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

2. Melissa Strydom Senior Associate, Bowmans
Environmental Enforcement trends in 2016 and 2017 from the enforcement directorate of the dea or the green scorpions incl. NEMA, the NWA and the AQA
Melissa Strydom
Senior Associate, Bowmans

3. introduction Over the last seven or so years
Annually Reported - Department of Environmental Affairs (DEA)
National Compliance and Enforcement Reports (NECER)
Including by Environmental Management Inspectors (EMIs)
Reports on enforcement activities in the following subsectors:
Green: the biodiversity and protected areas,
Blue: integrated coastal management and
Brown: pollution, waste and EIA
Our interest and focus on ‘brown issues’ – industry compliance and enforcement concerns
Trends in the enforcement mechanisms used and activities targeted
We have had a look at environmental enforcement activities and trends over the last seven or so years.
The Department of Environmental Affairs (DEA) annually publishes the statistics regarding environmental compliance and enforcement activities. This includes data of the number of enforcement mechanisms used during a reporting years.
Includes compliance monitoring and enforcement by the Environmental Management Inspectors (EMIs).
Various aspects are reported on and statistics provided, such as the number of criminal prosecutions and administrative measures, including section 24G, compliance notices and directives.
The NECER reports on compliance and enforcement activities taking place in different subsectors:
Green: the biodiversity and protected areas,
Blue: integrated coastal management and
Brown: pollution, waste and EIA
Our interest and focus, as is relevant to most of our clients, relates to the ‘brown’ subsector and issues. In other words industry compliance and enforcement concerns.
I will take you through some of the trends in environmental enforcement, including:
The data over the years of enforcement mechanisms and activities identified as focus areas
Trends we have seen

4. CRIMINAL Enforcement DATA – green, blue and brown offences
In this slide I specifically illustrate the data reported in the NECER reports regarding criminal enforcement.
This includes green, blue and brown matters and unfortunately this data is not by sector. Monitoring data is separate.
The green sector, by its nature, has more criminal matters.
From the blue line you can see that the DEA has registered criminal investigations of a lot of matters, which peaked at about 2019 matters in the 2014/15 reporting year. It is not clear what the reason may be behind the decrease in the last reporting year.
We tried to see if it was as a result of less EMIs, which you can see from the next slide has increased consistently.
The red line shows the number of criminal investigations that were handed to the National Prosecuting Authority for prosecution.
The green turquoise and orange lines indicate the number of acquittals, convictions and plea and sentence agreements, all below a 100 in the last seven years.
There appears to be some consistency in terms of the matters handed to the NAP for prosecution, the acquittals, convictions and plea and sentence agreements.
Although there is a much higher number of cases with the NAP than those that have been concluded that could be explained by the general delay in the criminal justice system.
There is also not an explanation regarding the spine in the 2009/10 reporting year, but it might have been that different factors were taken into account at that stage.

5. 2015/16 NECER
Increase in the total number of EMIs on the national register from 2294 in 2014/15 to (national and provincial authorities) in 2015/16.
Number of EMI’s have consistently increased over the years (NECER, p5)

6. ADMISSION OF GUILT
Another interesting trend is the high number of admission of guilt fines.
Defined in NECER as “fines paid for less serious environmental offences in terms of Section 56 of the Criminal Procedure Act, 1977”. (NECER)
Between a 1000 to 6000 over the last seven years.
Significantly higher that criminal cases registered and handed to NPA.
Generally suitable only for those environmental offences which do not cause significant harm to the environment (Paterson & Kotze)

7. Admission of guilt fines
Stats may be distorted by ‘green’ offences – most admission of guilt fines
NECER reports it separate from convictions
Section 34G of the National Environmental Management Act (NEMA), read with section 57 and 57A of the Criminal Procedure Act (CPA)
Currently the following Regulations:
NEMA: Protected Areas Act Admission of Guilt Fines Regulations, 2011.
Minor offences, fines up to R
Waste Act: Admission of Guilt Fine Regulations, 2015
General waste aspects only, minor offences up to R fine
Mandate of Grade 4 EMIs
The nature of the offences and the amount of the fine suggest something similar to “local authority” or “minor offences” which are dealt with separately in the CPA
The admission of guilt fine statistics may be distorted by ‘green’ offences where the most admission of guilt fines may be imposed
NECER reports it separate from convictions
This is provided for in Section 34G of National Environmental Management Act (NEMA), read with section 57 and 57A of the Criminal Procedure Act
Currently the following Regulations:
NEMA: Protected Areas Act Admission of Guilt Fines Regulations, 2011.
Minor offences, fines up to R
Waste Act: Admission of Guilt Fine Regulations, 2015
General waste aspects only, minor offences up to R fine
Mandate of Grade 4 EMIs
5. The nature of the offences and the amount of the fine suggest something similar to “local authority” or “minor offences” which are dealt with separately in the CPA

8. Admission of guilt fines (continued)
Distinguish between: Fines vs Admission of guilt fines
For example, Section 24G fines = administrative fine,
Road traffic offences - Section 341 notices “compounding of minor offences” = no criminal record if you pay these fines
Schedule 3 – traffic offences and by-law offences
Section 54 summons or 56 notice to appear in court – admission of guilt fine = record
THUS, admission of guilt = conviction and record
However, concerns re “fit and proper person”
in applying for a Waste License: relates to ‘contravention or failure to comply’
not limited to convictions
Distinguish between: Fines vs Admission of guilt fines
For example, Section 24G fines = administrative fine, although you admit guilt its not in a criminal prosecution context per se
Road traffic offences are an example of where a minor offence may result in a fine as opposed to a criminal conviction or criminal record.
Where in terms of the CPA a person is issued with a notice in terms of section 341 of the CPA (and not a summons or notice to appear in court in terms of section 54 or 67) a person can pay a fine for such a minor offence.
You will have no criminal record if you pay these fines
However, where the admission of guilt fines are used under section 57 and 57A of the CPA (as contemplated in section 34G of NEMA and the admission of guilt fine regulations) paying a fine is the same as a conviction and you will have a criminal record
THUS, admission of guilt = conviction and record
Although there are similarities with the “local authority / minor offences”, there is no indication you would not have a criminal record for paying such a fine.
For industry, however, concerns re “fit and proper person”
in applying for a Waste or Atmospheric Emissions Licenses: relates to ‘contravention or failure to comply’
not limited to convictions

9. CRIMINAL SANCTION Administrative sanctions : not mutually exclusive
not successive
Suite of criminal offences across environmental legislation
In an industrial operations context – negligence more than intent
What should the criminal sanction be reserved for?
Over criminalisation?
Should we not have a fine system for lesser offences?
Administrative Penalties Research Project (p108)
Administrative and criminal sanctions are not mutually exclusive, the EMI’s can use both mechanism in an enforcement context.
For example, issue a directive and institute criminal proceedings.
Criminal proceedings therefore do not necessarily follow administrative sanctions.
Suite of criminal offences across environmental legislation.
Industrial operations – negligence more than intent, may be no negligence
Prof Kidd explains that the criminal sanction should be reserved for:
Intentional wrongdoing “midnight dumping”;
Persistent wrongdoing (dolus eventualis);
Serious harm to people or the environment (fault – at least negligence) (Kidd)
Over criminalisation?
“…One of the most serious problems facing criminal law today is the fact that legislatures have abused the criminal sanction to such an extent that over criminalisation has taken place. The criminal sanction…has become a blunt instrument through its having been used indiscriminately by legislatures as a device to censure any kind of deviant conduct or as a convenient disciplinary tool to secure obedience to any kind of legislative prescription. This has brought about a number of detrimental consequences…” (emphasis added). (Skeen & Hoctor)
Should we not have a fine system for lesser offences?
Yet at the moment the admission of fines (for R2500 offences) still gives you a criminal record.
One has to consider the constitutionality, for example the restrictive interpretation Tina mentioned and less restrictive means to achieve the objects of environmental legislation instead of criminalising every single non-compliance regardless of its severity
Administrative Penalties Research Project (p108)

10. Administrative sanctions in comparison to criminal
‘The use of administrative enforcement (i.e. directives and notices) remains the preferred tool for the authorities that deal with brown issues’ (p14&15)
We do still see from the NECER report that administrative enforcement mechanisms significantly outweigh criminal measures.
This is at least somewhat comforting, that to some extent it is only serious matters which are prosecuted in the end.
This also illustrates how important it is to adequately consider and respond to administrative enforcement measures at the outset.

11. BROWN SECTOR:
2014/15 NECER
Strategic sectors that were prioritised (p3):
Ferro-alloy steel and iron;
Refineries;
Cement;
Paper and pulp;
Health care risk waste treatment / disposal;
Hazardous landfill;
Power generation.
The Compliance Monitoring / Inspections
in the brown sector over the last six years
In the 2014 /15 reporting period the NECER identified the following as key focus sectors within the brown sector.
Ferro-alloy steel and iron;
Refineries;
Cement; Paper and pulp;
Health care risk waste treatment / disposal;
Hazardous landfill;
Power generation.
From the graph you can see the number of brown matters investigated over the last six years which ranged between 442 and 616.

12. BROWN SECTOR
2015/16 NECER
Sense is that the criminal convictions dominated by the green subsector
Most prevalent crimes reported for the brown sector:
Unlawful commencement of listed activities as the most common non-compliance (p17)
Priorities re Environmental Impact Assessment and Pollution:
waste water treatment facilities
health care risk waste; and
other strategic identified industrial sectors – similar to this in the previous reporting year with the addition of power generation and waste tyres

13. Trends: BASED ON NECER
Relative consistency in the statistics regarding
matters handed to NPA,
acquittals,
convictions,
plea and sentence agreements,
apart from the anomaly in 2009/10
A lot more matters investigated by DEA than handed to NPA
Administrative action still significantly outweighs criminal prosecution
Investigations of compliance dominate the brown sector
Criminal prosecutions in the brown sector are the minority (dominated by green)

14. Trends: our experience
Atmospheric emissions:
Significant concern for business is the compliance of legacy facilities with new emissions standards
Application for extension of the emissions requirements
Huge capital expenditure vs criminal sanctions
Finding the balance
Listed Activities:
Operating without an authorisation, licence etc.
Focus area of DEA
In our experience challenges in changing law and applying listed activities at the relevant time
Use of listing notices not applicable

15. Trends: our experience
Waste
Focus area, a number of compliance and enforcement actions
Buried waste and possible associated pollution - focal point
Unsuccessful attempts to put the waste generator on the hook for a contractor’s non- compliance
Recently in the media, e.g. Enviroserv Shongweni in KZN, Interwaste FG Landfill in Olifantsfontein
Often suite of permits required, conditions compliance
Green Scorpion inspections and monitoring, often following complaints
Operator to conduct specialist studies
Directives to cease, following pre-directives
Criminal charges simultaneously
Underlying problem of where does the waste go and what is the practical and reasonable scenario

16. Trends: our experience
Mining
Area where there have been successes for the authorities, particularly DWS
Activities without water use licence, wetlands, pollution, dunes etc.
Particular focus of NGOs like FSE
Ongoing debate regarding powers of DEA and DMR in the enforcement sector, One Environmental System (e.g. the setting aside of the Mineral Sands search warrant)
Sale of marginal mines is a risk in respect of the possibility of prosecution (Blyvoor, Pamodzi etc)
Mining rehabilitation liability, historical pollution, prosecution re closure plans and non compliance with EMP, directors being charged and potentially other role players (Blyvoor, Blue Platinum Ventures 2014)
Water:
See this with mining – activities in wetlands
Also overlaps with NEMA listed activities within watercourses
Water use entitlements and impacts on water resources

17. Bowmans Office Contacts
Cape Town T: E:
Dar es Salaam T: E:
Durban T: E:
Johannesburg T: E:
Kampala T: E:
Nairobi T: E:
Follow us on
@Bowmans_Law
Bowmans

18. Thank you