Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd (CC82/2017) [2019] ZAGPPHC 86; [2019] 2 All SA 881 (GP); 2019 (5) SA 275 (GP) (1 April 2019)

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[2019] ZAGPPHC 86
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Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd (CC82/2017) [2019] ZAGPPHC 86; [2019] 2 All SA 881 (GP); 2019 (5) SA 275 (GP) (1 April 2019)

GAUTENG
DIVISION, PRETORIA
CASE
NO: CC 82/2017
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
1
April 2019
In
the matter between
:
UZANI
ENVIRONMENTAL ADVOCACY
CC
Prosecutor
And
BP
SOUTHERN AFRICA (PTY)
LTD
Accused
as
represented in terms of s332(2)
of
Act 51 of 1977 by Mr Robert Sazi Mfeka
JUDGMENT
SPILG,
J:
25
March 2019
INTRODUCTION
1.
Pursuant to being granted leave on 29
June 2017 by Judge President Mlambo, Uzani Environmental Advocacy
(CC)
(“Uzani'')
instituted
a private prosecution against BP Southern Africa (Pty) Ltd
(“BP'')
out of the Gauteng Division. Uzani
claimed that it had complied with all the legislative requirements
set out in
s 33
of the
National Environmental Management Act 107 of
1998
(“NEMA
“)
to enable it to initiate such a prosecution. As appears later this
was put in issue
2.
Counts
1 to 21 of the indictment alleged that BP had contravened
s 22(1)
read with ss 21(1) and 29(4) of the Environmental Conservation Act 73
of 1986 m
(
“
ECA”)
read
with Item 1(c) of Schedule 1 and Schedule 2 of the Regulations
promulgated in terms of that Act under Government Notice R1182
of 5
September 1997 (“GN
R1182').
[1]
Counts
22 to 42 alleged the commission of certain acts of common law fraud.
3.
After the combined writ of summons and
indictment had been served the Judge President directed that the
matter be provisionally
enrolled on 4 September 2017.
HEARINGS
Hearing
of 4 September 2017 (Pre-Plea issues)
4.
At the hearing of 4 September a number
of pre-trial issues were dealt with and the following order was made
by consent; omitting
certain unnecessary provisions it reads :
1.
In the event that the prosecution by
Uzani Environmental Advocacy (CC) (“Uzani”) is competent
the representative of
BP Southern Africa (Pty) Ltd (“BP”)
as identified in the indictment is replaced by Ms Julia Stewart
2.
In respect of counts 22 to 42;
a.
it is recorded that Uzani has not
obtained a no/le prosequi and has not provided security for costs and
contends that it does not
require either as it is pursuing the
prosecution under s 32 of NEMA
b.
Uzani will on or before 11 September
2017 notify BP and the court in writing whether or not it intends
pursuing counts 22 to 42
and if not what it contends should happen in
respect of any costs arising from a withdrawal;
c.
If Uzani withdraws counts 22 to 42 and
the costs consequences contended for by Uzani are disputed then BP
will on or before 13 November
2017 notify Uzani and the court in
writing as to its contentions regarding costs;
3.
In respect of all counts:
a.
It is recorded that Uzani relies
on having complied with s 33(2) of NEMA
b.
Uzani will on or before 11
September 2017 provide such documentary proof as it possesses that it
has complied with ss 33(2)(b) and
(c) of NEMA;
c.
BP will on or before 13 November
2017 indicate in writing whether it contends that Uzani has failed to
comply with the provisions
of s 33 (2), on the assumption that s
33(2) is applicable
4.
Uzani will on or before 11
September 2017:
a.
Provide copies of all the
statements and documents it proposes to produce and rely upon as well
as all documents in its possession
which are relevant as referred to
in para S(a) of the letter from BP's attorneys dated 14 August 2017;
b.
Furnish a written response to
para 5(b) of the said letter together with its list of witnesses
indicating whether it is a final
list or not;
c.
Furnish a written response to
para 5(c) of the said letter and provide such documentation it
contends it is obliged to produce and
state why it objects to produce
any other
5.
BP will on or before 13 November
2017 list in writing and notify Uzani and the court of:
a.
All pre-plea applications,
including production of documents and request for particulars it
intends to bring
b.
All s 106 pleas it intends to
raise
c.
All constitutional issues it
intends to raise
6.
Both Uzani and BP will on or
before 13 November 2017 in writing notify each other and the court of
when it is intended that BP is
to plead to the charges under s 105
ands 106 and whether the s106 pleas may be dealt with separately
…
Hearing
of 11 November 2017
5.
The
course of proceedings immediately after the order of 4 September was
dealt with in a decision handed down on 13 November 2017
and need not
be repeated in full.
[2]
In
summary:
a.
On 11 September 2017 Uzani withdrew the
fraud charges (counts 22 to 42) as it had to since it relied solely
on the provisions of
NEMA for its right to prosecute. These counts
relied on an alleged contravention of an ordinary common law crime
which fell outside
the special dispensation afforded by NEMA, in
which case it would first have been necessary to obtain a
nolle
prosequi from
the State under the
Criminal Procedure Act 51 of 1977
(the
CPA”)
which had not been done.
b.
Uzani indicated that it would call the
then newly appointed head Gauteng Province's Department for
Agriculture and Rural Development
(“GDARD'?
to testify in relation to BP's
application in terms of s 24G of NEMA for the twenty-one filling
stations listed in the indictment
and to testify to his and the
department's competencies and mandate under the applicable
environmental legislation.
c.
On 9 November, which was two court days
before the hearing of 13 November, BP produced the plea it would be
tendering when the time
came for it to answer to the charges. It
consisted of a plea of not guilty under s 106(1) (b) of the CPA and
also a plea under
s 106(1)(h) that Uzani had no title to prosecute
BP. BP relied on a number of grounds for its special plea.
d.
BP also contended that:
“
In
light of the Private Prosecutor having brought the prosecution, and
having brought the Accused before court, it is appropriate
that the
Accused be allowed to plead to the remaining charges, Counts 1 to 21,
in court on 13 November 2017”
In a subsequent
paragraph of its response to the order of 4 September BP added that
it was not only appropriate but also necessary
to plead to the
charges which it would do at the hearing on 13 November”...
as
required by sections 105 and 106 of the CPA”.
e.
At the hearing of 13 November
Adv
He/lens
on behalf of BP persisted
that it was entitled to plead to the charges there and then.
Adv
Burger
on behalf of Uzani claimed
that it was not yet ready to put the charges to BP under s 105. A
further issue arose at that hearing
when Uzani's tender to pay the
wasted costs occasioned by the withdrawal of the fraud charges on the
party and party scale was
rejected. BP contended that it was entitled
to costs on an attorney and own client scale.
f.
I declined BP's application to have the
charges read out there and then. I also considered that it was
premature to determine the
scale at which Uzani should pay the costs
for withdrawing the common law fraud charges. As mentioned earlier
the reasons for my
decision have been previously given in a reported
decision.
6.
BP was dissatisfied with Uzani's
contention that it was not in possession of any witness statements
and that it had delivered to
BP all relevant documents which were in
its possession. BP therefore brought an application to compel the
production of sworn witness
statements, alternatively such notes of
consultations with witnesses as were in Uzani's possession.
BP
contended that a prosecution could not proceed unless the private
prosecutor has witness statements or notes of the evidence
that the
witness intends to give. It also indicated that other arguments would
be raised centred on among other things its fair
trial rights and
entitlement to fully and adequately prepare for trial.
7.
Uzani delivered an answering affidavit
explaining that officials from GDARD had failed to co-operate which
compelled Uzani to subpoena
its head to produce the relevant
documents and to give evidence. Uzani also advised that it would
approach the court in early January
2019 to issue a subpoena
compelling the attendance of the GDARD witness in order to take a
statement.
8.
These issues and a number of others were
then catered for a court order which covered
inter
alia
the delivery of the amended
indictment, an objection that would be dealt with procedurally as if
it were an objection under s 85
of the CPA and that BP would formally
plead to the charges at the next hearing. The salient parts of the
order read:
1.
Uzani
...
is to deliver to BP
...
any amended indictment by no later
than a date to be determined, after hearing counsel, which shall be
prior to the date of the
hearing of the application to compel
documents.
2.
The application to compel
documents will be dealt with procedurally in the same manner as the
delivery of particulars in terms of
s 87 of the ... CPA and after
hearing counsel the court will determine dates for the filing of
affidavits and the hearing of the
application prior to BP pleading
under s106 of the CPA.
3.
Within a period to be determined,
after hearing counsel, BP shall be entitled to exercise its rights
under s 85 of the CPA to object
to the charge prior to pleading and a
date for such hearing will also be determined.
4.
If BP does so object then a date
will be determined, after hearing counsel, by when any documents are
to be delivered and when such
objections will be heard.
5.
If BP does not so object then
Uzani shall put the charges to BP on the same date determined for the
disposal of any objections and
BP shall plead thereto in accordance
with s 106 of the CPA
6.
The determination of the dates
will be made on 13 November 2017 and immediately after this ruling is
handed down
7.
Uzani shall pay the wasted costs
occasioned by the withdrawal of counts 22 to 42 however the scale on
which such costs are to be
paid will be reserved for determination at
the conclusion of the trial
9.
On the following day and by agreement
between the parties an order was made in the following terms:
1.
Uzani
...
is to deliver to BP any amended
indictment by no later than15 December 2017.
2.
The application to compel
documents will be dealt with procedurally in the same manner as the
delivery of particulars in terms of
s
87 of the CPA and;
a.
Uzani is to file an answering
affidavit by 15 December 2017;
b.
BP is to file its replying
affidavit if any by 31 January 2018;
3.
The application to compel
documents is to be heard on 20 March 2018 and the court has
indicating that it will deliver judgment within
two weeks of that
date
4.
BP shall be entitled to exercise
its rights under s 85 of the CPA to object to the charge by;
a.
giving notice thereof on or
before 13 April 2018
b.
delivering its application by 4
May 2018
5.
If BP does so object then the
objections will be heard on 18 May 2018.
6.
If BP does not so object then on
18 May 2018 Uzani shall put the charges to BP in terms of s 105 of
the CPA and BP shall plead thereto
in accordance with law.
Hearing
of 16 May 2018
10.
BP then brought an application to compel
the production of certain documents, a s85 objection under the CPA to
the introduction
in the amended indictment of count 1O to an attached
schedule of charges and an application in terms of section 342A of
that Act
based on allegations of unreasonable delay.
11.
On 20 April Uzani produced certain
documents which included draft witness statements and on 23 April BP
withdrew its application
to compel.
12.
At the commencement of the hearing on 16
May 2018 Mr Mfeka was formally substituted for Ms Stewart as BP's
representative in terms
of s 332(2) of the CPA.
13.
The s 85 objection was then heard. It
related to an additional charge which appeared in the amended
indictment delivered in December
2017 in respect of the BP Riverside
garage in Nelspruit (count 10). This increased the number of charges
to 22 whereas Uzani had
claimed that it was pursuing only 21 charges
relating to the alleged environmental offences.
After
receiving the objection Uzani withdrew this count claiming that it
was inserted in error
[3]
.
In my view BP could simply have enquired as to whether Uzani intended
to pursue this charge instead of embarking on a substantive

application as the charge was not contained in the original
indictment nor did the body of the amended indictment contend that

anything more than 21 counts were being proffered.
It
is therefore unnecessary to consider the basis on which the objection
was raised, which itself would have created some difficulties
for BP.
14.
The application under s 342A was brought
on the grounds that there had been unreasonable delay in prosecuting
the trial. BP sought
an order striking the case from the roll
alternatively certain of the older charges which accounted for 15 of
the 21 counts.
15.
BP contended that eight months had
passed before it was given the entire docket and that it had still
not received any witness statements.
However
prior to the hearing and on 17 April Uzani produced a witness
statement in the form of an affidavit by the head of GDARD
and BP
intimated that it would not proceed with the s 342A application but
would be seeking costs of the application on the attorney
and own
client scale.
16.
At the hearing Adv Burger referred toss
33(2) and (4) of NEMA which deal with private prosecutions and in
particular the latter
provision which in its terms makes no provision
for the award of costs in interlocutory proceedings.
For
sake of completeness s 33(4) reads:
The accused
may be granted an order for costs against the person prosecuting
privately, if the charge against the accused is dismissed
or the
accused is acquitted or a decision in favour of the accused is given
on appeal and the court finds either:
(a)
that the person instituting and
conducting the private prosecution did not act out of a concern for
the public interest or the protection
of the environment; or
(b)
that such prosecution was
unfounded, trivial or vexatious.
17.
It was therefore evident that the court
could not deal with costs at this stage if Uzani was entitled to
initiate the prosecution;
and having regard to the factual aspects
raised by the defence, the question of whether it was entitled to
prosecute could only
be decided once evidence had been led at the
trial itself.
PUTTING
OF CHARGES AND PLEA
18.
A final amended indictment was prepared
and the charges were formally put to BP under s 105 of the CPA
The
indictment
19.
The salient portions of the indictment
are set out in the following paragraphs.
20.
Uzani identified itself as the
prosecutor and asserted that it was a person as defined ins 1 of
NEMA, which, “
in the public
interest and/or in the interest of the protection of the
environment',
was entitled to
institute and conduct a prosecution “
in
respect of any breach or threatened breach of any duty in any
National or Provincial Legislation or Municipal Bylaw, or any
Regulation, licence, permission or authorization issued in terms of
such legislation, where that duty is concerned with the protection
of
the environment and the breach of that duty is an offence.”
21.
As previously mentioned it claimed to
have complied with the provisions of Section 33(2) of NEMA.
22.
The preamble to the indictment is
important since according to Uzani it contains the substantial facts
on which Uzani relies and
which it was required to provide in terms
of s 144(3)(a) of the CPA. It reads:
WHEREAS at
all times relevant to the charges:
1.
Section 28(1) of NEMA imposes a
duty on every person who causes, has caused or may cause significant
pollution or degradation of
the environment to take reasonable
measures to prevent such pollution or degradation from occurring,
continuing or recurring, or,
insofar as such harm to the environment
is authorised by law or cannot reasonably be avoided or stopped, to
minimize and rectify
such pollution or degradation of the
environment.
2.
The aforesaid duty, in terms of
Section 28(1A) of NEMA also applies to a significant pollution or
degradation that:
2.1
occurred before the commencement
of NEMA;
2.2
arises or is likely to arise at a
different time from the actual activity that caused the
contamination; or
2.3
arises through an act or activity
of a person that results in a change to pre-existing contamination.
3.
In terms of Section 28(2) of NEMA, and
without limiting the generality of the aforesaid duty, the persons on
whom subsection (1)
imposes an obligation to take reasonable
measures, include an owner of land or premises, a person in control
of land or premises
or a person who has a right to use the land or
premises on which or in which:
3.1
activity or process is or was performed
or undertaken; or
3.2
any other situation exists,
which
causes, has caused or is likely to cause significant pollution or
degradation of the environment.
4.
In terms of Section 28(3) of
NEMA, the measures required in terms of subsection 28(1) may include
measures to investigate, assess
and evaluate the impact on the
environment.
5.
In terms of Section 24F (1) of
NEMA no person may commence an activity listed in terms of Section
24(2) (a) of the same Act unless
the competent authority has granted
an environmental authorisation for the activity. One of the
activities listed in GN R387 of
21 April 2006 in terms of Section
24(2) (a) is the construction of filling stations, including
associated structures and infrastructure,
or any other facility for
the underground storage of dangerous goods, including petrol and
diesel.
6.
Section 22(1) of the Environment
Conservation Act 73 of 1989 (“ECA'1 stipulates that no person
shall undertake an activity
identified by the Minister in terms of
Section 21(1) of ECA (“a Controlled Activity'1 or cause such a
Controlled Activity to be
undertaken except by virtue of a written authorization issued by the
Minister or by a competent authority
or a local authority or an
officer, which competent authority, local authority or officer shall
be designated by the Minister by
notice in the Gazette.
7.
Section 22(2) of ECA further
stipulates that the aforementioned authorization shall only be issued
after consideration of reports
concerning the impact of the proposed
activity and of alternative proposed activities on the environment,
which shall be compiled
and submitted by such persons and in such
manner as may be prescribed. Such reports involve investigation,
assessment and evaluation
of the impact on the environment.
8.
The Minister, in terms of
Government Notice R1182 of 5 September 1997 declared that as from 2
March 1998 the construction or upgrading
of transportation routes and
structures and manufacturing, storage, handling or processing
facilities for any substance which is
dangerous or hazardous and is
controlled by National Legislation as an activity which may have a
substantial detrimental effect
on the environment.
9.
Petroleum and/or petroleum
products are dangerous, hazardous substances which are controlled by
national legislation, inter alia
the
Petroleum Products Act, 120 of
1977
, the
Hazardous Substances Act, 15 of 1973
and Government Notice
R1382 published in Government Gazette 15907 of 12 August 1994 in
terms of the aforesaid Act read with the
South African Bureau of
Standards' Code of Practice 0228: The identification and
classification of dangerous substances and goods.
10.
In terms of Section 29(4) of ECA
any person who contravenes a provision of section 22(1) of that Act
shall be guilty of an offence
and liable on conviction to a fine or
to imprisonment.
11.
The Accused, conducting business
inter alia in the construction and establishment of filling/service
stations and in the supply
of petroleum products to filling/service
stations during the periods and places specified in Counts 1 to 21,
constructed and/or
upgraded filling/service stations being storage,
handling or processing facilities for petroleum and/or petroleum
products. The
construction and/or upgrading were done without reports
concerning its impact compiled and submitted by the accused in terms
of
Section 22(2) of ECA and without the written authorization of the
Minister responsible for environmental matters or a competent

authority or a local authority or an officer designated by the
Minister.
12.
The Prosecutor relies on the
provisions of
Section 250(1)
of the
Criminal Procedure Act 51 of
1977
.
23.
The charges then follow and are
formulated as follows:
(T)he Accused
is guilty of:-
COUNTS 1 to
21: Contravening
Section 22(1)
read with
Sections 21(1)
and
29
(4) of
the ECA and Item 1(c) of Schedule 1 and Schedule 2 of Government
Notice R 1182 of 5 September 1997.
IN THAT
During or
about the dates mentioned in column 2 and at or near the addresses
mentioned in column 3 of the Schedule hereto marked
'X”,
the accused wrongfully and
unlawfully undertook or caused to be undertaken an activity
identified as one which may have a substantial
detrimental effect on
the environment to wit the construction and/or upgrading of the
filling/service stations mentioned in column
3 of the Schedule hereto
without the written authorization of the Minister responsible for
environmental matters or a
competent
authority or a local authority or an officer designated by the
Minister.
WHEREFORE THE
PROSECUTOR prays for judgment according to law against the accused.
An
amended schedule was attached setting out the 21 counts in conformity
with the contents of the indictment.
Plea
to the charges
24.
BP formally pleaded to the charges. Its
plea is divided into two sections. The first is a plea under
s
106(1)(h)
denying Uzani's entitlement to prosecute and the other is a
plea of not guilty under
s 106(1)(b)
25.
The plea is contained in a written
document signed on 16 May 2018 and is less extensive than the
pro-forma plea produced on 9 November
2017 to which reference was
previously made.
The
basis of the plea of “
no title to prosecute'
is set out
in Section A and reads:
1.
The Accused pleads in terms of
section 106(1)(h)
of the CPA, that the Private Prosecutor has no
title to prosecute the Accused for any of the charges before this
court on the basis
that
–
1.1
The purported notice given to the
Director of Public Prosecution (“DPP'') as required in terms of
section 33(2)
of NEMA, dated 28 January 2016, is defective; and
1.2
There has not been compliance
with the requirements of
section 33[2)
of NEMA and
section 8
of the
CPA.
1.3
Furthermore, the Accused
specifically denies that the private prosecution is in the public
interest or in the interest of the protection
of the environment as
specifically required by
section 33(1)
of NEMA.
1.4
The plea in terms of
section
106(1)(h)
is furthermore made with reference to
section 24G(4)
of ...
NEMA, which specifically limits the right to prosecute, arising from
the submission of an application in terms of
section 24G(1)
of NEMA,
to the National Prosecuting Authority. Therefore, private
prosecutions are not permissible in the context of
section 24G
of
NEMA.
26.
As it was its right, BP elected not to
tender an explanation in respect of the
s 106(1)
(b) plea.
THE
TRIAL
27.
Evidence was led on 11 September and
continued through to the 18th with the exclusion of the 14
th
.
28.
The prosecution first led the evidence
of Prof Izak Jacobus van der Walt. He was followed by Mr Gideon
Erasmus.
29.
The prosecution then attempted to rely
on
s 212(3)
of the CPA to introduce affidavit evidence by the
departmental head Mr Nhlakanipho Nkontwana. BP objected and after
hearing argument
on 13 September I ruled that:
1.
In terms of
s 212(3)
of the ...
the Act the affidavit of Mr Nhlakanipho Nkontwana, the current Head
of the Gauteng Provincial Department of Agriculture
and Rural
Development, deposed to on 23 April 2018 is admitted as prima facie
proof of its entire contents including the contents
of annexure A
thereto to the extent that they relate to the accused
.
2.
In terms of s 212(12) of the Act
Mr Nkontwana is hereby subpoenaed to give oral evidence before this
court sitting at the High Court
in Johannesburg .... on Tuesday 18
September 2018.
3.
Furthermore such subpoena shall
be duces tecum, requiring Mr Nkontwana to produce, subject to para 4,
the records to which he has
made reference in the said affidavit save
that it will be unnecessary for him to produce the original register
(i.e. annexure A)
unless requested to by any party.
4.
The actual utilisation of a
document in the said records by the witness, whether in response to
any question or of his own volition,
shall be subject to any argument
by either party as to the competency of its reception into evidence,
which includes the competency
of this court to include such an order
whether under s 212(12), s 167 or s 186 of the Act.
5.
The obligation to subpoena and
any cost incurred in securing the attendance of Mr Nkontwana under
law shall be borne by the prosecution.
6.
If Mr Nkontwana has already been
subpoenaed to attend court in these proceedings, then such subpoena
shall constitute compliance
with para 2 of this order (save that the
venue shall be at the High Court in Johannesburg) and furthermore it
shall be sufficient
for the purposes of para 3 of this order if its
contents are brought to his attention in any
reasonable
manner, subject to Mr Nkontwana's right to claim any prejudice or
incompetence in the adoption of such procedure.
Mr
Nkontwana attended court on 18 September and was then called by the
prosecution to give evidence.
[4]
30.
The defence closed its case without
leading any evidence
.
31.
During the course of the trial the court
received a number of exhibits, in certain cases on a preliminary
basis. However by the
end of the proceedings all exhibits were
finally admitted into evidence. They were:
A.
The curriculum vitae of Prof van der
Walt
B.
A series of documents numbered pp1 to
58, containing correspondence between Erasmus (in his capacity as the
attorney for Uzani)
on the one hand and the Director of Public
Prosecutions for both the then North and South Gauteng areas (based
in Pretoria and
Johannesburg respectively) on the other. The various
letters are dated 28 January 2016, 13 April 2016 with attachments, 20
May
and 15 June 2018 also with attachments.
One of the
attachments to the correspondence consists of extracts from the
statutory register maintained by the Gauteng Department
of
Agriculture and Rural Development (“GDARD
”
)
under Regulation 5 (3) of the EIA Regulations promulgated in terms of
GN R 982 of 4 December 2014 under NEMA, which it could not
be
disputed deals with all applications under
s
24G of that Act including those which preceded the promulgation of
the regulation.
[5]
C.
This is annexure CW3 of BP's application
of 10 November 2017 to compel the production of documents. It
includes a letter from Ms
Corinaldi written purportedly on behalf of
Uzani to a BP retailer regarding BP
'
s
alleged contravention of NEMA.
D.
A mandate dated 27 January 2016 given to
Uzali CC by Marndre Beleggings CC. Marndre was the proprietor of a
Zenex filling station
situated at the corner of Jean and Gerhard
Streets in Centurion
E.
An
extract from Chapter 2 of the South African Law Commission's Report
containing a definition of a public interest action.
[6]
F.
A cession agreement dated 7 January 2016
between Uzali CC, represented by Erasmus and Uzani Foundation NPC.
G.
It comprised
:
G1- being a
letter dated 13 December 2017 from the Companies and Intellectual
Property Commission
(“CIPC'J
confirming changes to
Uzani's members with an accompanying CK2 form recording the additions
of Mr FD Conradie and Mr MG van Greuning
to those of Erasmus and FCJ
van Schalkwyk.
G2- being a
certificate issued by the CIPC dated 10 September 2108 reflecting
information contained on its database regarding BP.
It includes the
list of directors, auditors and changes to these and other statutory
details
H.
The s 212(3) affidavit of Mr Nkontwana,
the head of GDARD, together with an annexure marked A.
I.
A letter of 14 September 2018 from
Erasmus Attorneys to Warburton Attorneys enclosing:
a.
The Foundational documents of Uzani
including its Memorandum of Incorporation, certificates confirming
change of name and appointment
of directors as well as a current
certificate of compliance
b.
The Manifesto/Charter of the Uzani
Foundation NPC; and
c.
Additional mandates similar to Annexure
D received from owners of filling stations alleged to be potentially
affected by BP's actions.
J.
A covering letter from the Law Society
of the Northern Provinces dated 14 September 2018 explaining the
removal and reinstatement
of Erasmus from the roll of attorneys as
well as an application by Erasmus in June 1995 for re-admission to
the roll of attorneys
together with annexure A. Annexure A was the
original urgent application brought in April 1986 by the then
Attorneys Association
of the Transvaal for striking Erasmus' name
from the roll of attorney. It was couched in the form of a
rule
nisi
returnable some four months
later pending the substantive relief for his striking-off. Erasmus'
application for re-admission was
incomplete as not all the annexures
were attached.
K.
A letter dated 28 February 2006 from
Mills & Otten CC, who are environmental consultants, addressed to
the Gauteng Department
of Agriculture, Conservation and Environment
(“GDACE').
L.
A letter of 28 August 2006 from the
Office of the MEC of GDACE to BP
.
M.
A series of documents containing the
successful application for the upliftment of Erasmus' suspension from
practice as an attorney.
It includes Erasmus' application of 19 July
2011 and the transcript of the proceedings before Tuchten Jon 31
October 2011 for the
grant of the order.
Exhibits
J through to L were those initially received into evidence on a
provisional basis.
32.
At this stage it is convenient to read
certain extracts from three of the documents.
Exhibit
D which is the mandate obtained by Uzani's predecessor, Uzali, from
Marndre Beleggings on 29 January 2016 reads:
1.
Uzali CC
...
has embarked on the private
prosecution of
...
BP
in terms of section 33 of ... NEMA for the unlawful construction
and/or operation of the BP Jean Avenue filling station.
2.
Section 34 of NEMA provides that
a Court may, on conviction, determine and/or award certain
compensation and/or damages to the affected
persons in addition to
and/or instead of fines.
3.
It has been agreed that, pursuant
to BP's conviction:
3.1
Uzali will, at its exclusive risk
and cost, attempt to prove and recover such damages as may have been
suffered by the proprietors
of filing stations and/or compensation to
which they may be entitled;
3.2
In return for funding and
pursuing the prosecution and recovery aforementioned Uzali will be
entitled to 25%
...
of
all and/or any monies recovered on behalf of Marndre Beleggings
...
In
acknowledgment of which, I, the undersigned
PJ Lourens
in my
capacity as duly authorised representation of
Marndre
Beleggings
CC
being the
proprietor of the
Zenex Jean
Avenue filling station
situated at
c/o Jean
&
Gerhard
Streets, Centurion (..”the proprietor') herewith:
·
unconditionally, irrevocably and
exclusively authorise Uzali and/or its nominee to prove, recover and
receive on the proprietor's
behalf all and/or any damages and/or
compensation as envisaged above to which the proprietor may be
entitled;
·
undertake to provide Uzali with all
such information related to sales at the proprietor's filling station
aforementioned as Uzali
may require for purposes of the prosecution
and/or recovery;
·
agree to abide by the expert
determination of pro-rata damages and/or compensation due to each
affected filling station by Mr French
van Heerden as represented to
the Court during the prosecution:
·
confirm that the variation of the
terms set out herein will be valid or binding unless reduced to
writing and signed or otherwise
assented to in writing by all
concerned parties.
Dated at
Centurion on this the 29thday of January 2016.
The
members of Uzali are identified at the foot of the first page as
Erasmus and FCJ van Schalkwyk.
Exhibit
127 and 130 are the additional mandates found by Erasmus. The second
one is incomplete but would replicate the first since
they both are
from the same standard document bearing the printed date of 21
January 2016.
They
are an earlier version of Exhibit D, although only by a week. Exhibit
D bears the printed date 27 January 2016.
Save
in two respects Exhibit 127 was is substantially identical to Exhibit
D. The first distinction is that in the earlier version
(i.e. Exhibit
127) Uzali was entitled to retain 50% of the amounts recovered on
behalf of the proprietor not 25% as provided for
in the later
version.
The
other difference is an additional clause in the earlier mandate form
which provided that the proprietor agreed;
''that even
in the event of the cancellation of this mandate, Uzali shall be
entitled to prove the damages and/or Joss aforesaid
and to (50% fifty
percent) of al/land or any monies then or subsequently recovered by
or on behalf of the said proprietor.”
Despite
being printed on 21 January it was also signed on the same date as
Exhibit D, namely on 29 January. Exhibit 127 was signed
by the
proprietor of a filling station located in Lyttleton.
The
contents of Exhibit F, which is the cession between Uzali and Uzani
Foundation NPC also bear mentioning at this stage. It is
dated 7
January 2016 and records that Uzali ceded to the Foundation;
1.
the entirety of all awards that
any Court may make to it or any of its members in terms of section
348 of
...
NEMA
;
and
2.
the entirety of all or any
benefits that may accrue to the close corporation
(i.e.
Uzali)
pursuant to a judgment by any
Court in terms of sections 34(1) and 34(2) of NEMA
CASE
FOR THE PROSECUTION
Prof
van der Walt
33.
Prof van der Walt gave evidence
regarding the need for environmental authorisation prior to a filling
station being erected and
why authorisation post­ construction
adopts lower standards to those demanded by a pre-construction
Environmental Impact Assessment
Report
(“EIA”).
His evidence was in the nature of
expert evidence.
34.
According to the professor,
authorisation post-construction requires the receipt of a
rectification report which accepts that refusing
a s24G application
was not really an option because it could result in job losses. The
process of sanctioning a post­ construction
application under s
24G is therefore qualitatively inferior to the more rigorous
requirements required under an EIA.
35.
The professor explained the approach
adopted by the environmental legislation which, in its application,
entails an evaluation of
the biophysical risks involved and also the
public's entitlement to participate in the process.
36.
He testified that it only required a
relatively small volume of fuel to pollute a large area of
groundwater and that once pollution
occurs it is effectively
irreversible. This evidence was given with specific reference to
underground storage tanks.
37.
The professor was challenged on his
claim that post-construction approval under s24G was inferior to that
required pre- construction.
The professor stood his ground and BP did
not attempt to bring contradicting expert testimony.
In
my view the reasoning provided by the professor, based on his
empirical knowledge in the field, is reliable and should be accepted.

I also do not believe that his evidence was an attempt to intrude on
the court's function of interpreting legislation but rather
provided
a factual framework from which the court could appreciate the
function and purpose of the legislative requirement for

administrative approval in respect of the construction or upgrading
of a filling station.
Mr
Erasmus
38.
Erasmus was called in order to explain
the objectives of Uzani, to support Prof van der Walt's evidence and
to demonstrate his passion
for and extensive involvement in
environmental affairs. Obviously he was also called to prove Uzani's
entitlement to pursue the
prosecution.
39.
The purpose of BP's cross-examination
was to show that Uzani had a direct pecuniary interest in the
litigation which resulted in
prosecutorial bias and that the purpose
of the prosecution was not to achieve the objects of NEMA but was
exploitative for the
personal enrichment of Erasmus. It also sought
to demonstrate that Erasmus could not be entrusted with the
responsibility of litigating
on behalf of others and the court should
not exercise its powers to enable him to do so.
To
these ends BP sought to demonstrate that the purpose of the
prosecution was to advance Erasmus' personal interests and that he

had been struck from the roll of attorneys for misappropriating
client's trust monies.
40.
At the outset it was necessary to warn
oneself in respect of Erasmus' testimony
.
He did not enter the witness box as an
independent witness or a dispassionate outsider. He is also the
driving force behind Uzani.
41.
In his evidence in chief Erasmus
confirmed that he was a practicing attorney, that Uzani qualified as
a juristic person which fell
within the provisions of s 33(1) of NEMA
and sought to prove through correspondence with the Director of
Public Prosecutions (DPP)
of both the then North and South Gauteng
Divisions that they had received proper notice under s 33(2) of NEMA
of Uzani's intention
to initiate a private prosecute against BP.
42.
The defence did not cross examine
Erasmus on the first two aspects. However he was subjected to
vigorous cross-examination on the
issue of whether Uzani had properly
notified the prosecuting authorities in its notice of 20 January 2016
(Exhibit B1-36) of its
intention to embark on a public prosecution of
BP if the DPPs failed to respond.
43.
Erasmus conceded that the body of the
notice of 20 January 2016 did not mention that Uzani intended to
prosecute BP. He however
sought to rely on the annexure attached to
the notice.
The
annexure consists of some 32 pages of documents constituting a
register maintained by and obtained from GDARD. It contains well
over
a thousand entries which self-evidently relate to an application
brought by each of the entities listed under one of the columns
in
respect of the sites identified in another column. Save for a few of
the pages which do not concern BP:
a.
The first column is headed “S.
Num” and
is
consecutively numbered. The numbers relevant to BP are 1035 to 1101:
b.
Then follows a column headed “
DACE
Ref'
containing a reference
commencing “
S24/G/2/'followed
by what appears to be a unique
number:
In the case of
BP the references are consecutively numbered from S24/G/2/1047 to
S24/G/2/1113, conforming with the 67 entries in
the register relating
to BP.
c.
The third column is headed
“
Property-Description''
and
identifies the sites in question either by title deed description or
physical address.
d.
The fourth column is headed “
Applicant”.
It identifies a large number of
corporations ranging from cellular service providers and mining
companies to petroleum companies
and local authorities. Each entities
applications tend to be grouped together. As previously mentioned all
BP applications are
exclusively grouped in the batch of numbers from
1035 to 1101.
e.
The final column is headed “
Activity
No”.
In this column are found
a number with or without a letter. The final column of the first row
reads
“
2c
,
10”.
In
respect of the BP applications mentioned in rows 1035 to 1101 “
to
a man”
all 67 entries in the
final column read simply “
1c”.
44.
Under
cross-examination Erasmus explained that “
1
c”
in
the last column of all the BP applications listed in the register
refers to the activity unlawfully commenced by it and corresponds

with the regulation number for that offence contained in GN R1182 of
5/9/1997 promulgated under ECA.
[7]
45.
Erasmus added that anyone with even a
passing knowledge of environmental law would have no difficulty in
understanding the references
and the precise nature of the offence in
respect of which the application was being made. It was also self­
evident that the
application was a rectification application under s
24G (2) as appears from the entry in the second column.
46.
It is unnecessary to read out the
wording of the notice of 28 January 2016 sent on behalf of Uzali to
both DPPs. Suffice that it
expressly states that the attachment
(marked annexure A) is a copy of the registrar of applications in
terms of s 24G of NEMA as
provided by GDARD in terms of the
Promotion
of Access to Information Act 2000
. The notice adds that
s 24G
of NEMA
deals with persons who “
have
admittedly acted in breach of the applicable environmental
legislation” and
that the
letter constitutes notice of Uzani's intention to privately prosecute
“
all
the
applicants listed in the hereto attached schedule ... “
.The
underscoring of the word “
all”
appeared in the body of the letter
itself and ought to have been self­ evident.
47.
The letter itself is headed:
“
NOTICE
IN TERMS OF
SECTION 33
OF ... NEMA: PR/VATE PROSECUTIONS OF
ENVIRONMENTAL OFFENDERS THAT HAVE APPLIED FOR RECTIFICATION IN TERMS
OF
SECTION 24G
OF NEMA”
Once
again it is difficult to conceive of anything clearer
.
48.
The notice added that the prosecution is
to be brought in the public interest and in the interest of those who
have suffered damage
or loss as a result of the unlawful actions
which led to “
the individual
applications in terms of
section 24G
”
0c
m; line-height: 150%">
49.
The response on 29 March from the DPP's
offices in Pretoria was to ask for the police reference to each
complaint lodged including
the name of the investigator
,
the accused's name and the charges. The
DPP also asked time to study the cases Uzani (at that time Uzali)
intended undertaking “
in order
to make an informed decision”
.
50.
Erasmus replied on 10 May and emphasised
that Uzani was invoking the provisions of
s 33
of NEMA to institute
and conduct a private prosecution, referred to the GDARD register
which he repeated contained “
a
full list of the cases to be prosecuted including details of the
statutory provisions that have been breached and the names of
the
offending parties.”
The letter
then set out verbatim the wording of
ss 33(1)
and (2) of NEMA and
sought to assist the DPP
by again
repeating that Uzani will “
deal
only with accused who have formally admitted to having committed the
environmental offences they are to be charged with”.
The
letter concluded by indicating that, if the DPP considered it
prudent, Erasmus would “
gladly
meet” to
discuss the matter at
the DPP's offices.
51.
A meeting was then held on 16 May. It is evident that Erasmus gave
the assurance that the prosecution would only be in relation
to
offences in respect of which applications for rectification had been
made in terms of
s 24G
prior to or during 2010 and that once this;
“
'backlog'
of unprosecuted historical offences has been addressed
...
further prosecutions will make up
only a small part of what Uzani does with the focus shifting more
firmly to;
3.4.1
the Uzani Foundation's incubator
for young environmental lawyers, practitioners and entrepreneurs; and
3.4.2
the envisaged Uzani Virtual
School for Environmental Governance, Law and Entrepreneurship.”
52.
In the letter to the DPP-Pretoria of 20
May 2016 Erasmus advised that Uzani would replace Uzali as the
prosecutor and emphasised
that it did not intend to usurp the
functions of the prosecuting authority but rather that, in relation
to historic
s 24G
applications for rectification, appropriate
circumstances existed where private environmental prosecutions would
complement prosecutions
by the NPA. It was added that in relation to
post-2010 environmental offences Uzani would precede any possible
private prosecution
by laying criminal charges with SAPS and that
Uzani would provide its support in relation to research, data,
evidence in aggravation
of sentence and representations on behalf of
victims of environmental crimes.
53.
The letter of 20 May to the DPP-Pretoria
also addressed what was considered to be the mistaken view that a
s
33
of NEMA notice meant a process similar to a motion application.
Then
follows a telling paragraph which records that notice had previously
been given during 2012 in respect of the same offences
which were to
form the subject of the first intended Uzani prosecution and that
after discussion with the DPP- Johannesburg the
private prosecution
commenced with the leave of the President of the Gauteng Regional
Court in the Johannesburg Regional Court.
A copy of the relevant
summonses were attached.
It
was then explained that after four continuances the matter was not
proceeded with “
due to Jack of
resources given the approach adopted by the accused. That situation
has now been redressed”.
Various
correspondence between Erasmus with the NPA during 2012 was attached.
54.
On 15 June 2016 the DPP-Pretoria
replied. I am satisfied that the DPP was unable to meaningfully
address the contents of Erasmus'
letter of 20 May and in particular
the precedent set when the DPP-Johannesburg acceded to Uzali's
institution of a private prosecution
in respect of the same offences
based on the same representations.
I
am also satisfied that the DPP-Pretoria was then compelled to resort
to obfuscating the issues by harping back on the provisions
of
s 8
of
the CPA and
.
stating
that in order to consider withdrawing his right to institute and
conduct a prosecution “
in any
matter, in terms of
section 8
...
(inclusive of environmental crimes) I
need to apply my mind on information under oath i.e. evidence usually
contained in a SAPS
docket...
“.
55.
The DPP-Johannesburg (Adv Chauke)
adopted a slightly different tack. On 15 February 2016 and in
response to the initial notice he
required to know the factual basis
on which Uzali claimed that the private prosecution might be in the
public interest, whether
any of the alleged offences were reported to
the police
and whether any Public
Prosecutor had declined to prosecute any contravention under NEMA.
56.
Erasmus replied on 3 May 2016. He
referred to the events which occurred when a similar notice had been
sent in 2012 and that Adv
Chauke had personally attended a meeting in
the company of Adv Roberts SC also of the DPP with Erasmus pursuant
to which the President
of the Gauteng Regional Court granted leave
for the private prosecution and that Adv Chauke was subsequently
informed that the
trila had commenced.
57.
The letter continued by mentioning that
no further explanation appeared necessary where there has been a
disregard of environmental
laws which place people and the
environment unnecessarily at risk and which is by definition contrary
to the public interest. It
did however indicate that the private
prosecution intended to include fraud or perjury charges against the
intended accused.
58.
The DPP-Johannesburg addressed a letter
on 10 May which opened with the following:
“
I have
taken note of the contents of your letter.
There exists
no need for any meeting at this stage. By virtue of
Section 33
of
NEMA, you are only entitled to prosecute for environmental matters.
Other crimes are excluded and other provisions are applicable
for
private prosecutions.”
The
balance of the letter dealt with enquiries exclusively directed at
the fraud and perjury matters.
59.
During cross examination Adv Hellens
quickly demonstrated that Erasmus, at least as an attorney intimately
involved with Uzani,
had already tried to solicit financial support
from competitor filling stations on the basis that they could either
benefit directly from a successful
criminal prosecution or could pursue civil claims for damages through
his firm if Uzani's prosecution
was successful.
60.
Exhibits C and D were introduced during
his evidence, and later Exhibits 127 to 30. The contents of Exhibits
D and 127-30 have already
been mentioned. Exhibit C contains a series
of communications between Corinaldi who describes herself as a
petroleum industry consultant
and the proprietor of another BP
filling station situated in Zambezi Drive.
In
the communications Corinaldi was clearly soliciting the proprietor in
order to obtain a mandate similar to either exhibit D or
127 in order
to assist Uzani in funding the prosecution and allow it to make a
claim for any losses sustained to the proprietor
if there was a
successful prosecution.
The
emails explain that the proprietor was approached because it operated
a BP filling station the revenues of which may have been
affected,
according to Uzani, by the alleged unlawfully constructed of the Jean
Road filling station by BP. The email mentioned
that Erasmus himself
would set up a meeting with the proprietor
.
61.
Erasmus was clearly embarrassed about
the events which led to his removal and later again suspension as an
attorney. It was only
through persistent questioning that he was
compelled to concede that he had appropriated trust funds and that
only those who pursued
claiming were repaid which puts into question
his credibility. For instance he first claimed that he had abandoned
his practice
in 1985 and was readmitted in 1995 The facts were that
he had been struck from the roll because he had misappropriated trust
funds
in an amount of some R122 000, had been convicted of theft of
this amount in the Regional Court and sentenced to a fine of R25 000

or to four years imprisonment plus an additional two years suspended
on certain conditions.
62.
He also alleged that he was inactive
from practice from about 2002 or 2003 until 2011. It turned out that
during this period he
was suspended by the Law Society because of
shortfalls in his trust account which included making out a trust
cheque to bearer
and failing to account to clients for trust monies.
By
the same token he however was not questioned on whether there was any
attempt previously, when Uzali initiated the 2012 prosecutions,
to
obtain financing or recover amounts under a mandate from owners of
filling stations.
Erasmus
maintained that any financial benefits which may be received by Uzani
pursuant to the mandate, or which it may be awarded
directly, had
been ceded to the Uzani Foundation which in turn would utilise these
funds exclusively for the purpose of advancing
a number of
environmental causes.
63.
It should also be recalled that Erasmus'
own involvement dated back to the ECA and included providing input in
respect of NEMA legislation
including its regulations as well as
promoting that Act. He had also headed the Development Studies
department at UNISA where one
of his subjects was environmental
conservation.
Erasmus
also stated that he had extensive experience in applications brought
to authorise the construction of filling stations yet
confirmed that
he had never seen any experts report contained in a rectification
report pursuant to a s 24G application.
Head
of GDARD; Mr Nkontwana
64.
Mr Nkontwana's evidence was effectively
contained in his s 212 (3) statement.
65.
He testified that he was and remains the
competent authority in Gauteng in respect of activities that require
environmental authorisation
prior to commencement and which are
identified in terms of ECA and NEMA. He added that he and his
predecessors, as head of the
department, had all been duly authorised
to receive, consider and decide on applications contemplated in s 24G
(1) by persons who
commenced with a listed activity that falls under
GDARD's jurisdiction in contravention of s24F(1) ors 22(1) of ECA
because they
did not have the required environmental authorisation
.
66.
Nkontwana stated that GDARD was charged
with considering the environmental impacts of such activities and
where appropriate, to
grant or refuse environmental authorisation for
such activity.
67.
He also confirmed that in terms of s
24(5) and s 44 of NEMA the Minister of Environmental Affairs had
promulgated the
Environmental Impact Assessment Regulations, 2014
published under GN R982 (in Government Gazette GG 38282 of 4 December
2014) to regulate the procedure and criteria as contemplated
in
Chapter 5 of NEMA relating to the preparation, evaluation,
submission, processing and consideration of, and the decisions on,

applications for environmental authorisations.
68.
The witness then explained that annexure
X to the indictment constituted the register kept by GDARD under
Regulation 5
(3) of GN R982 of 4 December 2014 read together with
s
24(5)
of NEMA. He confirmed that it constituted a register of all
applications received by GDARD in terms of
s24G
(1) of NEMA. He also
confirmed that GDARD keeps a register of all decisions in respect of
environmental authorisation.
He
then identified BPs applications in respect of the 67 activities that
were said to have been unlawfully commenced without prior

environmental authorisation.
These
included the 21 filling stations listed in the charge sheet.
69.
Nkontwana added that he satisfied
himself from the records of GDARD as required by
s 212(3)
of the CPA
that BP made application to it in terms of
s 24G(1)(a)
of NEMA for
rectification because it had unlawfully commenced with the activities
listed in the register including the construction
of the filling
stations in question. He then dealt with each application in turn by
reference to the date when the construction
commenced, when BP made
application under
s 24G
(1) (a), when BP submitted as 24G
rectification report, when BP paid an administrative fine and in what
amount and also when GDARD
issued an authorisation in terms of
s 24G
(2) (b) for the filling station in question.
70.
The witness also explained that in
relation to the filling stations to which counts 3, 4, 7 and 10
related he could find no record
of BP submitting a rectification
report, paying an administrative fine or of GDARD issuing an
authorisation under
s 24G(2)(b).
In part this evidence accords with
the contents of Exhibits K and L, being the letter written by Mills &
Otten on 28 February
2006 and the letter from the Department to BP on
28 August 2006 in relation to a reassessment of whether the sites to
which the
present counts 3and 4 relate required an application for
rectification.
71.
Under
cross-examination Nkontwana accepted that a
s 24G
application
contains the date proffered by an applicant as to when construction
of the filling station commenced. He conceded that
he had no basis of
independent verification and accepted that BP could show through
Exhibits K and L that it had discovered on
at least two occasions
that construction had commenced before the effective date (i.e. 2
March 1998).
[8]
72.
Nkontwana accepted that the MEC or
political section of the Department may have other documents that are
not in GDARD's possession.
He however contended that the only
relevant official documents are those that are in GDARD's possession.
73.
In re-examination Uzani sought to hand
in the
s 24G
applications. I refused on the ground that it had the
opportunity of doing so at the commencement of its examination but
took a
deliberate decision not to. Uzani would have been alive to the
pros and cons of doing so when it elected not to
introduce
the
s 24G
applications that Nkontwana
had brought with him; the contents of which Uzani were well aware and
knew that BP were similarly apprised.
74.
I ruled that it could not now change tack when BP was entitled to
rely on the election Uzani had made when decided how to proceed
with
its cross­ examination.
THE
ISSUES FOR DETERMINATION
75.
The first set of issues arise from BP's
plea under
s 106(1)
(h) that Uzani had no title to prosecute. They
concern;
a.
Whether the written notice to the DPPs
is defective in that it failed to identify the accused or the alleged
offence with sufficient
accuracy as required by
s 33(2)
of NEMA;
b.
Whether there was prior consultation
with the DPP.
BP contends that
a reading of
s 33
(2) of NEMA withs 8 of the CPA requires that a
private prosecutor can only exercise a right to prosecute under
s
33(1)
after
consultation with the DPP as envisaged bys 8 of
the CPA, which would in turn require the DPP to be possessed of
sufficient information
to make an informed decision.
c.
Whether Uzani has proved that the
private prosecution is in the public interest or in the interests of
the protection of the environment
as required by
s33(1)
of
NEMA
;
d.
Whether a private prosecution is
permissible within the context of applications made under
s 24G
of
NEMA
76.
If Uzani satisfies the court in respect
of its entitlement to prosecute then the second set of issues relates
to whether Uzani has
proven its case beyond a reasonable doubt. In
this regard BP raises a preliminary issue regarding whether the
offence is one of
strict liability or whether
mens
rea
or culpability short of that,
such as
culpa
(negligence)
will suffice. BP contends that Uzani has failed to prove either the
actus reus
or
the
mens rea.
WHETHER
UZANI HAS PROVEN ITS TITLE TO PROSECUTE
Defective
notice
77.
BP submits that the notice in terms of
s
33(2)
of NEMA was defective because it failed to identify the accused
or the alleged offence with sufficient accuracy.
78.
Section 33(2)
of NEMA provides:
The
provisions of sections 9 to 17 of the Criminal Procedure Act, 1977
(Act No. 51 of 1977) applicable to a prosecution instituted
and
conducted under section 8 of that Act must apply to a prosecution
instituted and conducted under subsection (1): Provided that
if-
(a)
the person prosecuting privately
does so through a person entitled to practice as an advocate or an
attorney in the Republic;
(b)
the person prosecuting privately
has given written notice to the appropriate public prosecutor that he
or she intends to do so;
and
(c)
the public prosecutor has not,
within 28 days of receipt of such notice, stated in writing that he
or she intends to prosecute the
alleged offence,
(i)
the person prosecuting privately
shall not be required to produce a certificate issued by the
Attorney-General stating that he or
she has refused to prosecute the
accused; and
(ii)
the person prosecuting privately
shall not be required to provide security for such action.
79.
It is evident that BP contends that the
written notice contemplated in subsection (b) must contain sufficient
detail for the prosecuting
authority to know who is sought to be
charged and with what offence in order for it to decide how to react
while no doubt appreciating
that by doing nothing it will have
effectively abdicated its right to prosecute. This would be the
result because in terms of s
33(5) of NEMA:
When
a private prosecution is instituted in accordance with the provisions
of this Act, the Attorney-General is barred from prosecuting
except
with the leave of the court concerned.
80.
In my view the evidence is clear. The
notice covered all the applicants who applied for rectification in
terms of s 24G and whose
names appear in annexure A to the notice. In
the notice the word “
all'
was
underlined, thereby clearly identifying that Uzani intended to
prosecute every person whose name appeared under the column headed

“
applicant'
in
annexure A to the notice.
81.
Similarly the evidence was clear that a
person with a modicum of intelligence would understand what the
offence related to, that
the DPP-Johannesburg in 2012 had no
difficulty in understanding this and at no stage was any clarity
sought as to the meaning to
be ascribed to the reference to 1(c) or
24G/2 in annexure A despite face to face meetings between Erasmus and
the prosecuting authority.
82.
Finally the last letter from the
DPP-Johannesburg clearly demonstrates that he had no objection to the
private prosecution continuing;
his only objection related to the
proposed private prosecution of the two common law crimes of fraud
and perjury.
The
consultation issue
83.
BP relies on a reading of s 33(2) of
NEMA with s 8 of the CPA.
S
33(2) has just been quoted
.
84.
The difficulty facing BP is that s 33(2)
does not say that the provisions of ss 8 to 17 of the CPA apply. It
categorically states
that only ss 9 to 17 of the CPA apply
.
The reference to s 8 is simply to
contextualise the nature of the prosecution, not to impose its
contents as a further requirement
which must be complied with. In the
most fundamental was 8 of the CPA was replaced
in
toto
by 33 of NEMA.
This
is also evident from the balance of s 8(2) which requires the
prosecuting authority to first withdraw its right to prosecute
before
a competent private prosecution can commence. The requirement of
consultation and withdrawal are mutually dependent.
85.
In the context of s 8(2) the
consultative process must produce a positive act on the part of the
prosecuting authority to withdraw
its right to prosecute. In a
significant way it is directed at ensuring that the State entertains
a meaningful consultative process
before taking a decision.
It
is difficult to transpose a consultative process in as 33 NEMA
situation without creating more uncertainty and litigation over
when
the process can be said to have been concluded if there is no
decision required from the State; only inaction in the face
of a
notice that complies with the requirements of setting out sufficient
detail to enable the prosecuting authority to make an
informed
decision.
86.
It would also mean that if the
consultative process led to an impasse or dragged on interminably the
person intending to initiate
a private prosecution would first have
to approach the court for a declaratory order that the consultative
process has concluded
or is deemed to have occurred. This can hardly
be said to have been within the contemplation of the legislature when
it seeks to
encourage public participation in securing the protection
of the environment.
.
For
sake of completeness s8 (2) of the CPA provides:
A body which
or a person who intends exercising a right of prosecution under
subsection (1), shall exercise such right only after
consultation
with the attorney-general concerned and after the attorney-general
has withdrawn his right of prosecution in respect
of any specified
offence or any specified class or category of offences with reference
to which such body or person may by law
exercise such right of
prosecution.
87.
Finally the purpose of allowing a
private prosecution under NEMA is self-evident. It is foreshadowed in
the Preamble to NEMA:
“
WHEREAS
many inhabitants of South Africa live in an environment that is
harmful to their health and welI-being;
-
everyone has the right to an
environment that is not harmful to his or her health or welI-being;
-
everyone has the right to have the
environment protected, for the benefit of present and future
generations, through reasonable
legislative and other measures that-
o
prevent pollution and ecological
degradation;
o
promote conservation; and
o
secure ecologically sustainable
development and use of natural resources while promoting justifiable
economic and social development;
(emphasis added)
These
are not words to be treated lightly.
88.
The
legislature was concerned that there may not be sufficient resources,
skilled or otherwise, or a willingness or capacity on
the part of a
prosecuting authority, which is already stretched just pursuing
violent inter-personal crimes. Section 33(2) of NEMA
is couched in
terms that facilitate, if not encourage, interest groups who wish to
protect the environment by compelling compliance
with the
environmental laws in a manner which makes it easy to fast track
private prosecutions for offences under NEMA.
[9]
89.
If I am wrong then I am satisfied on the
evidence presented that there was consultation bearing in mind that a
consultation need
not necessarily be face to face (but may be
satisfied by a phone call or the exchange of correspondence) or reach
consensus.
It
is evident that the DPP-Johannesburg had no difficulty in accepting,
after being reminded in the discussion referred to in correspondence,

that he had previously acceded to the same private prosecution being
initiated. Moreover his last communication clearly accepted
that
Uzani could pursue the private prosecution provided it was confined
to offences under NEMA and did not extend to common law
offences
which required a
no/le prosequi
and
in respect of which he required further information.
90.
In so far as the DPP-Pretoria is
concerned, the less said the better. He had no answer to the fact
that a private prosecution had
previously been allowed by his
colleague in Johannesburg in respect of the same facts as presented
to him. He made no attempt to
distinguish them from the facts placed
before him. He appeared intent on filibustering with no intention of
taking up the cudgels
and initiate a prosecution himself despite
having all the information he needed before him.
It
is therefore unnecessary to consider whether the fact that Erasmus
engaged the DPP-Pretoria despite the latter's response being
after
the 28 days amounts to a waiver.
Whether
the prosecution is in the public interest or in the interests of the
protection of the environment
91.
Section 33(1) of NEMA provides that:
Any person
may-
(a)
in the public interest; or
(b)
in the interest of the
protection of the environment,
institute and
conduct a prosecution in respect of any breach or threatened breach
of any duty, other than a public duty resting
on an organ of state,
in any national or provincial legislation or municipal by­ law,
or any regulation, licence, permission
or authorisation issued in
terms of such legislation, where that duty is concerned with the
protection of the environment and the
breach of that duty is an
offence.
92.
I
accept
that the mandate documents and email to BP Zambezi Drive (Exhibit C)
reflect that Erasmus sought funds to assist with the
litigation and
that in terms of the mandates he obtained, third parties expected to
either receive a direct benefit from a successful
prosecution or that
a conviction would assist in a subsequent civil claim and that there
would be a significant “
cut”
for
Uzani. Moreover the point which
Adv Hellens sought to make was that;
a.
This was part of the evidence
demonstrating that Erasmus had failed to motivate why the prosecution
was in the public interest
b.
Erasmus had a direct and substantial
interest in the financial gain to be made if the prosecution was
successful
c.
He has shown himself to be untrustworthy
with other people's money and had been dishonest with the result that
Uzani cannot demonstrate
that it is prosecuting for an accepted NEMA
purpose as it appears that he is litigating for direct financial gain
“
both for himself and in order
to gain control over other people's money”.
93.A
further complaint
relates
to
Uzani Foundation NPC to whom Uzani has pledged any funds it recovers.
It is still in embryonic form and there is no guarantee
that funds
will go to
the foundation
or will be dealt with as undertaken.
94.
The difficulty is that Erasmus has a
long record of being involved with environmental matters at both
initiating and promotional
levels. This also came through in one of
the letters to the DPP cited earlier.
There
is no evidence to suggest that he was embarking on a commercial
venture when he first initiated private prosecutions in the
Regional
Court in 2012. It appears rather that he got burnt by the experience
which also according to his letter to the DPP-Pretoria
of 20 May 2016
comprised delays on the part of the accused which financially drained
the private prosecution endeavour.
95.
Adv Burger referred
the court to the definition of a public interest action in the SA Law
Com
mission Report (Exhibit E). It
is defined as;
“
one
brought buy a plaintiff who,
claiming the
relief
he
or she seeks, is moved by a desire to benefit the public at
large
or a segment of the public. The
intention of the plaintiff is to vindicate or protect the public
interest, not his or her own interest,
although
he or she may incidentally
achieve
that end as well
”
(emphasis added)
96.
I am satisfied that Erasmus may potentially gain by earning legal
fees if successful and if the court were to award Uzani the
costs of
litigation
[10]
.
Nonetheless he also runs the risk of either BP being acquitted or, in
the case of conviction, the court exercising its discretion
under s33
(3) not to direct BP to pay Uzani's costs.
97.
The
argument that Erasmus has shown himself to be mercenary and cannot be
trusted to put any award into the Foundation as undertaken
is readily
met, should Uzani be successful, by the court imposing conditions on
the manner in which the funds are utilised and
who will exercise
control over them and so forth, or in not making any order and
leaving the issue for possible civil litigation.
[11]
98.
This leaves the concern as to whether
the objective of the prosecution is in the public interest or in the
interests of protecting
the environment and whether Erasmus' own
interests are incidental.
99.
The starting point is that the private
prosecutor is Uzani which is a close corporation and which, at least
since December 2017,
has three other members apart from Erasmus.
100.
As its name suggests it is an advocacy
group. It also proclaims its involvement in public interest matters
by reference to the cession
of all awards and benefits pursuant to
any judgment by a court to Uzani Environmental Foundation NPC, which
in terms of its draft
manifesto is to provide an environmental
litigation support platform and otherwise support the enforcement of
environmental laws.
Its further objectives are those that were set
out in one of the letters to the DPP in relation to acting as an
incubator for young
environmental lawyers among others and to
establish a virtual school of environmental law.
101.
The virtually unchallenged evidence of
Prof van der Walt regarding the degradation that can be caused by
storage tanks and the failure
to up-front produce an EIA report while
the failure of any applications for authorisation under s 24G to
provide rectification
reports demonstrates that the prosecution is in
the interest of the protection of the environment.
102.
In my view the decision concerning the
interpretation of NEMA in
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and
Environment, Mpumalanga Province and Others
2007
(10) BCLR 1059
(CC);
2007 (6) SA 4
(CC) is of application and paras
66 to 69, 79 to 81 and 90 are apposite albeit that the focus was on
socio-economic rights:
I
will cite some of these passages:
66.
The principles of NEMA that have
been relied upon by the applicant must be understood in the context
of the role of these principles
in decisions affecting the
environment, the general objectives of integration of environmental
management and the procedures for
the implementation of the NEMA
principles.
67.
...Perhaps more importantly,
these principles provide guidance for the interpretation and
implementation not only of NEMA but any
other legislation that is
concerned with the protection and management of the environment. It
is therefore plain that these principles
must be observed as they are
of considerable importance to the protection and management of the
environment.
69.
The general objectives of
integrated environmental management are furthered by section 24 which
deals with the implementation procedures.
These require, among other
things, that the potential impact on the environment, socio-economic
conditions and cultural heritage
of activities that require
authorisation under section 22(1) of ECA and which may significantly
affect the environment must be
considered, investigated and assessed
prior to their implementation and reported upon to the organ of state
charged by law with
authorising
...
the implementation of an activity. To
underscore the importance of this requirement, subsection 24(7)
requires that any investigation
must, as a minimum investigate the
potential impact, including the cumulative effects of the proposed
development on the environment,
socio-economic conditions and
cultural heritage. The provisions of section 24(7) must of course be
read and understood in the light
of the regulations that the Minister
is empowered to make concerning the scope and the contents of reports
that must be submitted
for authorisation required by section 22(1) of
ECA.
79.
The Constitution and
environmental legislation introduce a new criterion for considering
future developments. Pure economic factors
are no longer decisive.
The need for development must now be determined by its impact on the
environment, sustainable development
and social and economic
interests. The duty of environmental authorities is to integrate
these factors into decision-making and
make decisions that are
informed by these considerations. This process requires a
decision-maker to consider the impact of the
proposed development on
the environment and socio-economic conditions.
81.
Finally NEMA requires a risk
averse and cautious approach to be applied by decision-makers. This
approach entails taking into account
the limitation on present
knowledge about the consequences of an environmental decision. This
precautionary approach is especially
important in the light of
section 24(7) (b) of NEMA which requires the cumulative impact of a
development on the environmental
and socio­ economic conditions
to be investigated and addressed. An increase in the risk of
contamination of underground water
and soil, and visual intrusion and
light, for example, are some of the significant cumulative impacts
that could result from the
proliferation of filling stations.
Subsection 24(7) (b) specifically requires the investigation of the
potential impact, including
cumulative effects, of the proposed
development on the environment and socio-economic conditions, and the
assessment of the significance
of that potential impact.
The
final passage is at para 90 where the court said:
Here NEMA
specifically enjoins the environmental authorities to consider,
assess and evaluate the social and economic impact of
the proposed
filling station, including its cumulative effect on the environment
as well as its impact on existing filling stations
and thereafter to
make a decision that is appropriate in the light of such assessment.
This requirement was included in NEMA to
guide the environmental
authorities in making a decision that may affect the environment. In
these circumstances, failure by the
environmental authorities to
comply with this requirement did not just have formal rather than
substantive significance, as my
colleague, Sachs J, suggests in his
dissenting judgment. In my view, it is a failure which goes to the
very function that the environmental
authorities were required by
statute to perform; the environmental authorities failed to perform
the very function which they were
required by law to perform.
103.
BP
also submitted that there is no evidence that any of the filling
stations pose a risk to the environment. It relied on submissions

made during the so called “amnesty period” which included
that the sites were not located in a sensitive environment
and do not
pose any significant risk to the environment, that there are
precautions put in place to ensure maximum environmental
protection
and that the sites are subjected to a 3 yearly environmental audit
which includes facility integrated testing among
other things.
[12]
104.
Firstly these matters were not put to
Prof van der Walt. Secondly the untested say-so of BP during an
amnesty period can hardly
be described as sufficient
evidence
to counter whether the prosecution is being brought either in the
public interest or in the interest of the protection
of the
environment.
105.
The allied argument advanced is that the
prosecutor is disbarred from prosecuting where his or her fees are to
be paid by the complainant
and where consequently, or for another
reason, the prosecutor is intent on obtaining a conviction rather
than placing credible
evidence before a court relevant to the alleged
crime. The difficulty with this argument is two-fold. Firstly, if the
argument
is intended to fall under the rubric of bias, in terms of
Porritt and another v National
Director of Public Prosecutions and others
2015
(1) SACR 533
(SCA);
[2015] 1 All SA 169
(SCA) there must be actual
bias, not perceived bias.
In
the case of a private prosecution under s 33 of NEMA the Act itself
allows a prosecution provided it is pursued in the interests
of the
protection of the environment. It is therefore difficult to see the
application of such principles in the present case or
even in cases
where the State refuses to prosecute but the victim of say a rape
obtains a nolle prosequi and then brings a private
prosecution.
Whether
a private prosecution is permissible within the context of
applications made under s 24G of NEMA
106.
The argument advanced is thats 24G of
NEMA only allows the NPA to prosecute in cases where an application
is brought under s 24G(1)
or the grant of an environmental
authorisation in terms of s 24G (2)(b).
107.
The provision relied on is s 24G (6)
which reads:
The
submission of an application in terms of subsection (1) or the
granting of an environmental authorisation in terms of subsection
(2)
(b) shall in no way derogate from-
(a)
the environmental management
inspector's or the South African Police Services' authority to
investigate any transgression in terms
of this Act or any specific
environmental management Act;
(b)
the National Prosecuting
Authority's legal authority to institute any criminal prosecution.
108.
Section 24G was amended in December 2013
and in the preamble to the NEMA Amendment Act (Act 30 of 2013) the
purpose of the introduction
of the section was to “
increase
the administrative fine and to provide for criminal investigation and
prosecution in
certain
circumstances”
(emphasis
added)
109.
Adv Hellens argued that one must
interpret the section by reference to the aids expressed by the
maxims
generalia specialibus non
derogant
and “
unius
est exclusio alterius”.
110.
In my view the difficulty with the
argument is that s 24G (7) expressly provides for criminal
investigations and criminal prosecutions
in the enumerated
circumstances (see also s 24G (1) (b) (ii)). S24G(7) reads:
“
If, at
any stage after the submission of an application in terms of
subsection (1), it comes to the attention of the Minister, Minister

for mineral resources or MEG, that the applicant is under criminal
investigation for the contravention of or failure to comply
with
section 24F (1) or section 20 (b) of the National Environmental
Management: Waste Act, 2008 (Act No. 59 of 2008), the Minister,

Minister responsible for mineral resources or MEG may defer a
decision to issue an environmental authorisation until such time
that
the investigation is concluded and-
(a)
the National Prosecuting
Authority has decided not to institute prosecution in respect of such
contravention or failure;
(b)
the applicant concerned is
acquitted or found not guilty after prosecution in respect of such
contravention or failure has been
instituted; or
(c)
the applicant concerned has been
convicted by a court of Jaw of an offence in respect of such
contravention or failure and the applicant
has in respect of the
conviction exhausted all the recognised legal proceedings pertaining
to appeal or review.
111.
By
contrasts 33 does not commence with the words “
Subject
to
s
24G...
“.
It
is
formulated in unequivocal terms and its purpose is manifest. It has
been said that the invocation of the
unius
est exclusio alterius
maxim
must at all times be applied with great caution.
[13]
112.
Perhaps the more compelling argument is
that if there is an ambiguity between the unequivocal formulation of
s 33 and the provisions
of s 24G(6) then it must be resolved by
utilising an interpretation that would not lead to an absurdity but
would be consistent
with the legislation read as a whole. In my view
it would be absurd to suggest that the moment an application is
brought under
s 24G (1) and irrespective of whether it is considered
or not a private prosecution is not competent whereas a prosecution
initiated
by the NPA is.
113.
There
is no logic that indicates why there should be such a discrimination
when s24G effectively provides for an administrative
penalty which
according to our law does not impact on a right to prosecute.
[14]
Conclusion
114.
In my view the s 106(1) (h) defence of
want of title to prosecute must fail.
WHETHER
THE PROSECUTION HAS PROVED THE OFFENCES
115.
Uzani's
case is straight forward. It contends that BP breached a duty
relating to the protection of the environment. In terms of
s 22 (1)
of ECA the undertaking of certain identified activities is prohibited
absent written authorisation. In turn s 22(2) provides
that such
authorisation shall only be issued after consideration of reports
concerning the impact of the proposed activity on the
environment.
The report must be compiled and submitted in the prescribed
manner.
[15]
116.
As
correctly submitted by Adv Burger, the “
measures
to investigate, assess and evaluate the impact on the environment as
provided for in section 28(3)(a) of NEMA is what is
referred to in s
22(2) of ECA. There was thus a duty on the accused imposed by section
28 to submit the reports in terms of section
22(2)”.
[16]
117.
In
making an application under s 24G of NEMA BP admitted that it had
“
commenced
with a listed or specified activity without an environmental
authorisation in contravention of section 24F (1
)”.
[17]
118.
Section 24F(1) provides that:
Prohibitions
relating to commencement or continuation of listed activities.-
(1)
Notwithstanding any other Act, no person may-
(a)
commence an activity listed or
specified in terms of section 24(2)(a) or (b) unless the competent
authority or the Minister responsible
for mineral resources, as the
case may be, has granted an environmental authorisation for the
activity; or
(b)
commence and continue an activity
listed in terms of section 24 (2) (d) unless it is done in terms of
an applicable norm or standard.
119.
In turn s 24(2)(a) reads
:
“
(2)
The Minister, or an MEG with the concurrence of the Minister, may
identify-
(a)
activities which may not commence
without environmental authorisation from the competent authority;
120.
It will be recalled that one of the
activities listed in GN R387 of 21 April 2006 was the construction of
a filling station, including
associated structures, or any other
facility for the underground storage of dangerous goods, including
petrol and diesel.
121.
Aside
from proving the construction or upgrading of the filling stations
referred to in the indictment and that it commenced after
2 March
1998
[18]
Uzani only had to rely on the lack of authorisation by the Minister
or the competent authority.
[19]
122.
Uzani utilised the provisions of s
250(1) (b) of the CPA to cast the onus on BP to establish on a
balance of probabilities that
it was the holder of the necessary
authority. This was held to be constitutionally sound in
S
v Fransman
2000 (1) SACR 99
(W).
123.
The relevant provisions of s 250(1)
read:
Presumption
of lack of authority.-
(1)
If a person would commit an
offence if he-
(a)
...
(b) performed
any act;
…
without being
the holder of a licence, permit, permission or other authority or
qualification (in this section referred to as the
“
necessary
authority”), an accused
shall, at criminal proceedings upon a charge that he committed such
an offence, be deemed not to have
been the holder of the necessary
authority, unless the contrary is proved.
124.
The evidence of Nkontwana contained in
Exhibit H demonstrated that the filling stations mentioned in all the
counts were constructed
after 2 March 1998. The evidence provided in
exhibits K and L demonstrated that the actual construction of the
filling stations
referred to in counts 3 and 4 had commenced prior to
that date.
125.
Moreover in relation to counts 7 and 10
Nkontwana stated that he could not state from the records whether BP
had submitted a s 24G
rectification report, whether GDARD had issued
an authorisation under s 24G(2)(b) or whether BP had paid an
administrative fine.
126.
The reason I exercised my discretion
under s 212(12) of calling Nkontwana despite finding that the
affidavit in terms of s 212 (3)
constituted
prima
facie
evidence was to afford an
opportunity to cross examine, which otherwise would not have been the
case. In my views 212 (12) enables
a court to do precisely that. It
does not diminish the status of the s 212 (3) affidavit but allows an
opportunity for the contents
of the affidavit to be tested or to
introduce any other evidence through the witness that may be relevant
but which would be stifled
if the witness was not called.
127.
In my view the fail safe position in
respect of this case is whether or not a s24G application had been
submitted since in its terms,
and without explanation, it amounts to
a statement against interest.
128.
It is for these reasons that the
characterisation of the issues for consideration as raised by Adv
Hellens is inappropriate. It
was for BP to produce evidence to
disturb the deeming provision that the construction of the filling
stations after 2 March 1998
were effected without valid authority.
Although it only produced Exhibit Kand L which establishes sufficient
doubt in respect of
counts 3 and 4 I am of the view that the admitted
lacuna
in
respect of GDARD's records relating to counts 7 and 10 also create
sufficient doubt.
129.
Insofar as the other counts are
concerned there is an effective cross checking and reconciliation of
all the records one would expect
to find, which would have to include
an application under s24G and the grant of the application or the
payment of an administrative
fine.
ORDER
130.
For these reasons:
1.
The accused is convicted on
counts 1, 2, 5, 6, 8, 9 and 11 to 21inclusive of contravening
s
22(1) read with
ss
21(1) and 29(4) of the ECA and items
1 (c) of Schedule 1 and Schedule 2 of Government Notice R1182 of 5
September 1997.
2.
The accused is acquitted on
counts 3,
4, 7 and 10.
____________________
SPILG
J
DATES
OF HEARING: 4 September 2017, 11 November 2017,
16
May 2018, 11 - 13 September 2018,
17-18
September and 2 November 2018
DATES
OF JUDGMENT: 25 March and 1 April 2019
FOR
PROSECUTION: Adv SF Burger SC
Adv
JAL Pretorius
Erasmus
Attorneys
FOR
ACCUSED: Adv MR Hellens SC
Adv
DJ Joubert SC
Warburton
Attorneys
[1]
Schedule 1 of the regulations identified the activities which the
Minister determined under s 21 of ECA may have a substantial

detrimental effect on the environment.
The
correspondingly numbered provisions in Schedule 2 fixed the date
from when the provisions of the notice would commence in
respect of
each activity mentioned in Schedule 1.
The
body of the Regulation explained that it did not apply to an
activity that was commenced prior to the fixed date.
[2]
See Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd
{2017} ZAGPPHC 749
[3]
See para 15 of Answering Affidavit
[4]
In this judgment reference is made to GDARD being threatened with a
subpoenas in order for Uzani to consult with its official
and
prepare the witness statement insisted upon by the accused. While
the court accepts that there may be good reason to insist
on a PAIA
application, the apparent need to threaten a subpoena and the
reluctance of the GDARD head to attend court when he
was evidently
able to do so suggests that the Department may not fully appreciate
that NEMA requires transparency and accountability
by those tasked
with administering environmental management and also requires an
acceptance of the significant role and contribution
to environmental
management that the public, and particularly public interest groups,
can play in furthering the objects of the
Act.
[5]
Reg 5(3) of GN R982 dated 4 December 2014 promulgated under NEMA
provides: 5 (3) A competent authority must keep -
(a) a register of all applications
received by the competent authority in terms of these Regulations;
(b) a register of all decisions in
respect of environmental authorisations;
(c) copies of all applications; and
(d) copies of all decisions.
[6]
South African Law Commission Project 88: The Recognition of Class
Actions and Public Interest Actions in South African Law Report
of
August 1998. It was chaired by the late Justice I Mahomed.
[7]
The unlawful; activity identified under Schedule 1 of Regulation
1182 of 5 September 1987 as 1(c) reads:
1.
The
construction, erection or upgrading of-
(c)
with regard to any
substance which is dangerous or hazardous and is controlled by
notional legislation-
(i) infrastructure, excluding
road and rails, for the transportation of any such substance; and
(ii) manufacturing, storage,
handling, treatment or processing facilities for any such substance;
[8]
See previous footnote: 2 March 1998 was the date fixed by the
Minister in Schedule 2 of R 1182 of 5 September 1997 in respect
of
construction, erection or upgrading activities mentioned in l(c)
which may have a substantial detrimental effect on the environment.
[9]
There is a basic premise given effect to in ss 32 and 33 of NEMA
which finds expression in the Preamble and other sections such
ass 1
(definition of interested and affected party), ss 2(2), 2(4), 4, 22,
24A(b), 31 and that recognises the fragility of our
biosphere, a
receptiveness to knowledge and ideas and the need to empower people
whose protection and needs are at the forefront
of environmental
management (e.g. s2(2) and many of the provisions of s4). Man has
managed to appropriate the earth's natural
and mineral resources. We
have done so without appreciating, until relatively recently, that
our generally unrestrained acts
of exploitation may have come with
consequences for our future sustainability and those of other
species, on whose existence
we may be dependent. We have come to the
realisation that this metaphoric well which is Earth may, without
intervention become
irreversibly poisoned. Our environmental laws
recognise the need to ensure sustainability. Each of us is affected
by activities
currently being undertaken that may significantly
impact on the environment. Securing protection is therefore no
longer the exclusive
preserve of those engaged in these activities,
nor of an opaque administration or an under-capacitated and
potentially inhibited
law enforcement agency which cannot claim the
number of successful convictions one would have expected despite
clear evidence
of historic degradation to our environment. NEMA not
only requires a transparent administration but recognised the
contribution
that can be made to the protection of the environment
by a vigilant and committed public which has most to lose.
[10]
In terms of s 33 (3) the award of cost is discretionary. The
provision reads:
The
court may order a person convicted upon a private prosecution
brought under subsection (1) to pay the costs and expenses of
the
prosecution, including the costs of any appeal against such
conviction or any sentence.
[11]
See s 34(3) of NEMA
[12]
There is also no suggestion that these are independently monitored.
If they were anything other than internal processes one would
have
expected BP to have said so.
[13]
National Director of Public Prosecutions v Mohamed NO
2003 (4) SA 1
(CC) at para 40
[14]
See Pother and Another v Financial Services Board and Others
[2017]
4 All SA 666
(SCA);
2018 (1) SA 161
(SCA).
Adv
Hellens clarified in a set of heads prepared at the court's request
after argument was heard that he was not raising directly
that the
administrative proceedings under s24G of NEMA involving the payment
of an administrative fine was of a quasi-criminal
nature or having a
quasi-criminal effect thereby precluding the laying of a criminal
charge as decided in Han v. Customs and
Excise Commissioners an
related cases (2001]
4 All ER 687
CA and discussed in Tax Board
Decision No. 198 (Gauteng West Tax Board) of 1 November 2004. He
accepted the SCA decision in Pother
but submitted that the argument
of double jeopardy informed the way in which s 24G should be
interpreted as limiting as 33 prosecution.
The submission however
would ignore the clear indication that by allowing a State sponsored
prosecution the legislature expressly
contemplated a criminal
prosecution in addition to an administrative sanction. Whether or
not the administrative penalty was
significant and whether there was
any prejudice are matters that the legislature therefore considered
should not impact on the
entitlement to prosecute but at best may in
the ordinary course be considered in respect of sentence should
there be a conviction.
In any event Adv Hellens did not contend that
the penalties imposed could be considered as severe, a requirement
that needed
to be demonstrated in a Han type situation.
[15]
Ss 22(1) and (2) of ECA provide:
Prohibition of undertaking of
identified activities.-
(1)
No person shall
undertake an activity identified in terms of section 21 (1) or cause
such an activity to be undertaken except
by virtue of a written
authorization issued by the Minister or by a competent authority or
local authority or an officer, which
competent authority, authority
or officer shall be designated by the Minister by notice in the
Gazette.
(2)
The authorization referred to
in subsection (1) shall only be issued after consideration of
reports concerning the impact of the
proposed activity and of
alternative proposed activities on the environment, which shall be
compiled and submitted by such persons
and in such manner as may be
prescribed.
[16]
Ss 28 (1), (lA) and {3) read:
28. Duty of care and remediation of
environmental damage.-
(1) Every person who causes, has
caused or may cause significant pollution or degradation of the
environment must take reasonable
measures to prevent such pollution
or degradation from occurring, continuing or recurring, or, in so
far as such harm to the
environment is authorised by law or cannot
reasonably be avoided or stopped, to minimise and rectify such
pollution or degradation
of the environment.
(1A) Subsection {l) also applies to a
significant pollution or degradation that­
(a) occurred before the commencement
of this Act;
(b) arises or is likely to arise at a
different time from the actual activity that caused the
contamination; or
(c) arises through an act or activity
of a person that results in a change to pre-existing contamination.
(3) The measures required in terms of
subsection (1) may include measures to­
(a) investigate, assess and evaluate
the impact on the environment;
[17]
S 24G(1)(a) reads
Consequences of unlawful
commencement of activity. ­
(1) On application by a person who-
(a) has commenced with a listed or
specified activity without an environmental authorisation in
contravention of section 24F (1);
[18]
By reason of the reference to item 1(c) in Schedule 2 of GN R 1182
of 5 September 1997
[19]
In terms of s29 (4) of ECA any person who contravenes a provision of
s 22(1) is guilty of an offence.