Eat me while you can …

Private Property South Africa
Lea Jacobs

It appears that South African property vendors will have to consider an awful lot more than the selling price when new legislation comes into effect at the beginning of October.

Laws that will come into force then oblige property sellers to inform the purchaser in writing of the presence of listed invasive plant species on their property as a condition of the sale. Failure to do so could result in a fine to the tune of R5-million for a first offender, R10-million for a second offender and a prison sentence of up to 10 years for those who consistently break the law.

The announcement is, understandably, being seen by many as blooming ridiculous. While the problems associated with invader species are bigger than seedlings, the question that needs to be asked is, does the punishment really fit the crime? And, as important, does the new law mean that every seller is going to have to obtain a degree in horticulture in order to abide by the rules?

Does the punishment fit the crime?

People are up in arms about the latest changes to the law and quite frankly, who can blame them? The punishment does seem a little over the top when one considers that in many cases the sentences handed down to murderers entail less than the 10 years in jail prescribed for those who fail to notice alien plants and notify the relevant parties.

The other questionable aspect of the new law is how on earth is it going to be policed? Also, how difficult would it be for some disgruntled buyer to plant an invasive species after the sale has gone through and then report the seller to the authorities? Likewise, who is going to double check that the property only has the invader species listed and more importantly, what would happen to the poor seller who fails to notice the odd plant or two?

Good news!

There is however a bit of good news. A spokesman for the Department of Environmental Affairs stated that the Act would not impact on rights in relation to immovable property, but merely required a seller to notify a buyer. “The seller is not required to clear the invasive species before (the) sale, but simply to notify the buyer of its presence."

The bad news is that there are 559 invasive species listed in the regulations. These have been divided into categories, and permits may be obtained for certain useful but invasive plants, which may be grown under controlled conditions. Category 1-listed invasive species must be controlled and eradicated. Category 2 plants may only be grown if a permit is obtained and the property owner checks they do not spread beyond his or her property. The growing of Category 3 species is subject to various exemptions and prohibitions.

Will go to court

While it is generally accepted that the new law will be tested in court, it's obvious that the powers that be are pretty determined to enforce the latest legislation. This essentially means that they will be seeding fines sooner rather than later and anyone selling a home should take the utmost care to ensure that they are aware of any invader species in the garden, make up a list and supply this to the buyer.

As stated earlier, alien plants are a problem in this country. However, it has to be said: the new legislation is going to add metres and metres of additional red tape to every transaction. As things stand, the country has far bigger fish to fry than the odd mulberry tree in a suburban garden and one can't help but think that government is targeting the average law abiding citizen who just wants to live in peace, while turning a blind eye to far more pressing issues.

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