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ENVIRONMENTAL SEMINAR PowerPoint Presentation, PPT - DocSlides - 11 MAY 2017. Environmental . Compliance and Enforcement . . . Targets, Trends and Tips. Back to basics. : administrative and criminal legal principles in environmental law enforcement. Tina Terblanche.

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ENVIRONMENTAL SEMINAR PowerPoint Presentation, PPT - DocSlides

    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

    Slide7

    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)

    Slide11

    Presumption against retrospective application of legal rules

    Example: Changes in environmental laws

    Slide12

    Presumption against retrospective application of legal rules

    Slide13

    CRIMINAL LAW PRINCIPLES

    Slide14

    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

    Slide15

    Who has authority to enforce?

    Slide16

    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

    Slide17

    Know when to question…

    Slide18

    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

    Slide19

    The devil is in the detail…

    Slide20

    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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