“Compliance and enforcement: The Legal Suitability of the Utilisation of Criminal Sanctions in South African Environmental Law”

Abstract

In this thesis I analysed the suitability and effectiveness of the criminal sanction with regards to compliance and enforcement in South African environmental law. My central argument is that the criminal sanction is not the perfect mechanism to address compliance and enforcement in South African environmental law sufficiently. Compliance and enforcement of South African environmental law has been a stumbling block for years since the implementation of the first piece of environmental legislation. Thus I explored compliance and enforcement in South Africa and identified the various issues that might be the reasons why compliance and enforcement in South African environmental law is not up to standard. I also analysed criminal environmental enforcement and came to the conclusion that criminal law is not suitable for the exclusive enforcement of environmental law. The conclusion was drawn by also analysing the criminal environmental enforcement statistics and the administrative compliance and civil action statistics of 2014-2019 in South Africa. Criminal law possesses too many inherent weaknesses and with our overcrowded criminal justice system there is no capacity for presiding officers to properly apply their mind when adjudicating environmental offences Thus I explored the alternatives to the criminal sanction and discussed and evaluated the different compliance and enforcement mechanisms in our legislative framework. I came to the conclusion that our legislative framework is sufficient to deal with environmental offences and that no new pieces of legislation need to be passed. There are various other compliance and enforcement mechanisms within our legislative framework that are better suited to deal with environmental offences.I came to the conclusion that the reasons for South Africa’s failure in compliance and enforcement in environmental law is due to those responsible for compliance and enforcement lacking the necessary capacity, skill and resources to firstly ensure that the laws are complied with and enforce it when it is not complied with. I also argue for the resurrection of environmental courts in South Africa in light of the successes in foreign jurisdictions. My concluding argument is that the criminal sanction still has a role to play in environmental compliance and enforcement in South Africa, however not as a primary mechanism.