Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Earlier this week, the Department of Environmental Affairs (DEA) released the National Compliance and Enforcement Report (NECER) for the Environmental Management Inspectorate for the period 1 April 2012 to 31 March 2013.

By any standard, the publication of this report is an extraordinary achievement. Bear in mind that the Environmental Management Inspectorate consists of more than sixteen separate institutions, with 1705 Inspectors spread across departments in different spheres of government. In this group, you can run into khaki-clad conservation officials and field rangers, industrial compliance inspectors in steelcap toe boots and masks, and suited government attorneys responsible for issuing notices and directives. Together, they attend the same training; coordinate their compliance monitoring and enforcement actions; use the same logo; apply similar operating procedures; and report on their work and achievements in a comparable format to produce the NECER every year. In that sense, the Environmental Management Inspectorate is an unique institution in South African government today, and probably the country’s most virtuous example of cooperative governance.

Key findings

The NECER provides a glimpse into the work, achievements and challenges of the Environmental Management Inspectorate in 2012-13.

Number of EMIs

There has been a 22% increase in the total number of EMIs on the national register since 2011-12: as at 31 March 2013, there were 1705 designated EMIs. 1055 of these are field rangers in national and provincial parks (25% more than in 2011-12). A total of 1296 (76%) EMIs are responsible for biodiversity and conservation matters, and another 51 (3%) look after coastal matters. Approximately 358 (21%) are EMIs in the DEA and provincial environment departments that are responsible for land use, pollution and waste matters. It is particularly good to see that Cape Nature, Eastern Cape Tourism & Parks Agency, and KZN Wildlife have significantly increased their designated EMIs.

Number of reported incidents

4479 incidents were reported to the Inspectorate in 2012-13 (a 14% increase from the previous year). Given the fragmented government mandates over issues like environment, water and mining, combined with the spread of functions across national, provincial and local government, reporting environmental crimes and incidents is a complicated matter for concerned citizens and communities. The Environmental Crimes and Incidents toll-free number (0800 205 005) is also not very well-known or publicised. It is therefore likely that these incident reporting figures represent a serious under-reporting of environmental violations and incidents across the country.

Compliance inspections

EMIs reported a 60% increase in compliance inspections in 2012-13, in both the biodiversity sector and the industrial sector – a total of 2766 inspections nationally. This improvement is significant, since visible compliance monitoring is a key factor in promoting compliance. On the other hand, even with all these inspections, only 160 authorisations (permits) were in fact monitored. Considering how many multi-year permits are issued in the environmental sector annually, this is something that should make the authors of those permits lie awake at night.

Very encouraging, though, is the strategic and collaborative approach of EMIs in relation to compliance inspections: since 2007-8, they have embarked on and continued with sector-focused proactive inspections that facilitate learning across EMI institutions, as well as comparative assessment. These inspection campaigns also contribute to levelling the playing field within those sectors. Sectors that have already been subject to EMI assessment include ferro-alloy, steel and iron; refineries; cement; paper and pulp; health care risk waste; hazardous landfill sites; and power generation. EMIs have also had “blitzes” focused on sand mining; taxidermy and tanneries (Operation Skhumba); and illegal trade in reptiles (Operation Cold Blood).

Levels of non-compliance

EMIs reported a 122% increase in violations detected: from 1116 in 2011-12 to 2482 in 2012-13. Given that a violation can be anything from ongoing polluting emissions into the atmosphere to illegal possession of endangered species to a failure to submit reports to authorities, it is difficult to draw useful conclusions from this figure alone. The absence of reliable baseline data makes it difficult to grasp the nature and scope of compliance with environmental legislation in South Africa, and leaves us with no more than anecdotal evidence. Perhaps in future, the Inspectorate could consider reporting how many facilities inspected were substantively in compliance. Breakdowns per sector would also be particularly useful, including for those sectors themselves.

However, it is worth noting that 524 of these violations were serious enough to justify enforcement action. Measure that against the 160 authorisations checked, and it gives you a back-of-cigarette box average of more than 3 serious violations per authorisation. This does not bode well for compliance levels in the country.

Criminal enforcement

There continues to be a dramatic increase in environmental crimes dockets opened by EMIs – most recently an almost 38% increase in 2012-13. There was also a striking increase in the number of environmental crimes dockets handed to the National Prosecuting Authority (NPA) for prosecution during 2012-13: 33% up – a total of 268. This is in itself an incredibly important achievement that has knock-on effects within the entire criminal justice system, which has to take note of the increased capacity required (in the past, for example, the re-establishment of dedicated environmental courts has been resisted partly due to insufficient number of criminal cases coming to court). It is likely that this increase represents early dividends from the significant investment in training by the Inspectorate.

Unfortunately the conviction rate still needs time to catch up with the increase in prosecutions, and remains poor overall – numbers of convictions in fact declined during 2012-13. 8 of the EMI institutions reported zero convictions during 2012-13, and worryingly this includes the provincial environment departments responsible for contraventions of the National Environmental Management Act (NEMA) itself: Western Cape, KwaZulu-Natal, Eastern Cape, Mpumalanga and Northern Cape. The report does not attempt to explain this, but does report in more detail on some of the success stories, particularly in relation to biodiversity cases – certainly some of these sentences achieved would have been unthinkable ten years ago. A more public engagement around the challenges experienced in the prosecution of environmental crimes, particularly in relation to these provincial environment departments, is essential.

Administrative enforcement

Disappointingly, the issuing of directives and notices to stop damaging activities or compel rehabilitative measures has increased only marginally, despite the significant increase in detected violations. Only 4 civil court applications were launched during 2012-13 to compel compliance with environmental legislation.

Opportunities for deterrence lost through low visibility

Despite all the activities and achievements for 2012-13 reported in the NECER, EMIs have maintained a very low media profile during this period. A review of the reports in law publisher Juta’s weekly environmental media round-up (Environmental Legalbrief) saw only 16 articles mentioning the Inspectorate or Green Scorpions since October 2012. Ignoring the monthly rhino poaching statistics, only 11 of the DEA’s 184 media statements over a 13 month period related to enforcement.

Visibility in enforcement is recognised as a key factor in compliance promotion. A 2005 US study of 233 facilities in various industry sectors showed that, while facility management and staff generally had a poor recollection and knowledge of the facts of enforcement action taken against violations in their sector, 65% of firms reported taking some compliance-related actions in response to learning about cases at other facilities in which severe legal penalties were imposed on a violator of environmental laws:

• 57% of facilities reviewed their environmental programmes,
• 35% changed how they kept track of or monitored things,
• 23% of facilities changed their employee training, and
• 32% of facilities incurred the expenditure of changing equipment.

This means that the Green Scorpions are urgently in need of a decent and innovative communication strategy. Considering how positively the public receives news of environmental enforcement action, it should not be difficult for the EMI institutions and their political heads to get important kudos out of the impressive work being undertaken – currently, under the radar – by the Inspectorate. But more importantly, improved communications should have significant knock-on compliance effects, from which we would all benefit.

Shining in their absence: why no statistics from the DWA and DMR?

The elephant in the room of any discussion about the NECER is the absence of similar reports by the Department of Water Affairs (DWA), in relation to enforcement of the National Water Act, and the Department of Mineral Resources (DMR), in relation to enforcement of the environmental provisions in the Mineral and Petroleum Resources Development Act. As they say, if you can’t count it, it doesn’t count: in the absence of proper reporting and publication about compliance and enforcement activities, what conclusion do we reasonably draw other than that the compliance programmes in these departments are negligible?

The omission by the DWA is particularly glaring considering the fact that this department reports to the same Minister, Edna Molewa; the omission by the DMR is extremely worrying considering their avowed intent to retain the environmental regulation of mines under the “One Environmental System” currently before Parliament.

If the political will for compliance monitoring and enforcement exists at all, we call on the Ministers of Water Affairs and Mineral Resources to demonstrate this by publishing their own NECER, or providing statistics for a single 2013-14 NECER.

The loophole that undermines the entire regulatory regime

A final remark from us here at the Centre for Environmental Rights relates to the abomination of ex post facto rectification of illegal activities, which fundamentally undermines much of the hard work undertaken by the Environmental Management Inspectorate. Partly because of the existence of this unfortunate statutory provision (section 24G of NEMA), and partly because of the incorrect and inappropriate ways in which authorities (both departments accepting and approving these rectification applications, and the NPA dealing with criminal dockets in cases where rectification has been applied for, or rectification fines have been paid) are applying this section, developers now have access to a fast-track mechanism to circumvent the EIA regime and avoid prosecution for illegal conduct by paying a fine. Over the past six years, the DEA and provincial environment departments have collected at least R62 million from authorising illegal activities after discovery of these offences.

Frighteningly, if the current mining/environment amendment bills are promulgated as proposed, the DMR itself will also be able to approve after-the-fact rectifications for non-compliant mines – not as a temporary amnesty, as many of us understood section 24G to have been originally conceived, but forever.

If this phenomenon continues to grow, even the contracted 300 day period proposed for authorisation of large developments like mines, or the even further squeezed 250 days provided for Strategic Integrated Projects in the Infrastructure Development Bill, may become altogether redundant: developers will continue to flout environmental laws in the certain knowledge that, if they commence development without environmental authorisation, they can simply apply for ex post facto rectification and avoid prosecution in exchange for a fine that remains insignificant to most corporates.

Download all NECERs from 2007-8 here.