Learning Unit 9:

Criminal Law Measures

11 September 2023
 This Lecture

Introduction

Enforcement in terms of
Criminal Law

Criminal Sanctions

Enforcement in terms of
Civil Law
Introduction
Introduction
• Actions that constitute an offence
in environmental law
• Criminal measures/ criminal law
involves the judiciary
(court/courts)
• Who is responsible for bringing
the alleged offender to court?
• Penalties for guilt: penalty in the
form of a fine or imprisonment.
(amongst others)
Enforcement in terms of Criminal Law
Enforcement in terms
of Criminal Law
• Control actions that contravene
the law
• Criminal penalties (measures) for
offences
• In environmental law:
• Environmentally harmful activity is
outlawed
• Act of doing something/ failure to
do something = offence
Criminal Sanctions
Criminal Sanctions

Section 49A NEMA Specific Environmental Section 34 NEMA Prosecution of firms,

Management Acts directors and employers
(Section 34 NEMA)

Private prosecutions Criminal Procedure Act Prevention of Organised

(section 33 NEMA) Crime Act
NEMA s49A
• Group 1: offences related to EMIs
• A person is guilty of an offence if they:
• hinder or interfere with the functioning of an
EMI in the execution of the inspector’s official
duties
• pretend to be an EMI, or the interpreter or
assistant of such an inspector
• furnish false or misleading information when
complying with the official request of an EMI
• fail to comply with the official request of an
EMI
• A person who is convicted of an offence in terms of
any of the above is liable to a fine (the amount of
which is unspecified in the section) or to
imprisonment for a period not exceeding one year
or to both a fine and such imprisonment.
NEMA s49A
• Group 2: offences related to exemptions
and disclosing information
• A person is guilty of an offence if they:
• fail to comply with, or contravene, any
condition that applies to an exemption
granted
• disclose information about any other person,
if that information was acquired while
exercising or performing any power or duty
(in terms of section 31Q(1))
• A person who is convicted of an offence
in terms of any of the above is liable to a
fine (the amount of which is unspecified
in the section) or to imprisonment for a
period not exceeding one year or to both
a fine and such imprisonment.
NEMA s49A
• Group 3: further offences
• A person is guilty of an offence if they:
• commence with a listed activity without
having first obtained environmental
authorisation to undertake the activity
(see learning unit 6 for information on
such authorisation)
• fail to comply with any applicable norm
or standard, typically, where they are
exempted from obtaining an
environmental authorisation, and where
certain norms or standards are applicable
• fail to comply with, or contravene, any
condition that is applicable to an
environmental authorisation or to an
environmental management programme
NEMA s49A
• Group 3: further offences
• A person is guilty of an offence if they:
• fail to comply with a directive or compliance
notice
• unlawfully and intentionally or negligently
commit any act or omission that causes
significant pollution or degradation of the
environment, or that is likely to cause significant
pollution or degradation of the environment
• unlawfully and intentionally or negligently
commit any act or omission that detrimentally
affects or that is likely to detrimentally affect
the environment
• A person who is convicted of an offence in
terms of any of the above is liable to a fine
not exceeding R10 million, or to
imprisonment for a period not exceeding ten
years, or to both such a fine and such
imprisonment
SEMAs
• The NWA, in section 151(1), creates offences
• For the first conviction, the fine cannot exceed R100
000, or the imprisonment cannot exceed a period of
five years, as neither can such fine and such
imprisonment.
• For the second or subsequent conviction, the fine
cannot exceed R200 000, or the imprisonment cannot
exceed ten years, as neither can such fine and such
imprisonment.
• The court can award (damages by…)
• award damages against the convicted offender
• order the accused to pay for the cost of any
remedial measures implemented or to be
implemented
• order that the remedial measures to be
implemented be undertaken either by the
accused or by the relevant water management
institution
SEMAs
• The NEM: BA, in section 101(1)(a), creates
offences
• A convicted person is liable to a fine not
exceeding R200 000 or to imprisonment for a
period not exceeding ten years, or to both such
a fine and such imprisonment.
• If a person is convicted of an offence involving a
specimen of a listed threatened or protected
species, a fine may be determined
• The determination may be either R200 000 or it
may be equal to three times the commercial
value of the specimen in respect of which the
offence was committed, whichever is the greater
amount involved.
SEMAs
• The NEM: PAA, in section 89(1)(a),
creates offences:
• For the first conviction, the penalty is a
fine not exceeding R5 million, or
imprisonment for a period not
exceeding five years, or both such a fine
and such imprisonment.
• For the second or subsequent
conviction, the penalty is a fine not
exceeding R10 million, or imprisonment
for a period not exceeding ten years, or
both such a fine and such imprisonment.
SEMAs
• The NEM: AQA, in section 51(1)(a),
offences
• For the first conviction, the fine may not
exceed R5 million, or imprisonment for
longer than five years, or both such a
fine and such imprisonment.
• For the second or subsequent
conviction, the fine may not exceed R10
million, or the imprisonment may not
exceed a period of ten years, or both
such a fine and such imprisonment.
SEMAs
• The NEM: WA creates a number of offences
related to waste management
authorisations. The Act lists a number of
waste management activities that require
authorisation in terms of the Act. Where a
person or company engages in any such
activity, it is required to have authorisation
to do so. The listed activities are divided into
Category A and Category B activities. Usual
activities deal with the storage, transfer,
recycling, recovery, treatment and disposal
of waste. The failure to obtain such an
authorisation or the failure to comply with
certain thresholds applicable to the
authorisation is a criminal offence.
SEMAs
• The NEM: ICMA creates offences in
section 79
• Category 1 offences…
• A person who is convicted of a category
one offence may be sentenced to a fine
of up to R5 million, or to imprisonment
for a period of up to ten years, or to
both such a fine and imprisonment.
SEMAs
• The NEM: ICMA creates offences in
section 79
• Category 2 offences…
• A person who is convicted of a category
two offence may be sentenced on a first
conviction for the offence to a fine of up
to R2 million, or to imprisonment or
community service for a period of up to
five years, or to both such a fine and
imprisonment or community service.
NEMA s34
• Section 34 of the NEMA names a number of key
impacts on criminal measures that apply to
environmental offences. The key impacts of section
34 environmental offences include
• increased penalties/fines
• the forfeiture of items/goods used in the
offence
• the issuing of cost orders against the offender
• the withdrawal of environmental
authorisations and/or permits
• the issuing of spot fines and admission of guilt
fines
• provision for the criminal prosecution of firms
and their directors and employers, for
environmental offences
NEMA s34

• Director liability; Companies and

partnerships; Board members; Executive
committees; Other managing bodies;
Members of closed corporations;
Partnerships
• Managers, agents, employees
• Personal capacity or company liability (or
both)

• Such liability applies in instances where

they have done, or have omitted to do, an
assigned task, while acting on behalf of
the employer.
NEMA s34

• Private prosecution (Excluding organs

of state)
• Prosecutions under section 33 of the
NEMA are not limited to offences
under the NEMA
• They can be for any offence committed
in breach of any duty in terms of the
national and provincial legislation, and
in terms of any by-law, where such a
duty is concerned with the protection
of the environment, and where the
breach of that duty is a criminal
offence
Criminal Sanctions
Criminal Procedure Act
• In terms of Section 31A of the NEMA,
offences listed under Section 49A of the
NEMA and the SEMAs are considered as
Schedule 1 offences under the CPA. They
may, therefore, result in the imposition
of a fine or jail sentence on conviction
for an offence. The environmental
offences listed in section 49A of the
NEMA (above) and those that are listed
in the SEMAs form part of the offences
that are listed in Schedule 1 of the CPA.
In terms of the CPA, law enforcement
officers (including environmental
inspectors) may arrest those who are
linked to such offences.
Prevention of Organised Crime
Act (POCA)
• Focuses on combating organised crime,
money laundering and criminal gang
activities
• POCA criminalises a number of activities
that are linked to organised crime
• POCA has a special focus on the proceeds of
criminal gang activities
• The receiving of property (money and/or other
assets) from racketeering activities, and any
subsequent use or investing thereof, is a criminal
offence.
• Any person who knows or who ought reasonably to
have known that the property or proceeds involved
derived from racketeering activities is guilty of an
offence
• The penalties imposed by the POCA are
severe and include a fine of up to R1 000
million, or lifelong imprisonment
Crimes that Affect the Environment
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under “Additional Resources
Enforcement in terms of Civil Law
Introduction
• Private law vs public law
• Private law remedies (civil law
remedies)
• Civil law is able to respond to unique
facts that apply to a specific dispute,
which makes such law inherently
flexible.
• The civil law forms of judicial
enforcement that we’ll now investigate
are the interdict, the mandamus and
the Aquilian action.
Interim Interdict
• Interim Interdict
• a prima facie right
• well-grounded apprehension of
irreparable harm, if the interim
relief is not granted
• that the balance of convenience
favours the granting of the interim
relief
• that no other satisfactory remedy
is available
Interdicts: Shell interdict 2022
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under “Additional Resources
Final Interdict
• When applying to the High Court
for a final interdict, the applicant
must show that
• they have a clear right
• the right has been infringed, or
there is a reasonable probability
that the right may be infringed in
future
• there is no other appropriate
remedy available
Aquilian Action (Delict)
• When applying to the court to claim
damages in terms of the Aquilian
action, the applicant must prove
the following requirements:
• a wrongful act or omission on
the part of the defendant
• fault (in the form of either
intention or negligence) on the
part of the defendant
• causation (i.e. that the action
caused the damage or loss
complained of)
• the actual amount of loss (i.e.
damages) suffered
Mandamus
• A mandamus is a type of
mandatory interdict that is aimed at
compelling an administrative body
to perform its statutory duty.
• However, a mandamus cannot
stipulate how the power concerned
should be exercised.
• The difference between the
interdict and the mandamus is that
the former prohibits unauthorised
conduct, while the mandamus
demands compliance with a
statutory duty or the remedying of
a state of affairs brought about by
illegal action
We made it!! All done!!
Questions