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 ID: 613151
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ENVIRONMENTAL SEMINAR11 MAY 2017Environmental Compliance and Enforcement
Targets, Trends and TipsSlide2
Back to basics: administrative and criminal legal principles in environmental law enforcementTina TerblancheSenior Associate, BowmansSlide3
BASIC LEGAL PRINCIPLESSlide4
INTRODUCTION: BASIC LEGAL PRINCIPLESBasic legal principleslegal interpretation principles administrative law principlescriminal law principlesBasic legal principles sometimes
overlooked
in the context of environmental
enforcement by –
enforcement
authorities
persons subject to enforcement
actionSlide5
Importance of legal principles Principles inform –meaning of legal rule application of the legal rulethe scope of the
power
of the authority
the
procedure
that must be used
when
enforcing the
ruleSlide6
Types of enforcement actionSlide7
What does
the law say?Slide8
Legal interpretation principlesMeaning and application of legal ruleCommon-law rules and presumptionsPurposive interpretationGeneral rule: prospective application (not retrospective)
Restrictive
interpretation of penal provisionsSlide9
Legal interpretation principlesEXAMPLENEMA 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 significant
Liability can be based on intentional or negligent act or omission.Slide10
Restrictive interpretation of penal provisionsDemocratic 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 rulesExample: Changes in environmental lawsSlide12
Presumption against retrospective application of legal rulesSlide13
CRIMINAL LAW PRINCIPLESSlide14
Criminal law principlesAll the elements of a crime must be proven for liability to ensueState must prove the elements beyond a reasonable doubt
Different forms of liability
Individual and corporate criminal liability
Strict liability and vicarious
liabilitySlide15
Who has authority to enforce?Slide16
ADMINISTRATIVE law principlesRule of law: power derived from empowering provisionAuthorities must act within scope of powerFair procedure
must be followed
Administrative action can be
reviewed
under PAJASlide17
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 compliance
how 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 neededSlide19
The devil is in the detail…Slide20
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E:
info-dbn@bowmanslaw.comSlide21
Thank you