Environmental Law

‘…holistic and comprehensive advice,’ .. the team possesses the ‘insight and ability to guide our company on the application of solutions which are in our best interest.’  – Chambers and Partners, 2021

  • Overview
  • Significant Matters

Overview

Doing business in Africa, as in most international jurisdictions, requires specialised counsel to effectively manage corporate environmental risks and decision-making.

We are one of Africa’s leading environmental law firms, offering real depth and a broad range of expertise in environmental law.

Our service covers legal risk mitigation and management, permitting, projects and developments, appeals against administrative decisions and judicial reviews, criminal and administrative disputes, impacts and compliance, due-diligence investigations and compliance auditing.

Our specialist environmental lawyers are equipped with a practical understanding of both the law and its application by the regulators and are able to handle environmental matters in all the jurisdictions in which we are located.

We are able to ensure that our clients’ environmental requirements and risks are seamlessly managed in alignment with their broader business requirements and priorities.

We have a strong commercial-environmental understanding in a transactional context, including with respect to the intersection among sectors such as mining, energy and infrastructure developments, environmental issues and community interests, pollution and contaminated land liabilities, as well as appropriate mechanisms for the allocation of related risks in transactions, authorisation requirements for developments and general environmental transactional risks.

We frequently represent clients with respect to environmental authority enforcement actions, compliance notices, directives, appeals and reviews, as well as in criminal prosecutions on environmental matters.

According to Chambers & Partners, we are an “Excellent firm acting for an impressive variety of clientele”; we have “exceptional regulatory expertise”; and are “well placed to advise on environmental aspects of complex acquisitions and financings”. We are also mentioned for our “strength in environmental investigations and compliance proceedings”. Clients are quoted as saying that we are “excellent” and “first-class”; our “briefs are brilliant”; and our “attorneys are very hands-on”.

We serve the top end of the South African and broader African market, advising on government processes, commercial lending and mergers and acquisitions (including cross-jurisdictional work in transactional and other matters). Our clients include large listed corporations and the public sector.

Significant Matters

  • We advised the Development Bank of Southern Africa, the South African Department of Energy and the South African National Treasury (through the IPP Office) on the various independent power producer (IPP) procurement programmes that are pursued by the South African government including IPP bid processes for renewable energy which has won several awards, base load coal, LNG gas to power, and a number of related programmes in South Africa.

  • We assisted Eskom Holdings by completing investigations into past corruption and the removal of various executives including former CEOs Matshela Koko and Sean Maritz. We further launched review proceedings to assist Eskom recover ZAR 1.6 billion from McKinsey and Trillian and have since been appointed to assist it with the Zondo Commission into State Capture.

  • We assisted Eskom Holdings in a dispute regarding the right to distribute electricity in a municipal area. The challenge related to whether South African municipalities have an exclusive power to supply electricity to consumers within municipal boundaries.  The High Court found that the Constitution of the Republic of South Africa 1996, does create an exclusive right for municipalities to supply electricity within their boundaries, but that Eskom may supply any customers within its area of supply if a municipality does not already supply such customer.

  • Bowmans acted as South African counsel to Exova Group (UK) Limited in respect of the acquisition of the entire issued share capital in Jones Environmental Forensic by Exova Group (UK) Limited.

  • Bowmans acted as environmental counsel to Steenkoppies Aquifer Management Association (SAMA), who are assisting the farmers in the Tarlton area, acting through the local water management association, to comment on and make representations to the Department of Water and Sanitation regarding the determination of the water reserves and setting the water quality management objectives for the water resources in the Steenkoppies and Magaliesburg Water Catchment Area.

  • Bowmans has advised, as environmental law counsel, various South African corporations with regard to their environmental compliance obligations, risks and liabilities, as well as with respect to the reporting and handling of contamination at a number of sites around the country, including advising on the transfer of third party contaminated land to a client and the associated risks from the perspective of transferability of remediation obligations, and the like.  Our advice typically extends to pollution and contamination liabilities, transactions involving transfer of ownership or an interest in polluted or contaminated land, mitigation of risks and liabilities as well as contractual risk allocation.

  • Bowmans advised The Department of Energy and National Treasury in relation to the various independent power producer (IPP) programmes currently underway including IPP bid processes for renewable energy which has won several awards, base load coal, LNG gas to power, and a number of related programmes in South Africa. Bowmans is also advising on the amendment of legislation required to facilitate the process including the Gas Act, Electricity Regulations on New Generation Capacity, the Electricity Regulations Act itself and the institutions required to support the bid process.  We are further advising, as part of the advisory team to the Department of Energy and National Treasury, on the following on-going programmes (amongst others):

    • Coal Baseload and Co-gen IPP programmes in which Bowman is the lead advisor on all the legal streams (The Coal Baseload had a bid submission phase and preferred bidder award in 2016);
    • National Solar Water Heater Programme in which the Bowman Gilfillan advised on the appropriate structure of the programme, including preparation of the procurement documents (this programme also had a bid submission phase for supply contracts in 2015, in 2016 advice centred on the procurement process for installation contracts and supplier matters); and
    • LNG Gas to Power Programme in which Bowman Gilfillan is leading on the design of the procurement process, environmental and regulatory aspects of the Programme, the RFI was issued in 2016.
  • Bowmans advised, as environmental law counsel and corporate counsel, JR 209 Investments in relation to its acquisition of the sale assets from Zendai South Africa, a wholly owned subsidiary of Hong Kong listed company Zendai Shanghai, in a transaction valued at ZAR 1.8 billion.

  • Bowmans advised General Motors South Africa in relation to the disposal of its Isuzu business to Isuzu Trucks South African and related matters.

  • Bowmans advised Chevorn Global Energy Inc. (CGEI) in relation to the sale of its shares and related interests in Chevron South Africa (CSA) and Chevron Botswana (CB) to China Petroleum & Chemical Corporation (Sinopec Corp), a subsidiary of Chinese state-owned oil, gas and petrochemical producer Sinopec Group. The transaction is valued at approximately USD 900 million

  • Acting on the instructions of the Wildlands Conservation Trust, we represented the Friends of Tsitsikamma, a voluntary association comprising scientists, academics and marine conservationists throughout South Africa in an urgent application to interdict and review a decision by the relevant authorities to permit recreational angling in the Tsitsikamma Marine Protected Area. This was a landmark matter for conservationists in their bid to protect “protected areas” and the matter involved procedural and administrative fairness, section 24: Environmental Rights of the Constitution, the Rule of Law, the Constitution and contraventions of the Protected Areas Act and the National Environmental Management Act.

  • In a long running matter, we ultimately successfully defended criminal proceedings brought against an international chemicals company in respect of the burial of waste and effluent by a contractor. The contractor pleaded guilty, our client was placed under pressure to similarly plead but ultimately, in 2016, after two years of litigation and after representations were made to the prosecuting authorities, the charges against our client were withdrawn.

  • We acted for Schneider Electric SAS in relation the disposal by it of shares in Conlog to JSE listed company Consolidated Infrastructure Group Limited (CIG) by way of a competitive bidding process.  Schneider Electric’s Conlog business is a Durban-based developer, manufacturer and distributor of prepaid electricity meters, smart meters and related software applications. Demand for prepaid electricity is increasing exponentially, particularly across Africa. Bowmans advised on both the M&A and the Competition law aspects of the transaction.

  • We advised a large voluntary industry body on the regulatory aspects of the planned introduction of waste management charges in the paper and packaging industry and the publication of requirements for industry waste management plans to be submitted to the Minister of Environmental Affairs for approval.  We assisted in successfully making representations that lead to the withdrawal of a gazette publication requiring the submission of industry waste management plans due to (amongst other things) lack of proper consultation and insufficient periods provided for the submission of such plans.

  • Bowmans successfully acted for Phumelela Gaming, a leading gaming company listed on the Johannesburg Stock Exchange. The matter involved appealing the decision of the relevant authority to grant an environmental authorisation to a mining company to extend its coal mine situated close to the racecourse. The expansion would result in the mine coming even closer to the racecourse. The appeal challenged the environmental impact assessment, especially a failure to adequately assess air quality impacts of the expansion, equine health impacts given close proximity to the stables and impact of noise and vibration on animals.

    The appeal was partially successful in that the environmental authorisation was not set aside but the mining company was required to amend the environmental management programme to address equine health and impact on animals and negotiate with Phumelela on appropriate mitigation measures.

    We drafted the appeal documents and engaged with the authorities.

  • Bowmans advised Choppies Supermarkets in relation to the acquisition of the retail business of Jwayelani Retail sold as a going concern for a transaction value of ZAR 189 million.

  • Advised Rio Tinto on the sale of its entire shareholding in Riversdale Holdings Proprietary Limited, which holds a 74% direct shareholding in Zululand Anthracite Colliery Proprietary Limited to Galaxy Investments B.V. This transaction was important to the Rio Tinto group to enable it to focus on other core aspects of its global business and to facilitate an exit in a responsible manner by selling to a purchaser committed to making significant investments to ensure the long term sustainability of the mine and associated employment. Galaxy fits such criteria as it falls within the larger Menar Holding Group which has experience in coal mining in South Africa through its interest in Canyon Coal.