The largest criminal penalty imposed for environmental offences in South Africa to date was recently handed down by a South African court. The conviction is also a marked shift away from administrative penalties that the Department of Environmental Affairs usually imposes for breaches of environmental legislation.

On 17 October 2012 the Ermelo Regional Court in Mpumalanga (the court) convicted Golfview Mining (Pty) Ltd (Golfview) of various contraventions of the National Environmental Management Act, No. 107 of 1998 and the National Water Act, No. 36 of 1998 and imposed a fine of ZAR 4 million.

Golfview's offences included:

• illegally mining in a wetland;
• the diversion of water resources;
• inadequate pollution control; and
• the unauthorised transformation of three hectares of indigenous vegetation.

The conviction and sentence was imposed as part of a plea agreement in terms of which Golfview is required to pay ZAR 1 million each to the Mpumulanga Department of Economic Development; the Department of Environmental Affairs and Tourism; the Mpumalanga Tourism and Parks Agency; and the Water Research Council.

An additional ZAR 1 million penalty has been conditionally suspended for five years. The court also imposed an order that forces Golfview to rehabilitate the wetland according to an approved rehabilitation report. The potential cost of the rehabilitation has been estimated at between ZAR 50 and ZAR 100 million.

The conviction follows the conviction and sentencing of Anker Coal and Mineral Holdings (Pty) Ltd (Anker Coal) and its director Albrecht Frick in April this year for similar infringements of environmental legislation and the Mineral and Petroleum Development Resources Act, No. 28 of 2002.

The conviction of Anker Coal was the first time that a mining company has been held criminally liable for the contravention of environmental legislation. It was also the first time that provisions of environmental legislation were invoked to hold a director of a mining company criminally liable.

The Golfview conviction is significant not only because of the large fine imposed by the court, but also because it demonstrates that non-governmental authorities and other private persons are prepared to institute criminal proceedings where the environmental authorities are slow or reluctant to do so, and that the prosecuting authority is pursuing prosecutions of companies and directors.

With the risk of substantial criminal penalties and fines (of up to ZAR 10 000 000 and ten years imprisonment) that may be imposed under various environmental legislation ― and clear evidence that the prosecuting authority is pursuing prosecutions of both companies and directors ― the need for expert advice on environmental law aspects becomes even more important.

Written by:
Marius Diemont | Partner
Tel: +27 21 431 7390 | marius.diemontr@webberwentzel.com

Sylvia Kamanja | Associate
Tel: +27 11 530 5672 | sylvia.kamanja@webberwentzel.com

Garyn Rapson | Associate
Tel: +27 11 530 5892 | garyn.rapson@webberwentzel.com