Liability Relating To Environmental Damage (SO4-AC3)

In terms of Section 31A of NEMA offences listed under Section 49A of NEMA and the Specific Environmental Management Acts are considered Schedule 1 offences under the Criminal Procedure Act 51 of 1997 that may result in the imposition of a fine or jail sentence on conviction for an offence. In terms of NEMA, directors may be held liable for environmental offences.

Section 33 of NEMA facilitates private prosecution by any person when the matter relates to the protection of the environment or a breach or threatened breach of any duty which breach is an offence under NEMA.

Any person may utilise Section 33 to initiate the prosecution of an entity, its directors or employees in their personal capacity. The person initiating prosecution does not require the public prosecutor's permission and does not need to provide security for such action. The accused on conviction may be ordered to pay the costs of the prosecution.

Section 49A contains the list of offences that can be committed in terms of NEMA, which offences range from the commencement of unauthorised activities, failure to comply with conditions in a license to operate, unlawful or intentional acts that lead to significant pollution and failure to comply with compliance orders or directives.

Section 49B provides that persons convicted of offences in terms of Section 49A may be liable to a fine and/or imprisonment.

Corporate officer liability under NEMA may be established in four different ways, with directors and officers being at risk if they are found to be:

• the principle of an offence (liability will arise as a result of them being in control of the activity);
• an accomplice, if the director was party to the offence committed by the corporate or its employees; and
• a co-conspirator, if it is alleged that the director was party to a conspiracy to commit an offence; and
• Prima facie (Prima facie is defined as something that has been proven or assumed to be true unless there is evidence presented to the contrary) guilty and liable on conviction to a penalty specified in the law, if it is proven that the corporate committed an offence as described in Schedule 3.

The director will automatically be cited as a party to the proceedings, and the evidentiary burden is on the director to prove they took reasonable measures to prevent or mitigate the offence (Section 34(7) NEMA).

Schedule 3 contains a list of offences, which can be committed in terms of NEMA or any of the environmental management Acts. There are approximately 80 different offences listed in this Schedule.

Offences committed in relation to a failure of a duty of care: should a corporate entity receive a Section 28 directive ordering it to take reasonable measures to prevent pollution and/or to rectify or minimise the pollution and degradation and fail to take such measures, the authority may recover the cost of implementing the measures from any person who directly or indirectly contributed to the pollution or degradation or negligently failed to prevent the pollution.

Directors may be cited as joint and severally liable for such claims in the event that they meet the requirements for associated liability (any person responsible for, or who directly or indirectly contributed to the pollution) with the amount being apportioned according to the degree to which each was responsible.