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30 April 2017
Article by: Dylan Slater - Creamer Media Writer
Werksmans Attorneys director Justin Truter
Werksmans Attorneys director Justin Truter
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Environmental law precedents recently set in place could be to the long-term benefit of companies that may currently be contravening environmental laws, says corporate and commercial law firm Werksmans Attorneys.

Werksmans Attorneys director Justin Truter says the precedents will “most certainly have a positive effect on promoting future compliance with South Africa’s environmental laws and directives issued under these laws”.

He adds that the precedents are also likely to make company directors take note of their company’s environmental management systems and their degree of environmental compliance.

Legal Prosecution

In the last two years, enforcement of environmental compliance by mining companies by the National Prosecuting Authority (NPA) has increased. In 2012, the Ermelo Regional Court was the first court to invoke the criminal provisions of the National Environment Manage- ment Act, No 107 of 1998 (Nema), the National Water Act, No 36 of 1998 (NWA) and the environ- mental provisions of the Mineral and Petroleum Resources Development Act, No 28 of 2002 against a mining company and its MD.

Since then, the recent Blue Platinum Venture case has reflected the direction that environmen- tal enforcement in South Africa will take, notes Truter. In this case, the State held clay mining company Blue Platinum Ventures MD Matome Samuel Maponya criminally liable, in his personal capacity, for the environmental degradation caused by the mining company’s operations outside the Bathlabine village, near Tzaneen, in Limpopo.

This case was decided on January 31, 2014, in the Naphuno Regional Court, in Limpopo. Maponya pleaded guilty to contravening Section 24(f) of Nema, and the MD was handed a five-year suspended sentence, without the option of a fine, on condition that the areas, which had been damaged by the illegal mining activities, were rehabilitated within three months of the date of judgment.

Truter explains that prosecutors seeking enhanced criminal sanctions against companies and their directors, in their personal capacities, will rely on the precedent set by the Blue Platinum case.

“These cases have shown the willingness of our courts to impose criminal sanctions on directors in their personal capacities and without the option of a fine, as was the case with Blue Platinum. The cases have also indicated that our courts are prepared to pierce the protection of the corporate veil in circumstances where a director knew or should have known of the environmental degradation or noncompliance and failed to take the necessary measures to prevent such noncompliance or degradation,” he explains.

Truter suggests that, at the risk of prosecution and conviction, these cases will also result in company directors ensuring that their companies have far more stringent environmental management systems in place to prevent environmental noncompliance and to prevent or adequately mitigate environmental degradation.

Imposing Justice

Having the appropriate channels in place to prosecute and investigate cases of environmental disputes is key to bringing appropriate offenders to justice.

Truter explains that the mandate and powers granted to environmental management inspectors (EMIs) under the environmental legislation are far-reaching and forceful – an indication of the legislator’s intentions to strictly enforce environmental compliance.

“These powers range from arrest and detention to attachment of goods and the forced closure of a facility that does not comply with environmental laws or is causing significant environmental degradation,” he says.

However, these laws are only effective as a deterrent if they are consistently and successfully enforced.

The Department of Environmental Affairs (DEA) has embarked on various training and capacity-building initiatives over the last ten years, aimed at ensuring all environmental enforcement actions are legally defensible and to train and equip EMIs to properly investigate environmental offences. The training and capacity building also focuses on training non-EMI’s in the investigation and prosecution of environmental offences. This training is extended to magistrates and prosecutors through field training, specialised training and short courses.

“The DEA has also collaborated with the NPA and has certain cooperation agreements and standard operating procedures in place to ensure the improved investigation and prosecution of environmental offences, and improved lines of communication with the South African Police Service and the NPA,” says Truter.

Importantly, there is also a need to inform and educate the public, particularly rural communities, of their right to lay complaints against companies that cause environmental degradation, he notes.

Truter suggests that, ideally, South Africa should have specialised green courts that sit on certain days in every region to prosecute environmental offences. “The original Green Court, in Hermanus, in the Western Cape, had a dedicated environmental prosecutor and a conviction rate of more than 80% before it was disbanded.”

Internationally on a Par

Truter states that South Africa is one of the few countries that guarantees the right to a healthy environment as one of its citizens’ basic human rights, in Section 24 of the country’s Constitution.

“Further, our environmental laws contain some of the strictest criminal and civil sanctions for environmental noncompliance and degradation in the world, including [sanctions] in respect of personal liability for directors.”

South African courts and their staff have significant capacity constraints, not unlike many other jurisdictions in the world, says Truter. “This, coupled with a lack of experience and training in the prosecution of environmental crimes among prosecutors and magistrates . . . created an obstacle to the successful prosecution of environmental crimes,” Truter says.

Although still relatively new by global standards, South Africa’s EMIs are some of the best-trained environmental officers in the world, notes Truter, adding that the Environmental Management Inspectorate is constantly increasing its capacity to investigate environmental offences more consistently and successfully. The Environmental Management Inspectorate has trained over 224 officials, magistrates and prosecutors over the last three years.

“From an international perspective, the recent imposition of personal liability for environmental damage has been an important turning point in the enforcement of environ- mental law in South Africa,” he concludes.

Edited by: Shannon de Ryhove
Creamer Media Senior Deputy Editor Polity & Multimedia
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