Duty to Disclose Invasive Species - New Regulations

We all know that there are a host of certificates which have become associated with the sale of immovable property and which have been necessitated by laws and/or the inclusion of special clauses in sale of property agreements relating thereto. The Government has now presented a new challenge to us.

A Regulation was promulgated with effect from 1 October 2014 in terms of the National Environmental Management Biodiversity Act 10 of 2004 dealing with Invasive Species and the control thereof.  The term Species should of course not be understood to be restricted only to plants.  It incorporates animals, fish, birds, insects and microbes, to mention a few.

The Regulation lists hundreds of Species which are deemed to be invasive and categorises them (sometimes nationally and sometimes just regionally) into Species which we are not permitted to possess at all, Species which we can possess but need a permit to do so; Species which just need to be controlled and Species which are exempted from the Regulation.

In terms of the Act as read with the Regulation it is a crime for anyone to possess or have upon their property a prohibited Invasive Species or a Species which requires a permit without such permit or to fail to control a Species which is in the “need to be controlled” category.  Insofar as prohibited Invasive Species are concerned there is in fact a duty on the property owner to eradicate the Species and if he fails to do so the government can do so at his cost!

Cutting straight to the chase the Regulation (somewhat surprisingly) goes on to stipulate that every seller of an immovable property is obliged, prior to concluding a sale agreement, to inform the prospective purchaser in writing of the presence on the property of Listed Invasive Species.
The Regulation does not differentiate between the various categories of Listed Invasive Species so it appears that all the categories should be informed upon.

As the average seller is not sufficiently qualified to identify whether his property contains any of the Listed Invasive Species it would appear that if this Regulation is going to be followed to the letter sellers will be obliged at their cost to engage, inter alia, the services of botanists (plants); biologists (animals), entomologists (insects), ornithologists (birds), ichthyologists (fish) and microbiologists (microbes) to help them identify an Invasive Species. As it is thoroughly unlikely that there will be sufficient such experts available to service the entire property sale market the implementation and honouring of the Regulation is going to prove to be impossible!  The cost of the exercise would also be prohibitive.

Failure to comply with the Regulation is coupled to criminal sanctions which are draconian in nature. You can murder someone and probably receive a lesser punishment!

This law is therefore (like many laws which are passed with good intentions but lack of forethought) ridiculous!
Having said all this it is the law and we must, as an industry, decide what to do about it. One option is to simply ignore it and to leave it to the State to police the law which it chose to create. This is what I would prefer to do. I had the very same thoughts about electrical clearance certificates and plumbing certificates but the property industry decided to rush to incorporate these certificates into the daily practice of preparing sale agreements for the sale of immovable properties.  I therefore suspect that the property industry will continue this practice and will wish to incorporate this new law into standard sale agreements.

For those who wish to do so I would suggest a clause on the following lines:

“The Seller hereby records that to the Seller’s best knowledge and belief there are no Listed Invasive Species mentioned in terms of the Regulations to the National Environmental Management: Biodiversity Act 10 of 2004 upon the Property.  It is however recorded that as the Seller is not sufficiently qualified to identify such Species that the Purchaser accepts the risk inherent in purchasing the Property with any Listed Invasive Species which might be thereon.“

Miltons Matsemela Inc
October 2014