Undermining our constitution
Section 24 of the South African Constitution is what underpins the very foundation of the environmental justice movement in our country. Recent controversy has arisen around, in particular, section 24G of NEMA which effectively allows polluters to budget for and pay off their wrong-doings with apparently little legal ramifications or prosecution for their criminal activities.
Staff Attorney at the Centre for Environmental Rights, Robyn Hugo, has been working with groundWork and our partner communities and organisations on various issues of environmental justice in order to bring corporations, industry and government to bear the legal responsibility of their actions.
This is Robyn’s analysis of the failings of this legislation as it stands today.
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| Robyn Hugo |
S24 of our
Constitution gives everyone the right to an environment
not harmful to their health or well-being, and to have the environment
protected.
NEMA gives
effect to this right. In order to serve present and future generations,
development must be sustainable, integrating social, economic and environmental
factors into planning, implementation and decision-making. The environment is held in public trust, and the
use of environmental resources must serve the public interest. The
precautionary principle requires a risk-averse, cautious approach, which takes
into account the limits of current knowledge about actions’ consequences. The
preventive principle entails that negative impacts on the environment and on environmental
rights, are anticipated and prevented, or where they cannot be prevented, are
minimised and remedied.
Integrated environmental management (IEM) requires that activities’
actual and potential impacts on the environment, socio-economic conditions and
cultural heritage are evaluated, as are the risks and alternative options to
mitigate these. Certain activities require environmental authorisation (and
environmental impact assessments) before they can commence. Potential
environmental consequences of the activity must be assessed, as well as less
harmful alternatives to and modifications of it. The option of not implementing the activity
must be investigated. Interested and affected parties must have a reasonable
opportunity to participate in public information and participation procedures.
S24F makes it an offence for a listed activity to commence without prior
environmental authorisation, punishable by a maximum fine of R5 million and/or ten
years’ imprisonment.
But s24G permits ex post facto
authorisation of activities that commenced unlawfully. An application can be
made to the Minister/ MEC for a directive to
compile a report containing at least: an assessment of the nature, extent, duration
and significance of the activity’s environmental impacts; mitigation measures
undertaken or to be undertaken; the public participation process followed; and
an environmental management plan. The applicant then compiles a report and the
authority determines an administrative fine – a maximum of R1 million per
offence. After the applicant has paid the fine, the authority considers the
documents provided, and may then either: direct the applicant to cease the
activity – either wholly or in part – and to rehabilitate the environment
within a certain period and subject to conditions; or issue an environmental
authorisation, which may be subject to conditions. Failure to
comply with a directive or a condition is an offence, punishable by an s24F
penalty.
This section has resulted in widespread controversy and confusion. Because the fines imposed are so low, they are not a disincentive for non-compliance. Even if the
maximum fine were usually imposed (which is not the case), R1 million is a small
amount to pay when compared with the benefit of not having to follow the proper
environmental authorisation route. In the context of recent amendments proposed
to s24G (the most important of which is the increase in the maximum fine from
R1 million to R5 million) the Department of Environmental Affairs confirmed
that it had observed the trend of companies simply budgeting for the
administrative fine and proceeding without authorisation. Other problems
include the fact that, when there is an s24G application, the authorities are
much less likely to prosecute the criminal contravention. Effectively, s24G
becomes an escape route from criminal prosecution. It also permits a much less
onerous public participation process.
The effect
of s24G is that the authority is presented with a fait accompli. It is too late to consider alternatives - the damage
to the environment has already been done, and may be irreversible. Granting retrospective environmental authorisation is
inconsistent with the preventive and precautionary principles, and with IEM,
which aims to ensure that the environmental impacts of activities (and
alternatives), are properly considered before action is taken. By undermining
the very purpose of environmental assessment, s24G could undermine s24 of the Constitution.
See the CER’s
proposed amendments to s24G here: http://cer.org.za/hot-topics/section-24g/
