Targets, Trends and Tips ENVIRONMENTAL SEMINAR 11 MAY 2017 Environmental Compliance and Enforcement Targets, Trends and Tips

Tina Terblanche Senior Associate, Bowmans Back to basics: administrative and criminal legal principles in environmental law enforcement Tina Terblanche Senior Associate, Bowmans

BASIC LEGAL PRINCIPLES Legal interpretation Administrative law Criminal law

INTRODUCTION: BASIC LEGAL PRINCIPLES legal interpretation principles administrative law principles criminal law principles Basic legal principles sometimes overlooked in the context of environmental enforcement by – enforcement authorities persons subject to enforcement action Basic administrative, criminal, and legal interpretation principles are often overlooked in the context of environmental enforcement

Importance of legal principles Principles inform – meaning of legal rule application of the legal rule the scope of the power of the authority the procedure that must be used when enforcing the rule Why these principles are important: Effect should be given to the intention of the legislature, which created enforceable legal rule for a reason. Correct interpretation of the rule paramount, as is correct procedure. - Companies prosecuted or issued with directives/notices should understand the nature of the charge against them, whether the authority has the power to take the action, and whether fair procedure has been followed

Types of enforcement action ADMINISTRATIVE S24G rectification notice Pre-compliance notice / compliance notice Pre-directive / directive CRIMINAL Prosecution There is a suite of environmental enforcement mechanisms Whether the specific enforcement mechanism involves administrative action or criminal prosecution will determine how you should respond and represent information How you should deal with officials Get into the right headspace as to whether you are defending administrative action or criminal prosecution

What does the law say?

Legal interpretation principles Meaning and application of legal rule Common-law rules and presumptions Purposive interpretation General rule: prospective application (not retrospective) Restrictive interpretation of penal provisions Legal interpretation principles are principles derived from the common law and case law that determine how meaning is given to legal rules Environmental crimes are almost exclusively contained in statutes Ordinarily the plain wording of the statute is used to determine the meaning, but where this is not possible, the principles of interpretation are applied. A legal provision must be interpreted in line with the purpose of the statute. Judicial precedent case law used to interpret legal provisions Important that authorities understand how judicial precedent works e.g. decision binding on lower court versus enforcement authority General rule: legal provisions do not apply retrospectively Example: EA not required if activity starts before it is listed E.g. 2014 Listed Activities not applicable to activities undertaken prior to their coming into effect

Legal interpretation principles EXAMPLE NEMA section 49A(1)(f): offence if person- "(f) unlawfully and intentionally or negligently commit any act or omission which detrimentally affects or is likely to detrimentally affect the environment...“ What is the threshold? No qualification that unlawful “detrimental affect” must be significant Liability can be based on intentional or negligent act or omission. Crime of “unlawfully and intentionally or negligently commit[ing] any act or omission which detrimentally affects or is likely to detrimentally affect the environment”. Company and its directors are exposed to potential fines of R10 million and imprisonment for up to 10 years “Unlawfulness” easily inadvertently triggered Different thresholds (or levels of stated significance) may apply with regard to different requirements in law. What is this threshold of a “detrimental affect” to the environment, as contemplated in this crime? there is no qualification that the unlawful “detrimental affect” must be significant; criminal liability can be based on negligence or omission. Uncertainty around any crime is undesirable. 100% compliance can become almost impossible to achieve.

Restrictive interpretation of penal provisions Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC) “The restrictive interpretation of penal provisions is a long-standing principle of our common law. Beneath it lies considerations springing from the rule of law. The subject must know clearly and certainly when he or she is subject to penalty by the state. If there is any uncertainty about the ambit of a penalty provision, it must be resolved in favour of liberty.” (para 130)

Presumption against retrospective application of legal rules Example: Changes in environmental laws ECA 1989 ECA Listed Activities 1997 NEMA 1998 NEMA Listed Activities 2006 2010 2014 2017

Presumption against retrospective application of legal rules

CRIMINAL LAW PRINCIPLES Elements of a crime Conduct Definitional elements Unlawfulness Causation Fault

Criminal law principles All the elements of a crime must be proven for liability to ensue State must prove the elements beyond a reasonable doubt Different forms of liability Individual and corporate criminal liability Strict liability and vicarious liability Allegations must be supported by evidence Individual and corporate criminal liability Strict liability and vicarious liability Most crimes require fault In crimes requiring fault (no strict liability) intention/negligence must be proven Standard of proof: beyond a reasonable doubt Difficult to prove negligence

Who has authority to enforce?

ADMINISTRATIVE law principles Rule of law: power derived from empowering provision Authorities must act within scope of power Fair procedure must be followed Administrative action can be reviewed under PAJA Administrative law principles apply to pre-compliance notices, compliance notices and directives Rule of law: power of authority derived from empowering provision. - The scope of the authority’s power determines by whom, against whom and in which circumstances the rule may be enforced - Actual powers may differ from authorities’ understanding of what they are legally entitled to do - Example: inspectors appointed under NWA cannot enforce NEMA Fair procedure depends on the principles of administrative justice and the content of the specific statute - PAJA: must be notified; representations; clear statement; notice of appeal/review; reasons - Example: verbal request that company ceases operations (issue: adequacy of notice – depends on facts) Consequences of failure to adhere to administrative law principles: decision can be taken on review in the High Court

Know when to question…

What is the trick? KNOW: when and how to question enforcement action how to respond to authorities how to gather and present evidence to illustrate compliance how to illustrate that reasonable steps are being taken in the case of non- compliance (i.e. what has been done to rectify) When specialist legal advice is needed Pre-compliance/compliance notices etc. must be questioned timeously Do not simply accept notices as legally compliant Know how to respond to authorities and which evidence to provide to prove compliance Know how to proceed when you are not compliant Respond to everything Do you incriminate yourself Show that conduct is not an offence Show how you are taking steps to correct non-compliance Know when to seek legal advice (complicated notices)

The devil is in the detail…

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