INTRODUCTION

The reality is that many invasive alien plants are present in South Africa and may be growing in residential properties, whether the owners know about them or not. Strictly speaking, invasive alien plants may only be kept with a permit.

As this topic is not a very well known one, homeowners are usually not aware of the implications of selling their properties without accounting for transfer of ownership of the invasive alien species present at the property.

Invasive alien plants in South Africa pose a serious concern in their contribution towards, amongst other things, biodiversity loss, ecosystem disruption and reduction of agricultural productivity. For this reason they are regulated by legislation intended to limit their destructive potential in the environment.

This article will seek to provide an overview on invasive plant certificates and the steps a buyer and seller must take in the transfer of ownership of immovable property where alien species is present.

WHAT IS AN “ALIEN SPECIES”?

Invasive species are regulated by the National Environmental Management Biodiversity Act 10 of 2004 (“NEMBA”).

Section 1 (1) NEMBA defines an “alien species” as the following:
“(a) a species that is not an indigenous species; or
..(b) an indigenous species translocated or intended to be translocated to a place outside its natural distribution in nature..”

NEMBA had its Alien and Invasive Species Regulations (“AIS Regulations“) passed in 2014, in terms of which there are four different categories of invasive plant species which must be controlled and managed or eradicated from areas in which the alien species may pose a threat to South Africa’s indigenous life.

The following categories are:

1. Category 1a: Invasive species must be combatted and eradicated. Trade and planting is strictly prohibited.¹
2. Category 1b: Invasive species must be controlled, removed and destroyed. Trade and planting is strictly prohibited.²
3. Category 2: Invasive species is potentially invasive and requires a permit to carry out restricted activity.³
4. Category 3: Invasive species may be contained in prescribed areas or provinces. Planting, propagation or trading is prohibited.⁴

ALIEN PLANT SPECIES AND SALE OF IMMOVABLE PROPERTY

When it comes to the sale of immovable property, it is important that the seller (permit holder) discloses to the buyer if there are any listed alien plant species which are present on the property. Estate agents should also enquire with the seller if there are any alien plant species present on the property.

This notification by the seller must be made in writing to the purchaser and/or the estate agent.

These steps must be taken prior to the conclusion of the sale of the property.⁵

If the purchaser has been notified of the alien species on the property, then they are required, in term of Regulation 29 of the AIS Regulations, to apply for a permit. Owners of these plants are required to have a permit, and in South African law a plant which is permanently rooted in soil “accedes to” or becomes permanently attached to the land itself, becoming part of the land. Therefore the owner of the land, is the owner of the plant and is responsible for dealing with it.

APPLYING FOR A PERMIT

In South Africa, a person who wishes to import or own a category 2/3 alien plant species must obtain a permit through the Department of Forestry, Fisheries and the Environment. The application form can be found on the following link: https://www.dffe.gov.za/sites/default/files/docs/forms/permitapplication_restrictedactivities_alienandlistedinvasivespecies.pdf

The costs for a permit can range between R50-R200 per species. In some circumstances, a Risk Assessment must be conducted to permit for an applicant to import alien species and prove that the species will not pose a threat to South Africa’s fauna and flora.⁶

INVASIVE PLANT SPECIES AND TRANSFER OF SALE

It is advisable that property sale agreements contain a clause which indicates that the purchaser is aware of the flora and fauna found on the property and accepts the property with its vegetation.⁷

NON-COMPLIANCE

Should a person fail to comply with NEMBA and its regulations, they may face a fine up to R10 million and potential jail time.⁸

CONCLUSION

If homeowners are uncertain if their old or new property contains any invasive species, they must consult an accredited invasive species practitioner, garden centre or landscapers to ensure that there is compliance with all relevant regulations and law which affect ownership of invasive alien plant species.