South Africa: Improved Environmental Law Enforcement - The Era of the Environmental Law Bounty-Hunter?

South Africa is about to experience vastly improved environmental law enforcement as a result of changes to the National Environmental Management Act ("NEMA") which come into effect from 1 May 2005. Chief amongst these is the creation of Environmental Management Inspectors ("Inspectors") – persons specially mandated and trained to investigate and enforce contraventions of specific environmental laws. The Department of Environmental Affairs and Tourism ("DEAT") is in the process of training Inspectors and by all accounts, it will not be long before they (including the so-called "Green Scorpions" who are intended to investigate more serious environmental crimes) will be unleashed on South Africa’s environmentally complacent public.

An Inspector has broad general powers to investigate any act or omission in respect of which there is a reasonable suspicion that it might constitute an offence under or a breach of, environmental law, (or a breach of a permit or authorisation issued in terms of such law). This includes the right to inspect items and premises, take samples and generally gather evidence for purposes of an investigation by way of photographs, video tapes etc.

Written notices may be issued to any person who refuses to answer questions, requiring that person to answer questions which are set out in writing in the notice, under oath by a specified date. The recipient must answer all the questions truthfully notwithstanding that an answer might incriminate him/her (although an incriminating answer may not be used against him/her in any subsequent criminal proceedings brought in relation to the environmental offence being investigated). Failure to comply is an offence under NEMA and could lead to a fine or imprisonment of up to one year.

In addition to the right to stop, enter and search vehicles, vessels and the like, the Inspector may conduct routine inspections, without a search warrant, of non-residential premises for the purpose of ascertaining compliance with relevant environmental legislation. The Inspector may, (with a warrant, or without a warrant, in special circumstances) do the same in respect of any residential premises, and may seize anything that can be used as evidence in a prosecution of the anticipated offence and also issue notices to answer questions as referred to above.

Compliance notices may be issued if the Inspector suspects that relevant environmental law (or a term or condition of a permit or authorisation issued in connection therewith) has not been complied with. Before issuing a compliance notice the Inspector is required to give the recipient advance notice and a reasonable opportunity to make written representations as to why the Inspector should not issue a compliance notice – but this may be waived where the Inspector genuinely believes that delay will cause significant and irreversible harm to the environment.

The compliance notice must detail the conduct constituting non-compliance, any steps that the person must take and the period within which those steps must be taken to bring about compliance, as well as any action that the recipient of the notice may not undertake and the period during which such action may not be undertaken.

The recipient of the notice must comply within the time period stipulated in the notice unless compliance is suspended in terms of the objection and appeal procedure provided for. The recipient has 30 days within which to lodge a written objection. Once objections have been considered (or the period for objecting has lapsed) the compliance notice will be confirmed, modified or cancelled by the environmental authority.

Failure to comply with the compliance notice is an offence under NEMA and could lead to a fine or imprisonment of up to one year.

In relation to lesser environmental offences (which will be specified in regulations promulgated under NEMA) the Inspector has the power to allow alleged offenders to pay a prescribed admission of guilt fine instead of appearing in court – using essentially the same machinery that has been provided under the Criminal Procedure Act in relation to traffic offences.

Where there has been failure to comply with the compliance notice, the Inspector must report this to DEAT, who may in turn revoke or vary the relevant permit or authorisation. If the environment has been damaged in any way, the relevant authority may take whatever steps are necessary in order to remedy such damage, and recover the costs of doing so from the defaulting party. If any other environmental law has been breached as a result of such environmental damage, the matter must be reported to the Director of Public Prosecutions for possible criminal prosecution (which can in turn trigger a number of serious consequences).

Extensive amendments have been made to Section 24 of NEMA which deals with environmental authorisations (which ultimately take the place of those provisions of the Environment Conservation Act ("ECA") which prohibit the unauthorised undertaking of "Listed Activities" identified under Section 21 of the ECA). In terms of existing law it is only competent to proceed with such a Listed Activity once the requirements of the "EIA Regulations" have been complied with under the ECA.

Persons (such as developers) who have proceeded with Listed Activities without following the correct procedure under the ECA, may well find an Inspector knocking on their door to check whether the activity in question was properly authorised.

Whilst the amendment to NEMA contemplates a fine not exceeding R5 million or imprisonment not exceeding ten years (or both, in appropriate circumstances), where a person has commenced or continued a Listed Activity without proper authorisation, prosecution is not an inevitable consequence. An administrative procedure is provided under Section 24G to deal with the rectification of unlawful commencement or continuation of Listed Activities. Essentially, a person who has committed this offence may apply to the competent authority for a belated directive (after having paid an administrative fine not exceeding R1 million as determined by the competent authority) in terms of which the transgressor will be ordered either to cease the activity and to rehabilitate the environment, or receive dispensation in terms of an environmental authorisation to continue with the activity in question, subject to conditions imposed by the environmental authority concerned. In making an approach for the belated directive, the applicant will inevitably be required to procure an expert report assessing all environmental impacts of the activity in question as well as mitigation measures undertaken or to be undertaken. Provision is also made for a public participation process to be conducted involving all interested and affected parties.

Once a directive has been issued, if the transgressor then fails to comply with the directive he will be guilty of an offence and runs the risk of incurring a fine or imprisonment (or both) referred to above.

Section 34B of NEMA is a potentially controversial amendment that permits a court which imposes a fine for an environmental offence (under NEMA or a specific environmental management act) to order that a portion of a fine imposed by the court (not to exceed one quarter thereof) be paid to the person whose evidence led to the conviction or who assisted in bringing the offender to justice. Persons employed by the State or engaged in the implementation of NEMA or specific environmental management acts may not participate in any such award.

This provision is potentially lucrative for anyone with the necessary expertise and resources – and it is not entirely improbable that we may soon see environmental law bounty-hunters.

In principle, the existence of public spirited individuals who wish to bring environmental law offenders to book (and who are rewarded for their efforts) is not problematical. However it seems equally obvious that Section 34B may be open to abuse and that it is undesirable to have a complainant testifying in a criminal matter, where his overriding purpose is to secure financial gain from the conviction of the accused. However, that is another debate which will not be pursued in this article.

For now, persons that have been taking the country’s environmental laws with a pinch of salt should brace themselves for significantly stepped-up action from DEAT and other official environmental law agencies that have been tasked with enforcement. There are likely to be more than a few nasty surprises!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.