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[2015] ZAGPPHC 105
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Mallock-Brown v S (A248/2014) [2015] ZAGPPHC 105 (6 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A 248/2014
DATE:
6 FEBRUARY 2015
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between
MALLOCK-BROWN,
DAVID (YORK TIMBER (Pty)
LTD
................................................
APPELLANT
And
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGMENT
MUDAU AJ:
[1]
The Appellant appeared in the regional Court for the Regional
Division of Mpumalanga for contravening 24(1) read with section
24F
(1) and (2) of the National Environmental Management Act (NEMA),
1
further read with Government Notice R386 dated 21 April 2006 under
item 15 . He was convicted on his plea of guilty in terms of
s112
(2)
of the
Criminal Procedure Act 51 of 1977
. The appellant was sentenced
to pay a fine of R180 000.00. The matter is before this court on
appeal against sentence only with
leave of the trial court.
[2] The relevant
facts are briefly as follows: the appellant is a registered company
with limited liability registered as such under
the laws of the
Republic of South Africa and is a corporate entity within the meaning
of
s332
of the CPA. During the trial the appellant was represented by
its director Mr David Maliock- Brown. The appellant owns and operates
a sawmill and plywood plant at Sabie in the Mpumalanga Province .The
appellant is a wholly owned subsidiary of York Timber Holdings
Ltd
(“York”),commonly referred to as “the Sabie
Sawmill”. It is the biggest private sector employer in
Sabie.
[3]
The charge in respect of which the appellant pleaded guilty relates
to the commencement of a listed activity identified in terms
of
s 24
of NEMA in particular, “
the
construction of a road that is wider than 4 meters or that has a
reserve wider than 6 meters, roads that fall within the ambit
of
another listed activity or which are access roads of less than 30
meters long”.
[4] A stretch of an
existing forestry road which was about 800 m in length was widened
with a road grader in late 2007, but without
the requisite
environmental authorisation, preparatory to the construction of a
proposed new road. The road in question as well
as the proposed new
road is on “York” owned land. However, since the existing
ramp road is close to a residential area
in Sabie and it was used by
trucks, which resulted in noise and air pollution .In order to
mitigate the impact of the road on the
nearby Sabie residents it was
proposed to reroute the ramp westwards over the horizon and out of
sight of Sabie town .The immediate
spur to the construction of the
proposed new road resulted in the catastrophic forest fires of 2007.
Thousands of hectares of plantations
were burned. As a result, it
became necessary to harvest the burned timber and to transport it to
the sawmill before it dried up.
Inevitably, this led to a substantial
increase of activities relating to the transportation of timber along
the existing ramp which
required the trucks to operate day and night.
With a view to mitigate the environmental impact of the road on local
residents,
York decided to move the road further away from Sabie.
[5] The forester
responsible for the maintenance of forest roads, whose task was to
survey and mark the route of the proposed new
road, instructed a
roads contractor to begin clearing the area adjacent to the existing
forest road with the road scraper without
the necessary permission
from the authorities as prescribed by law. The contractor was
immediately directed to stop the activity
as soon as York’s
then environmental manager became aware of the illegal activity.
However no stream, nor wetland nor any
natural forest was damaged by
the widening of the road. In essence, the widening of the road had no
significant environmental impact.
[6]
Section 24F
of
NEMA deals with prohibitions relating to commencement or continuation
of listed activities. It provides that:
(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.
As the appellant in
this case commenced with the construction of a road wider than 4
metres without prior environmental authorisation
issued by the
competent authority he thereby contravened the above section and thus
committed an offence.
Section 49A
of the
Act deals with relevant offences. It provides that:
(1) A person is
guilty of an offence if that person-
(a)
Commences with an activity in contravention of
section 24F
(1)
.....
Section 49A
of
the Act deals with the penalties. It provides that:
(1)
A person convicted of an offence in terms of
section
49A(1)(a)
............
is
liable to a fine not exceeding R10 million or to imprisonment for a
period not exceeding 10 years, or to both such fine or such
imprisonment....
[7] It has been
contended on behalf of the appellant that since the respondent
accepted the facts upon which the appellant tendered
a plea of guilty
i.e. that there was no adverse impact on the environment the sentence
imposed by the trial court ought to be interfered
with. In addition,
the appellant contends that the trial court misdirected itself when
it found the following:
"this
kind of offence is prevalent in our country wherein big companies
disregard the laws of this country, especially those
that has to do
with environment and get away with murder”.
Further
that the trial court also misdirected itself in finding that: “
when
this offence was committed, the accused did not take into
consideration the interests of society and also the environment'.
It
is common cause in this matter that the respondent did not lead any
evidence in aggravation of sentence. Counsel for the respondent
was
constrained to concede this aspect. This is against the background
that on the admitted statement of plea the appellant asserts
that
environmental conservation and the sustainable management of its
forestry operations are central to the appellant’s
corporate
responsibility.
[8]
In addition, it has been contended on behalf of the appellant that
the relevant Government Notice R366 has, in the meanwhile,
been
replaced by government notice R 544, which was published in the
government Gazette of 18 June 2010. Item 47 of government
notice R544
provides that an environmental authorisation is required where “...
an existing road
is widened by more than 6 meters, or is lengthened by more than 1
kilometre, where the existing reserve is wider
than 13, 5 metres; or,
where no reserve exists, where the existing road is wider than 8
meters and excluding widening or lengthening
or occurring inside
urban areas”.
It was further
contended that had the widening by 3 meters been deferred until now,
this would not have constituted an offence.
[9]
The powers of this court to interfere with the sentencing of the
trial court are limited. This court may only interfere with
the
sentence imposed by the trial court when there has been demonstrable
and material misdirection by such trial court in imposing
such a
sentence, or that court’s discretion has not been exercised
properly or judicially. In the absence of such proof,
the appeal
court has no right to interfere with the exercise of such discretion.
(S v Rabie
2
In
this regard the court in
S
v Kekana
3
held that:
“
it
is trite that this
court will not interfere with the sentence imposed by the court a quo
unless it is satisfied that the sentence
has been vitiated by a
material misdirection or is disturbingly inappropriate. No
misdirection has been alluded to, nor can it
be said that the
sentence induces a sense of shock. It has been submitted on behalf of
the appellant that the sentence is out of
proportion to the gravity
of the offence and that, in the circumstances of this case, a
non-custodial sentence was appropriate.
It is true that the appellant
has an unblemished record and that he was a useful member of society
in gainful employment at the
relevant time. Those circumstances,
however, have to be weighed against the nature and severity of the
offence and the requirements
of society. Notwithstanding those
mitigating factors being present, the seriousness of the offence
makes it necessary to send out
clear message that behaviour of the
kind encountered in this case cannot be countered.”
[10]
In S
v Truyens
4
,
the
court referred to S
v Whitehead
5
with
approval that where there is no misdirection by the trial court, the
remaining question is:
“
whether
there exists such a striking disparity between the sentences passed
by the learned trial judge and the sentences which this
court would
have passed or, to pose the enquiry in the phraseology employed in
other cases,whether the sentences appealed against
appear to this
Court to be so startlingly or disturbingly inappropriate-as to
warrant interference with the exercise of the interference
with the
exercise of the learned judge’s discretion regarding sentence.
”
[11]
It is trite that the state is bound by the facts upon which a
s112
(2) statement is made by the appellant in circumstances where the
state had indicated their acceptance of the contents thereof.
In
S
v Jansen
6
Davis
J considered the situation where an accused pleads guilty and hands
in a written statement in terms of
s112(2)
of the
Criminal Procedure
Act, 1977
, setting out the facts upon which guilt is admitted, and
the state accepts that plea. Davis J stated that in those
circumstances
the plea so accepted constituted the essential factual
matrix on the basis of which a sentence must be imposed. The learned
judge
stated that the state may adduce evidence to fill in the
framework which was set by the plea, but that the essential matrix
could
not be extended or altered by evidence given in mitigation of
sentence.
[12]
Lopes J in S
v
Khumalo
7
in para [11] also stated that:
“
Although
the judgment of Davis J provides that the essential factual matrix is
set out in the plea accepted by the state and cannot
be altered by
evidence subsequently adduced, this does not prevent the leading of
evidence which does not contradict the plea,
but which may be
relevant to the question of sentence. Even if contradictory evidence
does emerge the conviction on the plea as
accepted stands."
[13] I have no
difficulty in this matter in finding that the trial magistrate
misdirected himself materially in his reasons referred
in para [7]
above regarding sentence. It is trite that in instances where the
misdirection is of a serious nature, an appeal court
can consider the
question of sentence afresh.
[14]
It is trite that a court, when sentencing, should consider the triad,
namely the interest of society, the seriousness of the
offence and
the circumstances of the appellant (See
S
v
Zinn
8
)
.The
court is bound to consider the recognized objectives of sentencing,
namely punishment, deterrence and rehabilitation. The interests
of
the society in this matter are best encapsulated in
s24
(b) of our
Constitution by providing everyone the right:
(a)...
(b) to have the
environment protected, the benefit of present and future generations,
through reasonable legislature and other measures
that;
i) prevent
pollution and ecological degradation;
ii) promote
conservation; and
iii) secure
ecological sustainable development and use of natural resources while
promoting justifiable economic and social development”.
[15] A wholly
suspended sentence or a caution and discharged as suggested by
counsel for the appellant will in my view, send a wrong
message that
courts do not take environmental offences seriously. The R10 000
000-00 penalty provided for in the relevant legislation
is, however,
quite clearly intended for cases where there has been violation of an
extreme nature. In my view this is not such
a case as there was no
evidence in aggravation of sentence that was led by the respondent,
but quite the contrary. It is my view
that an effective sentence of a
fine shall be adequate. Counsel for the respondent was constrained to
concede that in the absence
of evidence showing what the impact was
(if any), as a result of the widening of the road within the
plantation, the R180-000-00,
fine imposed is excessive.
[16] Under the
circumstances, regard being had to the totality of the facts in this
matter, the following order is proposed:
1.
The sentence imposed by the court below is set aside and replaced by
the following sentence: “the
accused
is sentenced to a fine of R60 000, 00".
MUDAU J TP
ACTING JUDGE OF
THE HIGH COURT
I agree and it is so
ordered.
DE VOS J
JUDGE OF THE HIGH
COURT
Date of hearing:
5 February 2015
Judgment on: 6
February 2015
APPEARANCES
On behalf of the
appellant: Adv J Celliers (SC)
Instructed by
Richard Spoor Attorneys
On behalf of the
respondent: Adv A Coetzee
NPA
1
107 of 1998
2
1975(4) SA 855 (A)
3
2013(1) SACR 101 (SCA)
4
2012(1) SACR 79 (SCA)
5
1970(4) SA 424 (A)
6
1999(2) SACR 368(C)
7
2013(1) SACR 96 (KZP)
8
1969 (2) SA 537
(A)