A critique on privately prosecuting the holder of ‘after the fact’ environmental authorisations: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

• Published date: 09 September 2021
• DOI: https://doi.org/10.47348/SALJ/v138/i3a8
• Citation: (2021) 138 SALJ 617
• Date: 09 September 2021
• Pages: 617-648
• Author: Strydom, M.

617

A CRITIQUE ON PRIVATELY PROSECUTING

THE HOLDER OF ‘AFTER THE FACT’

ENVIRONMENTAL AUTHORISATIONS:

UZANI ENVIRONMENTAL ADVOCACY CC v

BP SOUTHERN AFRICA (PTY) LTD

MELISSA STRYDOM†

PhD candidate, University of th e Witwatersrand, Johanne sburg

There has b een much debate abou t ‘after the fact’ e nvironmental au thorisations

and the ability to pr ivately prosecute env ironmental-law o ences in Sout h Africa.

These two iss ues came to a head in Uza ni Environmental Advoc acy CC v

BP Southern A frica (Pty) Ltd. Th is case is the rst k nown private prose cution

of environment al-law contravent ions in South Afri ca. BP Southern Af rica (Pty)

Ltd (‘BPSA’) was privately prose cuted for constru cting lling station s without

environmenta l authorisation s, allegedly between 1998 and 2005. BPSA submit ted

‘rectic ation’ application s in 2005, paid administrative ne s, and was issued with

‘after the fact ’ environmenta l authorisations. N evertheless, in 2019 BPSA wa s

convicted for c ontravening the relat ed environmental -law requirement. T his article

discusses the ap plicable legisla tive context, the com plex and frequently ch anging

environmenta l laws, and their inte rpretation and a pplication in a cr iminal context.

Criticism s of the Uzani judgment inclu de that the court did not sucien tly deliberate

or determine th e applicable la w at the time of the oen ces for which BPSA w as

indicted; the public o r environmental in terest served by th e private prosecutio n; strict

liability in relatio n to the oence; polic y and other conside rations for not prosecuti ng

these oenc es; constitutionality a nd admissibility of the e vidence; and the pote ntially

far-reaching co nsequences of su ch prosecutions. Th ese issues all act a s reminders of

the importan ce of clear and prec ise legislative draft ing, and contextual i nterpretation .

Environmental law – pr ivate prosecut ion – rectication – NEMA

I IN TRO DUCTION

Two distinct and much-debated environmental-law topics were at issue

in Uzani Environment al Advocacy CC v BP Southe rn Africa (P ty) Ltd.1 It was

the rst known private prosecut ion of environmental-law contraventions

in South Africa; and it related to a prosecution where the f ailure to obt ain

an environmental authorisation had been author ised retrospectively,

through an application in ter ms of s 24G of the National Environmental

† L LB (UJ ) LLM (Wits). I tha nk colleag ues, my super visor, peer rev iewers,

enforcement oc ials and the ed itors, all of whom cont ributed to thi s article, either

through d iscussion or by providing i nvaluable assistance aimed at improving the

content of this a rticle.

1 2019 (5) SA 275 (GP) (the ‘Uzani case’).

https://doi.org/10.47348/SALJ/v138/i3a8

(2021) 138 SALJ 617

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618 (2021) 138 TH E SOUTH AFRICA N LAW JOURNAL

https://doi.org/10.47348/SALJ/v138/i3a8

Management Act 107 of 1998 (‘NEMA’).2 The provisions of s 24G,

introduced in 2005,3 were not clearly drafted , and were either interpreted

dierently or misunderstood by many. Section 24G was substantia lly

amended in 2013 in an eort to clar ify its ambit.4 My understand ing is

that the Depar tment of Forestr y, Fisheries and the Environment (‘DFFE’)

considers a s 24G author isation as for ward-looking/prospective and not

rectif ying the prev ious unlawful commencement of activities w ithout an

environmental authorisation.5

On 29 June 2017,6 Uzani Environmental Advocacy CC (‘Uzani’) was

granted leave by the Gauteng High Cou rt, Pretoria, to institute a private

prosecution against BP Souther n Africa (Pty) Ltd (‘BPSA’) in terms of

NEMA.7 BPSA had initially been indicted on 42 charges. Twenty-one

charges rel ated to the construction of fuel  lling station s in Gauteng with-

out the environment al authorisation requ ired in terms of the Env ironment

Conservat ion Act 73 of 1989 (‘ECA’). The ECA was applicable when

the lling stations were constructed (between 2 March 1998 and

21 April 2006)8 and preceded NEMA. The other 21 charges were fraud

charges, wh ich were withdraw n because the Direc tor of Public Prosec utions

(‘DPP’) infor med Uzani that Uzan i, as the private prosecutor, did not h ave

the same rig ht to prosecute common-law crimes as it had to prosecute

environmental crimes in terms of s 33 of N EMA.

BPSA applied in ter ms of s 24G of NEM A for ‘recticat ion’ (as it

was termed at the time), paid administrat ive nes, and was issued with

environmental authorisations pursuant to this process for seventeen of its

lli ng stations. Nevertheless, on 1 April 2019, BPSA was convicted on

seventeen criminal charges relating to the constr uction of the seventeen

fuel ll ing stations for wh ich it had received s 24G authorisat ions. Arguably

2 Recti cation application, ‘ex post fac to’, ‘after the fact’ or ‘retrospective’

have simi lar mean ings in th is context, me aning a n application process for an

environmental author isation after the act ivities have already commenced.

3 The Nationa l Environ mental Ma nagement Amendment Act 8 of 20 04 and

Proc R1 in GG 27161 of 6 January 2 005.

4 In terms of s 9 of the National Env ironmenta l Manag ement Laws Second

Amendment Ac t 30 of 2013 with eect from 18 Decembe r 2013 as determined i n

GN 152 GG 37401 of 28 February 2 014.

5 Thi s position was commun icated to the author by sen ior enforcement ocial s

durin g February 2021. Th is communication fol lowed the ocials’ par ticipation in

the author’s PhD research, which is subject to ethics clearance (protocol number

H18/11/31 University of the Wit watersrand, 16 November 2018).

6 This app ears to have fol lowed an attempt i n 2012 to instit ute a private

prosecution i n the Johannes burg Regiona l Magist rate’s Court, wh ich did not

continue, appa rently due to lack of resources. Uzan i supra note 1 par a 53.

7 Section 33 of NEM A.

8 This is the timeframe w ithin which t he ECA listed ac tivities a pplied. It was

replaced on 21 Apr il 2006 w ith NEMA listed activities.

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PRIVATELY PROSECUTI NG

‘AFTER THE FACT’ E NVIRONMENTA L AUTHORISATIONS 619

https://doi.org/10.47348/SALJ/v138/i3a8

this had rectied the un lawful activities, but there is debate about the

‘retrospective’ nature of a s 24G authorisation.

The legal feat ures of this judgment are complex; it requires

a consideration of t he intricate and continuous ly changing envir on menta l-

law regime, its implementation, and the purpose ser ved by crim inally

prosecuting these particular transgressions. These considerations inform

the critique of the Uzani case in this article. While there has been some

limited commentar y on the Uzani case,9 those do not consider the issues

examined in this article.

II R ECTIFICATION UNDER SECTION 24G OF NEMA

(a) Introduction, objective s, and amendments

Section 24G of NE MA, when it was introduced in 2005, outlined what

was termed a ‘rect ication’ process. This process appl ied when a person

commenced with a l isted activity w ithout an environmenta l authorisation,

either in term s of NEMA or the preceding ECA. At the time of s 24G’s

introduct ion into NEM A, the rectic ation process requ ired the tran sgressor

to provide a report containing an assessment of the environmental impact

of the unlaw ful activity, how it had been or could be mitigated, and how

it would be managed (by an envi ronmental management pla n). It also

required a public participat ion process in respect of the report.

Based on the 2005 wording of s 24G, it arguably had several objectives.

The rst object ive was to provide a mechanism to ‘rectify’10 unlawful

behaviour and br ing it within appropriate env ironmenta l standards, so

giving eect to the principles in s 2 of NEMA. It created a discretion —

a decision-making author ity could decide either that the environmental

impacts were unacceptable, the act ivity should be ceased, and the

environment rehabilitated; or that the activity should be retrospectively

authorised. The decision-maker would assess the cont ravention in light of

the report provided, and agai nst NEM A’s principles, i ncluding ensuring

socially, environmental ly and economica lly sustainable development.11

The decision-maker would also consider whether the degradation could

or should have been avoided or prevented, or if it could have been,

9 John Rantlo & Ger marie Viljoen ‘A critical apprais al of Uzani Environmental

Advocacy CC v BP So uthern Africa (Pty) Ltd 2 019 (5) SA 275 (GP)’ (2020) 38 Impact

Assessment and P roject Appraisal 441; Madoda Koti ‘Mi sconception on section 24G

of NEMA — E nvironment al law’ (2019) 19 (May) Without Pr ejudice 28.

10 Ba sed on the author’s communications w ith enforcement oc ials dur ing

Februar y 2021, the author unders tands that DFFE i s of the opinion that it doe s not

have the authorit y retrospect ively to de-crim inalise a n activity tha t was unlawf ul,

and that the pr ovisions of the law would have ha d to be explicit if it contempl ated

such a retrospective ‘de-c riminalisation’. This als o illust rates the uncer tainty and

unclear dr afting of s 24G when it was i ntroduced into NEMA.

11 Section 2(3) of NEM A.

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