Invasive Plants Can Become A Big Problem After Buying A Property Without A NEMBA Clause
Whether you are buying or selling a home, you might think the trees and plants in the garden are just "part of the scenery." However, in South Africa, some plants are actually legal liabilities.
If you’re signing an Offer to Purchase (OTP), you need to know about the NEMBA Clause. Here is a simple breakdown of why those "pretty" plants could cost and expose both sellers and purchasers to future disputes, compliance notices and financial liability.
What is the "NEMBA Clause"?
NEMBA stands for the National Environmental Management: Biodiversity Act. In plain English, it’s a law that says property owners are responsible for the plants on their land.
If you are selling a house, you are legally required to tell the buyer (in writing) if there are any invasive alien species on the property. Including a NEMBA clause in your sales contract protects both the buyer and the seller from legal headaches down the road.
Why are these plants a problem?
Invasive plants aren't just "weeds." They are aggressive "foreigners" that cause real damage:
- Water Thieves: Plants like Blue Gums (Eucalyptus) drink massive amounts of water, drying out the soil and local streams.
- Fire Risks: Many invasive plants burn much hotter than local Fynbos. This makes wildfires harder to control and much more destructive to homes.
- Eco-Bullies: They kill off local plants and ruin the natural balance of the soil.
The Four "Danger" Categories
The law divides these plants into four groups so you know what to do with them:
| Category | What it means | Examples |
| Category 1a | Must be removed immediately. It is illegal to have these. | Kangaroo Wattle |
| Category 1b | Must be controlled. You have to stop them from spreading. | Water Hyacinth, Pompom Weed |
| Category 2 | Permit required. You can only keep them if you have a specific license. | Certain Gums and Pines |
| Category 3 | Keep but don't grow. You can keep the old ones, but you can’t plant new ones or sell them. | Jacarandas |
What happens if you ignore the law?
The South African government takes this very seriously. If you don't comply, you aren't just looking at a small "slap on the wrist." You could face:
- Massive Fines: Up to R5 million for a first offense, and up to R10 million for a second.
- Jail Time: Up to 10 years in prison.
- Cleanup Costs: 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. The state can step in, clear the plants themselves, and send you the bill.
The Bottom Line
- Sellers: Disclose what’s in your garden. If you don't, the buyer could sue you later for the cost of removing illegal plants.
- Buyers: Check the garden before you sign. If the seller has a permit for certain trees (like Category 2), you’ll need to get that permit transferred into your name.
Including a NEMBA clause is a small step that prevents a massive financial disaster. When in doubt, ask a professional to walk through the garden with you!
If you are not sure if that tree in the corner is a problem? You can check the official lists at invasives.org.za.
Including the NEMBA Clause in your OTP helps protect both parties from future disputes, possible infringement and penalties due to non-compliance.