Authors: Dr Matthew Burnell and Jonathan Ripley-Evans
Prosecutions of environmental law transgressions are steadily increasing. In 2014, South Africa saw its first director sentenced (albeit by way of a suspended sentence) to imprisonment without the option of a fine1. Five years later, South Africa has now also seen the first successful private prosecution in the matter of Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd2. This judgment may encourage other environmentalists to use criminal prosecution as an additional tool to enforce the Constitutional right to an environment not harmful to health or wellbeing.
Private Prosecutions in terms of the National Environmental Management Act (“NEMA”)
The NEMA empowers persons acting in the public interest and/or in the interest of the protection of the environment to institute private prosecution in relation to breaches (including threatened breaches) of duties in laws and regulatory approvals concerned with the protection of the environment if a breach of that duty is an offence.
Private prosecutions, however, may only be launched where the applicant has received approval from the Director of Public Prosecutions that he / she has declined to prosecute the offence.
Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd
Having obtained approval from the Director of Public Prosecutions, Uzani launched proceedings against BP for constructing and/or upgrading fuel retail filling stations and facilities without the requisite impact assessment and the necessary regulatory approvals3.
In support of this allegation, Uzani relied on the presumption contained in the Criminal Procedure Act that, unless the contrary is shown, if a person cannot produce a necessary authority required for a particular activity, that person will be deemed not to have been the holder of the authority.
In its defence, BP argued that:
- the prerequisites for instituting a private prosecution contemplated in NEMA had not been met. That is, the prosecution was not in the public interest nor aimed at protecting the environment; and
- the private prosecution did not contemplate the fact that BP had submitted a section 24G application for rectification of so-called “unlawfully commenced” activities in terms of section 24G of NEMA during a period in which amnesty was available. (Although this argument is not clear from the judgment, it is presumed that persons submitting section 24G applications during the amnesty period would not be subjected to prosecution. This appears to offer justification for a decision by Director of Public Prosecutions not to prosecute).
In proving that the prosecution was aimed at the protection of the environment, Uzani led evidence to prove that an assessment process ex post facto an activity was substantially inferior for purposes of environmental protection to one conducted before commencement of the activity. In considering this evidence and confirming BP’s culpability, the court reviewed the wording of the Constitution4 and noted that the protection afforded by it to “everyone” are not “words to be treated lightly”.5
There is no doubt that the outcome of this judgment is open to abuse and it may give rise to a spate of private prosecutions against persons that submitted section 24G applications during the amnesty period. In addition, this judgment may give rise to the following unintended consequences:
- in circumstances where an authorisation has not been obtained, parties may be more reluctant to submit rectification applications in terms of section 24G for fear of self-incrimination and private prosecution; and
- the environment may, in fact, be worse off as persons that have undertaken listed activities without an environmental authorisation will be reluctant to submit a section 24G application for fear of prosecution. As a result, no impact assessments will be conducted and environmental impacts will not be managed unless required in terms of a compliance notice or directive issued by the authorities.
For the above reasons, this judgment may warrant further scrutiny from a higher court to ensure that competing interests are properly considered.
While compliance has always been an imperative, now, more than ever, companies must implement appropriate systems to ensure compliance. The risks, which range from reputational and social licence to operate issues to personal liability are just too great.
Given the potentially significant implications for those who have previously submitted rectification applications and removed these risks and liabilities from their risk profiles and balance sheets, it will be interesting to see whether the judgment is taken on appeal and if so, the extent of third party intervention in proceedings in light of the significant repercussions this judgment may have for legal, business and investment certainty.
1 S v Blue Platinum Ventures 16 Pty Ltd and others: Sentencing Proceedings: Unreported, Naphuno Regional Magistrates’ Court Case No. RN126/13 9 January 2014
2 Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd. This was a decision of the Gauteng Division under case number CC 82/2017.
3 The charges related to contravening section 22(1) read with section 21(1) and 29(4) of the Environment Conservation Act and item 1(c) of Schedule 1 and Schedule 2 of GN R 1182 of 5 September 1997.
4 Section 24 of the Constitution
5 At paragraph 88
For more information, please contact Dr Matthew Burnell and Jonathan Ripley-Evans or your usual Herbert Smith Freehills contact.