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The Department of Environmental Affairs (DEA) today welcomed the sentencing of environmental consultant, Stefan Frylinck as well as his firm, Mpofu Consulting CC, for contravening the Environmental Impact Assessment (EIA) regulations of 2006 issued under the National Environmental Management Act (Act 107 of 1998) (NEMA) by providing incorrect and misleading information which led to the development of a construction site on a wetland.
Frylinck and Mpofu Consulting CC were yesterday, 20 April, sentenced in the Pretoria Regional Court to a cumulative fine of R160 000. Individually, Frylinck was sentenced to two years imprisonment or a fine of R 80 000 and Mpofu Consulting CC was sentenced to a fine of R 80 000. Frylinck and Mpofu Consulting CC will be required to pay half the fine (R40 000 each) with the other half being suspended for a period of five years, on condition that he and the company do not contravene the provisions of Section 81 of the EIA regulations issued under the National Environmental Management Act.
Authorization for the Pan African Parliament (PAP) in Midrand, Gauteng was issued on 19 October 2007. As part of the Environmental Impact Assessment (EIA) process, Frylinck provided information to the DEA which specifically indicated that there was no wetland on the site. This was based on his own professional opinion and the opinion of the specialists who assisted him in the undertaking of the EIA. The DEA relied on his “objective, professional and honest opinion” to make a decision that the construction of the PAP could proceed on the site in the location proposed (under certain conditions).
Once construction had commenced, DEA was informed by provincial and local government that they were concerned that the PAP was being built on a wetland. The DEA then instituted enforcement action which resulted, firstly, in a panel of specialists being employed by the Department of Public Works (DPW) to confirm the existence of a wetland on the site and secondly, in the cessation of construction activities.
A criminal investigation against the consultant was initiated by the Green Scorpions from the DEA and Stefan Frylinck and Mpofu Consulting CC were charged with fraud as well as providing incorrect or misleading information as provided by section 81(1)(a) of the Environmental Impact Assessment (EIA) Regulations issued in terms of the NEMA.
The consultant and the firm were found guilty on the charge contained in the EIA regulations that deals with the submission of incorrect or misleading information as part of the EIA process. They were, however, acquitted on the fraud charge.
Albi Modise, Spokesperson for the Department of Environmental Affairs said, “The Department views this ruling as a victory, culminating from the hard work of the National Prosecuting Authority, the criminal investigators of the Department’s Green Scorpions and the specialists supporting the State’s case. It sends out a strong message to environmental consultants that the Department will not hesitate to enforce the law where it is clear that such consultants have acted in contravention of their legal obligations. The law requires consultants to be independent and professional in the work they do in relation to EIAs. Should they intentionally or negligently fail to comply with these legal duties and / or fail to provide correct information on which to base sound environmental decisions, the DEA will not hesitate to act.”
A section 24G application to rectify the unlawful commencement of activities associated with the wetland has been submitted and is still under consideration. Temporary measures to mitigate the negative impacts of storm water have been implemented on the site. The Section 24G process will ensure that relevant interested and affected parties are consulted and will place sufficient information before the DEA in order for an informed decision to be made in relation to the future of the site.