA Clause in your OTP helps protect both parties from future disputes, possible infringement and penalties due to non-compliance.

You can contact us for further guidance.

Driven by our commitment to our environment, the Snymans Caterpillar Foundation has planted more than 300 indigenous trees in collaboration with SANBI and continues to do so throughout the year.

Written by: Sophia de Klerk
Moderated and approved by: Rohula Kgabu

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