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Want to save your environment? Using the criminal provisions of NEMA and NWA

using the criminal provisions of nema and nwa
This blog is a repost of a piece that was first published in December 2012.

Those who believe that the general public should be more involved in protecting the South African environment and should be using the courts to do so can find encouragement in a group of farmers from the Ermelo district of Mpumalanga, acting as a group known as the Highveld Water Protection Group, who successfully brought a case against a mining company.

The mining company, Anker Coal/Golfview Mining, was convicted by a local magistrate on two contraventions of the National Environmental Act and one of the National Water Act. This case is particularly significant because it was the first time that the criminal provisions of the NEMA and NWA legislation were invoked.

The case on using the criminal provisions of NEMA and NWA

The background to this case is that Anker Coal/Golfview Mining was granted a coal mining right on the Mpumalanga farm of Leliesfontein. Between March 2009 and August 2010, it was alleged that the company broke many of the accepted NEMA and NWA rules, as well as certain environmental protection stipulations in the Mineral and Petroleum Resources Development Act.

The Highveld Water Protection Group accused the mining company, among other things, of:

-Diverting the water of the Holbankspruit and a tributary;

-Mining within 100 m of these water resources and within a 1 : 100 year flood line;

-Failing to build pollution water dams on the site and to separate clean and dirty water;

-Building a wash bay on the site;

-Mining in a wetland;

-Failing to deposit the run of coal in the appropriate box-cuts;

-Failing to apply for a licence to extract water from a natural water resource, to store it and to discharge waste or waste water back into the resource; and

-Altering the bed, banks, course and characteristics of the water resource, in particular by building canals.

Altogether, the court was asked to decide on 16 counts.

Following a plea agreement, the company was fined R1 million, conditionally suspended by five years, and was made to pay R1 million to each of the following bodies: the Mpumalanga Department of Tourism and Environment, the Mpumalanga Parks Board and the Water Research Commission.

Why this case was a breakthrough

Importantly, one of the factors that made this case a real breakthrough was that the criminal provisions of the NEMA and NWA acts were successfully invoked. What is more, as the complainants were private individuals, a clear message has been given to members of the South African public that they, too, can now protect their environment in this way, with the court expenses being carried by the state, as is always the case in criminal cases.

Images courtesy of Idea go and Rizzuti at FreeDigitalPhotos.net.

Garth Watson

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