Environmental Compliance – tread carefully

September 12, 2021 admin 0 Comments

environmental compliance

In a corrupt or inept State, it is easy for companies to get away with environmental non-compliance and even serious environmental damage. This is because law enforcement authorities are not eager to act against these companies and individuals, nor want to carry out proper criminal investigations. There is also the possibility that the State would refuse to prosecute environmental crimes due to the status of the accused, insufficient evidence or based on application of their internal policy directives.

But the beauty of our environmental laws is that they are aimed at allowing communities to enforce the law as well. This is evident from the preamble to the National Environmental Management Act 107 of 1998 (NEMA) and specifically section 33, which allows for private prosecution of environmental offences.

In the case of Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd, Uzani instituted a private prosecution of BP Southern Africa which was accused of building several petrol filling stations beginning in 1998, without the requisite environmental authorization in terms of NEMA.

BP was eventually convicted in March 2019 for failing to obtain environmental authorisation prior to building the fuel stations. This, notwithstanding the fact that BP had paid administration fines and received retrospective authorisations in terms of s24G of NEMA.

This is considered South Africa’s first private prosecution of an environmental offence.

Section 33 of NEMA provides that any person may institute and conduct a prosecution, in the public interest or in the interest of the protection of the environment. Section 1 of NEMA further defines “person” as including a juristic person.

What this essentially means is that environmental interest groups, NGOs, non-profit organisations, ratepayers associations and the like are empowered by NEMA to institute and conduct private prosecutions in instances where the prosecuting authority (NPA) declines to prosecute.

It also means that our environmental legislation (NEMA) has cleverly bypassed the relatively onerous requirements or qualifications set down by the Criminal Procedure Act for private prosecutions. 

This is because in terms of NEMA, no certificate of nolle prosequi from the NPA, and no financial guarantees from the “prosecuting party” is required.

What this also means is that companies can no longer break environmental laws and then sit back and gloat about it, knowing that the State won’t pursue them. This is because the community can and will pursue them in terms of s33 of NEMA.

 

This is another reason why companies need to always ensure that environmental compliance is at the top of their agenda. And with rising concern among communities and NGOs about environmental issues, corruption, and poor service delivery, many of them are becoming more vociferous and are taking action to save their communities.

 

Which means that it is not the best of times for companies to be playing lip service to environmental compliance. Breaking environmental laws could have serious financial and criminal consequences and could cause irreversible reputational damage.

 

Adv K Samie

Trust Account Advocate specialising in environmental law

www.law.samie.co.za