About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 161
|
|
Umhlaba Plant Hire CC v Director of Public Prosecutions, Western Cape and Others (10152/2015) [2015] ZAWCHC 161 (15 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
CASE NO: 10152/2015
DATE: 15 SEPTEMBER 2015
In the matter between:
UMHLABA PLANT HIRE
CC
................................................................................................
Applicant
And
THE DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN
CAPE
........................................................................................................
First
Respondent
THE DIRECTOR, ENVIRONMENTAL
COMPLIANCE AND
ENFORCEMENT, WESTERN CAPE
GOVERNMENT
.....................................
Second
Respondent
THE COMMANDING OFFICER, SOUTH
AFRICAN POLICE
SERVICES VEHICLE IDENTIFICATION AND
SAFEGUARD
SECTION,
STIKLAND
..............................................................................................
Third
Respondent
JUDGMENT
DELIVERED ON THIS 15th DAY OF
SEPTEMBER 2015
VAN ROOYEN, AJ:
[1] Gerhard Conradie is a member of the
applicant and also a director of G L Conradie Plant Hire (Pty) Ltd
(“G L Conradie”).
[2] During 2014 G L Conradie was
contracted by the owners of the farm Hazendal Wine Estate
(“Hazendal”) in the Stellenbosch
region to level and
terrace sections of farmland on Hazendal for agricultural purposes
and work commenced in 2014. For that purpose,
G L Conradie hired from
the applicant a bulldozer (“the bulldozer”) owned by the
applicant.
[3] On 7 August 2014 the second
respondent, acting in terms of
ss 20
and
21
of the
Criminal Procedure
Act, 51 of 1977
, read with ss 31H(5) and 31G of the National
Environmental Management Act, 107 of 1998, (“NEMA”)
obtained a warrant
from a Magistrate at the Kuils River Magistrates’
Court, authorising the seizure of articles that were on reasonable
grounds
believed to be concerned in (and intended to be used in) the
suspected commission of offences contemplated in NEMA. That same day
the bulldozer was attached in terms of the warrant and it has been in
the custody of the third respondent since then.
[4] In this application the applicant,
in terms of s 34F(1) of NEMA, seeks the release of the bulldozer.
Section 34F reads as follows:
“34F. Security of release of
vehicles, vessel or aircraft
(1) If a vehicle, vessel or aircraft is
seized in terms of this Act and is kept for the purposes of criminal
proceedings, the owner
or agent of the owner may at any time apply to
a court for the release of the vehicle, vessel or aircraft.
(2) A court may order the release of
the vehicle, vessel or aircraft on the provision of security
determined by the court.
(3) The amount of the security must at
least be equal to the sum of –
(a) the market value of the vehicle,
vessel or aircraft.
(b) the maximum fine that a court may
impose for the alleged offence; and
(c) costs and expenses incurred or
reasonably foreseen to be incurred by the State in connection with
prosecuting the offence and
recoverable in terms of this Act.
(4) If the court is satisfied that
there are circumstances that warrant a lesser amount of security, it
may order the release of
the vehicle, vessel or aircraft subject to
the provision of security for such lesser amount.”
[5] The first and third respondents do
not oppose the application. The second respondent is not opposed to
the release of the bulldozer
on condition that security be provided
in terms of s 34F.
APPLICANT’S APPROACH
[6] The applicant contends that
circumstances contemplated in s 34F(4) exist which warrant a
deviation from the formula for security
contemplated in s 34F(3).
[7] Disregarding the seizure, the
market value of the bulldozer would have been approximately
R750,000-R1,200,000. However, since
the seizure, the condition of the
bulldozer has deteriorated because it has not been used and serviced.
Consequently, the market
value is only approximately R250,000.
[8] The applicant therefore offered
security of R250,000 which was rejected by the second respondent.
[9] In oral argument, counsel for the
applicant contended that, in the circumstances of this matter, the
bulldozer ought to be released
without the payment of any security
but the applicant is prepared to undertake to: (a) refrain from
alienating or otherwise encumbering
the bulldozer until the first or
second respondent confirms in writing that the criminal matter has
been finalised; (b) maintain
and insure the bulldozer pending
finalisation of the criminal matter.
SECOND RESPONDENT’S APPROACH
[10] In a letter dated 4 February 2015
the second respondent refused to release the bulldozer.
[11] After this application had been
launched on 29 May 2015, the second respondent asserted in a letter
dated 1 July 2015 that
the formula in s 34F(3) applies but that the
second respondent is prepared to accept security in the amount of
R2,500,000.
[12] In its opposing affidavit the
second respondent again contended that the formula in s 34F(3)
applies which means that security
in the amount of at least
R40,750,000 is required (R750,000 being the minimum market value of
the bulldozer according to the second
respondent, plus R10,000,000 x
4, being the maximum fines that may be imposed in respect of the four
alleged offences).
[13] In argument, it was accepted by
counsel for the second respondent that there are circumstances,
contemplated in s 34F(4), which
warrant an amount of security less
than an amount contemplated in s 34F(3). An amount of R1,200,000 was
proposed.
CONTEXTUAL INTERPRETATION OF S 34F
OF NEMA
[14] It is evident from the provisions
of NEMA that pollution or degradation of the environment is
considered to be a serious offence
which has far-reaching
consequences for perpetrators.
[15] Substantial sentences may be
imposed for offences provided for in NEMA. Section 49B, for example,
provides for a maximum fine
of R10,000,000 or 10 years imprisonment
for certain offences including degradation of the environment
contemplated in s 49A(1).
[16] Integral to the scheme of NEMA, is
attachment of goods used in the process of committing offences
contemplated in NEMA and
the forfeiture of such goods in the event of
conviction (s 34D). Thus, goods may be attached pursuant to a warrant
issued in terms
of ss 31H(5) and 31G(2)(b) if such goods, on
reasonable grounds, inter alia are believed to be concerned in (or
intended to be
used in) the suspected commission of offences
contemplated in NEMA.
[17] In terms of s 34F a court may
order the release of attached goods. Read contextually, and unless s
34F(4) applies, it appears
that a court may only order the release of
attached goods if an amount of security, calculated in accordance
with s 34F(3) is ordered.
[18] These stringent provisions are
understandable in view of the mischief that the legislature seeks to
address in NEMA.
[19] However, it is equally
understandable that the provisions of s 34F(3) may have iniquitous
results and that circumstances may
warrant a deviation from the
drastic formula in s 34F(3). NEMA does not identify those
circumstances in s 34F(4), or elsewhere,
and it stands to reason that
it depends on the facts of each matter.
[20] It was argued by counsel for the
second respondent that, in the application of s 34F(4), the formula
in s 34F(3) should still
be borne in mind. It was further contended
that the reference to “a lesser amount” in s 34F(4)
implies of necessity
that, although a court may reduce the amount of
security contemplated in s 34F(3), it must order an amount of
security in the event
of the release of attached goods being ordered.
I do not believe that the legislature intended to fetter a court’s
discretion
to the extent contended for. Such a construction may have
absurd results. If, for example, it transpires after an attachment
that
the attached goods had not been used (or are not intended to be
used) at all in the commission of an offence or they had been
attached
by mistake, the legislature could not have intended to
compel a court to: (a) use the formula in s 34F(3) as a point of
departure;
or (b) order a nominal amount of security just for the
sake of ordering an amount of security.
[21] In exercising its discretion a
court should, of course, bear in mind the mischief that the
legislature seeks to address in
NEMA but s 34F(4) should be applied
with reference to the circumstances that prevail in a particular case
under consideration.
CIRCUMSTANCES IN THIS MATTER
[22] In this matter the following
circumstances ought to be considered as a whole in the process of
applying s 34F(4): (a) The importance
of the protection of the
environment and the role of NEMA; (b) The nature of the alleged
offences; (c) The involvement of the bulldozer;
(d) The interests of
the owner of the bulldozer; (e) The effect if the bulldozer is not
released; (f) Proportionality. Each of
these considerations will be
dealt with below.
NEMA and protection of the
environment:
[23] The importance of the protection
of the environment, the significant role of NEMA in that process and
the part played by s
34F have been dealt with earlier herein.
Nature of the alleged offences:
[24] Dr Mahed, who made a statement in
terms of
s 212(4)
of the
Criminal Procedure Act, has
degrees in
environmental science and geology, with a background in hydrogeology
and experience relating to water resource management.
On 27 August
2014 he conducted a study of the impact of sand mining on the
hydrological regime at Hazendal and, in conclusion,
he stated the
following in his report:
“It is clearly evident that
significant environmental degradation has occurred on the Hazendal
Wine Estate … due to
the anthropogenic activities. The sand
mining, road construction and dumping of builder’s rubble have
altered the environment,
affecting the aesthetic aspects of the site,
as well as having removed valuable topsoil, led to soil erosion, and
altered the hydrological
regime. This is likely to have implications
for the local water cycle, and affect surface runoff and groundwater
dynamics and quality.”
[25] On 18 November 2014 the second
respondent produced a list of four alleged offences after completion
of its investigation, namely:
(a) An unlawful act/omission which
causes or is likely to cause significant pollution or degradation of
the environment in contravention
of
s 28
read with
s 49A(1)(e)
of
NEMA; (b) The construction of a culvert pipe underneath the road
within a watercourse or within 32 metres of a watercourse,
without
authorisation, in contravention of
s 24F(1)
of NEMA, read with
Government Notice Regulation 544 of 18 June 2010; (c) The
construction of a road wider than 4 metres over a
wetland in
contravention of Government Notice Regulation 544; and (d) Mining
activities within a wetland in contravention of Government
Notice
Regulation 544.
Involvement of the bulldozer:
[26] Dr Mahed does not deal with the
involvement of the bulldozer. It will be illustrated later herein
why, for present purposes,
it must be accepted that G L Conradie and
the bulldozer were not involved in the “road construction and
dumping of builder’s
rubble” referred to by Dr Mahed.
[27] In terms of s 28 of NEMA, G L
Conradie submitted a rehabilitation plan (“the plan”),
regarding Hazendal, to the
Western Cape Department of Environmental
Affairs and Development Planning (“the Department”)
during September–November
2014. In a letter dated 12 December
2014 the Department stated that it “is satisfied with the
proposed rehabilitation methods
and timeframes”.
[28] On 2 March 2015 G L Conradie,
through its attorneys, made written representations to the first
respondent in which G L Conradie’s
response to the alleged
offences was set out and the plan was referred to. The response to
each of the alleged offences will be
summarised below.
[29] First offence (pollution or
degradation of the environment): Hazendal is zoned for agricultural
activity which, by its very
nature, implies an unavoidable
disturbance of the environment. The earthmoving activities on
Hazendal resulted in some farmland
being levelled. There is no
evidence that any alleged degradation was not minimised or that G L
Conradie did not intend thereafter
to rectify any degradation that
may have resulted. In fact, G L Conradie presented the plan to the
Department, and it was accepted.
Ultimately, there is no
degradation, let alone significant degradation. G L Conradie did not
dispose of any rubble on the site.
It was already there when G L
Conradie was contracted by the owner of Hazendal to remove it.
[30] Second and third offences
(construction of a road and culvert pipe): the road and culvert pipe
underneath it, referred to in
the alleged second and third offences,
existed when G L Conradie commenced with work on Hazendal and were
not constructed by G
L Conradie.
[31] Fourth offence (sand mining
activities within a wetland): no activities took place within a
wetland. That is borne out by
the Department’s directive which
refers to “earthmoving activities in close proximity to a
watercourse”. If
those activities were within a wetland, the
Department would have said so.
[32] The first respondent has not
informed G L Conradie of any decision regarding the applicant’s
representations.
[33] The second respondent did not deal
with the contents of the representations in his answering affidavit
(or elsewhere) and merely
contended that the “cogency of
criminal offences will best be determined by the court entertaining
the criminal prosecution
and after all the evidence has been
presented”. In principle, that is correct. However, for
purposes of this application
it is relevant to consider the extent of
the bulldozer’s involvement in the alleged offences. The
investigation has been
completed and the second respondent has all
the relevant information at his disposal. Whilst, in these
proceedings, it cannot
be expected of him to prove the guilt of
alleged perpetrators and to deal in every bit of detail with the
involvement of the bulldozer,
it can be expected of the second
respondent to at least put up some evidence if he is in disagreement
with G L Conradie’s
contentions in its representations.
[34] It is stated on behalf of the
second respondent that, during a meeting with the state advocate who
deals with the matter on
1 July 2015, she indicated that the first
respondent would be proceeding with the criminal prosecution.
However, it is not stated
who the accused will be. It may very well
be that the owner of Hazendal will be an accused and that the first
respondent may decide,
on the strength of G L Conradie’s
representations, that G L Conradie will not be prosecuted.
Interests of the owner of the
bulldozer:
[35] Before the attachment, the
bulldozer was rented out by the applicant at a rate of R750 per hour
to various clients. Based
on the rental history, the applicant has
been suffering a loss of income in excess of R90,000 per month as a
result of the attachment.
[36] The member of the applicant who
deposed to the founding affidavit is also a director of G L Conradie
who rented the bulldozer
for purposes of the work done at Hazendal.
The applicant was therefore probably aware of the nature of the work
done at Hazendal.
However, it has been illustrated that, on these
papers, G L Conradie and the bulldozer were not involved at all in
the activities
that led to most of the alleged offences.
[37] The bulldozer will deteriorate
whilst being under attachment as it will not be used and serviced.
Consequently, its market
value will be reduced.
Further consequences if the
bulldozer is not released:
[38] G L Conradie will be deprived of a
bulldozer that is needed for rehabilitation of Hazendal in terms of
the plan (that was explained
to the second respondent in a letter
from the applicant’s attorneys dated 20 January 2015).
[39] In these circumstances it will not
be in the interest of the environment if the release of the bulldozer
is not ordered or
if an amount of security is ordered which is so
high that the applicant will not be able to provide such security.
Proportionality:
[40] I am of the view that it will be
just to make an order that is proportionate to the involvement of the
bulldozer.
CONCLUSION
[41] In these circumstances, the
security in the amount of R250,000 offered by the applicant on 20
January 2015 was reasonable.
[42] It is therefore ordered that:
(a) The Komatsu D65EX bulldozer, with
chassis number KMTOD060A01067871, be released to the applicant
immediately upon security in
an amount of R250,000 being furnished to
the second respondent either by way of payment of that sum or by way
of a bank guaranteed
cheque and which security shall be held in terms
of s 34F(4) of the
National Environmental Management Act, 107 of
1998
, pending the finalisation of the criminal matter in respect of
which the bulldozer was attached.
(b) The costs of this application be
paid by the second respondent.
R F VAN ROOYEN, AJ