CRIMINAL CONVICTIONS FOR LOCAL MUNICIPALITIES

NATIONAL ENVIRONMENTAL COMPLIANCE & ENFORCEMENT REPORT 2022/23

The annual NATIONAL ENVIRONMENTAL COMPLIANCE & ENFORCEMENT REPORT for 2022/23 was released by the Department of Forestry, Fisheries and Environment on 12 December 2023.

According to the Department, the 2022/23 National Environmental Compliance and Enforcement Report (NECER) showcases the successes and challenges experienced by the Environmental Management Inspectorate, known as the Green Scorpions.

Some of the more significant sentences handed down by the courts for environmental offences during 2022/23, include criminal convictions against two local municipalities for environmental pollution.

State v Rand West City Local Municipality (represented by Themba Goba)

Charges:

Contravention of Section 151(1)(d) & (i) and 151(2) of the National Water Act as a result of sewage pollution to a water resource.

Judgment/Sentence:

The accused pleaded guilty in terms of S105A of the CPA and was sentenced to a fine of R3 000 000-00 which was wholly suspended for a period of 5 years on a number of conditions.

S v Matjabeng Local Municipality (represented by Zingisa Khutaza Tindleni)

SAPS received information regarding Health Care Risk Waste that was disposed of at the Matjhabeng Landfill site, Odendaalsrus, which was not authorised to accept such waste.

Charges

• Section 49A(1)(e) of NEMA;

• Section 49A(1)(k) of NEMA

Judgment/Sentence:

The accused pleaded guilty in terms of Section 105A of the CPA and was sentenced to a fine of R1 000 000-00 wholly suspended for a period of five (5) years on condition that the landfill be brought into compliance with the NEM:WA and comply with the compliance notice.

Appropriateness of the Sentences

Whilst the significant sentences (R3m and R1m fines) against the errant municipalities are welcomed, the appropriateness of the fines against the municipalities (as opposed to the responsible officials) is called into question.

Convictions against the Municipalities as a legal entity, means that the fines are payable by the Municipality (and by implication, the ratepayer/taxpayer), with little or no consequences for the officials who were actually responsible for the environmental offence.

Hopefully, in future cases, a proper enquiry in terms of s34(6) of the National Environmental Management Act 107 of 1998 (NEMA) will be conducted, as to the criminal liability of the individual officials concerned.

Section 34(6) of NEMA provides for the conviction and sentencing of an employee/official where he or she omitted to do an act which was his or her task to do or refrain from doing, on behalf of the employer.