The largest criminal penalty imposed for environmental offences
in South Africa to date was recently handed down by a South African
court. The conviction is also a marked shift away from
administrative penalties that the Department of Environmental
Affairs usually imposes for breaches of environmental
On 17 October 2012 the Ermelo Regional Court in Mpumalanga (the
court) convicted Golfview Mining (Pty) Ltd (Golfview) of various
contraventions of the National Environmental Management Act, No.
107 of 1998 and the National Water Act, No. 36 of 1998 and imposed
a fine of ZAR 4 million.
Golfview's offences included:
illegally mining in a wetland;
the diversion of water resources;
inadequate pollution control; and
the unauthorised transformation of three hectares of indigenous
The conviction and sentence was imposed as part of a plea
agreement in terms of which Golfview is required to pay
ZAR 1 million each to the Mpumulanga Department of
Economic Development; the Department of Environmental Affairs and
Tourism; the Mpumalanga Tourism and Parks Agency; and the Water
An additional ZAR 1 million penalty has been conditionally
suspended for five years. The court also imposed an order that
forces Golfview to rehabilitate the wetland according to an
approved rehabilitation report. The potential cost of the
rehabilitation has been estimated at between ZAR 50 and ZAR 100
The conviction follows the conviction and sentencing of Anker
Coal and Mineral Holdings (Pty) Ltd (Anker Coal) and its director
Albrecht Frick in April this year for similar infringements of
environmental legislation and the Mineral and Petroleum Development
Resources Act, No. 28 of 2002.
The conviction of Anker Coal was the first time that a mining
company has been held criminally liable for the contravention of
environmental legislation. It was also the first time that
provisions of environmental legislation were invoked to hold a
director of a mining company criminally liable.
The Golfview conviction is significant not only because of the
large fine imposed by the court, but also because it demonstrates
that non-governmental authorities and other private persons are
prepared to institute criminal proceedings where the environmental
authorities are slow or reluctant to do so, and that the
prosecuting authority is pursuing prosecutions of companies and
With the risk of substantial criminal penalties and fines (of up
to ZAR 10 000 000 and ten years imprisonment) that may be imposed
under various environmental legislation ― and clear evidence
that the prosecuting authority is pursuing prosecutions of both
companies and directors ― the need for expert advice on
environmental law aspects becomes even more important.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
In terms of section 29 of the National Environmental Management: Air Quality Act 39 of 2004 ("NEMAQA"), which provides for pollution prevention plans: "(1) the Minister of Environmental Affairs (the "Minister") may by notice in the Gazette
Two important principles of South African law collided head
on, with unsatisfactory consequences, when Chief Bareki (a
traditional leader acting on behalf of his tribe) and an
environmental concern group sued Gencor and certain
subsidiaries for the environmental clean up following
discontinued asbestos mining activities.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).