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

• Jurisdiction: South Africa
• Judge: Spilg J
• Judgment Date: 01 April 2019
• Citation: 2019 (5) SA 275 (GP)
• Docket Number: 82/2017
• Hearing Date: 01 April 2019
• Counsel: SF Burger SC (with JAL Pretorius) for the prosecution. MR Hellens SC (with DJ Joubert SC) for the accused.
• Court: Gauteng Division, Pretoria

Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd
2019 (5) SA 275 (GP)

2019 (5) SA p275

Citation	2019 (5) SA 275 (GP)
Case No	82/2017
Court	Gauteng Division, Pretoria
Judge	Spilg J
Heard	April 1, 2019
Judgment	April 1, 2019
Counsel	SF Burger SC (with JAL Pretorius) for the prosecution.; MR Hellens SC (with DJ Joubert SC) for the accused.

Flynote : Sleutelwoorde

Environmental law — Environmental legislation — Enforcement — Private prosecution — Whether permissible after application made for rectification of unlawful commencement or continuation of listed activities — National Environmental Management Act 107 of 1998, ss 24G and 33. C

Environmental law — Environmental legislation — Enforcement — Private prosecution — Requirements for instituting — Consultation between applicant and national prosecuting authority — What constitutes 'consultation' — National Environmental Management Act 107 of 1998, s 33; Criminal Procedure Act 51 of 1977, s 8(2). D

Environmental law — Environmental legislation — Enforcement — Rectification of unlawful commencement or continuation of listed activity — Effect of application for rectification on private prosecution for unlawful commencement of listed activity — Status of rectification report — National Environmental Management Act 107 of 1998, s 24G. E

Headnote : Kopnota

The prosecutor (Uzani), an environmental advocacy group, had obtained the High Court's leave to institute a private prosecution as contemplated in s 33 of the National Environmental Management Act 107 of 1998 (NEMA). [*] Uzani charged the accused (BPSA) with commencing or continuing the construction of 21 filling stations without environmental authorisation, as F required by s 22 of the Environmental Conservation Act 73 of 1989 (the ECA). BPSA pleaded not guilty, and also denied Uzani's entitlement to prosecute. In the latter regard, some of the grounds BPSA advanced were the following:

(a)

The fact that BPSA had applied under s 24G of NEMA [*1] for rectification of G the impugned activities precluded private prosecution under s 33. This was so, BPSA contended, because on a proper interpretation of s 24G(6), only the National Prosecuting Authority (NPA) was allowed to prosecute once an application had been made under s 24(G)(1) or environmental authorisation was granted under s 24G(2)(b).

(b)

There was no prior consultation with the Director of Public Prosecutions (the DPP) H as required by s 33(2) of NEMA read with s 8(2) of the Criminal Procedure Act 51 of 1977 (the CPA), [*2] which would in turn

2019 (5) SA p276

require A the DPP to be possessed of sufficient information to make an informed decision, which was not the case here.

(c)

The prosecution failed to prove that it was in the interest of the environment. BP submitted, inter alia, that there was no evidence that any of the filling stations posed a risk to the environment. Uzani offered expert evidence as to the need for environmental authorisation prior to B filling stations being erected, the expert testifying that, for the purposes of environmental protection, a post-construction application under s 24G was qualitatively inferior to the more rigorous requirements of an environmental assessment report because refusing a rectification report was not a realistic option as it would lead to job losses. (See [33] – [37].)

Held as to (a) C

Section 33 did not commence with the words 'Subject to s 24G'. It was formulated in unequivocal terms and its purpose was manifest. If there was an ambiguity between the unequivocal formulation of s 33 and the provisions of s 24G(6), then it must be resolved by an interpretation that would not lead to an absurdity but that would be consistent with the legislation D read as a whole. It would be absurd to suggest that the moment an application was brought under s 24G(1) a private prosecution was not competent whereas a prosecution initiated by the NPA would be. There was no logic indicating why there should be such a discrimination when s 24G effectively provided for an administrative penalty, which did not impact on a right to prosecute. (See [106] – [113].)

Held as to (b) E

Section 33(2) of NEMA was couched in terms that facilitated, if not encouraged, interest groups wishing to protect the environment. It achieved this by compelling compliance with the environmental laws in a manner which facilitated fast-track private prosecutions for offences under NEMA. On the evidence presented, there was consultation, bearing in mind that a consultation F need not necessarily be face to face (but may be satisfied by a phone call or the exchange of correspondence) to reach consensus.

Held as to (c)

Uzani's expert evidence regarding the degradation that can be caused by storage tanks, the failure upfront to produce an EIA report and the failure of any applications for authorisation under s 24G to provide rectification reports G demonstrated that the prosecution was in the interest of the protection of the environment. While the expert's claim that post-construction approval under s 24G was inferior to that required pre-construction was challenged, he stood his ground and his reasoning would be accepted as reliable. (See [37] and [101].)

Held as to whether the offences were proved H

Uzani only had to rely on the lack of authorisation by the minister or the competent authority (aside from proving the construction or upgrading of the filling stations referred to in the indictment and the date of its commencement). It was for BPSA to rebut the presumption of lack of I authority (in s 250(1) of the Criminal Procedure Act 51 of 1977). In making an application under s 24G of NEMA, BPSA admitted that it had 'commenced with a listed or specified activity without an environmental authorisation in contravention of section 24F(1)'. The fail-safe position was that the terms of a s 24G application (without explanation) amounted to a statement against interest. The accused would be convicted on all counts, except those in respect of which the records created sufficient doubt J (counts 3, 4, 7 and 10). (See [121] – [122], [127] and [129].)

2019 (5) SA p277

Cases cited

Southern Africa A

Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others 2007 (6) SA 4 (CC) (2007 (10) BCLR 1059; [2007] ZACC 13): applied

National Director of Public Prosecutions and Another v Mohamed NO and Others B 2003 (4) SA 1 (CC) (2003 (1) SACR 561; 2003 (5) BCLR 476; [2003] ZACC 4): dictum in para [40] applied

Pather and Another v Financial Services Board and Others 2018 (1) SA 161 (SCA) ([2017] 4 All SA 666; [2017] ZASCA 125): applied

Porritt and Another v National Director of Public Prosecutions and Others C 2015 (1) SACR 533 (SCA) ([2015] 1 All SA 169; [2014] ZASCA 168): applied

S v Fransman 2000 (1) SACR 99 (W): applied

Tax Board Decision No 198 (Gauteng West Tax Board; 1 November 2004): referred to

Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd [2017] ZAGPPHC 749: referred to. D

England

Han v Commissioners of Customs & Excise [2001] 4 All ER 687 (CA) ([2001] EWCA Civ 1040): referred to.

Legislation cited

The Criminal Procedure Act 51 of 1977, s 8(2): see Juta's Statutes of South Africa 2018/19 vol 1 at 2-276 E

The National Environmental Management Act 107 of 1998, ss 24G and 33: see Juta's Statutes of South Africa 2018/19 vol 6 at 3-204 and 3-218.

Case Information

SF Burger SC (with JAL Pretorius) for the prosecution. F

MR Hellens SC (with DJ Joubert SC) for the accused.

A private prosecution of environmental offences.

Order

1.

The accused is convicted on counts 1, 2, 5, 6, 8, 9 and 11 – 21, inclusive G of contravening s 22(1) read with ss 21(1) and 29(4) of the ECA and item 1(c) of sch 1 and sch 2 of Government Notice R1182 of 5 September 1997.

2.

The accused is acquitted on counts 3, 4, 7 and 10.

Judgment

Spilg J: H

Introduction

[1] Pursuant to being granted leave on 29 June 2017 by Judge President Mlambo, Uzani Environmental Advocacy (CC) (Uzani) instituted a private prosecution against BP Southern Africa (Pty) Ltd (BP) out of the I Gauteng Division. Uzani claimed that it had complied with all the legislative requirements set out in s 33 of the National Environmental Management Act 107 of 1998 (NEMA) to enable it to initiate such a prosecution. As appears later this was put in issue.

[2] Counts 1 – 21 of the indictment alleged that BP had contravened s 22(1) read with ss 21(1) and 29(4) of the Environmental Conservation J

2019 (5) SA p278

Spilg J

Act 73 of 1989 A (ECA) read with item 1(c) of sch 1 and sch 2 of the regulations promulgated in terms of that Act under Government Notice R1182 of 5 September 1997 (GN R1182). [1] Counts 22 – 42 alleged the commission of certain acts of common-law fraud.

[3] After the combined writ of summons and indictment had been B served, the Judge President directed that the matter be provisionally enrolled on 4 September 2017.

Hearings

Hearing of 4 September 2017 (pre-plea issues) C

[4] At the hearing of 4 September a number of pre-trial issues were dealt with and the following order was made by consent. Omitting certain unnecessary provisions, it reads:

'1.

In the event that the prosecution by Uzani Environmental Advocacy D (CC) (Uzani) is competent the representative of BP Southern Africa (Pty) Ltd (BP) as identified in the indictment is replaced by Ms Julia Stewart.

2.

In respect of counts 22 to 42:

(a)

it is recorded that Uzani has not obtained a nolle prosequi and has not provided security for costs and contends that it does E not require either as it is pursuing the prosecution under s 32 of NEMA;

(b)...