8. Implementation and enforcement of environmental law statutes in South Africa -
8.7. The law
149
environmental consultant who worked for the second accused, a close corporation (legal entity) had provided incorrect and misleading information in their BAR by failing to disclose the existence of a wetland on the property on which a listed activity were to be carried out.
The state had argued that by his misrepresentation, namely that there was no wetland on the site. The accused would stand to benefit. He would not incur the expenses of consulting a wetland specialist and he would evade long assessment periods.
The court found that the state had proven the existence of a wetland. On the charge of fraud the state was held to the standard of proof in criminal proceedings,709 and the court found that it had failed to prove beyond reasonable doubt that the accused had fraudulently misrepresented to the DEA that the site did not contain a wetland. The court found that the argument that Stefan Frylinck would gain from the report’s recommendation was not entirely convincing. It found that the nexus between bypassing wetland delineation and financial gain was too remote and the argument without substance. The Court held further that, the argument that the accused wanted to bypass the wetland delineation for financial gain or urgency to commence construction was flawed. The Court found that the conduct of the accused suggested at most non-conformity with prescribed norms as well as negligent approach to the framework of his study and as such the court found it difficult to believe that the accused acted with knowledge of its falsity or with intent to deceive. The accused was given the benefit of doubt and acquitted of fraud but found guilty of contravening reg 81(1)(a) of the EIA Regulations.
150
The court held that, in as much as Frylinck’s methods to come to the final conclusion might be flawed, that was no excuse to draw further inferences of fraudulent misrepresentation. As a result, the nexus between failure to do a wetland delineation and economic gain was too remote and that the State’s case lacked substance. The Court found that what the accused’s conduct suggested was non-conformity with prescribed norms as well as a negligent approach to the framework of his study. The Court held further that the accused was very cooperative and responded to all queries raised by the DEA or GDACE. The accused was found guilty on count one and acquitted on count two.
It is not apparent from the facts whether the Court made enquiries into whether the state’s argument that Frylinck wanted to bypass the wetland delineation for financial gain or urgency to commence construction were likely to be true.There is likelihood that the accused could have bypassed wetland delineation so that he could commence his project urgently. As a result he would also stand to gain. Faure and Svatikova advise that where a court sits as an environmental court, enforcement through criminal law should be preferred when the harm to the society or environment712 or benefit to the offender resulting from the activity is significant.713 This is persuading observation. It also alluded to by Kohn who observes that it has become ‘more cost-effective to break the law than to comply with it’.714
Another challenge presented by use of criminal sanctions in enforcing EIA is that the Act creates a ceiling in terms of the punishment or fine to be paid by the offender.715 This may lead to a situation where great offences are punished with low penalties,716 and vice versa.
NEMA EIA Listing notices identify activities either by their size in metres, capacity or sensitivity of the receiving environment. For instance, construction of filling stations and associated structures is listed three times in the 2010 listing notices.717 If we apply the monetary standard without paying any regard to the threshold set by the listing notices it would mean that a person engaging in the construction of a filling station to the capacity of 80 cubic metres on one hand and the person constructing a filling station to the capacity of
712 Own emphasis.
713 M G Faure and K Svatikova ‘Criminal or administrative law to protect the environment: evidence from Western Europe’ (2012) 24 Journal of Environmental Law 258.
714 L Kohn n 570 above at 9.
715 See s 24G and 24F of the National Environmental Management Laws Second amendment Act 30 of 2013.
716 M Kidd ‘Criminal law’ in A Paterson and LJ Kotzé (eds) Environmental Compliance and Enforcement in South Africa: Legal Perspectives (2009 Juta) 245.
717 See Listing Notices GN R 544, 545 and 546.
151
600 cubic metres would likely be liable to a similar fine as per s 24F of NEMA and this is absolutely upon the discretion of the court to impose the fine it deems appropriate. Again, depending on the size of the project and the benefit to be derived therefrom, R5 million might be a modest price to pay for great violations. Criminal measures are not stringent enough to deter prospective developers from commencing their projects before necessary licences and permits are sought.
There is absolutely nothing wrong with using both criminal sanctions together with administrative fines in attempt to enforce environmental law. In fact, it is accepted that the complementary use of the two systems might lead to additional deterrence.718 In coming to their punishment the courts could use the following factors to influence the outcome: the threshold of harm, the type of activity,719 benefit derived by the offender from the unlawful commencement of the activity. These factors could be more useful than the factors ordinarily used as extenuating or mitigating factors in criminal cases.
At this point one could ask whether prosecution is the best option for advancing or protecting the environment under the EIA regime. Those in favour of measures other than prosecution for enforcing environmental law criticise criminal measures for being costly, legal systems that only have criminal enforcement systems and no or limited possibilities to enforce via administrative law may be less effective. The assumption is that given the high costs of the criminal procedure, public prosecutors allocate their scarce resources to the most important cases.720 According to Kidd, ‘officials are reluctant to punish offenders for conduct seen as morally neutral’.721
One of the lessons that could be learnt from the US is that when it first introduced criminal sanctions to enforce the environmental law it became very proactive. It came to the attention of the US Congress that ‘the absence of a focused criminal enforcement program resulted in
718 See M Faure and K Svatikova ‘Criminal or administrative law to protect the environment: evidence from Western Europe’ (2012) 24 Journal of Environmental Law 256. See also M Kidd ‘Criminal measures’ in A Paterson and L Kotzé (eds) Environmental Compliance and Enforcement in South Africa: Legal Perspectives (2009 Juta). See also T Winstanley ‘Administrative measures’ in A Paterson and LJ Kotzé (eds) Environmental compliance and Enforcement in South Africa: Legal Perspectives (2009 Juta) 225.
719 See NEMA Listing Notices GN R 544, 545 and 546.
720 M Kidd ‘Criminal law’ in A Paterson and LJ Kotzé (eds) Environmental Compliance and Enforcement in South Africa: Legal Perspectives ( Juta 2009) 240.
721 Ibid at 243.
152
the development of criminal cases largely by happenstance’.722 The idea of using criminal sanctions loomed large in the mind of US Congress until the early 1980s, when the Land and Natural Resources Division of the Department of Justice established an Environmental Section. The Division listed criminal enforcement as its number one priority.723
To implement this plan, the first office of Criminal Enforcement was created in 1981. Its mandate was to implement the Agency’s commitment. In 1982, the first criminal investigators were hired at EPA. Most of them came from the metropolitan police departments or other federal agencies, but the challenge was that the officers did not have environmental backgrounds. The Land and Resources Division of the Department of Justice
‘set up its Environmental Enforcement Section, a special unit whose sole responsibility was investigation and enforcement of environmental crimes’.724
The US preferred jail sentences, over payment of fines or civil fines, for their deterrent nature.725 This also led to the idea that punishment should be imposed on employees of corporations directly, not on corporations themselves.726 It was believed that corporations do not commit crimes, but individuals do.727 It has also alleged by CER that companies budget for administrative fines and continue with listed activities and that ‘corporations in many cases may not feel a sting of fines as smartly as would individuals, since in the case of significant operations even sizeable fines may be viewed as “a cost of doing business”’.728 Drawing from the experiences of the US, the need to act more proactively is made much greater under the EIA, regard being had to the technicality of the field, the objectives of the integrated environmental management and the principles of s 2 that decision-makers are required to take into account and apply to their actions.
722 R McMurry and S Ramsey ‘Environmental Crime: The use of criminal sanctions in enforcing environmental laws’ (1986) 19 Loyola of Los Angeles Law Review 1137.
723 Ibid at 1139.
724 R McMurry and S Ramsey ‘Environmental crime: the use of criminal sanctions in environmental laws’ (1986) 19 Loyola of Los Angeles Law Review 1141.
725 R McMurry and S Ramsey n 724 above at 1140.
726 See M Kidd ‘Criminal measures’ in A Paterson and LJ Kotzé (eds) Environmental Compliance and Enforcement in South Africa: Legal Perspectives (2009 Juta) 240.
727 See CD Stone Should trees have standing? Law, Morality and the Environment 3ed (2010 Oxford University Press).
728 R McMurry and S Ramsey ‘Environmental crime: the use of criminal sanctions in environmental laws’ (1986) 19 Loyola of Los Angeles Law Review 1133-1170 at 1142.
153