File Name: environmental compliance and enforcement in south africa legal perspectives .zip
South African environmental law describes the legal rules in South Africa relating to the social, economic, philosophical and jurisprudential issues raised by attempts to protect and conserve the environment in South Africa. South African environmental law encompasses natural resource conservation and utilization, as well as land-use planning and development. Issues of enforcement are also considered, together with the international dimension, which has shaped much of the direction of environmental law in South Africa.
The right applies horizontally as well as vertically such that it is not only the State but also companies and directors that bear an individual and collective responsibility towards the protection of environment for present and future generations. Cock describes neo-liberal capitalism as marked by a 'pro-corporate, profit driven, privatization, deregulation, free trade, unlimited growth, new technology and supposedly selfregulating markets'. Note corporations are companies with multiple subsidiary companies forming a group of companies and any reference to companies hereafter refers also to companies forming part of a corporation.
As above. Environmental crime thus does not receive society's condemnation and is 9 regarded as 'white collar crime' in a country filled with violent crimes. The pollution 10 of our air, soil and water by companies is an environmental concern despite the lack of condemnation environmental offences receive by society. Polluting conduct by companies is a concern because environmental crime is very damaging to all South Africans and there is a need to spend scarce resources on enforcing environmental compliance.
Ensuring environmental compliance by companies will add value to the whole community whereas environmental non-compliance by companies can have grave social and economic impacts on South Africa and its people both white and black, both rich and poor. Impacts include adverse health consequences arising 11 from a lack of clean air, land and water, which causes, among other illnesses, cancer and asthma , degradation of the environmental integrity of our national heritage, the economic impact of job loss, the inability to derive benefit from natural resources such as minerals and biodiversity , the cost to the economic activities of the Country and the consequences of allowing crime to go unpunished which undermines the rule of law and festers disrespect for the legal system.
For example, allegations 12 have been made by community members living in the 'steel valley' against the ArcelorMittal plant in Vanderbijlpark. Community members residing near the slag 13 heap have suffered from various serious medical ailments such as kidney failure, cancer and death as well as the loss of livestock.
This is a result of water pollution 14 caused by the plant's activities. There is a need to question and rethink corporate As above 14 As above. The judgment 17 relied on section 34 7 of National Environmental Management Act of NEMA which allows a director to be held personally criminally liable for environmental offences committed by their company.
Blue Platinum Ventures was a clay mine in 18 Thlabine near Tzaneen. The clay mine was opened in , literally in the backyards of the Thlabine community. On an inspection, of the now closed but un rehabilitated mine, the following issues were raised by the Thalbine community: 20 the company began mining on the communities Heritage Hill which has great cultural significance to the community; the mine has not been fenced off from the 21 community posing a safety risk to the community; the abandoned pits collect water in the rainy season posing safety risks to the children in the area and; finally the 22 digging from the mine has caused severe soil erosion which poses a threat to the homes in the area as well as preventing communities from using that area for grazing livestock and planting crops which they are dependent on.
The mine was 23 originally re-opened to provide jobs for members of the community however due to various environmental non-compliances by the mine it was ultimately closed. The 24 dissertation considers whether the approach of holding directors personally liable for As above.
This is not 22 unexpected, as when I was there, there were children playing in the area as the pit backs up onto their homes.
Blue Platinum Mine trip and interview note For example the Traditional Leader in the area protected the directors of the mine because of the high political positions one is the wife of the former premier of Limpopo the directors held instead of advocating for the communities concerns. The mine was operated by local politicians who think they are more superior to the community. The complainant has suffered from intimidation tactics both in vexatious court action and 'thugishness'.
The local environmental officer for the area refrained from taking part in the case allegedly for political reasons. I will firstly discuss the duties which are placed upon both the State, companies and their directors by the underlying principles of environmental law namely the principles as in section 2 of NEMA and section 24 of the Constitution.
The commands and controls which are present in the environmental legislation will then be discussed in order to determine how the State, companies and their directors must give effect to their duties. Once the duties and the sections encompassing the duties have been established the following chapter will then discuss what is actually meant by compliance by companies and how when a lack of compliance is detected the State will enforce compliance.
In addition to this the problems which undermine the operation of enforcement and compliance in practice will be discussed. These challenges will help shed light as to why companies fail to comply with environmental law and why, when such a failure is detected directors and companies are not being effectively enforced to comply.
Finally the dissertation will be concluded by answering the following questions, in order to determine whether the approach of holding directors personally liable for environmental non-compliance is an answer to the problem of poor environmental compliance by companies:Should criminal measures be used instead of administrative measures; why should we hold directors and not the company criminally liable and; should we applaud the approach followed by the community in the Blue Platinum Ventures, the triumphs and failures of the decision.
Chapter 1: The overarching framework for South African environmental law, the criminal command measures applicable to companies and the criminal enforcement measures available to the authorities In this chapter I will discuss the environmental right as contained in section 24 of the Constitution and the principle of sustainable development which it encompasses.
I will then discuss the principles in NEMA which give effect to the environmental right namely the polluter pays principle, the cradle to grave principle and the precautionary principle which are relevant to the liability for environmental degradation. Directors have a duty to give effect to these principles when conducting the affairs of their company. Once I have discussed the principles underlying the Constitution and NEMA I will further discuss how directors must give effect to these principles by adhering to the section 24 permitting process and the criminal liability of directors in terms of section 34 7 of NEMA when directors fail to adhere.
Finally a discussion of the most pertinent cases which have implemented the provisions in practice will be discussed. The ConstitutionEvery person in South Africa has a right, enshrined in the Bill of Rights, to an environment not harmful to health or well being as provided for in section 24 of the International Law Journal The polluter pays principle in fact finds its roots in economics and not the imputation of liability however in modern legal systems it has been used as a means of imposing liability as well.
The principle entails that the expense to the environment should be internalised in the product and thus consumers will bear the expense of products that harm the environment being more expensive.
The polluter pays principle has been accepted internationally. This principle is provided for in After a company has been issued with a command as discussed in the above paragraph and that company fails to comply with the command, environmental authorities may impose an administrative fine or commence with criminal prosecution against the company.
Section 24G 6 For example see NEMA where failing to comply with or contravening section 24F 1 a , which provides that a person may not commence with a listed activity specified in terms of section 24 2 a or b without having been granted an environmental authorisation for the activity by the competent authority or the Minister of Minerals and Energy, is an offence under s24F 2 a and s24F 4 or conduct in terms of s24G constitutes and offence underschedule3 or National Water Act, which lists the offences under the Act in s 1 for a practical application see using water in way not permitted under the Act in terms of s 1 a or the contravention of ss 57 1 and 65 1 of NEM: BA constitutes an offence.
For an excellent comprehensive list of the various environmental offences see 'When mines break environmental laws: how to use criminal prosecution to enforce environmental rights a publication by the centre for environmental right' www. For example see NEMA where failing to comply with or contravening section 24F provides for 68 a penalty of a fine not exceeding R5 million, or imprisonment for a period not exceeding ten years, or both such fine and such imprisonment or The National Water Act, which lists the offences under the Act in s 1 and provides for a penalty in s of a fine not exceeding R , or imprisonment for a period not exceeding five years, or both such fine and such imprisonment or for a second or subsequent conviction a fine not exceeding R , or imprisonment for a period not exceeding ten years, or both such fine and such imprisonment in terms of 2.
Schedule 3 of NEMA. Section 34 7 provides that the proof of the company's 71 offence will constitute prima facie proof of the director's guilt unless the director canshow she took all reasonable steps that were necessary under the circumstances to prevent the commission of the offence. The prosecutor will thus be required to 72 prove that the company committed an offence and then the evidential burden will shift onto the director.
The director will then have to lead evidence to show that she 73 took all reasonable steps to necessary to prevent the commission of the offence. Kidd is of the 75 opinion the provision will pass constitutional muster as it places an evidentiary burden upon the director rather than a reverse onus.
Kidd criticises section 34 7 76 as being clumsy because it places an awkward evidentiary burden on the director toshow that she took all reasonable steps necessary to prevent the commission of the offence and then shifts the burden back to the State who is required to prove the NEMA sec 34 7.
Mpumalanga with an additional R1 million penalty if the court order was not complied As above. Kidd proposes the following alternative: primary liability whereby every director has 78 a duty to take all reasonable care to prevent a corporation from causing or permitting such a contravention and failure to carry out this duty constitutes an offence irrespective of the companies prosecution or conviction.
The benefits of this approach are that, first, it imposes primary liability so there is no question of constitutional invalidity. In S v Coetzee, Langa J indicated that the 'Legislature is, in my view, fully entitled to place a positive duty on directors and to make the omission to discharge the duty an offence'. The second benefit of this approach is that the onus of proof rests firmly on the state throughout, so there is no problem with infringement of the right to a fair trial.
Third, it is probably easier for the state to prove contravention of the suggested provision rather than the requirement of showing that 'the offence in question resulted from the failure of the director to take all reasonable steps that were necessary under the circumstances to prevent the commission of the offence', as required by section 34 7. In addition to the fine Golfview was also ordered to rehabilitate the 80 effected wetland the potential cost of rehabilitation is estimated at R million.
The charges against the mining manager, director and the environmental officer involved were however withdrawn. The discussion above dealt with how the environmental law should ideally be enforced and complied with and South Africa is to be commended on its progressive and comprehensive environmental legislation. However in reality the ideal may be Cock J note 1 above. The following chapter will discuss the approach followed in Blue Platinum Ventures to achieve compliance and the advantages and disadvantages of using the criminal sanctioning of directors to achieve successful compliance with and the enforcement of companies' environmental duties.
Chapter 3: Is the approach of holding directors personally liable for environmental non-compliance an answer to the problem of poor environmental compliance by companies?
As can be seen from the discussions above, section 24 of the Constitution and Criminal measures vs administrative measuresCraigie, Snijman and Fourie put forward two theories as to why corporations will comply with environmental law, namely the rationalist theory and the normative theory.
The rationalist theory is based on the concept that all beings in these instances companies are rational beings and will act rationally. A rational entity As above. Directors place a greater emphasis on profit motive in their business dealings than social and environmental concerns, this is because companies are profit driven entities and will externalise as many of their costs as they can. The consequences of being caught must outweigh the cost saved by the company when they fail to comply.
Companies are thus rational thinkers, such that a rationalist theory of compliance ought to be adopted in South African environmental law.
The DMR later addressed a letter to the community alleging that they found no problems with the mine and that the mine was in fact operating legally. This was despite evidence obtained in the mean time by the community and the CER that the mine was operating at 2 pits without an EA and exceeding the bounds of its EAs in the 3 remaining pits amongst numerous environmental law violations which was later confirmed by the companies' plea of guilty.
The community members allege that the 'DMR is protecting the mining company' allegedly for political reasons. This blatant disregard for the rule of law by the DMR is disturbing and unacceptable. Blue Platinum's mining right was ultimately cancelled by the Minister of Mineral Resources.
However despite the right cancellation which explicitly provided that Blue Platinum was not absolved from fulfilling its environmental obligations, DMR failed to ensure that these were carried out following the issue of this notice.
M Fourie note Corporate social responsibility will be improved because companies will become more socially responsible when pressured to do so by society. Should this occur, companies will begin to realise that they cannot hope to As above. A successful company should not only be measured by its financial success but also by its non-financial success by taking accountability in giving effect to individuals' rights as provided for in s24 of the Constitution and s28 of NEMA.
The benefits of criminal measures appeal to a rationalist theory of compliance because administrative measures may not constitute a sufficient threat of enforcement. The DEA and DMR often fail to take administrative action against companies and communities cannot afford to take administrative action. A sufficient share price drop will also serve as a deterrent to a rationalist thinker because it will impact directly on the financial status of the company.
Ideally the State will be capable of effectively implementing criminal measures. Realistically South Africa is a developing country and may not have sufficient resources to ensure that criminal measures are adequately implemented. The discussion below on Blue PlatinumVentures will illustrate the inadequacies of criminal measures in a developing country. Director liability vs company liabilityThere are benefits to holding directors personally liable for environmental noncompliance as opposed to holding companies liable and I will now discuss these benefits.
A problem which frustrates compliance is that a company and its directors will often All of the consequences identified by Truter are important because they show how the judgment will serve as a warning and guide to companies in their future business dealings.
The consequences -better environmental management systems, insurance for environmental degradation, encouragement and empowering of communities to take action against companies and as precedent for piercing the corporate veil -will help in achieving better environmental compliance from companies. Despite the important beneficial consequences of the judgment a number of difficulties arise from the case.
The first problem is that at the outset, prior to the legal proceedings, when a community member went to lay a complaint at the police station he was informed by the police that they were unaware of any crimes of such nature and that environmental crime itself did not even appear on the police 7 of NEMA has the potential to play a vital role in ensuring environmental compliance it has its limitations.
Ему хотелось чем-то прикрыть эти картинки под потолком, но. Он был повсюду, постанывающий от удовольствия и жадно слизывающий мед с маленьких грудей Кармен Хуэрты. ГЛАВА 66 Беккер пересек зал аэропорта и подошел к туалету, с грустью обнаружив, что дверь с надписью CABALLEROS перегорожена оранжевым мусорным баком и тележкой уборщицы, уставленной моющими средствами и щетками. Он перевел взгляд на соседнюю дверь, с табличкой DAMAS, подошел и громко постучал. - Hola? - крикнул он, приоткрыв дверь.
Он немедленно включил монитор и повернулся к графику дежурств на стене. - Чья смена? - громко спросил он, пробегая глазами список. Согласно расписанию, в полночь должен был заступить на двойную смену новый сотрудник по имени Зейденберг. Чатрукьян еще раз обвел глазами пустую лабораторию и нахмурился. - Где же он, черт возьми. Глядя на оживающий монитор, он подумал, известно ли Стратмору, что в лаборатории систем безопасности нет ни души.
Не могли бы вы мне помочь. - О да, конечно, - медленно проговорила женщина, готовая прийти на помощь потенциальному клиенту. - Вам нужна сопровождающая. - Да-да.
- Видишь. - Вижу, - сказал Бринкерхофф, стараясь сосредоточиться на документе. - Это данные о сегодняшней производительности.
Ты нашла ключ. Сьюзан покачала головой. Стратмор наморщил лоб и прикусил губу. Мысли его метались. Он, конечно, с легкостью мог набрать код лифта и отправить Сьюзан домой, но она нужна ему .
- Может быть, у них закоротило генератор. Как только освобожусь, загляну в шифровалку и… - А что с аварийным питанием.
Скорее. Еще одна спираль. Ему все время казалось, что Беккер совсем рядом, за углом. Одним глазом он следил за тенью, другим - за ступенями под ногами.
Вы хотите приделать к Цифровой крепости черный ход. Его слова встретило гробовое молчание. Хейл понял, что попал в яблочко.
- спросил немец с расширившимися от страха глазами. - Или мы придем к соглашению. - Какому соглашению? - Немец слышал рассказы о коррупции в испанской полиции. - У вас есть кое-что, что мне очень нужно, - сказал Беккер.
Да еще хвастался, что снял ее на весь уик-энд за три сотни долларов. Это он должен был упасть замертво, а не бедолага азиат. - Клушар глотал ртом воздух, и Беккер начал волноваться.
Не лги, - рассердилась Сьюзан. - Почему же вся переписка Северной Дакоты оказалась в твоем компьютере.
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