Case Note: Locus standi to institute a private prosecution of environmental offences in South Africa: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

2020 ◽  
Vol 26 ◽  
pp. 161-178
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
South Africa ◽  
Environmental Management ◽  
Southern Africa ◽  
Case Note ◽  
British Petroleum ◽  
Environmental Advocacy ◽  
Locus Standi ◽  
National Director ◽  
National Environmental

In Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd, in the first ever private prosecution under section 33 of the National Environmental Management Act, British Petroleum (BP) was prosecuted and convicted for constructing filling stations without the necessary authorisation. The judgment deals mostly with the issue of locus standi to institute a private prosecution for environmental offences. The purpose of this note is to highlight the issues that emerge from the judgment. The note also discusses the role that could be played by the National Director of Public Prosecutions should they decide to take over a private prosecution instituted under section 33 of NEMA.

scholarly journals Public Interest Environmental Litigation: Recent Cases Raise Possible Obstacles

2017 ◽  
Vol 13 (5) ◽  
pp. 26
Author(s):  
Michael Kidd
Keyword(s):  
South Africa ◽  
Environmental Management ◽  
Public Interest ◽  
Locus Standi ◽  
The Republic ◽  
History Books ◽  
National Environmental

Despite the broadening of locus standi in environmental cases by both Section 38 of the Constitution of the Republic of South Africa, 1996, and Section 32 of the National Environmental Management Act 107 of 1998, two recent cases suggest that the pre-constitutional approach to locus standi still holds sway in our Courts.  Moreover, failure to recognise the environmental right in Section 24 of the Constitution may be an impediment to applicants' ability to bring an interdict application successfully.  Correct use of the relevant constitutional provisions ought to obviate such problems, but alternatives are suggested.  In the course of the article, it is suggested that the rule in Patz v Greene is no longer relevant and should be consigned to the history books.

scholarly journals CASE NOTE: Illegal sales of alcohol and asset forfeiture

2016 ◽  
Author(s):  
Karabo Ngidi
Keyword(s):  
South Africa ◽  
Organised Crime ◽  
Case Note ◽  
Constitutional Court ◽  
High Court ◽  
Legal Limit ◽  
Asset Forfeiture ◽  
National Director ◽  
Business As Usual ◽  
The Impact

The Constitutional Court recently confirmed an order for the forfeiture of a house from which an unlawful shebeen had been run for years (Van der Burg and Another v National Director of Public Prosecutions).In deciding whether to confirm the order of the full bench of  the High Court, Justice van der Westhuizen, writing for a unanimous court, addressed the following questions: whether the house was an instrumentality of an offence; whether the illegal sale of alcohol is an organised crime; the proportionality of the crime to the forfeiture under the Prevention of Organised Crime Act 121 of 1998 (the POCA); as well as the impact of the forfeiture on the rights of the children that lived in the house. This judgment comes at a time where issues such as the proposal for the reduction of the legal limit of alcohol for drivers to 0%2 are topical, and seems to point to a tougher stance towards the sale and consumption of alcohol in South Africa. The judgment may therefore be seen as a warning that the illegal sale of alcohol and running of a shebeen will no longer be seen as business as usual in cases where the seller does not heed the call to desist such business.

The impact of marine spatial planning legislation on environmental authorisation, permit and licence requirements in Algoa Bay

2021 ◽  
Vol 2021 ◽  
pp. 79-121
Author(s):  
Denning Metuge
Keyword(s):  
South Africa ◽  
Environmental Management ◽  
Air Quality ◽  
Protected Areas ◽  
Spatial Planning ◽  
Marine Spatial Planning ◽  
Marine Area ◽  
Potential Impact ◽  
The Impact ◽  
National Environmental

With a focus on Algoa Bay, this article considers the potential conflicts that may arise between South Africa’s marine spatial planning (MSP) legislation and the environmental authorisations, permits and licencing requirements provided under specific environmental management Acts (SEMAs). The legislation for MSP in South Africa is the Marine Spatial Planning Act, 2018 (MSPA). It provides that ‘[a]ny right, permit, permission, licence or any other authorisation issued in terms of any other law must be consistent with the approved marine area plans’. What is more, where there is a conflict between the MSPA and any other legislation ‘specifically relating to marine spatial planning’, the provisions of the MSPA prevail. Particular attention is given to the principle of sustainability that the MSPA incorporates into MSP and its impact on environmental authorisation, permit and licence requirements issued in terms of three SEMAs: the National Environmental Management: Biodiversity Act, 2004 (NEM:BA), the National Environmental Management: Protected Areas Act, 2003 (NEM:PAA) and the National Environmental Management: Air Quality Act, 2004 (NEM:AQA). The article concludes by summarising the potential impact the MSPA will have on the discussed SEMAs when it comes into operation and makes recommendations to prevent the occurrence of potential conflicts.

scholarly journals The Efficacy of Section 2(4)(l) of the National Environmental Management Act in the Context of Cooperative Environmental Governance

Obiter ◽  
2021 ◽  
Vol 42 (1) ◽  
pp. 162-174
Author(s):  
Bramley Jemain Lemine
Keyword(s):  
South Africa ◽  
Environmental Management ◽  
Sustainable Development ◽  
Environmental Governance ◽  
Document Analysis ◽  
Law Reform ◽  
The Republic ◽  
National Environmental ◽  
Wetlands Management ◽  
The Way

Wetlands are regulated by a plethora of specific environmental management Acts (SEMAs). The mandate of these Acts sits within various environmental affairs departments. Thus, the same resource is regulated and managed by a series of different legislation and environmental administrators. The National Environmental Management Act 107 of 1998 (NEMA) is the national environmental framework Act and stresses in its purpose the need for cooperative environmental governance (CEG) which, arguably, raises no concern for the way wetlands are currently regulated and managed, as long as this is done in a manner that promotes CEG. Section 2 of NEMA sets out a series of sustainable development principles that all organs of state must apply in all matters relating to the environment; “environment” is read throughout to include wetlands. Section 2(4)(l) is dubbed the “co-operative governance principle” and mandates the “intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment”. With this in mind, this note, by way of a document analysis, seeks to ascertain whether legislation and policies and action relating to the wetlands regulation and management are in fact coordinated. The presented findings indicate that coordination is lacking, which consequently adversely affects the management, conservation and protection of wetlands in South Africa. The recommendations aim to bring about law reform to improve coordination that bolsters wetlands management as well as their conservation and protection, while simultaneously promoting the objectives of section 41 of the Constitution of the Republic of South Africa, 1996 (the Constitution).

Developing a Strategy For Efficient Environmental Authorisation of Activities Affecting Wetlands in South Africa: Towards a Wise-Use Approach

Obiter ◽  
2020 ◽  
Vol 41 (1) ◽  
pp. 154-167
Author(s):  
Bramley Jemain Lemine
Keyword(s):  
South Africa ◽  
Environmental Management ◽  
Water Resource ◽  
Land Reform ◽  
Competent Authority ◽  
Water Source ◽  
Source Water ◽  
Ramsar Convention ◽  
Wise Use ◽  
National Environmental

South Africa is a party to the Convention on Wetlands of International Importance especially as Waterfowl Habitat of 1971 (also referred to as the Ramsar Convention). Article 3(1) of the Ramsar Convention makes provision for the wise use of wetlands, which is defined as the “maintenance of the ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development”. The Conference of the Parties has agreed on inherent weaknesses that could lead to the hampering of wise use. These weaknesses include, but are not limited to, authorities working in isolation; and the lack of communication between public and private sectors or technical personnel (environmental impact assessment specialists). Within the enabling provisions of South Africa’s EIA regulations, reference is made to “water source”, “water resource”, “wetland” and “ecosystem”. All these terms are read to include a wetland. However, whereas the terms “water source”, “water resource” and “wetland” are defined in the National Water Act 36 of 1998 (NWA), an “ecosystem” is defined in the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA), and “water source” is defined in the Conservation of Agricultural Resources Act 43 of 1983 (CARA). Furthermore, the administration of the NWA is with the Department of Water and Sanitation, while NEMBA is with the Department of Environment, Forestry and Fisheries, and CARA is with the Department of Agriculture, Land Reform and Rural Development. This multiplicity, combined with the application of the various specific environmental management acts (SEMAs), complicates the manner in which an EIA application is considered. This is so in that the national environmental framework casts the net wide in identifying the competent authority, but also in its effect on wise use decision making on activities pertaining to wetlands. In light of the aforementioned, this article aims to address the shortfalls and make recommendations that promote wise use.

scholarly journals Legal issues concerning mine closure and social responsibility on the West Rand

2009 ◽  
Vol 5 (1) ◽  
Author(s):  
Francois Durand ◽  
Mariette Liefferink ◽  
Elize S Van Eeden
Keyword(s):  
South Africa ◽  
Environmental Management ◽  
Multidisciplinary Approach ◽  
Past Century ◽  
The West ◽  
The Past ◽  
The Social ◽  
Petroleum Resources ◽  
Current Water ◽  
National Environmental

Mining and, especially, gold and uranium mining have played a major role in the economy, history, and demography of South Africa. The contribution of the mines to the economy of South Africa over the past century has been overvalued, while the social injustices and negative environmental impacts that accompanied mining have been underplayed or ignored by the mining houses and government. The environmental situation has worsened significantly over the past few years due to the abandonment and pending closure of most of these mines. A reluctance is perceived on the part of the mining companies, and even government, to take responsibility for the damage caused by pollution, ecological degradation, and impact on human health by mining. Instead, the current informal policy appears to take smaller companies to court on minor environmental injustices to, perhaps, impress the broader public, while one of the biggest environmental concerns is stylishly treated. The inability of government to address the damage by mines effectively is in conflict with the National Water Act, the National Environmental Management Act, the Mineral and Petroleum Resources Act, the National Nuclear Regulator Act, and the Constitution of South Africa. The authors propose a multidisciplinary approach to address water-related environmental injustices on the West Rand and Far West Rand. We also describe the application of the National Environmental Management Act of South Africa (Act No. 107 of 1998) in the Wonderfonteinspruit and Tweelopiespruit Catchments and the current water quality situation.

A critique on privately prosecuting the holder of ‘after the fact’ environmental authorisations: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) LtdA critique on privately prosecuting the holder of ‘after the fact’ environmental authorisations: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

2021 ◽  
Vol 138 (3) ◽  
pp. 617-648
Author(s):  
Melissa Strydom
Keyword(s):  
South Africa ◽  
Southern Africa ◽  
Environmental Law ◽  
Strict Liability ◽  
Environmental Advocacy ◽  
Environmental Laws ◽  
Applicable Law ◽  
The Public

There has been much debate about ‘after the fact’ environmental authorisations and the ability to privately prosecute environmental-law offences in South Africa. These two issues came to a head in Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd. This case is the first known private prosecution of environmental-law contraventions in South Africa. BP Southern Africa (Pty) Ltd (‘BPSA’) was privately prosecuted for constructing filling stations without environmental authorisations, allegedly between 1998 and 2005. BPSA submitted ‘rectification’ applications in 2005, paid administrative fines, and was issued with ‘after the fact’ environmental authorisations. Nevertheless, in 2019 BPSA was convicted for contravening the related environmental-law requirement. This article discusses the applicable legislative context, the complex and frequently changing environmental laws, and their interpretation and application in a criminal context. Criticisms of the Uzani judgment include that the court did not sufficiently deliberate or determine the applicable law at the time of the offences for which BPSA was indicted; the public or environmental interest served by the private prosecution; strict liability in relation to the offence; policy and other considerations for not prosecuting these offences; constitutionality and admissibility of the evidence; and the potentially far-reaching consequences of such prosecutions. These issues all act as reminders of the importance of clear and precise legislative drafting, and contextual interpretation.

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