-----Original Message-----
From: Gauteng Conservancy Association [mailto:conservancy@conservancies.org]
Sent: Monday, July 17, 2006 6:39 PM
To: GCA Friends
Subject: Environmental Legislation Enforcement

Environmental Legislation Enforcement
Trafford Petterson

(Vice-chairperson, NACSA)

(Enforcing environmental legislation is becoming a serious issue in South Africa.  You may find these notes useful.  They were taken from a session on Enforcement at the NACSA conference in Cape Town, 8 & (June 2006) presented by Trafford Petterson who attended DEAT's National Environmental Conference hosted in Durban in February 2006.)

Communities should become aware of environmental legislation. Suggestion:  that conservancies approach the authorities or those in the legal profession who can properly explain the legislation to them. Have legislation workshops with top speakers on the subject for communities/conservancies.

One of the main questions:  "Why are we failing at enforcement?"  This was my own personal question that I took to the conference..

Answers include

  1. Lack of political backing....developers get to the  politicians and cry "investment, job creation, increased rates base...."  Enforcers then get told to "back-off".  
  2. Lack of workable legislation. NEMA actually has no  prohibitions! It allows perpetrators to "get legal".  
  3. Existing or historic property rights vs. environmental  rights.  
  4. Government departments are in a constant state of  flux. No continuity.  
  5. Lack of proper biodiversity knowledge among EIA  assessors.  
  6. ROD's being falsified. 
  7. Developers never moving without their attorneys. This  often creates problems for officials who have to have the legal issues  clarified by their own attorneys. In the interim attorneys will bring up  anything that will defend their client’s position.  
  8. The laws specify that legal sanction is a last resort  after mediation and arbitration. This  gives perpetrators just too much leeway.  
  9. Developers who  don't stop even after Directives and interdicts are issued.....what does one  do then??  
  10. No backing from  judiciary. Often interdicts are turned down by the court because the judge  does not believe there is urgency

Points from Environment Conference:

Financial institutions should be targeted to create  awareness of environmental issues - developers need financing and banks have  to approve. There are already banks that won't approve bonds/loans unless all  town planning and environmental authorization is properly issued. We need to  work on those banks that don't have such a policy in place. Environmental crimes used to be Schedule 2 - peace  officers could deal with it.  Now it's a Schedule 1 offence and only the  SAP can deal with it. This is where EMIs (Environmental Management Inspectors)  come in.  They have far-reaching powers - can search and have the right  to seize. (under certain circumstances)  They can enforce all  environmental acts. (all the environmental MANAGEMENT Acts eg. NEMA, NEM:BA,  NEM:PA and the soon to be promulgated APPA ).

  • The courts now have the power to revoke or suspend  RODs if the conditions are not met.
  • The court has ability to award a certain percentage  of  a fine to the person who brought the issue to the attention of the  authorities.
  • The first 28 EMIs were appointed last year.  By  the end of 2006:  600.
  • Admission of guilt fines were R100 000 (in terms of  the ECA) - now up to R5m (under NEMA).
  • National database - allows the government to blacklist  developers.
  • Ranks of EMIs:  Category 1:  Blanket use  (otherwise for specific acts) at all three levels (national, provincial,  local).
  • The legislation is there, the mechanisms - USE  THEM!
  • Individuals can request a mandamus against government  departments. A mandamus is used to get departments to take action, however it  does not specify the outcome. For example, an individual can  request the  court serve a mandamus upon a town planning department to process his  application, but it cannot specify what the end ruling would be from that  department.

Proposal:
 

NACSA and provincial associations should lobby national and provincial government for environmental courts.  Example:  Hermanus court -75% prosecution rate with 25% of cases leading directly to imprisonment without the option of a fine. It must be noted, however, that the bulk of these cases are "green" and "blue", which are often a lot easier to get a conviction that the so-called "brown" crimes eg development. Interestingly, 10% of Port Elizabeth Court cases are environmental!

SAP will shortly be sending 22 officers for EMI training.

There is a 24 hour hot-line for reporting environmental crimes- 0800 205 205. I would suggest that this number is circulated to all the conservancies!!

To sum up the EMI issue:
The Environmental Management Inspectorate is a network of environmental enforcement officials from different government departments (national provincial and municipal). The inspectorate was created when an amendment was made to Chapter 7 of the NEMA (107 of 1998), which came into effect on 1 May 2005.

A broad range of powers under Chapter 7 include:
1)      Routine inspection (entering premises to ascertain compliance; seizing evidence of non-compliance).
2)      Investigation (questioning witnesses; copying documents; inspecting and removing articles or substances; taking photographs and audiovisual recordings; taking samples; removing waste).
3)      Enforcement (search and seizure of premises, containers, vessels, vehicles , aircraft and search of pack animals; establishing roadblocks; arrest).
4)      Administrative powers (issuing compliance notices).

NEW CRIMINAL OFFENCES UNDER CHAPTER 7:

These include;
 
1)      Giving false information to an EMI, or refusing to comply with an EMI's request.
2)      Hindering or interfering with an EMI's duties.
3)      Failure to comply with a compliance notice, which can be issued by certain EMI's when that EMI has reasonable grounds for believing that a person has not complied with the environmental legislation, or with the terms of permits issued under such legislation.

If a person fails to comply with the terms of the compliance notice, the minister or relevant MEC has the ability to revoke or vary that persons permit (or ROD) and may take necessary steps to recover any costs from that person, or refer the matter to the National Prosecuting Authority (NPA) for prosecution.

PAYMENT OF PART OF A FINE TO INFORMERS OR WHISTLEBLOWERS:
In terms of NEMA, a court may order that up to 25% of the fine be paid to the informer whose evidence led to the successful conviction, or who assisted in bringing the offender to justice.

The court convicting a person under NEMA (or the other environmental management acts) may disqualify that person from obtaining a permit or other authorization for up to 5 years, and may order that all permitting authorities be notified of this (nationally).

(Source: Everything you need to know about the Environmental Management
Inspectorate-DEAT)

Acronym’s used in this document
DEAT             Department of Environment and Tourism
NEMA            National Environmental Management  Acts
NEM:BA         National Environmental Management Biodiversity Act.
NEM:PA         National Environmental Management: Protected Areas Act
APPA            Atmospheric Pollution Prevention Act
NPA                The National Prosecuting Authority
ROD                Record of decision
EMI                 Environmental Management Inspectorate
EMI’s              Environmental Management Inspector
ECA                Environment Conservation Act
EIA                  Environmental Impact Assessment