Centre for Environmental Rights – Advancing Environmental Rights in South Africa

In a landmark case, the Pretoria Regional Court has found Stefan Frylinck, an environmental consultant representing Mpofu Environmental Solutions CC, guilty of providing incorrect or misleading information to the Department of Environmental Affairs in a basic environmental impact assessment. Frylinck was acquitted of the charge of fraud.

The charges against Frylinck and Mpofu originated from the planned construction of the Pan African Parliament in Midrand. In 2009, the DEA stopped the construction of the complex when it was discovered that construction was causing serious damage to a wetland on the site. Environmental Management Inspectors laid criminal charges against Frylinck who compiled the basic environmental assessment on which the decision to allow building was based for not pointing out the existence of a wetland to authorities.

Sentencing is scheduled for 20 April 2011. The criminal offence of which Frylinck has been found guilty carries a maximum penalty of 2 years’ imprisonment or R40,000 under the 2006 EIA regulations. These penalties have since been increased in the 2010 EIA regulations to R1 million or one year imprisonment.

In the judgement handed down on 6 April 2011, Regional Magistrate E K Patterson found that:

“The conduct of the accused proves wilful disregard of the required standard of conduct of the specialist finding whether there is wetland on the [Pan African Parliament] site. He admitted that he knows that in order to determine the existence or otherwise of a wetland, wetland delineation must be conducted. (at 52)

…

“By not appointing a wetland specialist or consulting such specialist the accused was negligent in the execution of his mandate and what was reasonably expected of him. … I find that the inability of the accused to give a reasonable explanation of this fact and the apparent non-conformity to the required standard of work to be done, calls for rejection of their version as not reasonably possibly true. This court is satisfied that [accused 1 and 2] acted irregular in conducting of, and execution of, duties by concluding no wetland exists on the site. (at 53)

Along with the launch of the Environmental Assessment Practitioners Association of South Africa (EAPASA) last week, this conviction forever changes the world in which environmental consultants operate. Not only will they in future be held to account by their peers through EAPASA, but this case shows that they can now also be held criminally liable where their conduct violates the EIA regulations.

Officials who consider EIA applications have to rely at least in part on the integrity and honesty of the consultants who provide information to them, and the quality of the work done by those consultants. Where that integrity is violated and the work does not meet the required standard, whether through intent or negligence, it is imperative that decisive punishment is meted out as deterrent to others. This case is therefore a message to consultants who think about taking shortcuts: know that you are risking your career and reputation when you do so.

The Frylinck conviction demonstrates the commitment of the DEA and the Environmental Management Inspectorate, and of the National Prosecuting Authority, towards enforcing the provisions of NEMA and the EIA regulations. Unfortunately we don’t yet see a similar commitment and investment of resources within the Departments of Water Affairs and Mineral Resources to enforcement of the National Water Act and the environmental provisions in the Mineral and Petroleum Resources Development Act.

Download the full judgement here.