The Department of Environmental Affairs (DEA) welcomes the ground-breaking judgment by the Nelspruit Regional Court, on 4 April, 2013, which granted a confiscation order against York Timbers (Pty) Ltd. The company has been ordered to pay R450 000, plus interest, being the amount that it saved by failing to obtain an environmental authorisation prior to the commencement of a listed activity, as required by the National Environmental Management Act 107 of 1998 (NEMA).
The granting of the confiscation order of R450 000 followed a sentence of R180 000 handed down by the Nelspruit Regional Court after York Timbers pleaded guilty to the commencement of a listed activity in the absence of an environmental authorisation in contravention of Section 24F of NEMA.
Spokesperson for the Department of Environment Affairs, Albi Modise explained, “Although this type of order, granted under the Prevention of Organised Crime Act, Act 121 of 1998 (POCA), has previously been used to deprive offenders of the benefits obtained from wildlife crimes, this is the first successful application for such an order relating to a contravention of environmental impact assessment legislation in South Africa.”
The accused, a company by the name of York Timbers (Pty) Ltd (York Timbers), operates a sawmill and plywood manufacturing facility in Mpumalanga, and was charged with contravening certain provisions of NEMA. The contraventions were detected after the national Department of Environmental Affairs in conjunction with the then Mpumalanga Department of Agriculture and Land Administration (MDALA) conducted an investigation at the premises of the accused. The accused pleaded guilty on one count, which relates to the commencement of a listed activity without an environmental authorisation.
York Timbers commenced with the widening of a forest road in 2007, without having employed the services of an environmental assessment practitioner or obtaining an environmental authorisation from the relevant authorities. When York Timbers eventually did submit an application for such an authorisation, it omitted to inform authorities that it had actually already commenced with the activity more than six months prior to the application.
In placing his argument before the court, Senior State Advocate Kobus van der Walt of the Asset Forfeiture Unit (National Prosecuting Authority), equated York’s failure to incur the costs involved in obtaining an environmental authorisation before the commencement of a listed activity with the more well-known evasion of tax or customs and excise duties. In both of these circumstances, there is a deliberate avoidance or evasion of a regulatory regime and the financial consequences thereof. In this instance, the financial benefit sought by York Timbers was the pecuniary savings that accrued to it by avoiding the costs it would have needed to incur in order to comply with its statutory environmental obligations.
The court also showed its displeasure with York’s behaviour in this matter by awarding a punitive order of costs against them on an attorney and client scale, including the costs of counsel.
Modise said that it was hoped that this court order would not only provide an appropriate sanction for existing offenders, but would also send a strong deterrent message to people and companies who may be thinking of engaging in similar unlawful activities.
The POCA is a suitable tool to deter and prevent big companies, like York Timbers, from evading or avoiding their obligations in terms of environmental legislation, and harming our natural heritage. DEA hopes the judicious application of the POCA will encourage such companies to not only pursue profit, but to also care for our precious environment in undertaking their operations.
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