South Africa

International Treaties

Sustainable Development

Environmental Law

Case Studies

Corruption Perceptions Index

image

Environmental Crime Legal Framework in South Africa

South Africa’s constitution contains provisions for the protection of the environment. Article 24 states: Everyone has the right-
A. To an environment that is not harmful to their health or well-being

  • prevent pollution and ecological degradation
  • promote conservation
  • secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

    • B. To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that.

    Featured Legislation

    1998: The Marine Living Resources Act was passed. The Act concerns the establishment of continuation of several institutions involved in fisheries management and conservation of marine living resources, for the conservation of marine living resources and the regulation of commercial and local fishing. Local fishing means fishing by South Africans. Commercial fishing includes fishing by foreigners. Part I of Chapter 3 makes provision for fisheries management plans and fishing priority areas. One Part of Chapter 3 is entirely dedicated to high seas fishing. Chapter IV provides for the establishment of marine protected areas. Remaining provisions of the Act concern the use of gear and prohibited activities and law enforcement. Section 81 allows the Minister to exempt anyone from the provisions of this Act if the Minister is of the opinion that there are sound reasons for doing so. (86 sections divided into 8 Chapters and completed by a Schedule containing modifications of other laws).

    1998: The National Water Act was signed. This Act makes provision for the conservation and development of water resources in South Africa. The purpose of this Act is to ensure that the nation's water resources are protected, used, developed, conserved, managed and controlled in ways which take into account amongst other factors: promoting equitable access to water; redressing the results of past racial and gender discrimination; promoting the efficient, sustainable and beneficial use of water in the public interest; facilitating social and economic development; protecting aquatic and associated ecosystems and their biological diversity; meeting international obligations.

    1998: The National Environmental Management Act was approved. This Act sets out principles for environmental governance and provides with respect to an institutional framework for environment protection in South Africa. It also provides with respect to implementation of international agreements and compliance and enforcement in general. The Act consists of 53 sections divided into 10 Chapters and an interpretation section.

    2004: The National Environmental Management: Air Quality Act was ratified. It reforms the law regulating air quality in order to protect the environment by providing reasonable measures for the prevention of pollution and ecological degradation and for securing ecologically sustainable development while promoting justifiable economic and social development. It also provides for national norms and standards regulating air quality monitoring, management and control by all spheres of government; for specific air quality measures; and for matters incidental thereto.  The Act provides for the protection and enhancement of the quality of air in the Republic and the prevention of air pollution and ecological degradation. Objects of the Act are set out in section 2. 

    2008: The National Environmental Management: Waste Act was promulgated. This Act makes provision with respect to measures to improve waste management practices, including: (a) minimizing the consumption of natural resources; (b) prevention and minimizing the generation of waste; (c) reducing, reusing, recycling and recovering waste; (d) treating and safely disposing of waste as a last resort; (e) preventing pollution and ecological degradation; (f) promoting and ensuring the effective delivery of waste services; (g) rehabilitating land where contamination presents, or may present, a significant risk of harm to health or the environment: and (h) achieving integrated waste management reporting and planning.

    2008: The National Energy Act was instituted. This Act aims at development and maintenance of sources of energy and infrastructure for the storage, transportation and distribution of energy in the Republic of South Africa and for this purpose establishes the South African National Energy Development Institute and charges this institution and other competent authorities with duties and powers in the field of integrated energy planning and development.

    2019: The Carbon Tax Act introduced. This Act, imposes a carbon tax for the benefit of the National Revenue Fund. A carbon tax is a tax on the carbon dioxide (CO2) equivalent of greenhouse gas emissions. A person is— (a) a taxpayer for the purposes of this Act; and (b) liable to pay an amount of carbon tax as calculated in accordance with this Act, if that person conducts an activity in South Africa resulting in greenhouse gas emissions above the threshold set out in Schedule 2. The carbon tax must be levied in respect of the sum of the greenhouse gas emissions of a taxpayer in respect of a tax period expressed as the carbon dioxide equivalent of those greenhouse gas emissions resulting from fuel combustion and industrial processes, and fugitive emissions in accordance with the emissions factors determined in accordance with a reporting methodology approved by the Department of Environmental Affairs. A taxpayer that conducts an activity in respect of fuel combustion emissions that is listed in Schedule 2 must receive an allowance in respect of those emissions. There are various types of allowances. The Commissioner must annually submit to the Minister a report, in the form and manner that the Minister may prescribe, within six months from the date of submission of environmental levy accounts and payments, advising the Minister in respect of that tax period of— (a) the total amount of greenhouse gas emissions reported in respect of which taxpayers are liable for the carbon tax; and (b) the amount of carbon tax collected.

    2014: The Alien and Invasive Species Regulations were inaugurated. These Regulations implement provisions of the National Environmental Management: Biodiversity Act with respect to control of alien and invasive species in South Africa. The Minister of Water and Environmental Affairs shall be the issuing authority for permits authorizing the carrying out of a restricted activity involving a specimen of an alien or a listed invasive species of plant or animal. The issuing of permits is regulated by sections 65-67 of the Act. The Regulations provide, among other things, for: compliance with species management programmes; monitoring, control and eradication; definition of restricted activities; lists of alien or invasive species; registration of permits; risk assessment; and emergency interventions and additional control measures.

    Featured Case Studies: Transnational Environmental Crime, Human Security, and Biosecurity

    • In 2019, the high court in Pretoria found Oil giant BP guilty on eight counts of building petrol stations without first obtaining the necessary environmental clearance. According to South African environmental legislation, this can come with jail time or – more likely in this case – a fine based on multiples of the value of the filling stations it built. Political commentators suggest that the judgment against BP opens the door for a large number of similar prosecutions, perhaps on thousands of counts of historic environmental crimes never prosecuted by the state. It also signals the creation of a special non-governmental vehicle specifically geared to train environmental lawyers and entrepreneurs, funded by the proceeds of the fines against BP. This is South Africa's first-ever successful private prosecution of environmental crimes in terms of long-standing legislation designed to enable private individuals and groups to hold environmental criminals to account if the state fails to do so. BP was brought to justice by a relatively unknown environmental group Uzani Environmental Advocacy, headed by lawyer Gideon (Kallie) Erasmus. BP has mounted a defence against the group, stating that Uzani had no right to initiate the prosecution, because it was being put in double jeopardy, as it had already paid civil fines in a “rectification process" commonly used in cases where environmental rules are broken. South Africa's National Environmental Management Act (Nema) allows for both civil fines and criminal prosecution, “facilitating, if not encouraging” interest groups to pursue environmental criminals – and suggested that the government was failing to do that. Monies won from this case will be used to set up an incubator for young environmental lawyers and entrepreneurs, as well as a virtual school for environmental governance, law, and entrepreneurship. In terms of the law, BP could be liable for fines of R100,000 on each count – plus up to three times the commercial value of the petrol stations it built.

    References and Further Reading

    Contacts

    Directorate of Environment & Climate Change: dg@environment.gov.so

     

     

    Powered by Vivify Marketing