Of criminal law to environmental crime Chapter three: Companies or companies .. a) Development of the concept of corporate environmental crime b) The Nee!;! for corporate environmental crime. What is the privilege against self-incrimination c) The current state of the law in South Africa.
Therefore, from the context of environmental law, the purpose of environmental law is to protect the environment42. It is in this context that the advantages and disadvantages of applying criminal law to environmental crimes are now discussed.
Chapter Three: Corporations or Companies
As Kidd argues, criminal liability should be reserved for serious offenses only where culpability would be generally present and likely to be proven on the facts60• Therefore, civil law would govern most aspects of environmental regulation, while statutory criminal acts outside and in support of civil law. This approach would provide a more coherent construction of a moral imperative in favor of environmental protection by focusing on this goal through criminal law, while more appropriately and effectively regulating polluting behaviors in the short term through civil law61 .
In addition, the regulatory schemes applied in a decidedly subjective manner failed to consider the wider implications of less than strict implementation in exacerbating macro-environmental problems such as ozone depletion, climate change and soil depletion71• Furthermore, there was increasing recognition that environmental crimes are not always do not comply with the regulatory schemes due to the wider dangers they may pose to the environment and that differential treatment is required for different types of environmental offenses 72. Consequently, the continued degradation of our planet and environment has prompted a rethinking of the approach to environmental protection, via the reform of environmental legislation and the reintroduction of practices related to existing ones. In addition, the Act introduced a hierarchy of offenses based on the seriousness of the offence, separated corporate environmental liability from the liability of directors and officers, and introduced the possibility of imprisonment upon conviction of these individuals 79•. In Australia, the New South Wales Environmental Crimes and Punishments Act 1989 was introduced as a separate piece of legislation that imposes high penalties and imprisonment for serious environmental crimes.
75 Environmental Enforcement Act Amendment Act. are generally potentially the most important sources of environmental degradation and that they have greater resources than individuals81. In South Africa, Chapter 16 of the National Water Act provides for violations and remedies, but does not stipulate the amount of the fines in cases of freshwater pollution. The court can investigate the damage or loss suffered or the damage done to water resources and make an award of damages accordingly against the offender82• While the National Environmental Management Act states that where any person is found guilty of an offense under any statute listed in Schedule 3 of the Act, the court can investigate the amount of loss or damage caused83•. It is clear from the above illustrations that environmental law, in most jurisdictions, is changing from regulatory approaches to a more mixed approach where the velvet glove of a compliance approach is backed up with the iron fist of sanctioning.
And provisions addressing corporate and executive environmental liability often share common features, as in many countries the upper limits of fines for corporations found guilty of environmental violations are higher than those set for individual non-corporate offenders84•. 84 Bowden MA and Quigley T 'Pinstripes or Prison Stripes.
Therefore, when the cause of environmental crime is either profit or the avoidance of economic loss, criminal prosecution is appropriate and fair90. In such circumstances, it is not unfair to encourage a corporation to avoid environmental degradation under threat of prosecution if it does not. The greater the risk to public health and safety, the greater the potential for prosecution.
In our country, Article 24 of the final constitution guarantees every citizen an environment that does not harm his health or well-being. Finally, Bowden and Quigley92 summarize a number of other reasons why corporations should be held legally responsible for environmental crimes: Clearly, the mere fact that corporate bodies carry out a large part of all economic endeavors should lead to the realization that the prosecution of environmental crimes must be part of the arsenal used for environmental protection93.
Therefore, from an environmental context, the concept of corporate responsibility for environmental crimes is sound.
Part II- Evidentiary Problems: the Privilege Against Self- Incrimination
Chapter Four: The Nature of the Privilege Against Self- Incrimination and Current State of the Law in South Africa
The outcome of such audits therefore attracts two fundamental rights, namely the right to access environmental information99 and the right not to be compelled to provide it. Firstly, it is examined whether the latter right should be extended to also include companies in environmental criminal cases, after which a discussion on the right of access to environmental information will follow.
It is clear that the audit documents can provide evidence that the company was aware of the circumstances surrounding breach 111, and therefore of the environmental degradation. On the other side of the coin, two opposing interests exist, namely that the state wants to discover the audit documents for the sole purpose of bringing an environmental criminal prosecution against the corporate violator, and that the company demands confidentiality of their voluntary audit documents. How this works is that companies (as unaccused corporate wrongdoers) use the privilege to firstly prevent the state from discovering the audit documents supporting their case against the company, and secondly to prevent the introduction of the audit documents as evidence. during a criminal proceeding (where such a breach could lead to criminal prosecution)112 • The environmental authorities, in terms of the privilege, may not discover the companies' audit documents nor may they use such documents in a criminal prosecution against the corporation.
Then, if the environmental authority refuses to do so, it is a violation of the corporate tortfeasor privilege against itself. This works by allowing corporations (as unindicted corporate offenders) to use the privilege to prevent, first, the state from discovering audit documents to support its case against the corporation, and second, to prevent the audit documents from being introduced into evidence. at a criminal trial (where such a breach may result in prosecution) 112• Environmental authorities are not privileged to discover audit documents of corporations and are also prohibited from using such documents in criminal prosecutions against the corporation. Moreover, the privilege developed against the backdrop of a growing statutory denial of the privilege to corporations123;.
Inextricably linked to the issue of the privilege against self-incrimination is whether corporate executives retain a personal right to the privilege when required to produce audit documents on behalf of the corporation that could incriminate them personally.
Another concern, also related to the privilege against self-incrimination, is the right of access to information about the environment. The Promotion of Access to Information Act 2 of 2000 regulates the constitutional right to access information, while access to environmental information is regulated by section 31 of the National Environmental Management Act 107 of 1998 (NEMA)154. It has been suggested that the logic behind the retention of section 31 of NEMA was that the Promotion of Access to Information Act 2 of 2000 enacts section 32 of the 1996 Constitution, while section 3 J of NEMA governs access to environmental information.
Furthermore, another privilege contained in the Promotion of Access to Information 2 of 2000 creates a loophole in our environmental legislation. But in the United States (US), the strongest bulwark against access to environmental information was the introduction in 1993 of the state's "audit privilege." In terms of access to environmental information under NEMA, every person has the right to access.
This section, when interpreted broadly, gives citizens and legal entities a broad right of access to environmental information1?, held by the government. 34; in section 31(1) of NEMA, it may be assumed that with the subsequent enactment of the Promotion of Access to Information Act 2 of 2000, section 31 falls201. The court further emphasized that the right of access to information did not give the applicant a right to information to determine whether it was a right.
In the United Kingdom, the privilege against self-incrimination was dealt with in Jstel Ltd. The court also recognized that Parliament has piecemeal recognized that the privilege against self-incrimination is deeply unsatisfactory when it is not at issue. Tully sought to utilize the privilege against self-incrimination to defeat plaintiffs' claims2J9•.
Stein J of the Land and Environment Court, citing US authorities, ruled that the common law privilege was not available to companies242. The NSW Court of Criminal Appeal, through Gleeson CJ with whom Mahoney JA and McLelland JA concurred, held that the common law privilege against self-incrimination was available to corporations243, and the EPA appealed to the High Court. The Supreme Court of Australia ruled by a majority of four to three246 that the common law privilege does not extend to the protection of corporations.
This approach, in turn, can accommodate the Canadian approach which states that the privilege against self-incrimination should be granted only to individual corporate officers, as it is a human right.
Chapter Five: Conclusion
- Journal Articles
- Cases Referred to
- Statutes
- Websites
This type of action is taken either through reasonable legislation or "other measures" that the state may deem appropriate against that corporate polluter. As the words "other measures" are not defined in our constitution, it cannot be avoided that the State is given a wide discretion in dealing with corporate polluters. Limiting the corporate polluter privilege is important when it comes to prosecuting the corporate polluter for alleged environmental crime.
In other words, without these documents, the state will not be able to prove its case against the corporate offender. Therefore, the courts should take into account the fact that the environment as a whole is sensitive and should be protected as such. Therefore, cooperation between the state and commercial companies is of vital importance for the natural individual to enjoy his constitutional right to a healthy environment.
Environmental Damage: The Right to Compensation and the Assessment of Damages[Oxford University Press Inc.
