5. ENVIRONMENTAL LAW AND THE COMMUNITY ORGANISATION
5.5. INFLUENCING THE LEGISLATIVE PROCESS
of the conference was that penalties in environmental crimes were typically higher than administrative penahies and may be assessed on the past profits of the polluting corporation. Environmental crimes could alsobeprosecuted under other charges such as fraud, racketeering, or lYing. In some countries criminal sanctions would be imposed on the corporation whereas in other countries the individual within the corporation could be held liable. The US trend to impose both penahies and jail terms on high-level corporate officers for 'knowing violations' was highlighted. Of interest to South African legal fraternity was the intention of one country to introduce legislation making the attorneys who incorporated the organization personally responsible! With respect to the fines imposed it was found that the publicity surrounding high penahies and stiff jail terms seemed to provide an effective deterrent against environmental crimes but that problems occurred where the sentence was not stiff enough. To this end it was suggested that sentencing guidelines ought to be developed for judicial officers.284
In sum then, the prospects for a stand alone (US EPA styled) enforcement structure are slim. It will remain incumbent upon the CBO and NGO sector to ensure that decision-makers remain accountable and that the regulators regulate in a manner that is environmentally just. Consequently it is submitted that most community-based actions likely to brought in terms ofNEMA will rely heavily upon procedural or administrative grounds
thought to lead to a fully empowered and participative multi-stakeholder legislative outcome.285 The reality is that whilst significant consultation was held and various white and green papers issued, the final formulation of NEMA took the NGO sector by surprise leading to queries as to whether this had been 'a process for process sake.' Invariably the NGO sector is only involved after a draft bill is presented, and comments are called for, usually within an almost unreasonably short deadline period.
One such example is the draft Petroleum Pipeline Bill. The environmental community in South Durban literally discovered this Bill the day the deadline for comments expired and had to obtain an urgent extension to the comment period. .In this case, as in may others there has been no debate or other consuhative procedure with the proponents of the legislation. Those charged with drafting legislation usually receive an instruction along with a terms of reference from a Government agency. They are not required nor mandated to consuh outside of that relationship - an omission which is seen by some to constitute a serious flaw in the legal mechanism.286
Another area attracting criticism is the manner in which outwardly sound legislation is struck down by parliament on grounds of some process irregularity. It appears that there may be too much scope for 11th hour attack by powerful groupings that use spoiling tactics to undermine validity and acceptance. In the USA the legislative process is initiated by a process of notification that a law is to be formulated accompanied by a request for comments. Several hearings will then be held in order to allow interested and affected parties to make submissions on the matter. Based on
285CONNEPP is an acronym for Consultative National Environmental Policy Process.
these hearings a draft form of the law is circulated with a further request for comments. A final hearing is then held following which the draft legislation is sent to the legislature for approval. This process is lengthy and not perfect but it does eliminate much of the process related grounds for attack and is far more inclusive than the South African 'model' which process effectively excludes participation by lAP's in the pre-formulation phase. It is noted that both the development of the Air Quality Bill (which will repeal APPA), and the amendments to Chapter 5 ofNEMA have been off limits to the public even though although preliminary drafts were reportedly made available to select industrialists prior to formal release. The concern here is that the Bill, once presented, invariably takes on a specific ingrained character as a result of its pre-formulation. Amendments made in consequence of the public hearing and debate are typically textual amendments and do not alter the overall 'flavour' and direction of the Bill. For the NGO it would be preferable to debate the essence and character ofthe proposed legislation ab initio rather than be left, rather futilely, attempting to effect fundamental change at a later stage.
Access to the Law reform process depends on the personality invo lved and these personalities in DEAT appear to change from day to day. This is in itself is a concern as a process such as this requires strong leadership and continuity to carry it through from inception to promulgation. Instead it is observed that the Law reform process has been stymied by changing personnel and direction. It also appears to have been
286Source: Gerritt Coetsee CAPCO KwaZulu Natal- personal communication.
power relationships at work.287
287The operation of the Joint Development Framework (JDF) - a consortium of chemical, oil refinery and Government officials may have something to do with this.