The Centre for Environmental Rights (the “CER”) has reported that, on 31 January 2014, the Naphuno Regional Court in the Limpopo Province sentenced the managing director of Blue Platinum Ventures 16 (Pty) Ltd trading as Bathlabine Brickyard (the “Company”), a clay mining company in Tlhabine in the Limpopo Province, to five years in prison for causing damage to the environment.

The Bathlabine Foundation, which is a community-based not-for-profit organisation that works for the advancement of the Bathlabine community near Tzaneen, brought the charges against the Company, as well as its directors. The area in which the community lives, and where the mine is situated, is part of the catchment area of the Thabina River. The river originates in the south-eastern highlands of the Limpopo Province and flows northwestward to join the Great Letaba River, which is a major river draining into the northern Lowveld area. The fact that the mine is located within a catchment area means that the pollution caused by the mine impacts on more than just its immediate area. The Company has been mining clay outside the village of Bathlabine since 2007, causing environmental degradation through its activities.

The Company had conducted mining operations without the required mining right in terms of section 23(1) of the Mineral and Petroleum Resources Development Act, 28 of 2002 (the “MPRDA”) and without an environmental management programme in terms of section 39 of the MPRDA. The mining activities impacted on the water resource, as well as the soil and vegetation of the area. Therefore criminal charges were brought against the Company for non-compliance in terms of the National Environmental Management Act, 107 of 1998 (the “NEMA”) and the National Water Act, 36 of 1998 (the “NWA”) in addition to the charges that were brought against it for non-compliance with the MPRDA.

The Company and its Managing Director pleaded guilty to a contravention of section 24F of NEMA, which prohibits any person from commencing or continuing a listed activity without the required environmental authorisation. The cost of rehabilitating the affected area has been estimated at approximately R6.8 million, which is to be personally paid by the Managing Director.

According to the CER report, the court held that the Managing Director of the Company be sentenced to 5 years’ imprisonment, suspended for 5 years, on condition that he does not commit the same or similar offences again, and on condition that the area be rehabilitated by 30 April 2014. There was no separate sentence or fine imposed on the Company.

Criminal liability of Directors

Recent case law (see TELC blog post “Personal and Criminal Liability of Companies, Directors and Employees for Contravening Environmental Legislation”) has shown an increase in the criminal provisions of environmental legislation being invoked. Although previous case law has shown an intention to hold directors and employees criminally liable for their actions, it has not done so.

This case is the first conviction of a director of a mining company, in his personal capacity, for mining-related environmental offences in South Africa. According to the CER, It is also the first time that a Director has been sentenced to imprisonment without the option of a fine and also the first time that a sentence has been linked to rehabilitation.