Private Prosecution for Environmental Crimes Becomes a Reality in South Africa

In South Africa's first ever successful private prosecution of environmental crimes, BP Southern Africa has been found guilty of constructing and upgrading fuel stations without obtaining environmental authorisation.  This watershed decision represents a significant shift in the environmental compliance landscape and changes the narrative of who will hold environmental transgressors to account.

The Pretoria High Court handed down this land mark ruling following criminal complaints made by Uzani Environmental Advocacy in terms of section 33 of the National Environmental Management Act (NEMA).  Section 33 of NEMA provides that any person may institute a private prosecution against a person (natural or juristic) if such person has breached, or threatens to breach, a legal duty which is concerned with the protection of the environment and where the breach of that duty is an offence.

This express provisioning for private prosecution as contained in NEMA is endorsed in section 8 of the Criminal Procedure Act (CPA). Under these circumstances, private prosecution can be instituted without receiving a Director of Public Prosecution (DPP) nolle prosequi certificate. However, a party wishing to institute private prosecution in terms of section 8 of the CPA may only exercise this right after having consulted with the relevant attorney-general, and once the attorney-general has withdrawn his or her right of prosecution in respect of the specified offence.

It is through BP's application to obtain retrospective environmental authorisation in terms of 24G of NEMA (following the unlawful construction of the petroleum filling stations) that they have found themselves subject to this private prosecution.  A section 24G authorisation is essentially an admission of guilt for unlawfulness under NEMA, which admission attracts an administrative fine of up ZAR 5 million. The payment of the administrative fine does not however preclude the DPP from instituting criminal prosecution in respect of the unlawfully commenced activities, as is recognised in NEMA.

This judgment paves the way for private prosecution of environmental crimes, in instances where the state either lacks capacity or is reluctant to hold environmental transgressors to account.  The primary effects of the judgment as delivered by Judge Spilg are as follows:

  • both private and juristic persons may institute and conduct private prosecutions following compliance with section 33 of NEMA, as read with section 8 of the CPA, where such prosecutions are in the public interest or in the interests of the protection of the environment;
  • private prosecutions are applicable to section 24G environmental authorisations;
  • section 24G authorisations obtained post-construction of developments was confirmed to be qualitatively inferior in comparison to a more rigorous pre-construction Environmental Impact Assessment process - as has always been contended by environmental lobbyists and NGOs;
  • NEMA private prosecutions must be limited to environmental crimes and exclude common law offences such as fraud and perjury, which fall within the jurisdiction of the DPP and CPA; and
  • application of the consultation requirement under section 8(2) of the CPA as read with section 33(2) of NEMA, is intended to facilitate and encourage compliance with the relevant legal requirements, in a manner which makes it easy to fast track private prosecutions relating to environmental offences.

Based on the current success of this prosecution (we anticipate that BP will take the judgment on appeal to the Supreme Court of Appeals), it won't be surprising if Uzani pursues similar private prosecution against the other corporations identified in the regulator's section 24G register, which we understand includes cellular service providers, mining companies, petroleum companies and local authorities. It is also likely that private persons as well as civil society organisations will take a keen interest in this development and we may see a flurry in the establishment of individual environmental crime private prosecution units.