Is the Stick Real? Trends from Concluded Prosecutions of Industrial Environmental Crimes in South Africa

Abstract

South Africa's suite of environmental laws contains many criminal sanctions and penalty provisions. Whether the criminal sanction is an  effective tool that realises the constitutionally protected environmental right depends on how it is practically enforced and whether  potential offenders become aware of such enforcement measures. This article reports on research aimed at collecting and analysing  prosecutions for industrialrelated transgressions (conducted mainly in Magistrates' Courts) and involving offences under the National Environmental Management Act (NEMA), the Waste Act, the Air Quality Act and the National Water Act. An analysis of 53 prosecutions  shows that most cases resulted in convictions, half were concluded through plea and sentence agreements, half involved the conviction  of individuals, no direct imprisonment penalties were imposed, and low fines were imposed in most cases. The findings include that there  is some inconsistency in how different listed activities or water uses are treated as separate or consolidated criminal charges, and  the exact number, outcome, or trends arising from such cases are difficult to determine as there is no central, readily accessible database  of concluded prosecutions. Increased access to such information will improve knowledge, implementation and the effective  use of the criminal sanction through prosecutions. In turn, this will contribute to the improved realisation of the constitutionally  protected environmental right.