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Slide1

ENVIRONMENTAL SEMINAR11 MAY 2017Environmental Compliance and Enforcement

Targets, Trends and Tips

Slide2

Back to basics: administrative and criminal legal principles in environmental law enforcement

Tina TerblancheSenior Associate, Bowmans

Slide3

BASIC LEGAL PRINCIPLES

Slide4

INTRODUCTION: BASIC LEGAL PRINCIPLES

Basic legal principles

legal interpretation

principles

administrative law

principles

criminal law

principles

Basic legal principles

sometimes

overlooked

in the context of environmental

enforcement by –

enforcement

authorities

persons subject to enforcement

action

Slide5

Importance of legal principles

Principles inform –meaning of legal rule application of the legal rulethe scope of the power of the authoritythe procedure that must be used when enforcing the rule

Slide6

Types of enforcement action

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What does

the law say?

Slide8

Legal interpretation principles

Meaning and application of legal ruleCommon-law rules and presumptionsPurposive interpretationGeneral rule: prospective application (not retrospective)Restrictive interpretation of penal provisions

Slide9

Legal interpretation principles

EXAMPLENEMA section 49A(1)(f): offence if person-"(f) unlawfully and intentionally or negligently commit any act or omission which detrimentally affects or is likely to detrimentally affect the environment...“What is the threshold?No qualification that unlawful “detrimental affect” must be significantLiability can be based on intentional or negligent act or omission.

Slide10

Restrictive interpretation of penal provisions

Democratic Alliance v African National Congress and Another

2015 (2) SA 232 (CC)

“The restrictive interpretation of penal provisions is a long-standing principle of our common law. Beneath it lies considerations springing from the

rule of law

. The subject must know

clearly and certainly

when he or she is subject to penalty by the state. If there is any uncertainty about the ambit of a penalty provision, it must be resolved

in favour of liberty

.”

(para 130)

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Presumption against retrospective application of legal rules

Example: Changes in environmental laws

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Presumption against retrospective application of legal rules

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CRIMINAL LAW PRINCIPLES

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Criminal law principles

All the elements of a crime must be proven for liability to ensueState must prove the elements beyond a reasonable doubtDifferent forms of liabilityIndividual and corporate criminal liabilityStrict liability and vicarious liability

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Who has authority to enforce?

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ADMINISTRATIVE law principles

Rule of law: power derived from empowering provisionAuthorities must act within scope of powerFair procedure must be followedAdministrative action can be reviewed under PAJA

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Know when to question…

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What is the trick?

KNOW: when and how to question enforcement actionhow to respond to authorities how to gather and present evidence to illustrate compliancehow to illustrate that reasonable steps are being taken in the case of non-compliance (i.e. what has been done to rectify)When specialist legal advice is needed

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The devil is in the detail…

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Bowmans Office Contacts

JohannesburgT: +27 11 669 9000E: info-jhb@bowmanslaw.comKampalaT: +256 41 425 4540E: info-ug@bowmanslaw.comNairobiT: +254 20 289 9000E: info-ke@bowmanslaw.com

Follow us on @Bowmans_Law Bowmans Bowmans www.bowmanslaw.com

Cape

Town

T:

+27 21 480 7800

E:

info-cpt@bowmanslaw.com

Dar

es

Salaam

T:

+255 22 219 8000

E:

info-tz@bowmanslaw.com

Durban

T:

+27 31 265 0651

E:

info-dbn@bowmanslaw.com

Slide21

Thank you

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