1. Targets, Trends and Tips
ENVIRONMENTAL SEMINAR 11 MAY Environmental Compliance and Enforcement
Targets, Trends and Tips

2. Tina Terblanche Senior Associate, Bowmans
Back to basics: administrative and criminal legal principles in environmental law enforcement
Tina Terblanche
Senior Associate, Bowmans

3. BASIC LEGAL PRINCIPLES
Legal interpretation
Administrative law
Criminal law

4. INTRODUCTION: BASIC LEGAL PRINCIPLES
legal interpretation principles
administrative law principles
criminal law principles
Basic legal principles sometimes overlooked in the context of environmental enforcement by –
enforcement authorities
persons subject to enforcement action
Basic administrative, criminal, and legal interpretation principles are often overlooked in the context of environmental enforcement

5. Importance of legal principles
Principles inform –
meaning of legal rule
application of the legal rule
the scope of the power of the authority
the procedure that must be used
when enforcing the rule
Why these principles are important:
Effect should be given to the intention of the legislature, which created enforceable legal rule for a reason. Correct interpretation of the rule paramount, as is correct procedure.
- Companies prosecuted or issued with directives/notices should understand the nature of the charge against them, whether the authority has the power to take the action, and whether fair procedure has been followed

6. Types of enforcement action
ADMINISTRATIVE
S24G rectification notice
Pre-compliance notice / compliance notice
Pre-directive / directive
CRIMINAL
Prosecution
There is a suite of environmental enforcement mechanisms
Whether the specific enforcement mechanism involves administrative action or criminal prosecution will determine
how you should respond and represent information
How you should deal with officials
Get into the right headspace as to whether you are defending administrative action or criminal prosecution

7. What does
the law say?

8. Legal interpretation principles
Meaning and application of legal rule
Common-law rules and presumptions
Purposive interpretation
General rule: prospective application (not retrospective)
Restrictive interpretation of penal provisions
Legal interpretation principles are principles derived from the common law and case law that determine how meaning is given to legal rules
Environmental crimes are almost exclusively contained in statutes
Ordinarily the plain wording of the statute is used to determine the meaning, but where this is not possible, the principles of interpretation are applied.
A legal provision must be interpreted in line with the purpose of the statute.
Judicial precedent
case law used to interpret legal provisions
Important that authorities understand how judicial precedent works
e.g. decision binding on lower court versus enforcement authority
General rule: legal provisions do not apply retrospectively
Example: EA not required if activity starts before it is listed
E.g Listed Activities not applicable to activities undertaken prior to their coming into effect

9. Legal interpretation principles
EXAMPLE
NEMA section 49A(1)(f): offence if person-
"(f) unlawfully and intentionally or negligently commit any act or omission which detrimentally affects or is likely to detrimentally affect the environment...“
What is the threshold?
No qualification that unlawful “detrimental affect” must be significant
Liability can be based on intentional or negligent act or omission.
Crime of “unlawfully and intentionally or negligently commit[ing] any act or omission which detrimentally affects or is likely to detrimentally affect the environment”.
Company and its directors are exposed to potential fines of R10 million and imprisonment for up to 10 years
“Unlawfulness” easily inadvertently triggered
Different thresholds (or levels of stated significance) may apply with regard to different requirements in law.
What is this threshold of a “detrimental affect” to the environment, as contemplated in this crime?
there is no qualification that the unlawful “detrimental affect” must be significant;
criminal liability can be based on negligence or omission.
Uncertainty around any crime is undesirable.
100% compliance can become almost impossible to achieve.

10. Restrictive interpretation of penal provisions
Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC)
“The restrictive interpretation of penal provisions is a long-standing principle of our common law. Beneath it lies considerations springing from the rule of law. The subject must know clearly and certainly when he or she is subject to penalty by the state. If there is any uncertainty about the ambit of a penalty provision, it must be resolved in favour of liberty.” (para 130)

11. Presumption against retrospective application of legal rules
Example: Changes in environmental laws
ECA
1989
ECA Listed Activities
1997
NEMA
1998
NEMA Listed Activities
2006
2010
2014
2017

12. Presumption against retrospective application of legal rules

13. CRIMINAL LAW PRINCIPLES
Elements of a crime
Conduct
Definitional elements
Unlawfulness
Causation
Fault

14. Criminal law principles
All the elements of a crime must be proven for liability to ensue
State must prove the elements beyond a reasonable doubt
Different forms of liability
Individual and corporate criminal liability
Strict liability and vicarious liability
Allegations must be supported by evidence
Individual and corporate criminal liability
Strict liability and vicarious liability
Most crimes require fault
In crimes requiring fault (no strict liability) intention/negligence must be proven
Standard of proof: beyond a reasonable doubt
Difficult to prove negligence

15. Who has authority to enforce?

16. ADMINISTRATIVE law principles
Rule of law: power derived from empowering provision
Authorities must act within scope of power
Fair procedure must be followed
Administrative action can be reviewed under PAJA
Administrative law principles apply to pre-compliance notices, compliance notices and directives
Rule of law: power of authority derived from empowering provision.
- The scope of the authority’s power determines by whom, against whom and in which circumstances the rule may be enforced
- Actual powers may differ from authorities’ understanding of what they are legally entitled to do
- Example: inspectors appointed under NWA cannot enforce NEMA
Fair procedure depends on the principles of administrative justice and the content of the specific statute
- PAJA: must be notified; representations; clear statement; notice of appeal/review; reasons
- Example: verbal request that company ceases operations (issue: adequacy of notice – depends on facts)
Consequences of failure to adhere to administrative law principles: decision can be taken on review in the High Court

17. Know when to question…

18. What is the trick? KNOW: when and how to question enforcement action
how to respond to authorities
how to gather and present evidence to illustrate compliance
how to illustrate that reasonable steps are being taken in the case of non- compliance (i.e. what has been done to rectify)
When specialist legal advice is needed
Pre-compliance/compliance notices etc. must be questioned timeously
Do not simply accept notices as legally compliant
Know how to respond to authorities and which evidence to provide to prove compliance
Know how to proceed when you are not compliant
Respond to everything
Do you incriminate yourself
Show that conduct is not an offence
Show how you are taking steps to correct non-compliance
Know when to seek legal advice (complicated notices)

19. The devil is in the detail…

20. Bowmans Office Contacts
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21. Thank you