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Ref: 02/1/5/2
MINISTER
QUESTION 163 FOR WRITTEN REPLY (ORAL 86) FOR : NATIONAL COUNCIL OF
PROVINCES
A draft reply to Mrs A N D Qikani (ANC-EC) to the above-mentioned question
is enclosed for your consideration.
Mr Fundisile Mketeni
DIRECTOR-GENERAL (ACTING)
DATE:
DRAFT REPLY APPROVED/AMENDED
MRS B E E MOLEWA, MP
MINISTER OF WATER AND ENVIRONMENTAL AFFAIRS
DATE:
NATIONAL COUNCIL OF PROVINCES
(For oral reply)
QUESTION NO. 163 (Oral 86)
INTERNAL QUESTION PAPER NO. 12 of 2013 CW225E
DATE OF PUBLICATION: 30 April 2013
Mrs A N D Qikani (ANC-EC) to ask the Minister of Water and
Environmental Affairs:
Whether, with regard to the recent judgment by the Nelspruit Regional
Court, any other cases of a similar nature are pending or will be
brought before the courts in the near future; if not, what is the
position in this regard; if so, what are the relevant details?
Mrs A N D Qikani (ANC-EC)
SECRETARY TO PARLIAMENT
HANSARD
PAPERS OFFICE
PRESS
THE MINISTER OF WATER AND ENVIRONMENTAL AFFAIRS ANSWERS:
Although the judgment was groundbreaking from an Environmental Impact
Assessment (EIA) perspective, this type of order, granted under the
Prevention of Organised Crime Act, Act 121 of 1998 (POCA), has previously
been used by South African conservation authorities to deprive offenders of
the benefits obtained in many wildlife-related crimes.
The case that was before the Nelspruit Regional Court involved the
undertaking of a listed activity in the absence of the necessary
environmental authorisation. The company commenced with the EIA listed
activity without having employed the services of an EIA practitioner or
obtaining an environmental authorisation from the relevant authorities
prior to such commencement.
In relation to the facts of this case, there are many similar cases in
various stages of investigation and already before our criminal courts that
involve the commencement of listed activities in the absence of the
relevant environmental authorisation. In fact, this type of contravention
represents one of the most prevalent environmental crimes currently
occurring across the country. However, this was the first case involving
the illegal commencement of a listed activity where the court granted a
confiscation order as a result of the benefit that accrued to the company
in terms of the POCA.
The order granted by the court has sent out a strong deterrent message to
people and companies who may be thinking of engaging in similar unlawful
activities. The POCA is a suitable tool to deter and prevent companies from
evading or avoiding their obligations in terms of environmental
legislation. The confiscation order represents an additional financial
deterrent, over and above the normal sentence handed down by a court under
the penalty provisions of environmental legislation. The judicious
application of the POCA will encourage such companies to not only pursue
profit, but to also care for our precious environment in undertaking their
operations.
The lessons learnt in this case and the way in which the case was argued
will be communicated to the environmental authorities (through the Mintech
working group) as well as the various Asset Forfeiture Unit offices across
the country in order to encourage the use of the POCA in other
environmental cases.
It should be noted that the company has submitted its intention to appeal
the decision to the High Court and it will be important to see how the High
Court views this matter and whether or not it agrees with the initial
decision.
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