Those who believe that the general public should be more involved in protecting the South African environment – and should be using the courts to back them up – will be encouraged to learn that a group of farmers in the Ermelo district of Mpumalanga, acting as a group known as the Highveld Water Protection Group, have had a measure of success in a case against a mining company.

Discussing this and certain changes in environmental law recently, Garth Watson, a director of the Cape legal firm Gunstons Attorneys, said that the mining company Golfview Mining had been convicted by a local magistrate on two contraventions of the National Environmental Management Act (NEMA) and one of the National Water Act (NWA).

Watson said that the case is particularly significant because it is the first time that the criminal provisions of environmental legislation have been successfully invoked.

“Not only were charges brought against the mining company itself, but also against a director of the company, the mine manager and the environmental manager, as is provided for in NEMA.  This was an almost revolutionary breakthrough,” said Watson.

The background to this case, said Watson, is that Golfview Mining was granted a coal mining right on the Mpumalanga farm of Leliesfontein.  Between March 2009 and August 2010, it was alleged that the company broke many of the provisions of NEMA and NWA, as well as certain environmental protection stipulations in the Mineral and Petroleum Resources Development Act.

The Highveld Water Protection Group accused the mining company, among other things, of:

• Diverting the water of the Holbankspruit and a tributary;
• Mining within 100 m of these water resources and within a 1 : 100 year flood line;
• Failing to build pollution water dams on the site and to separate clean and dirty water;
• Mining in a wetland;
• Failing to deposit the run of coal in the appropriate box-cuts;
• Failing to apply for a licence to extract water from a natural water resource, to store it and to discharge waste or waste water back into the resource;  and
• Altering the bed, banks, course and characteristics of the water resource, in particular by building canals.

Altogether, said Watson, the court was asked to decide on 16 counts.

Because a plea agreement was entered into between the accused and the prosecutor, the charges against the director of the mining company, the mine manager and the environmental manager were dropped and Golfview Mining alone was convicted.  The company was fined R1 million, conditionally suspended for five years, and was made to pay R1 million to each of the following bodies:  the Mpumalanga Department of Tourism and Environment, the Mpumalanga Parks Board and the Water Research Commission.  The company was also ordered to rehabilitate a wetland which had been mined.  The cost of this is estimated to be between R50 million and R100 million.

Watson emphasized, again, that one of the factors that made this case a real breakthrough was that the criminal provisions of the NEMA and NWA acts were invoked.  What is more, he said, as the complainant was a private body, a clear message had been given to the South African public that they, too, can now protect their environment in this way, with the court expenses being carried by the state, as is always the case in criminal cases.

“NEMA actually is very powerful if implanted.  It provides for private prosecutions and for anyone to have standing with the courts when acting in the interests of the environment,” said Watson.

Watson added that the National Environmental Management Laws Amendment Bill, which has been tabled before the National Assembly, provides for administrative fines in terms of NEMA to be increased from R1 million to R5 million and criminal fines to be increased up to R10 million for repeat offenders.  The increase in the administrative fines, said Watson, is likely to result in transgressors of environmental laws having to think twice before they simply include the fine in the budget for a proposed development, as was sometimes done in the past.

For further information please contact Garth Watson, director of Gunstons Attorneys, on telephone number 021 702 7763.