Abstract

Keywords

Environmental law; environmental crime; industrial environmental crime; environmental prosecutions; criminal law; plea and sentence agreements; section 105A agreements; environmental right.

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1 Introduction

Since the mid-1990s, South Africa has enacted a comprehensive suite of environmental laws 1

* Melissa Strydom. LLB (UJ) LLM PhD (Wits). Attorney, South Africa. E-mail: melissastrydom29@gmail.com. ORCID: https://orcid.org/0000-0001-5226-4591. The underlying information and ideas for this article originates from my PhD research, guided by my supervisor, Prof Field. I thank my co-author, the peer reviewers and editors for their invaluable input, and officials who provided crucial information. The research was subject to ethics clearance (protocol number H18/11/31, 16 November 2018).

** Tracy-Lynn Field. BMus (UP)BProc LLB LLM (Unisa) PgDip Tertiary Education PhD (wis). Claude Leon Chair in Earth Justice and Stewardship, Professor, School of Law, University of the Witwatersrand, South Africa and Advocate of the High Court of South Africa. E-mail: tracy-lynn.field@wits.ac.za. ORCID: https://orcid.org/0000-0003-2925-9449.

1 Hall 2022 PELJ 25.

Criminal liability may be substantial depending on the nature of the offence. Maximum prescribed penalties up to R5 million or R10 million or imprisonment of up to five or ten years could be imposed. 5

5 Section 49B of NEMA.

South African environmental law academics have considered the criminal enforcement of environmental laws. 8

8 Including Burns and Kidd "Administrative Law"; Craigie, Snijman and Fourie "Environmental Compliance and Enforcement Institutions"; Kotze "Environmental Governance"; Kidd "Criminal Measures"; Kidd Environmental Law. Several criminal law scholars were considered as part of the underlying PhD research on criminal enforcement; but are not referenced here as they do not cover environmental crimes in detail.

Punishment through criminal sanctions can only have real deterrent value if it is believed that offenders will be caught, successfully prosecuted, and serve their sentence. 17

17 Snyman Criminal Law 18-19.

Environmental sanctions' deterrent value depends on "the likelihood of apprehension, prosecution, conviction and significant penalty". 20

20 Kidd "Criminal Measures" 241; see also Kruger Hiemstra's Criminal Procedure 28-4, Snyman Criminal Law 16, 18-19.

Effective enforcement is important when deterrence is the goal, and the public must be aware of penalties being utilized since "ultimately, one cannot fear what turns out to be a paper threat". 21

21 Kidd "Criminal Measures" 241-242.

Thus, the efficacy of prosecutions and the value of convictions require knowledge of what is happening in the criminal law system.

Holmes 22

22 Husak Overcriminalization 27 with reference to Holmes 1897 Harv L Rev 457.

This research set out to obtain information on concluded environmental prosecutions in the context of industrial operations, 24

24 Strydom Use and Impact of Criminal Sanctions. The research considered the cases within the context of overcriminalisation; the consideration of the cases for this article is more limited.

This paper aims to analyse the collected data on concluded environmental prosecutions, ascertain trends from such cases and report such findings. Ultimately, 53 concluded prosecutions under the mentioned laws were considered. A limitation of this research is that the outcome of such cases is not readily accessible and only published in limited instances; thus reliance was placed on obtaining the information from other sources, including research participants.

The remainder of this paper comprises Part 2, which sets out the methodology of the research. Part 3 outlines the relevant context in considering concluded prosecutions. Part 4 highlights findings and themes from the cases considered, and a discussion of the main findings appears in Part 5.

2 Methodology to collect and collate case information

The research involved gathering publicly available information on relevant concluded prosecutions, whether completed through a guilty plea, trial, or plea and sentence 25

25 In terms of s 105A of the Criminal Procedure Act 51 of 1977 (the CPA).

Industrial facilities are generally required to comply with various environmental laws, and their activities could have significant environmental impacts. To operate lawfully, they may be required to hold numerous environmental authorisations, permits, licences, and/or registrations (collectively referred to as "approvals"). 27

27 This may include a NEMA environmental authorisation, a Waste Act waste management licence, an Air Quality Act atmospheric emissions licence, a National Water Act water use licence or registrations.

There is no existing case law database containing the complete outcomes (with the underlying judgments, sentences or section 105A agreements) on concluded prosecutions for industrial environmental crime. We therefore had to turn to various sources to gather information on concluded cases, whether reported in the media, published by public benefit or other organisations or published in databases of court judgments.

The annual National Environmental Compliance and Enforcement Reports (NECERs) published by the Department of Forestry, Fisheries and the Environment (DFFE) 29

29 As it is now known, and previously known as the Department of Environment, Forestry and Fisheries and before that the Department of Environmental Affairs.

starting point for requesting case outcomes from relevant role-players. The number of industrial prosecutions instituted or adjudicated under the four selected laws is unknown as the NECERs provide overall statistics, not per sector. Information on concluded cases was received from participants in the underlying research 32

32 Strydom Use and Impact of Criminal Sanctions, subject to ethics clearance (protocol number H18/11/31, 16 November 2018).

The period for the inquiry was limited to 2005 to 2020, as the first concluded prosecution under the selected laws appeared to be from October 2005. 34

34 S v Acker (Hermanus Regional Court) (unreported) case number ECH 100/05 of 1 October 2005 (hereafter S v Acker).

The prosecutions included in the data-set were mainly conducted in lower courts, 38

38 Defined in the CPA as "any court established under the provisions of the Magistrates' Courts Act, 1944".

obtain a written record of the proceedings and details of the judgment. A limited number of outcomes in prosecutions relevant to this research are accessible online. For example, section 105A agreements, judgments, or transcripts have been published by the Centre for Environmental Rights for eleven cases concluded in Magistrates' Courts. 42

42 CER 2023 https://cer.org.za/virtual-library/judgments/magistrates-courts.

Concluded case information is public unless otherwise directed by a Court, 43

43 Section 7 of the Magistrates' Court Act 32 of 1944.

In order to obtain case information for concluded prosecutions, other sources had to be consulted, including requests to relevant role-players, and some reliance has to be placed on the information received. Initially, when public information was considered and before more information was received from role-players, there appeared to be limited industrial-related prosecutions. The scope of the inquiry was thus extended to a wider range of cases under the four selected Acts, including prosecutions for mining or

farming-related activities. This broader inquiry resulted in the collection of 53 cases, 49

49 A summary of the 53 prosecution records underlies this research; it was attached to the PhD thesis but is too lengthy to reproduce here (40 pages and 17643 words).

The thirteen additional cases comprised of the following:

Although these additional cases fall beyond the remit of industrial environmental crimes, it was decided to include them in the dataset, as their inclusion advanced the objective of establishing a baseline archive of environmental criminal prosecutions. They also served as a separate sub-set to compare the findings emerging from an analysis of the industrial cases. For example, nearly half of the additional cases were also concluded through a section 105A agreement.

As stated, this collection of 53 cases is very likely incomplete because it relies on information from limited sources and is not a consolidated, official database. Other cases may be unknown to the authors, and more recent cases (involving municipalities) have since emerged of which the data is not readily available except for what is reported in the media. 63

63 S v Rand West City Local Municipality (Randfontein Regional Court) (unreported) case number RC 38/2020 (date unknown); S v Thaba Chweu Local Municipality (unreported) (unknown case number) (date unknown); S v Inxuba Yethemba Municipality (unreported) (unknown case number) (date unknown).

Notwithstanding the value of knowing how many cases have been successfully prosecuted, unfortunately, for 23 of the 53 cases, the information received was limited. 64

64 Mostert v The State; S v A Joubert (Paarl District Court) (unreported) case number A223/10 (date unknown) (hereafter S v A Joubert); S v T Mosekidi (Vereeniging Regional Court) (unreported) case number SH152/09 (date unknown) (hereafter S v T Mosekidi); S v M de Scally (Pretoria North Regional Court) (unreported) case

sentence annexures were received, i.e., after a guilty verdict the Magistrate will hand down a sentence usually comprising of a 1 to 2-page document. This sentence annexure cites the accused and the sentence but contains no (or very limited) further case information. From the sentence annexure, it may also be unclear which charges the accused faced.

The analysis and findings in this paper are limited by the challenges outlined above, particularly due to incomplete or difficult-to-access information. Nevertheless, the collection of cases in this research is the most complete current compendium of industrial environmental crime prosecutions assembled in South African environmental law scholarship to date. 65

65 Strydom Use and Impact of Criminal Sanctions 137.

The bulk of this article highlights themes from the case analysis, with a view to determining the efficacy of the criminal sanction and its use as a reasonable legislative measure to protect the environment. 66

66 As contemplated in s 24 of the Constitution.

necessary pre-cursor to that analysis, Part 3 sets out the constitutional and legislative context for environmental crimes in South Africa.

3 Industrial environmental criminal sanctions as a legislative measure to realise the constitutionally protected environmental right

This part situates the environmental criminal sanction within the context of the reasonable legislative measures intended to advance section 24 of the Constitution; relevant role players and pathways to prosecution; and sentencing; and the effectiveness of criminal sanctions.

3.1 Role of the criminal sanction within a suite of legislative measures to realise section 24

Non-compliance with environmental law requirements can be met with enforcement action ranging from civil and administrative to criminal action (as "command-and-control" mechanisms). 67

67 Craigie, Snijman and Fourie "Dissecting Environmental Compliance and Enforcement " 52.

(i) prevention; (ii) deterrence, which may be on an individual or general basis; (iii) reformation or rehabilitation and (iv) retribution. 68

68 Skeen "Criminal Law" para 9.

Many consider the criminal mechanism a last resort 69

69 Skeen "Criminal Law" para 9; Brickey Environmental Crime 17; Husak 2004 OJLS 207; Duff et al Boundaries of the Criminal Law 255.

Kidd aptly notes various challenges in achieving the aims of a criminal sanction, considering the widespread difficulties faced by a criminal justice system in crisis, 72

72 Cameron 2020 SALJ 32.

For a mechanism to promote the section 24 constitutional right, it must be effective and used appropriately, within the confines of the other constitutionally protected rights. To understand the efficacy of the sanction, one has to consider its practicality and how it has been/can be used, i.e., by considering actual concluded cases and role-player concerns. 76

76 The underlying PhD research involved interviews with 32 key industry participants, the findings are not discussed in this article.

3.2 Role-players and pathways to prosecution

Environmental Management Inspectors (EMIs) are central role-players in investigating environmental crimes and referring cases to the National Prosecuting Authority (NPA) for prosecution. EMIs can be designated for different mandates and functions or to enforce different environmental laws. 77

77 Section 31D of NEMA

EMIs must refer a criminal case to the NPA for a decision on whether or not to prosecute. In the context of industrial environmental crimes, if the NPA decides to proceed with a prosecution, the accused will ordinarily be summoned to appear in court. 81

81 Chapter 6 of the CPA.

crimes involve corporate entities, ordinarily cited as the first accused, as represented by corporate officers. 82

82 Section 332(2) of the CPA.

Criminal prosecutions can be concluded in different ways, if a matter proceeds to trial, it could culminate in a guilty plea, 83

83 Section 112(1) of the CPA.

It is also possible for a prosecution to commence and not be concluded through any of these three avenues – a prosecutor could decide not to prosecute, or the matter could be provisionally withdrawn. 88

88 Section 6 of the CPA.

As discussed below, nearly half of the cases considered were concluded through section 105A agreements, a section inserted into the Criminal Procedure Act 51 of 1977 (CPA) in 2001, formalising the "informal and longstanding practice of plea-bargaining". 89

89 Steyn 2007 SACJ 207.

remain silent, not to testify during the proceedings, and not to be compelled to give self-incriminating evidence. 91

91 Section 105A(2)(a) of the CPA.

If satisfied that the accused admits the allegations in the charge and guilt, the court may ask relevant questions and hear evidence for sentencing purposes. If the court is satisfied that the sentence agreement is just and fair, the court sentences the accused accordingly. 95

95 Section 105A(8) of the CPA.

3.3 Sentencing and level of penalties

High penalties, either R5 million- or five-years imprisonment, or R10 million or ten years imprisonment, are generally (currently) prescribed in NEMA, 100

100 Section 49B(1) and (2) of NEMA.

Although high penalties are prescribed in statute, these are not necessarily the penalties imposed by courts or negotiated as part of a section 105A agreement. In considering what an appropriate sentence might be, courts have a wide discretion and consider "the triad" of the crime, the offender's personal circumstances, and the interests of society, as well as the proportionality of the sentence in relation to the crime, the offender's personal circumstances and the interests of society. 104

104 S v Zinn 1969 2 SA 537 (A) 540G-H.

The research considered how many of the 53 cases resulted in comparatively high or low sentences (considered further below). Echoing Holmes' assertion, 105

105 Husak Overcriminalization 27.

3.4 Effectiveness of the criminal sanction in SA environmental law

As previously stated, the deterrent value of environmental sanctions depends on "the likelihood of apprehension, prosecution, conviction and significant penalty". 106

106 Kidd "Criminal Measures" 241.

The critiques of deterrence theory 110

110 Including that overcriminalisation impairs the deterrent effect of punishment as explained by Skeen "Criminal Law" para 9.

as being in crisis. 113

113 Cameron 2020 SALJ 32.

4 Assessing the cases

With the above context in mind, the 53 concluded cases collected were analysed to identify emerging themes including (1) the pathways to criminal prosecution, either through a guilty plea, trial or section 105A agreement; (2) total convictions and whether a natural (individual) or juristic person was prosecuted; (3) the percentages of the sentences imposed compared to the maximum prescribed penalty for the charge(s) the accused faced and whether it was comparatively high or low; 114

114 On the assumptions that the base data for the calculations are correct, although there may be variables that are not apparent from the information obtained.

4.1 Pathways to criminal prosecution

Twenty-six of the 53 cases were concluded through section 105A agreements and thirteen were concluded through guilty pleas or trials. For the remaining thirteen, it is unclear whether the prosecution was concluded by a guilty plea or trial due to limited or incomplete available information. 115

115 For example, the information is often contained in brief summaries in the NECERs, SAP69 forms (the South African Police Service form that captures criminal convictions), sentencing annexures containing only the sentence imposed. Where limited documents are provided, it is not always possible to determine the charges the accused faced.

Table 2 below provides a summary of how the 53 cases were concluded.

Compared to the proportion of general crimes concluded with section 105A agreements, the use of such agreements for environmental crimes appear high. According to the NPA 2019/20 Report, 2166 section 105A agreements were entered into in that year out of 231 725 finalised criminal matters, 171

171 NPA 2020 https://www.npa.gov.za/sites/default/files/media-releases/NPA_ Annual_Report_2019-2020.pdf 75.

Several benefits (for the prosecution and accused) associated with the plea-and-sentence pathway may be driving the high ratio of section 105A agreements for environmental crimes. From the prosecution's perspective, environmental crimes are complex in terms of fact and law and require a lot of time, effort, and resources to pursue. Most prosecutors and magistrates (as experts in criminal or civil law and procedure) may have limited exposure to, or experience in, working with environmental laws. 172

172 This statement is based on the empirical component of the underlying PhD research which involved interviews, including with prosecutors and magistrates. The findings are reported in the PhD thesis and not discussed in this article. In that research, prosecutors, magistrates, EMIs and defence counsel raised this issue of limited experience and exposure; supported by the fact that environmental prosecutions occur infrequently in magistrates' courts where the court roll is dominated by other crimes.

resources. The benefits in terms of time and resources saved (within an already constrained criminal justice system) are often listed as mitigating circumstances in section 105A agreements. In other words, it states in mitigation that the accused pleaded guilty to the offences in the section 105A agreement thereby saving State resources and not wasting the court's time. It could (or at least should) also result in the transgressor's quicker attendance to the environmental impacts requiring remediation or authorisation.

The benefits of a section 105A agreement for an accused also involve some level of certainty over the conviction and sentence, as it is negotiated and agreed. In such negotiations, the accused may be able to select charges to which it is willing to plead guilty, thereby achieving a compromise. It is often also a compromise in the negotiation process that the juristic entity pleads guilty and is convicted, and then the charges against any natural persons who also appear as accused (often directors or employees) are withdrawn, preventing individuals from obtaining criminal records. It may be that natural persons are cited as co-accused as a tactic to encourage section 105A negotiations. In other words, where employees, directors or corporate decision-makers are cited as co-accused with the corporate entity, such employees would rather negotiate that the juristic entity pleads guilty, and a compromise is reached in the form of a section 105A agreement to avoid the prosecution of the individuals in their personal capacity. A criminal record likely has more severe consequences for an individual than it would have for a juristic entity. Individuals obtain a criminal record through a SAP69 which record is easily retrievable based on fingerprints and may affect various aspects of an individual's life (employment or travel prospects). Whereas juristic entities with such a record can be wound up, deregistered and re-established.

When reading the facts and circumstances in the section 105A agreements, culpability/fault is not always apparent. Often the charges relate to negligent as opposed to intentional offences. Section 105A agreements contain lengthy explanations of the accused's reasonable measures to avoid environmental harm or offences. Of course, the accused takes a "best foot forward" approach in explaining the circumstances that led to the alleged contravention. However, this makes it difficult to assess the level of culpability thoroughly. Because not many of the cases considered have ended in a successful trial with available

detailed records, it was also challenging to assess the level of culpability or how the court may decide on a matter. 173

173 Strydom Use and Impact of Criminal Sanctions 156.

4.2 Total convictions – natural persons convicted

Of the 53 concluded cases, only one resulted in an acquittal after going to trial. 174

174 S v Middleground Trading.

In about half (26 of 53) of the successful prosecutions, natural (individual) persons were convicted, 175

175 S v Acker; Mostert v The State; S v A Joubert; S v Melville; S v T Mosekidi; S v M de Scally; S v Aid Safe Waste; S v KL Makhubo; S v Richard Batson; S v Arbac Services; S v Frylinck; S v GM Mkhulise and TR Lepota; S v Ganter Scrapmetals; S v NM Selby; S v Blue Platinum Ventures; S v Harrismith Galvanizing and Steel; S v MJ Lourens; S v Rob Fonto; S v Deva Kishorelal; S v John Henry Deale; S v G Vyacheslav; S v D Groenewald; S v E Adams; S v SS Ngcobo; S v RR Govender.

Nevertheless, the available information is useful in adding to the database of known concluded prosecutions. Albeit limited and constrained, the data was used to try and establish how the sentences imposed compare to the prescribed maximum penalties. Fourteen cases involving the conviction and sentencing of a natural person (excluding where a section 105A agreement was concluded or in the case of S v Frylinck) resulted in a comparatively extremely low sentence, equal to or below one per cent of the potential maximum penalty. This figure may indicate that when the court's discretion is exercised in sentencing, the punishment considered appropriate for individuals is at the lower end.

4.3 Percentage comparison of sentences imposed versus potential maximum statutory penalties

In the overwhelming majority of cases, comparatively low sentences were imposed. This finding is based on a comparison of the prescribed penalty for the known charges and sentences that were ultimately imposed. 176

176 The comparison appears in an annexure to the underlying PhD research, which is too lengthy to transpose here, but examples which illustrate the methodology applied in the calculations are presented in Table 3.

The five cases that resulted in comparatively high sentences, and the calculation/comparison, appear in Table 3 below. 177

177 On the assumptions that the base data for the calculations are correct, although there may be variables that are not apparent from the information obtained.

Of the total cases, 41 resulted in fines of less than 20 per cent (most less than 5 per cent) compared to the potential maximum statutory penalty. Eleven of these resulted in a zero per cent fine; the reasons for this could include that the accused did not have the financial means to pay a fine, and the court may have considered a conviction and criminal record a sufficient punishment. In other instances, remediation costs might have been paid or payable. One accused was sentenced to serve three years of correctional supervision and undertake community service. 184

184 S v T Mosekidi, presumably because the accused could not afford to pay a fine and the court may have deemed a wholly suspended sentence insufficient punishment.

When considering all the comparatively low sentences imposed (or accepted by courts) it could be argued that the prescribed maximum statutory penalties are at the extreme high end. This is particularly so considering that when sentencing principles are applied such high sanctions were likely considered to be inappropriate (and lower sentences imposed). Although the prescribed sanctions are maximums, the fact that much lower sentences are imposed does bring into question the functionality of only prescribing maximum penalties.

4.4 Listed activity treatment – Splitting of charges, duplication of convictions and multiplicity of sentencing

Another aspect that arose from the case assessment is that there appears to be inconsistency in how cases involving approvals for listed activities or water uses are treated. For example, where an accused undertook an activity that triggered several NEMA listed activities or water uses under the National Water Act, sometimes the prosecution dealt with each listed activity or water use as a separate criminal transgression/charge. In other cases, these were consolidated into one charge. An illustration of these cases appears in Table 4 below.

Based on the phrasing in section 24F of NEMA, each contravention of undertaking a listed activity (singular) without an environmental authorisation is a contravention and a criminal offence. 185

185 Sections 24F(1) and 49A(1)(a) of NEMA.

principle) the correct position is the separate listing of each activity or water use as a separate contravention and charge. There is no immediately apparent reason or trend explaining the different approaches. A further aspect that may arise from this different treatment of listed activities or water uses is the possibility of duplication of charges and convictions, 188

188 As considered by Watney 2005 TSAR 891 and Roberts 2019 SALJ 489.

4.5 Section 34 of NEMA

Section 34 of NEMA creates further possible consequences when a person is convicted of NEMA Schedule 3 offences, such as damages or cost orders, and additional liability provisions, including possible liability of directors, managers, agents and employees, even where an offence benefits an employer. As mentioned above, natural persons were convicted in 26 of the 53 cases. In at least eight of these, natural persons appear to have been convicted together with juristic entities. 189

189 S v Aid Safe Waste; S v KL Makhubo; S v Arbac Services; S v Frylinck; S v Ganter Scrapmetals; S v Blue Platinum Ventures; S v Harrismith Galvanizing and Steel; S v SS Ngcobo.

Section 34 was used in 17 of the 53 cases (32 per cent) to secure payment directly to environmental authorities. This is different to the normal procedure, where a fine paid at the Magistrates' Court goes to the National Treasury. In some instances, section 34(4) was used to recover the reasonable costs incurred by the public prosecutor and the organ of state concerned. In other instances, damages were ordered in terms of section 34.

Table 5 below lists some examples where additional fines were payable directly to environmental authorities or organisations, thereby diverting payment from the general state coffers.

Imposing such additional sentences or penalties may also raise questions regarding just desert and proportionality. However, the above cases were concluded through section 105A agreements where the accused agreed to these additional sentences.

4.6 Similar offences for less serious contraventions

South African environmental law prescribes high maximum penalties with no gradation or distinction between the actual impacts of such offences or their severity. A prosecutor should seek a just, proportionate and appropriate sentence after conviction, and a presiding officer will consider relevant evidence before imposing an appropriate sentence. 190

190 Section 274 of the CPA.

may be imposed if all offences are tarred with the same brush. If there is no gradation in the law as to what offences are considered more serious and no gradation or guidance it may result in absolute inconsistency in fines or sentences imposed, specifically as there is no central database where these case outcomes are recorded.

Penalties for serious or less serious crimes could be similar, as illustrated in the following three cases. In S v Die Straat Trust, the accused was charged with (1) conducting an unlawful water use; (2) failing to register a water use; (3) and (4) detrimentally affecting a water resource by excavating soil and constructing a road during February 2015. Counts 1-4 are all subject to a similar maximum penalty of R200 000. Undertaking a water use without a licence or polluting or detrimentally impacting a water resource (charges, 1, 3 and 4) appear prima facie more severe than the failure to register a water use (charge 2). 191

191 Regulation 13 of the Regulations Requiring that a Water Use be Registered, published in GN R1352 in GG 20606 of 12 November 1999. Nevertheless, in this case the counts were taken together for sentencing, a R150,000 fine was wholly suspended subject to the accused undertaking rehabilitation.

In S v E Adams, 192

192 S v E Adams (Bloemfontein Regional Court) (unreported) case number 18/174/18 (date unknown).

In S v Samancor Manganese, 195

195 S v Samancor Manganese (Pty) Ltd (Vereeniging Regional Court) (unreported) case number RC217/15 (date unknown).

informing the authorities of changes in contact details is unlikely to have environmental impacts and a lower penalty would be more appropriate.

5 Discussion and conclusion

This paper set out to establish trends from the concluded environmental prosecutions in South Africa, and found that most of the cases resulted in convictions, half were concluded through section 105A agreements, half involved the conviction of individuals, and no direct imprisonment penalties were imposed. Comparatively low fines (compared to the possible maximum prescribed statutory penalties) were imposed in most cases. In about a third, the mechanisms or consequences contemplated in section 34 of the NEMA were invoked. There is some inconsistency in how different listed activities or water uses are treated as separate or consolidated criminal charges. The exact number, outcome, or trends arising from such cases are difficult to determine as there is no central, readily accessible database of concluded prosecutions.

The foregoing analysis informs the question of whether the criminal sanction is a 'reasonable measure' for purposes of realising section 24 of the Constitution. In revisiting the questions a prospective offender may ask themselves in considering the risk of facing an environmental prosecution (as posed in the introduction), it is clear that such prosecutions occur, more than we may be aware of (considering that 53 cases were gathered as part of this research) and 98 per cent of these cases resulted in convictions. The risk of being caught and successfully prosecuted may not be as low or unlikely as may have been perceived before knowing of these 53 cases. Although the sentences ultimately imposed may not result in direct imprisonment (at least not for first offenders), many individuals have obtained criminal records in these cases (in 26 of the 53 cases). Nevertheless, awareness of these prosecutions is a key to attaining improved protection of the section 24 environmental right.

The trend to conclude environmental prosecutions through section 105A agreements 196

196 NPA 2020 https://www.npa.gov.za/sites/default/files/media-releases/NPA_

Annual_Report_2019-2020.pdf 75.

For large organisations, the penalties imposed may not break the bank, but for smaller enterprises, it may be more of a punishment – considering

that most of the cases (81 per cent) resulted in comparatively low sentences/fines. Only five of the cases considered resulted in comparatively high sentences. As courts consider appropriate sentences and factors relevant thereto, natural persons received comparatively extremely low sentences (in fourteen cases), equal to or below one per cent, indicating that courts' discretion may temper disproportionality as they do not impose fines commensurate with the maximum prescribed penalties. The more common imposition of comparatively low sentences may weaken the retributive and deterrence value of the criminal sanction.

For the section 24 constitutionally protected environmental right to be realised using criminal sanctions, environmental offences must be met with retributive action, punishing offenders proportionally to the harm caused, deterring offenders and others from committing such offences. Proportionality is influenced by the nature of the accused (corporate entity or an individual) and the nature of the transgression (serious or administrative). To be reasonable, criminal sanctions should distinguish between serious and less serious offences depending on the actual environmental impacts. Prescribing the same potential maximum penalty for all offences (or offenders) may lead to disproportional sentences or unequal enforcement. 197

197 Strydom Use and Impact of Criminal Sanctions 164.

The research has also highlighted the need for a publicly accessible database with detailed case information. The lack of such a database undermines the deterrent objective of criminal law and arguably impairs the efficacy of law enforcement efforts.

Knowledge of practical challenges in the application of the law (through case outcomes) will positively influence legislative drafting, thereby promoting more practical and accurate laws. Key role-players (regulators, enforcement authorities, prosecutors, magistrates, defence counsel, the regulated community, and the general public) may learn from how others have applied the law to facts, and become more familiar with environmental laws, which will develop and enhance its application.

The accessibility of such cases will broaden general awareness (enhancing its deterrent value). Justice would be more visible to the general public and would be "seen to be done". 198

198 Terblanche Guide to Sentencing 142.

successful prosecutions will increase deterrence and contribute to the improved implementation and the effective use of the criminal sanction through prosecutions.

The benefits of such a database will ultimately extend to a better-protected environment.

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Kidd M The Protection of the Environment through the Use of Criminal Sanctions: A Comparative Analysis with Specific Reference to South Africa (PhD-thesis University of Natal 2002)

Kotze "Environmental Governance"

Kotze LJ "Environmental Governance" in Paterson A and Kotzé L (eds) Environmental Compliance and Enforcement in South Africa: Legal Perspectives (Juta Cape Town 2009) 103-128

Kruger Hiemstra's Criminal Procedure

Kruger A Hiemstra's Criminal Procedure (LexisNexis Durban 2008-, 2018 update)

Murombo and Munyuki 2019 PELJ

Murombo T and Munyuki I "The Effectiveness of Plea and Sentence Agreements in Environmental Enforcement in South Africa" 2019 PELJ 1-41

Nurse Introduction to Green Criminology

Nurse A An Introduction to Green Criminology and Environmental Justices (Sage Thousand Oaks, CA 2016)

Paterson and Kotzé Environmental Compliance

Paterson A and Kotzé L (eds) Environmental Compliance and Enforcement in South Africa: Legal Perspectives (Juta Cape Town 2009)

Robert 2019 SALJ

Robert S "No Double-Dipping: Rethinking the Tests for Duplication of Convictions" 2019 SALJ 489-512

Skeen "Criminal Law"

Skeen A St Q updated by Hoctor S "Criminal Law" in Joubert WA and Faris JA (eds) The Law of South Africa 3rd ed (LexisNexis Durban 2012-, 2017 update) vol 11

Snyman Criminal Law

Snyman CR Criminal Law 6th ed (LexisNexis Durban 2014)

Snyman Strafreg

Snyman CR Strafreg 4th ed (LexisNexis Butterworths Durban 1999)

Steyn 2007 SACJ

Steyn E "Plea-Bargaining in South Africa: Current Concerns and Future Prospects" 2007 SACJ 206-219

Strydom 2021 SALJ

Strydom M "A Critique on Privately Prosecuting the Holder of 'After the Fact' Environmental Authorisations: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd" 2021 SALJ 617-648

Strydom Use and Impact of Criminal Sanctions

Strydom M The Use and Impact of Criminal Sanctions for Environmental Law Transgressions in Industrial Facilities in South Africa: Determining the Boundaries of Overcriminalization (PhD-thesis University of the Witwatersrand 2022)

Terblanche Guide to Sentencing

Terblanche S The Guide to Sentencing in South Africa 3rd ed (LexisNexis Durban 2016)

Watney 2005 TSAR

Watney M "Duplication of Convictions in Respect of Simultaneous Multiple Robberies: S v Toubie 2004 (1) SACR 530 (W)" 2005 TSAR 891-896

Case law

Feedmill Developments (Pty) Ltd v Attorney-General, KwaZulu-Natal 1998 4 All SA 34 (N)

Mineral Sands Resources (Pty) Ltd v Magistrate Vredendal 2017 2 All SA 599 (WCC)

Mostert v The State 2010 2 SA 586 (SCA)

NDPP v Tutu Ndolose 2014 2 SACR 633 (ECM)

S v A Joubert (Paarl District Court) (unreported) case number A223/10 (date unknown)

S v Acker (Hermanus Regional Court) (unreported) case number ECH 100/05 of 1 October 2005

S v Aesthetic Waste Services (Pty) Ltd (Butterworth Regional Court) (unreported) (unknown case number) (date unknown)

S v Aid Safe Waste (Pty) Ltd (Benoni Regional Court) (unreported) case number 182/09 (date unknown)

S v Amro Natal CC (Pinetown Regional Court) (unreported) case number RC180/20 (date unknown)

S v Anker Coal (Ermelo Regional Court) (unreported) case number ESH 8/11 of 3 April 2012

S v Arbac Services CC (Germiston Magistrates' Court) (unreported) (unknown case number) (date unknown)

S v Arcelor-Mittal South Africa Limited (Vereeniging Regional Court) (unreported) case number SH118/19 (date unknown)

S v Blue Platinum Ventures 16 (Pty) Ltd (Lenyenye Regional Court) (unreported) case number RN126/13 of 30 January 2014

S v Bosveld Phosphates (Pty) Ltd (Phalaborwa Regional Court) (unreported) case number 5/01/2014 (date unknown)

S v D Groenewald (Pretoria Regional Court) (unreported) case number 14/493/2018 (date unknown)

S v Deva Kishorelal (Bronkhorstspruit Regional Court) (unreported) case number SH105/17 (date unknown)

S v Die Straat Trust (Worcester Regional Court) (unreported) case number 3WRC2/2017 of 23 March 2017

S v E Adams (Bloemfontein Regional Court) (unreported) case number 18/174/18 (date unknown)

S v Emporium Base Minerals (Pty) Ltd (Germiston Regional Court) (unreported) case number 4SH100/17 (date unknown)

S v EnviroServ Waste Management Ltd (Durban Regional Court) (unreported) case number 41/540/20 (date unknown)

S v G Vyacheslav (Cape Town Regional Court) (unreported) case number H/63/2018 (date unknown)

S v Ganter Scrapmetals CC (East London District Court) (unreported) case number A1562/2013 (date unknown)

S v GM Mkhulise and TR Lepota (Benoni Regional Court) (unreported) case number SH431/12 (date unknown)

S v Golfview Mining (Ermelo Regional Court) (unreported) case number ESH 82/11 of 3 May 2013

S v Groenrivier Eiendomme (Pty) Ltd and Pieterse (Worcester Regional Court) (unreported) case number WSH 47/2017 of 18 May 2017

S v Haarburger 2002 1 SACR 542 (C)

S v Hanste (Pty) Ltd (Innovative Recycling) (Pretoria North Regional Court) (unreported) case number SH2/172/11 (date unknown)

S v Harrismith Galvanizing and Steel (Pty) Ltd (Harrismith Regional Court) (unreported) case number HSH91/12 (date unknown)

S v Inxuba Yethemba Municipality (unreported) (unknown case number) (date unknown)

S v JLH Serfontein and City Square Trading 323 (Pty) Ltd (Potchefstroom Regional Court) (unreported) (unknown case number) (date unknown)

S v John Henry Deale (Kroonstad Regional Court) (unreported) case number SHP95/14 (date unknown)

S v KL Makhubo, DG Zungo and KLM Drums Collectors CC (Vereeniging Regional Court) (unreported) case number RC2014/11 (date unknown)

S v M de Scally (Pretoria North Regional Court) (unreported) case number SH2/216/10 (date unknown)

S v Melville (Kirkwood District Court) (unreported) case number A513/09 of 18 October 2010

S v Middleground Trading (Potchefstroom Regional Court) (unreported) case number RC66/2016 (2017)

S v MJ Lourens (Court unknown) (unreported) case number SH36/12 (date unknown)

S v Moosa Ali and JNR Joubert (Durban Regional Court) (unreported) case number RC201/18 (date unknown)

S v Nirove South Africa (Pty) Ltd (Motherwell Regional Court) (unreported) case number RCMW31/20 (date unknown)

S v Nkomati Anthracite (Nelspruit Regional Court) (unreported) case number SH 412/13 of 28 August 2013

S v NM Selby (Eerstehoek Regional Court) (unreported) case number SHL131/2012 (date unknown)

S v Oil Separation Services CC (Mokopane Regional Court) (unreported) case numbers SH64/16 and 751/17 (date unknown)

S v Rand West City Local Municipality (Randfontein Regional Court) (unreported) case number RC 38/2020 (date unknown)

S v Richard Batson (George Regional Court) (unreported) case number G/SH187/10 (2011)

S v Rob Fonto (Vereeniging Regional Court) (unreported) case number RC40/15 (date unknown)

S v Rodeo Solve CC (Camperdown Regional Court) (unreported) case number RC04/18 (date unknown)

S v RR Govender (Durban Regional Court) (unreported) case number 41/470/18 (date unknown)

S v SA Demolishers CC (Verulam Regional Court) (unreported) case number 1009/11/2010 (date unknown)

S v SAM Marie Consulting CC T/A Biotech SA (Pty) Ltd (Pinetown Regional Court) (unreported) (unknown case number) (date unknown)

S v Samancor Chrome Ltd (Lydenburg Regional Court) (unreported) case number SHL 472/2012 (date unknown)

S v Samancor Manganese (Pty) Ltd (Vereeniging Regional Court) (unreported) case number RC217/15 (date unknown)

S v Silicon Smelters (Pretoria Regional Court) (unreported) case number 14/01477/2011 (date unknown)

S v SS Ngcobo, ML Serite and Iseewaste (Pty) Ltd (Kempton Park Regional Court) (unreported) unknown case number (date unknown)

S v Stefan Frylinck (Pretoria Regional Court) (unreported) case number 14/1740/2010 (2011)

S v T Mosekidi (Vereeniging Regional Court) (unreported) case number SH152/09 (date unknown)

S v Thaba Chweu Local Municipality (unreported) (unknown case number) (date unknown)

S v Tierhoek Boerdery (Clanwilliam Regional Court) (unreported) (unknown case number) (2019)

S v UNICA Iron Steel (Pty) Ltd (Temba Regional Court) (unreported) case number E01/14 of 31 December 2013

S v Vunene Mining (Ermelo Regional Court) (unreported) case number 94/11/2010 (2011)

S v York Timbers (Nelspruit Regional Court) (unreported) case number SH 865/2010 (2013)

S v Zinn 1969 2 SA 537 (A)

Sappi Ngodwana case (Mpumalanga) (unreported) SH 158/190 (date unknown)

Umhlaba Plant Hire CC v DPP Western Cape (10152/2015) [2015] ZAWCHC 161 (15 September 2015)

Uzani Environmental Advocacy v BPSA 2019 5 SA 275 (GP)

York Timbers (Pty) Ltd v National Director of Public Prosecutions 2015 1 SACR 384 (GP)

Legislation

Adjustment of Fines Act 101 of 1999

Atmospheric Pollution Prevention Act 45 of 1965

Constitution of the Republic of South Africa, 1996

Criminal Procedure Act 51 of 1977

Environment Conservation Act 73 of 1989

Hazardous Substances Act 15 of 1973

Magistrates' Court Act 32 of 1944

National Environment Laws Amendment Act 14 of 2009

National Environmental Management Act 107 of 1998

National Environmental Management: Air Quality Act 39 of 2004

National Environmental Management: Biodiversity Act 10 of 2004

National Environmental Management: Protected Areas Act 57 of 2003

National Environmental Management: Waste Act 59 of 2008

National Forests Act 84 of 1998

National Heritage Resources Act 25 of 1999

National Water Act 36 of 1998

Water Services Act 108 of 1997

Government publications

GN 1411 in GG 19435 of 30 October 1998

GN R1352 in GG 20606 of 12 November 1999 (Regulations Requiring that a Water Use be Registered)

GN R740 in GG 33487 of 23 August 2010 (Rules Regulating the Conduct of the Proceedings of the Magistrates' Courts of South Africa)

GN 217 in GG 37477 of 27 March 2014

Proc 1 in GG 27161 of 6 January 2005

Internet sources

CER 2023 https://cer.org.za/virtual-library/judgments/magistrates-courts

Centre for Environmental Rights 2023 Judgments – Magistrates' Courts https://cer.org.za/virtual-library/judgments/magistrates-courts accessed 10 July 2023

NPA 2020 https://www.npa.gov.za/sites/default/files/media-releases/ NPA_Annual_Report_2019-2020.pdf

National Prosecuting Authority 2020 Annual Report 2019/20 https://www.npa.gov.za/sites/default/files/media-releases/NPA_Annual_Report_2019-2020.pdf accessed 9 July 2023

List of Abbreviations