Privately Prosecuting Companies that Don’t Comply with Environmental Standards

In April 2019 the South African High Court convicted BP Southern Africa on 16 criminal charges. The charges stemmed from BP’s alleged non-compliance with environmental laws when constructing and upgrading petrol filling stations. It was alleged that BP didn’t have the necessary environmental authorisations in place before it started construction, which is a criminal offence.

This case is noteworthy because BP’s criminal prosecution wasn’t done by the state. The criminal prosecution was done privately; brought by Uzani, an environmental advocacy group, and argued by legal advocates.

Background facts

The facts showed that BP started construction and upgrading of petrol filling stations before it had been granted environmental authorisations in terms of the Environment Conservation Act (ECA). After BP realised the contravention, it lodged an application in terms of the National Environmental Management Act (NEMA) to remedy the non-compliance. This process is used routinely by companies once they realise that their operation are not fully compliant.

This procedure allows a non-compliant company to submit an application for a new environmental authorisation to remedy the situation (NEMA section 24G). The application isn’t, however, without risk. The Minister has various powers once the application is submitted; this includes the power to halt all infringing activities while the application is considered, to order remedial action to contain or prevent pollution, and to request that various reports be prepared. A non-compliant company may also be fined an amount not exceeding 5 million Rand (about 340,000 US Dollars). Also, the legal procedure specifically states that the application procedure doesn’t prevent from the National Prosecuting Authorities from instituting criminal prosecution for the non-compliance.

BP’s application was submitted to the Gauteng Province Department for Agriculture and Rural Development (GDARD) and captured in the department’s register, where it records details of all the received applications. It’s this register that was then used by Uzani to identify BP as a con-compliant company, and as part of BP’s prosecution.   

Was the prosecution in the public interest or for the protection of the environment?

To bring a private prosecution, it must either be (i) in the public interest; or (ii) brought in the protection of the environment (NEMA section 33(1)).  

BP alleged that the private prosecution wasn’t “in the public interest” because Uzani, the environmental advocacy group, had a monetary interest in the outcome of the case. Uzani had concluded contingency agreements with competing petrol service stations in terms of which Uzani would be compensated for its legal costs if successful, and would receive a portion of any compensation received from any successful civil claims. BP’s argument was that the private prosecutor’s direct financial interest meant that the prosecution was not brought in the public interest, but for private gain.

The court disagreed that the prosecutor’s financial interest meant that the prosecution could not be in the public interest. The prosecution may be in the public interest even though the private prosecutor gains incidentally from the action. The court quoted the definition of a “public interest action”, advanced by the SA Law Commission, as:

“one brought by a plaintiff who, claiming the relief he or she seeks, is moved by a desire to benefit the public at large or a segment of the public. The intention of the plaintiff is to vindicate or protect the public interest, not his or her own interest, although he or she may incidentally achieve that end as well”.   

The court also found that a prosecutor isn’t barred from prosecuting just because their fees are paid by the person bringing the action. To bar a prosecutor because of bias there must be actual bias, not merely perceived bias (Porritt v National Director of Public Prosecutions). A mere allegation of bias shouldn’t prevent a private prosecution.

The court then held that it was brought “in the protection of the environment” because (i) there was uncontested evidence showing possible environmental degradation that can be caused by storage tanks; (ii) BP failed to prepare an upfront environmental impact assessment report (EIA); and (iii) when submitting an application for a new environmental authorisation to remedy non-compliance applicants are generally not requested to provide rectification reports.    

BP argued that even though the filling stations didn’t have the necessary authorisations, there was no evidence that they posed a risk to the environment. BP submitted that the filling stations were not in environmentally sensitive areas, that there were environmental precautions put in place, and that the sites undergo internal environmental audits every 3 years. The court rejected this argument, stating that “the untested say-so of BP … can hardly be described as sufficient evidence to counter whether the prosecution is being brought either in the public interest or in the interest of the protection of the environment”.

The court accordingly found that the private prosecution was brought in the public interest and in the interest of the protection of the environment.

Are private prosecutions possible after an application is lodged?

BP argued that after submitting the application no private prosecutions were permitted; only the National Prosecuting Authority (NPA) could institute criminal prosecutions for infringement. This defence was based on a strict reading of the applicable section:

“The submission of an application … or the granting of an environmental authorisation … shall in no way derogate from … the National Prosecuting Authorities legal authority to institute any criminal prosecution.”

BP argued that this only allowed the NPA to institute criminal proceedings because only the NPA was named; private prosecutions were not mentioned. The court dismissed this argument because the section expressly provides for criminal prosecutions. It held that it would be absurd to interpret the section to discriminate between private prosecutions and prosecutions brought by the NPA.    

The court accordingly found that the lodging of an application for a new environmental authorisation to remedy non-compliance doesn’t prevent private criminal prosecutions.

Additional Defences Raised

BP raised two further defences. First, it argued that Uzani’s notice to the Director of Public Prosecutions before starting the private prosecution was defective because the alleged offences were not accurately described.

Secondly, BP argued that Uzani hadn’t complied with all of the requirements of the Criminal Procedure Act (CPA) because it had not properly consulted.

The court rejected both these defences.

Court’s ruling

According to the court, the case against BP was “straight forward”. BP started construction and upgrading of petrol filling stations before it had been granted the required environmental authorisations in terms of the ECA.

When BP submitted an application to remedy its non-compliance, it admitted that it “commenced with a listed or specified activity without an environmental authorisation in contravention of section 24F(1)” of NEMA.

When prosecuting a crime that is based on an allegation that the defendant (BP) doesn’t have a required licence or authorisation, the onus is on the defendant (BP) to prove that it has the necessary licence or authorisation. This “reverse onus” is permitted by section 250 of the Criminal Procedure Act.

BP had failed to produce any evidence to show that the filling stations were constructed with the required authority.

The court accordingly convicted BP on 16 criminal charges.

Citations: