COMPARATIVE ANALYSIS OF THE LEGISLATION
7.2 Recommendations
offence, by an act or omission, each director or manager of the corporation is taken to have committed the same offence. However, the person may escape liability if he or she proves to the court that he or she was not in a position to influence the conduct of the corporation in relation to the offence, or he or she, if in such a position, used all due diligence to prevent the conduct by the corporation.
3. As it was seen in Chapter 4.3, with the Clean Water Act in the USA, the National Water Act has to create a permanent fund to remedy polluted waters, if the offender is unable, or fails, to take reasonable and necessary measures or cannot be found. If polluted waters are not immediately remedied, they may cause a disastrous effect on the environment and have far-reaching consequences.
4. A remediation order must always follow a conviction to a fine or imprisonment for water pollution. In fact, when a fine or imprisonment is imposed, the offender is not compelled to review its management structure or reform the internal procedure or policies that contributed to or caused the wrongful conduct giving rise to the offence. Fines do not restore the environment to its condition before the offence was committed and remediation orders correct this defect.
5. Statutes have to introduce the suspension of a permit for a person who becomes a habitual offender. Suspension of the permit has to be applied for a person who commits a serious crime because it may amount to the suspension of all activities.
6. From Chapter 6.6.1, publicity orders are recommended to be included in South Afii.can legislation dealing with water pollution. If an environmental crime such as water pollution has been committed, a responsible person may be forced to publicise such offence, its environmental consequences, penalties and other orders imposed as a result of the commission of the offence. Publicity orders may damage the prestige of the offender and can have a significant impact on deterring
persons from polluting water. Publicity orders are made to the persons affected by, or interested in, the conviction and may appear in the offender's annual report.
Many corporations are sensitive about their prestige and will ensure that the offence does not reoccur. Only courts may authorise publicity orders.
7. Environmental service orders should be introduced in water legislation. They are dealt with in Chapter 6.6.2 and require the offender to perform a specified project for the restoration and enhancement of the environment in a public place, or for the public benefit. Environmental service orders have the effect of enhancing the environment, encouraging its protection and avoiding its degradation.
8. Environmental audit orders should be included in water pollution laws. They have been recommended in Chapter 6.6.3 and have a significant impact on the protection and enhancement of the environment. Most environmental crimes are caused, not by deliberate or intentional acts, but by poor and ineffective management systems. The offender may be requested to carry out a specified environmental audit of his or her activities. This may materialise if the offence has been committed, or where there is a likelihood that the offence will occur in the future. A reasonable suspicion that an offence is being committed may also trigger !:lil environmental audit order. When the person audits the activities, any potential violations will be identified and corrected immediately.
9. There is a need to provide environmental education to offenders, employees and contractors. 15 Sometimes environmental offences are committed as a result of ignorance from the persons concerned. To rectify this sitnation, the catchment management agency, other water pollution institution or court may order the offender to attend, or cause employees or contractors to attend, a specified training course that deals with water pollution. The offender can also organise a training course for his or her employees or contractors.
10. It is recommended that corporations, corporate officers and employees should be punished simultaneously if the environmental offence, snch as pollnting water, is committed as a result of their activities.16 As a general rule, environmental law docs not allow corporate officers to hide behind the legal structure of the corporation. If the offence is committed by the corporation, with the express or implied consent of a directing officer, he or she must be punished together with the corporation. Likewise, if an employee consents expressly or impliedly to the commission of the offence he or she must be punished together with his or her corporation. Targeting corporations, directing officers and employees simultaneously is a significant deterrent, becanse every environmental offence is committed by individnals and they know that they will be held responsible for their actions. The doctrine of wilful blindness may he nsed to impute knowledge of the offence to directing officers or employees in order to secure their conviction.
'5 See chapter 5 .5 .3.
16 See chapter 6.5.
11. There is a shortage of personnel in the field of environment specifically in water pollution issues. The Department of Justice should include environmental courses in the training programmes of prosecutors and magistrates. Selected prosecuton.
and magistrates should be allocated to environment and water pollution matters so that they can build expertise in this field. Environmental law should be user
.friendly and prosecution should be a last resort.