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.
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/