Is the Stick Real? Trends from Concluded Prosecutions of Industrial Environmental Crimes in South Africa

Abstract

South Africa’s suite of environmental laws contains many criminal sanctions and penalty provisions. Whether the criminal sanction is an effective tool that realises the constitutionally protected environmental right depends on how it is practically enforced and whether potential offenders become aware of such enforcement measures. This article reports on research aimed at collecting and analysing prosecutions for industry-related transgressions (conducted mainly in Magistrate’s Courts) and involving offences under the National Environmental Management Act (NEMA), the Waste Act, the Air Quality Act and the National Water Act. An analysis of 53 prosecutions shows that most cases resulted in convictions, half were concluded through plea and sentence  agreements, half involved the conviction of individuals, no direct imprisonment penalties were imposed, and low fines  were imposed in most cases. The findings include that there is some inconsistency in how different listed activities or water uses are treated as separate or consolidated criminal charges, and 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. Increased access to such information would improve knowledge, implementation and the effective use of the criminal sanction through prosecutions. In turn, this would contribute to the improved realisation of the constitutionally protected environmental right.