How some private prosecutions in SA are “more equal” than others – Jeffery
Dr Anthea Jeffery*
Trying to bring private prosecutions for corruption is very difficult, as AfriForum has repeatedly been reminded since it decided last week to launch such an action against EFF commander-in-chief Julius Malema. By contrast, bringing private prosecutions over environmental breaches is remarkably easy. Why environmental breaches should be “more equal” than other crimes remains unexplained.
Dr. Anthea Jeffery is Head of Policy Research at the IRR.
AfriForum’s decision to bring a private prosecution against Malema has been much pilloried as an unwarranted bid to neutralise the EFF demand for expropriation without compensation.
However, the then public protector Thuli Madonsela found in 2012 that a tender fraudulently awarded to On-Point Engineering by the Limpopo transport department should be set aside, that Malema should be made to pay back the money, and that evidence of his involvement in fraud and corruption should be referred to the National Prosecuting Authority (NPA).
The NPA duly launched a prosecution, but the case was struck off the roll in 2015 because Malema’s co-accused was reportedly ill. Since then, little has been done to restart proceedings. AfriForum has now pledged to prosecute Malema privately if the NPA does not act.
However, legal pundits have warned of the many legal obstacles that stand in AfriForum’s way. It will have to wait until the NPA has issued a notice confirming its decision not to prosecute (a nolle prosequi certificate). It will have to show it has a direct interest in the case in order to obtain legal standing (locus standi) to proceed. It will probably have to provide security for the heavy costs of the trial. AfriForum will have to surmount all these challenges before its prosecution can begin.
Earlier this year, Afriforum also sought to bring a private prosecution against Duduzane Zuma for the negligent killing of a young woman, Phumzile Dube, in a traffic accident. Here, an inquest court had found prima facie evidence that Zuma was to blame, but the NPA nevertheless declined to prosecute. However, AfriForum’s private prosecution faced all the same obstacles and might not have been able to proceed. It is fortunate, thus, that the NPA decided last week to charge Zuma after all.
Trying to bring private prosecutions over corruption, culpable homicide, and other serious crimes is thus very difficult. By contrast, bringing private prosecutions for environmental offences is remarkably easy.1
Gerrie Nel announced he will privately prosecute Duduzane Zuma, after the NPA decided not to prosecute him after he crashed into and killed a woman. More magic available at jerm.co.za.
This is evident from the private prosecution recently launched by Uzani Environmental Advocacy against BP Southern Africa. BP is being charged with having, between 1998 and 2002, built a number of new petrol stations without all the necessary environmental permissions. As the Mail & Guardian reports, “Everyone agrees that it did so without all the environmental paperwork in place, which is not unusual, and that it subsequently paid ‘administrative penalties’ to set things to rights, also not unusual.” No environmental damage resulted from these administrative shortcomings.
Yet Uzani does not need a nolle prosequi certificate from the NPA before it can proceed. Nor does it need to prove a direct interest in the case against BP, or provide security for costs.
Instead, the National Environmental Management Act (NEMA) of 1998 makes it easy for activist organisations to prosecute privately. They must begin by notifying the appropriate public prosecutor of their intention to prosecute. But if the public prosecutor does not confirm in writing within 28 days that a state prosecution is to be brought, then the private prosecution may proceed.
Having given this notice and waited 28 days without hearing from the NPA, Uzani became entitled to bring a private prosecution against BP. Uzani has also given the NPA notice of some 2 500 separate instances in which it wants to prosecute. The 28-day period in which the NPA may object has expired, leaving the way clear for Uzani to bring private prosecutions in all these matters.
Obtaining legal standing (locus standi) is easy too, as activists need only state that they are acting “in the public interest” or to “protect the environment”. Activists are also generally excused from having to provide security for costs.
If the private prosecution succeeds, the convicted company may be ordered to pay “the costs and expenses of the prosecution”, as well as “the costs of any appeal against such conviction or any sentence”. Only if the private prosecution is found to be “trivial, vexatious or unfounded” may costs be awarded against the activists that brought it.
In addition, if a company is convicted of an environmental offence and ordered to pay a fine, the trial court may instruct that “not more than one-fourth of the fine be paid” to a person “who assisted in bringing the offender to justice”. This is likely to provide a further financial incentive for activist organisations to mount private prosecutions.
As the Mail & Guardian reports, Uzani sees significant financial benefit in the path it is pursuing. If a court finds BP guilty and levies fines on it, Uzani could be awarded a percentage of those fines. That money could then be used by it to bring many more private prosecutions against the 2 500 additional entities it has the right to pursue. It might also be hoping to see directors imprisoned or otherwise held personally liable, for this (as the Mail & Guardian reports) is the “holy grail of environmental law, with cases ongoing around the world to get this sort of judgment”.
BP is trying to have the prosecution quashed on the basis of its “naked opportunism”. The corporation queries whether there is really any public interest in having the matter proceed, especially as “there is no environmental wrong they are trying to cure”. However, the provisions of NEMA are so broad that the prosecution of BP might yet succeed, laying the ground for many more private prosecutions of mining and other companies.
Yet no one has ever explained why special rules should apply to environmental offences, but not to deaths from negligent driving (Zuma) or the stealing of public monies meant for service delivery to the poor (Malema). Why should it be so easy for activist organisations to prosecute over environmental breaches, including administrative ones?
The principle of equality before the law is clearly at stake. The growth of the mining industry (and the wider economy) could also be in the balance. In October 2017 at the Johannesburg Mining Indaba, Cobus Loots of Pan African Resources warned that ever-shifting environmental obligations “threatened the stability of the industry”, while onerous compliance costs could result in “massive retrenchments and the closing down of mining companies”.
If private prosecutions by Uzani and other environmental activists result in heavy fines for mining companies and perhaps even in jail time for their directors – while people like Malema and Zuma continue to escape prosecutionfor serious crimes – then the potential direct investors from whom President Cyril Ramaphosa is trying to raise $100bn to kick-start growth will have yet more reason to bypass both the mining industry and the country as a whole.
Dr Anthea Jeffery, Head of Policy Research, IRR. Jeffery is also the author of Grounding Growth: Finding a better balance between mining and the environment, published by the IRR today.
