Case note: Locus standi to institute a private prosecution of environmental offences in South Africa: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

• Author: Mujuzi, J.D.
• DOI: https://doi.org/10.47348/SAJELP/v26/a6
• Published date: 10 December 2021
• Date: 10 December 2021
• Pages: 161-178

161

https://doi.org/10.47348/SAJELP/v26/a6

LOCUS STANDI TO INSTITUTE A PRIVATE

PROSECUTION OF ENVIRONMENTAL

OFFENCES IN SOUTH AFRICA: UZANI

ENVIRONMENTAL ADVOCACY CC V BP

SOUTHERN AFRICA (PTY) LTD

Jamil Ddamulira Mujuzi*

Abstract

In Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd, in the

first ever private prosecution under section 33 of the National Environmental

Management Act, British Petroleum (BP) was prosecuted and convicted for

constructing filling stations without the necessary authorisation. The judgment

deals mostly with the issue of locus standi to institute a private prosecution

for environmental offences. The purpose of this note is to highlight the issues

that emerge from the judgment. The note also discusses the role that could be

played by the National Director of Public Prosecutions should they decide to

take over a private prosecution instituted under section 33 of NEMA.

1 INTRODUCTION

The South African National Environmental Management Act1

(NEMA) creates many offences that relate to the environment� A

prosecution under NEMA may be instituted by a public prosecutor

or a private prosecutor� Section 33(1) of NEMA provides that a

private prosecution can be instituted by any person in respect of an

environmental offence committed in contravention of any national,

provincial or municipal legislation or regulation� In other words,

the right to institute a private prosecution under s 33(1) is not

limited to the offences under NEMA� It extends to environmental

offences provided for under other pieces of legislation� One of the

Acts which creates offences that relate to the environment is the

Environment Conservation Act�2 Under s 24F of NEMA, it is an

offence to commence an activity which needs authorisation under

* LLB (Makerere) LLM (Pret) LLM (UFS) LLD (UWC), Lecturer, Faculty

of Law, University of the Western Cape�

1 Act 107 of 1998�

2 Act 73 of 1989�

(2020) 26 SAJELP 161

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(2020) 26 SA JOURNAL OF ENVIRONMENTAL LAW AND POLICY

the Act without the necessary authorisation� However, s 24G

of NEMA provides that a person who carried out an unlawful

activity under the Act can make an application for that activity to

be rectified� In Uzani Environmental Advocacy CC v BP Southern

Africa (Pty) Ltd,3 British Petroleum (BP), in the first ever

private prosecution under s 33 of NEMA,4 was prosecuted and

convicted for constructing filling stations without the necessary

authorisation under s 22(1) of the Environment Conversation Act

(discussed below) and without making the application and paying

the administrative fine under s 24G of NEMA�

Because this was the first case in which an oil giant or any

person for that matter was convicted of an environmental offence

in a private prosecution in South Africa, it attracted wide media

coverage�5 The case also raises important issues that are likely to

re-emerge in future private prosecution of environmental offences,

the most important one being the issue of locus standi� The purpose

of this note is to highlight the manner in which the court dealt with

the issue of locus standi and, where appropriate, to suggest ways

in which this could be strengthened to empower more persons to

institute private prosecutions� The note also discusses the role that

could be played by the National Director of Public Prosecutions

should they decide to take over a private prosecution instituted

under s 33 of NEMA� In order to put the discussion in context,

the author will first outline the law governing the rectification of

the commencement of unlawful activities as far as it is relevant

to this note�

3 Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd 2019

(5) SA 275 (GP); [2019] 2 All SA 881 (GP)�

4 Although there have been public prosecutions under NEMA� See for

example, York Timbers Proprietary Limited v National Director of Public

Prosecutions 2015 (1) SACR 384 (GP); 2015 (3) SA 122 (GP): the appellant

was prosecuted and convicted of unlawfully commencing an activity under s

24F of NEMA and without paying a fine under s 24G� However, his conviction

was set aside on appeal because he had abandoned the project in question�

5 See for example, Phillip de Wet, ‘Guilty: BP has been convicted of

environmental crime in South Africa – and could now face massive fines’

(4 April 2019) at https://www�businessinsider�co�za/bp-found-guilty-in-

private-criminal-prosecution-by-uzani-2019-4; Cape Talk, ‘Local lawyer

makes history beating oil giant BP in court’ (5 April 2019) at http://www�

capetalk�co�za/articles/343787/local-lawyer-makes-history-beating-oil-giant-

bp-in-court (both articles accessed 21October 2020)�

https://doi.org/10.47348/SAJELP/v26/a6

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