Action stations: BP built new garages in Gauteng before the environmental paperwork was done
NEWS ANALYSIS
On Monday morning high court judge Brian Spilg, wearing the red robes reserved for criminal proceedings, gave the firm, if formulaic, caution reserved for criminal accused due to return to court at a later date.
“You are warned that your failure to attend may result in a warrant for your arrest being sought and being granted, in which case you will be arrested,” Spilg told Julia Stewart about her next appearance, due in November.
Stewart gravely nodded her understanding.
Three things set the proceedings apart from every other criminal appearance happening around the country at the same time that day.
One, Stewart stands accused of no wrongdoing in her own right, but is a figurehead nominated by BP Southern Africa, the entity accused of criminal acts, to stand in the dock on its behalf.
Two, the court featured no representative of the National Prosecuting Authority (NPA) whatsoever; behind the desk reserved for the prosecutor was Uzani Environmental Advocacy, a close corporation that exists almost entirely on paper, and — for now — exists only to prosecute BP.
And three, Uzani could make a very large amount of money out of prosecuting BP before taking the fight to every other petrol company in South Africa in what could amount to thousands of separate criminal counts, collectively costing the oil industry billions of rands.
Or, if BP has its way, Uzani will be thrown out of court, slapped with a punitive cost order and fade into history rather than making it.
“Indubitably they … simply have no title to prosecute and it is vexatious beyond belief,” advocate Mike Hellens told Spilg on behalf of BP.
That much is undisputed: if nothing else, BP and perhaps other large companies are about to be vexed.
Private prosecution
The National Environmental Management Act (Nema), the centrepiece of South Africa’s environmental regime, has an unusual clause in its preamble. It is desirable, the law reads, “that the law should be enforced by the state and that the law should facilitate the enforcement of environmental laws by civil society”.
In theory, South African law makes provision for private prosecutions, which allows someone else to act in the stead of the NPA. The concept is being explored by pressure group AfriForum, which hired former NPA superstar Gerrie Nel in a blaze of publicity for that very purpose.
But in reality, the bar for private prosecution is set high. Before one can be initiated the NPA must issue a certificate stating it does not wish to prosecute the matter, something the body has proven loath to do.
Nema is the single exception to that rule; instead of actively assenting to private prosecution, the NPA simply has to do nothing. A prospective prosecutor like Uzani need only send the NPA a notice of its intent to prosecute. If the NPA does not within 28 days say that it intends to prosecute the same offence, the field is clear for private prosecution.
Nema then goes one step further, specifically absolving a prosecutor from putting up security for legal fees should the matter go against it, the kind of security that can be demanded in civil matters and often brings them to a screeching halt.
The combination has long been thought powerful, but until BP’s first court day on Monday it had not been put to the test.
“Environmental crimes are far more prevalent in South Africa than most people realise. Our authorities are not properly resourced to deal with all of them,” said Tracey Davies, programme head for corporate accountability and transparency at the Centre for Environmental Rights, this week. “The NPA has few resources to invest in cases aimed at punishing violators for the damage wrought on our people and resources by pollution. The private prosecution provision in Nema could be a powerful tool to start to rectify this imbalance. Private prosecution is extremely difficult and expensive, so it is encouraging to see that there are people out there brave enough to use it.”
Sins of the past
Between 1998 and 2002, according to the indictment BP faces, it built or upgraded a number of petrol stations around Gauteng. Everyone agrees it did so without all the environmental paperwork in place, which is not unusual, and that it subsequently paid “administrative penalties” to set things to rights, also not unusual.
Now Uzani is stepping in as a “Johnny-come-lately” to exploit that effective admission of past wrongdoing, Hellens told the court, and turn those into criminal matters.
“The questions are whether there is any public interest in fact and whether there is any environmental wrong they are trying to cure,” said Hellens. “These are matters of historical significance … where no-one is affected anymore if they ever were. It is opportunism and it is most naked.”
That is in part why BP has demanded to know exactly who and what Uzani is. Hellens raised the possibility that, “shielding behind the apparent face” of an environmental advocacy group is, perhaps, someone else, some funder with an interest beyond what is disclosed in, to date, very limited court papers.
Behind the plan
Uzani Environmental Advocacy CC appears to be a corporate vehicle created to prosecute BP, and to shield those behind it from ruinous legal costs if it does not succeed — something it does not deny. But it could end up being much more than that, said the primary mover behind it, Gideon (Kallie) Erasmus.
“Clearly there are some cost-related benefits to using a juristic person, but this prosecution forms part of a much broader initiative. Uzani is a platform that will eventually include a foundation that would be run not for profit, and a commercial side.”
The plan, from what little a recalcitrant Erasmus would say, goes something like this. If a court finds BP guilty and levies fines on it, Uzani could be awarded a percentage of those fines. That money, in turn, could be used for similar actions — perhaps many of them.
Is he simply targeting BP because it is a soft target, likely to settle? Erasmus pauses. “We’re not only targeting BP,” he says.
Which other companies is he targeting? “All of them.”
In fact, Erasmus says, Uzani has given the NPA notice of 2 500 separate instances it wants to prosecute. Because the 28-day window period for the NPA to object has passed on all those instances, Uzani can now, in theory, prosecute all of them.
Erasmus will not be drawn on the details, but pressed on whether he is launching a for-profit crusade, he suggests Uzani will not be going it alone for long.
“No single initiative has the capacity to undertake that number of prosecutions, not even the NPA,” he said. “We fully expect other institutions to adopt a similar approach, and we would hopefully be extending an invitation for co-operation among institutions.”
BP spokesperson Reneilwe Letswalo issued a brief statement: “BP is of the view that the proceedings brought by Uzani Environmental Consultants are not competent in law, and is confident that the matter will be satisfactorily resolved through due legal process.”