This thesis examines violations and penalties for water pollution in South Africa, the United Kingdom, the United States of America and Australia and provides a comparative analysis and recommendations for South Africa. The legal regime governing penalties for water pollution in South Africa 2.1 Regulation of water pollution.
What is water pollution?
The term 'point source' means any observable, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, weJl, discrete slot, container, rolling stock, concentrated animal feeding operation or vessel or other floating vessels from which polluting substances are, or may be, released."5 This can be legally regulated in order to control the amount of waste dumped into a watercourse. Persons must respect the legal requirements to dump waste into water so that they can keep pollution at an acceptable level.
Consequences of wat.er pollution
Countries have made laws to regulate the discharge of waste into streams and ensure that the water is always usable. They have determined the levels of waste that can be introduced into the receiving water resource.
The importance of clean wate:r
To minimize the consequences of water pollution, offenses and penalties should be created. 11 Water plays a significant role in human health and countries must take measures to ensure that it is not polluted to an unacceptable level.
Criminal sanction and prevention of water pollution
Controlling water pollution is necessary to use, retain or conserve water for current and future generations. The following chapter examines the regulatory regime for water pollution sanctions in South Africa.
Regulation of water pollution
Dewatering would lead to the flooding of the applicant's mine and serious water pollution problems. Harmony was aggrieved by the latter aspect of the directive and challenged it in the High Court.
Water use and pollution
These measures must be necessary to limit or minimize the consequences of the incident; carry out cleaning procedures; and remedying the consequences of the incident.40 The shelter management agency may recover all reasonable costs incurred by it from any responsible person jointly and severally.41.
Water pollution offence
- Common law
- Criminal offence or provisions
- Inquiry and award of damages
- Offence in relation to employer and employee relationships
- Interdict or other high court order
- Prosecuting corporations and corporate officers
- Industrial trade effluent
- Offences or penalties
- Permissible discharge of trade effluents
- Offence for water pollution under the Health Act
- Penalties for mining activities polluting water
This provision is important as it applies to any prosecution listed in Schedule 3 of the Act. The employer can improve his or her services to avoid the conviction of the offence.
Private and other prosecutions
Furthermore, an employer cannot hide behind a corporation and avoid liability when it commits the crime of water pollution in mining operations. The private prosecutor is not required to submit a certificate from the state attorney general that he declined to prosecute the defendant; and such person shall not be required to furnish security for such act.
Blue scorpions and enforcement mechanism
Additional orders in prosecution of environmental crimes
- Cancellation or revocation orders
- Orders to recover incurred costs for investigation
- Orders for monetary benefit
The public prosecutor or another public body may also recover any reasonable costs incurred as a result of the investigation and prosecution of the offense from the offender. Whenever any person is convicted of an offense under any provision listed in Schedule 3, the court convicting such person may summarily inquire into and the pecuniary value of any benefit obtained, or likely to be obtained, by such ' a person, as a result of that offence.157 This provision ensures that the offender does not benefit from the commission of the offence.
Introduction
Water pollution offences and penalties in England und WaJes
- Offence and penalties for water pollution
- Defence to the offences of polluting controlled waters
- Contamination, waste and misuse of water
- Liability and offence by bodies corporate
The National River Authority charged the appellant with causing pollutants to enter controlled waters from its premises, contrary to section 85 (1) of the Water Resources Act 1991. An employee of the respondent dairy company was driving a milk tanker along a highway into a stream of the company's operations. Where a body corporate is guilty of an offense under this Act and it is proved that such offense was committed with the consent or acquiescence of any director, manager, secretary or other similar employee or that it is attributable to any negligence on the part of the company.
Water pollution offences and penalties in Scotland
- Offence of polluting rivers and coastal waters
- Offences by bodies corporate and partnerships
- Offences relating to water environment and water services
Where it is proved that a body corporate has committed an offense with the consent or acquiescence of any director, manager, secretary, member or other similar officer of the body corporate or any person who intended to act in any such capacity, that person, and also a legal person guilty of an offense and may be prosecuted and punished accordingly.76 If it is proved that a Scottish partnership has committed an offense with the consent or acquiescence of a partner, a partner, as well as neglect or attributable to any neglect. The regulations may provide that the offense is punishable by summary procedure with imprisonment for a term not exceeding a specified period (which may not exceed six months), or a. 82 If it is proven that the offense occurred due to negligence on the part of an employee of the water authority, he and the water authority are guilty of this offense and shall be prosecuted and punished accordingly. 83. When an employee is jointly liable with a legal entity, the penalty upon conviction on indictment includes imprisonment (in addition to or instead of a fine) of up to two years.
CHAPTER FOUR
LEGAL REGIME GOVERNING OFFENCES AND PENALTIES FOR WATER POLLUTION IN THE UNITED STATES OF AMERICA
- Introduction
- Offences and penalties for water pollution in the United States
- Criminal penalties
- Administrative penalties
- State water pollution control revolving funds
- Citizen suits
- Prosecuting corporations
34 When any action is brought in a court of the United States, the plaintiff must serve a copy of the complaint on the Attorney General and the Administrator. The court reasoned that Congress added responsible corporate officers to the list of criminally liable persons in accordance with the public welfare nature of the Clean Water Act.76 This was further explained. 77 The liability in terms of the CW A arises from the intention or negligence of the corporate officer or offender.
CHAPTER FIVE
AUSTRALIAN OFFENCES AND PENALTffiS FOR WATER POLLUTION
Introduction
In case of continuing offence, the offender shall be liable to a daily fine of up to 1 200 penalty units for each day the offense continues after conviction or after service by the authority which reported the offence.12. 16 Breaching this article is an offense and the offender shall be liable to 200 penalty units. In case of a continued violation, the person shall be punished with an additional fine of 80 penalty urts for each day the violation continues.17.
South Australia
- Notice in case of unauthorized release of pollutant
- Escape of pollutant from the land
- Costs to be charged on land
1. If a person on whom a notice has been served fails to comply with the notice, the Minister may enter land, ship or aircraft and take the action specified in the notice and such other action as the Minister considers appropriate in the circumstances . and the Minister's costs constitute a debt owed by the person to the Minister. Such delegation must be made in writing; and may be absolute or conditional, and does not derogate from the Minister's authority to exercise any of these powers; and is revocable by the Minister at his discretion.27. If costs are a debt owed by a person to the Minister or to a delegate of the Minister, the Minister or the delegate may, by notice in writing to the person, fix a period of not less than 28 days from the day of the reminder, within which the amount due by the.
Queensland
28 The amount together with any interest charge is thus payable until a charge is paid in favor of the Minister or delegate on any land owned by the person in respect of which the charge is due. 29 A charge imposed by this section on the levied on land, has priority over any levy on land (whether registered or unregistered) operating in favor of a person who is an associate of the owner of the land and other levy on the land except a levy which service of notice is registered 011 the owner of the land. A person may not discharge water from an ornamental pond, a swimming pool or the filtration system of a swimming pool into a service provider's infrastructure without the written consent of the service provider. The Sewerage and Water Supply Act38 states that "a person may not discharge a prohibited substance into a sewer or storm water drain."39 It also prohibits a person from dumping commercial waste into storm water drainage; or sewers other than under a water drain .or approval issued or given to a local government under the Sewerage Standards Act.40 The contravention of these provisions is an offense punishable with a maximum penalty of.
New South Wales
- Offences and penalties for pollution of waters 42
- Orders in connection with offences
- Additional orders
The court may order the offender to take such steps, as specified in the order, within a specified time (or such further time as the court may allow on application) to prevent, control, reduce or mitigate the commission of the offence, or to repair any resulting environmental damage, or to prevent the continuation or repetition of the offence. The court can order the offender to carry out a specified project for the restoration or improvement of the environment in a public place or for the public benefit.70 In Environmental Protection Authority v Simplot Australia Pty Ltd,71 the defendant was found guilty to the contamination of water with food waste and was obliged to comply with two environmental service orders. The court may order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the conservation or improvement of the environment or for general environmental purposes . .
Corporate liability
Liability of corpora.te officers
In Victoria, it is a defense for a director or manager of a company to prove that he or she was not in a position to influence the conduct of the company in relation to the offence; or that he or she, in such a position, applied due diligence to prevent the company's violation. In Queensland, a company's executives must ensure that the company complies with the Water Act.98. If a COOraat officer commits an offense against any provision of this Act, each of the executive officers of the company also commits an offence, namely their failure to ensure that the company complies with its obligations.
CHAPTER SIX
COMPARATIVE ANALYSIS OF THE LEGISLATION
Offences and penalties
Australian law imposes different penalties on businesses and individuals.4 Businesses are subject to stricter penalties than individuals, even if they have committed the same offence. This approach should not be used in South Africa because the same offenses should be punished in the same way regardless. If individuals and companies pollute the water in the same way, they should receive the same punishment.
Remedial orders, clean-up measure and recovery
Citizen suits
Liability of corporations and corporate officers
South Africa should adopt the British approach and the doctrine of willful blindness in prosecuting companies, corporate officers and other individuals in the business. Furthermore, the doctrine of willful blindness attributes knowledge of the crime to the persons responsible, thereby ensuring their conviction for environmental crimes. For these reasons, the approach in Britain and the doctrine of willful blindness in South Africa must be used to successfully prosecute environmental crimes.
Various orders in connection with environmental offences
- Publicity orders or publication of the offence
- Environmental service orders
- Environmental audit orders
The doctrine of willful blindness can be used to satisfy the requirement that a corporate officer be aware of the commission of a crime. Anyone who suffers damage or costs as a result of a crime can be compensated. The court can issue a decision on reimbursement of investigation costs from the offender.
Recommendations
Publicity orders can damage the prestige of the offender and have a significant deterrent effect. They are recommended in chapter 6.6.3 and have a significant impact on the protection and improvement of the environment. Likewise, if an employee expressly or implicitly agrees to commit the offense, he or she should be punished along with his or her company.
BIBLIOGRAPHY
Books
34;Land-based Sources of water pollution: Regulation of non-point source pollution in Australia" i P Thomas. A Legal Analysis of the Proposed Waste Discharge System in Terms of the South African Environmental and Water Law Framework. Toe Rise of Environmental Law i New South Wales og føderalt: Perspektiver fra fortiden og fremtidens spørgsmål.
