When proposing a new development or transformation of an existing facility, it is necessary to determine whether these associated activities require authorization in terms of the relevant environmental legislation.
Considering the scope and complexity of the application, there are a number of procedures that should be considered to obtain the relevant environmental authorizations, for example:
- Environmental Exemption Applications
- Basic Assessment Reports
- Environmental Impact Assessment Reports
- Scoping Reports
- Environmental Management Plans
Auditing is a physical activity on site with the intention to interpret an environmental management plan (EMP) tailored to a specific project and usually approved by the relevant authority through the incorporation into the Environmental Authorization (EA) issued by the authority. The EMP identifies possible environmental impacts and offers suitable mitigation measures to reduce the adverse impact or avoid it altogether.
An audit report is conducted on request of the competent authority or as specified in the Environmental Authorization (EA) and is an indication of the degree of compliance with regard to the requirements of the EMP and EA.
An adverse audit report requires immediate rectification by the land owner and incorporated in future audits requirements. The non compliance to the approved EMP could therefore result in the previously granted authorisation being withdrawn or the payment of an administrative fine.
A rectification application, in terms of section 24G of the NEMA, enables retroactive rectification of an activity which commenced without the necessary authorisation of the relevant authority.
With amendments to the NEMA legislation during 2006, provision was made for an administrative fine to be levied against the owner of the land over and above the possibility of criminal prosecution. The quantum of such fine is dependent on a national calculator used by provincial authorities and is influenced by the degree of destruction or impact caused by the unlawful activity. The maximum fine that could be levied is R1 million.
The quantum of the fine can be appealed to the MEC of the relevant provincial authority. The company’s services include the services of an “in-house” advocate who assists our clients, where justified, to request a review of the fine in circumstances where mitigating factors or legal interpretation justifies such appeal.
The purpose of legal opinions are either to assist a client in deciding on the way forward when faced with a certain situation ; to argue a certain point in law or to aid in the correct interpretation of the law.
A client such as a developer or even farmer may be faced with a situation where he or she has been served with some sort of legal document by a competent authority and now has to decide on the way forward in order to suspend such legal action or have it stayed.
Actions by authorities are usually based on their interpretation of law with regards to the facts / merits of a case, actions or activities. When authorities commence with legal processes, the same usually calls for timeous counter arguments on the authorities’ interpretation of the law to avoid further action such as the limitation of rights or litigation whether it be civil or criminal.
The majority of environmental laws make provision for criminal sanctions with high fines and or long terms of imprisonment depending on which law is contravened and the severity of the crime. In some instances, more than one law is contravened with the result that the offender faces several charges which could very well result in his or her incarceration or financial ruin.
Due to the complexity of environmental legislation, there are very few lawyers (attorneys / advocates) or State officials in the legal field who are well conversed with the law in this specific legal field. The company’s “in-house” advocate has more than 30 year’s legal experience with seasoned experience in environmental law itself. His legal experience includes both experiences in practice as well as experience in the National Prosecuting Authority and the Environmental Inspectorate (“Green Scorpions”).
Litigation may either be criminal or civil. Criminal litigation may result from a criminal offence such as the commencement of a listed activity without the required authorisation or the continuation there-off after receipt of a Section 28 and or 31 directive or Section 31L compliance notice. Failure to comply with the directions in these notices constitute a separate criminal offence and incarceration may follow after such non-compliances. In some more serious instances such as the illegal dumping of medical waste / the excavation of a wetland, direct incarceration may follow. Besides incarceration, financial ruin may follow due to the high fines (up to R1 million) let alone the maximum 10 years period of imprisonment (or both).
Civil litigation is usually aimed at forcing an individual / company to comply with a Section 28 and or 31 or Section 31L notice such as the rehabilitation of a wetland or the continuation of a listed activity such as the construction of a dam in a river. The respondent is forced / prevented from doing something by means of a High Court interdict, usually with a cost order.
Our services include representations to the National Prosecuting Authority after its decision to prosecute or not as well as, bail applications and trails. In civil matters our services include the drafting of motion applications and appearance in the High Court of South Africa such appeal.
Instructing attorneys and or advocates use our “in-house” advocate as expert witness in the High Court of South Africa on a regular basis. This entails testimony on the interpretation of law as guidance to the courts and or in counter argument in criminal / civil cases.