PRIVATE CRIMINAL PROSECUTION OF ENVIRONMENTAL CRIMES
The National Environmental Management Act (107/1998), read together with the Criminal Procedure Act (51/1977), expressly provide for individuals to institute private criminal prosecutions for the protection of the environment. The possibility of private prosecutions is a risk for companies which can reach an accommodation with the relevant authorities regarding effective steps to mitigate and address any past transgressions of the relevant environmental laws, only to be faced with a private prosecution.While the National Environmental Management Act creates an enabling environment for such proceedings, there are certain limitations, which must be genuine and in the interest of protecting the environment.
In practice, such proceedings are instituted infrequently; environmental action groups to date have mostly focused on laying criminal charges against alleged polluters and allowing the police, the Environmental Enforcement Directorate at the Department of Environmental Affairs and state prosecutors to undertake the necessary investigations and prosecution.
Despite the existence of these provisions for almost 15 years, there have been no reported cases to date concerning private prosecutions. Nevertheless, there are an increasing number of environmental action groups in South Africa which are looking to criminal law to assist them and, as such, it is useful to explore the topic of private prosecutions.