The Department of Environmental Affairs (the “Department”) released its National Environmental Compliance and Enforcement Report 2013/14 (the “Report”) on 08 October 2014. The Report provides a national overview of the environmental compliance and enforcement activities undertaken between the periods 01 April 2013 to 31 March 2014. The Report indicates that the number of criminal dockets registered, finalised dockets handed to the National Prosecuting Authority and the number of convictions obtained, have increased in the 2013/14 period from that monitored in the 2012/13 period.In terms of the Report, the Department inspected a total of 2,348 facilities for compliance with environmental legislation. These facilities were inspected in regard to pollution, waste, environmental impact assessment, biodiversity and protected areas. Of the 2,348 facilities inspected, 1,539 non-compliances were observed. The Minister of Environmental Affairs, Edna Molewa, stated that as a result of the Department’s follow up inspections and on-going enforcement in the abovementioned sectors, environmental performance in previously negative performing sectors, such as cement and refinery, have improved. These sectors were highlighted in the Departments National Environmental Compliance and Enforcement Report 2012/13, as sectors that due to their nature, will require “continuous monitoring”.
While the cement and refinery sector were focused on in last year’s report, the ferro-alloy, iron and steel injury were highlighted in this year’s Report, as the industries that have an adverse impact on the environment. Another major concern in South Africa, and dealt with in the Report, is rhino poaching and illegal dealing in rhino horns. South Africa has initiated the UNEP – GEF Rhino Project, which is aimed at strengthening law enforcement capabilities to combat wildlife crimes, specifically those against rhino’s. The Department, along with security forces and members of the criminal justice system aim to curb this epidemic.
The “polluter pays” principle makes the party responsible for producing pollution liable for paying for the damage done to the environment. Two judgements handed down during the 2013/14 reporting period embody this principle and indicate that companies, as well as Directors can be held liable for their actions, or failures to act. The first was State v Nkomati Anthracite (Pty) Limited , in which a company admitted to eight counts of contravening water and environmental impact assessment legislation. The court ordered the company to pay a penalty of one million Rand (R1 000 000), suspended for a period of five years, as well as an additional amount of four million Rand (R4 000 000) to be paid to the Environmental Management Inspectorate.
The second case of State v Blue Platinum Ventures (Pty) Ltd and Matome Samuel Maponya, was the first case in South Africa in which a Director was convicted, in his personal capacity, for failing to take all reasonable steps to prevent his company from continuing a listed activity without the required environmental authorisation. The cost of rehabilitating the affected area had been estimated at approximately R6.8 million, which was to be personally paid by the Director. A sentence of 5 years’ imprisonment was imposed, suspended for 5 years, on condition that the Director does not commit the same or similar offences again, and on condition that the area is rehabilitated.
While the 2013/14 Report’s statistics show that compliance and enforcement activities have improved, there have been several reports of non-compliance in the mining sector in South Africa. In an article published by Mining Weekly on 09 October 2014, regarding the monitoring of water use licences at South Africa’s mines, the Water Affairs Minister stated that 103 mines were currently operating without valid water use licences. While notices, directives and criminal prosecution, has been instituted, the state of South Africa’s water affairs and environmental state in general, cannot afford further pollution and degradation as has previously been the case.