Advocate Mike Hellens told the court that "our reputation will be marred
Oil giant BP this week failed to have a private environmental prosecution against it withdrawn and will have to wait until May next year to plead to criminal charges — or to argue that it cannot be prosecuted.
BP this week told the high court in Pretoria that it had as much right to a fair and swift criminal prosecution as any other accused and that, if prosecutors were not ready to proceed, then the charges against it should be withdrawn.
While those charges hang over its head “our reputation will be marred, people will speculate about the morality, the criminality of BP, at the instigation of a prosecutor that is not ready”, advocate Mike Hellens told the court.
But in a complex set of rulings this week, Judge Brian Spilg said that, despite a measure of sympathy for BP’s position, neither it nor its prosecutor could be allowed to dictate the pace of proceedings. Instead, Spilg laid out a detailed timeline culminating in a May date by which BP will either plead to charges or have the opportunity to argue why it should not face them at all.
If the prosecution proceeds, it will be a landmark in South African legal and environmental history: the first ever private criminal prosecution of alleged environmental crimes. First, though, it will face a series of challenges rooted in that very uniqueness, and what BP has suggested are the grubby motives behind it.
Private criminal prosecutions are theoretically possible in South Africa, but notoriously hard to actually achieve.
Environmental legislation, however, specifically tries to enable civil society to assist in its enforcement. In terms of those more permissive rules little-known environmental group Uzani has secured the ability to prosecute as many as 2 500 alleged environmental crimes by a range of large companies, between them potentially worth many billions in fines and damages.
Top of Uzani’s list: BP’s failure to gain environmental clearance before building petrol stations in a four-year period starting in 1998. BP subsequently paid administrative fines to rectify that breach, something it is likely to argue means it would suffer doubly jeopardy if it is now also criminally prosecuted. Uzani, on the other hand, has already argued that sorting out paperwork after the fact does not undo a criminal act — and building a petrol station without environmental clearance is a criminal act.
And that should be simple to prove, said Uzani’s advocate Schalk Burger on Monday.
“I have to prove that BP built 21 filling stations without applying for the necessary environmental legislation [clearance],” Burger told the court. To do so, Uzani intends to point to BP’s application to rectify the breach as an effective admission of guilt.
BP has indicated that it will probably challenge the admissibility of such evidence.
First, though, Uzani may have to explain how it stands to gain from the prosecution.
Environmental legislation permits private prosecution in the public interest, but BP has reason to believe that is not Uzani’s only motive, Hellens told the court on Monday.
In a filing the previous court day, BP had put before the court an email forwarded to it from a petrol station owner who had been approached by someone claiming to be acting on behalf of Uzani. A new BP filling station down the road had cut into his business, that owner was told, and he may be entitled to compensation for that.
“The Uzani team is confident that it can recover significant losses suffered by affected retailers over the extended periods that the filling stations in question operated unlawfully, and to that end would like to meet with the proprietors of affected filling stations to obtain their mandate to do so,” the owner was told.
Whether Uzani intended to act for owners for a fee or on contingency, either amounts to prosecution for commercial gain, said BP’s legal team. It could also amount to a prosecution on behalf of undisclosed parties, BP hinted, in a situation that did not allow it to face its accusers.
If BP wishes to argue bias on the part of the prosecutor, then “that will need evidence”, said Burger.
Such arguments may come in May.
In the meantime BP and Uzani are likely to fight it out on preliminary matters, including the final version of the indictment BP will face, which Uzani must provide by mid-December, and the evidence to which BP must be granted access to prepare its defence, on which it must file papers by the end of January.
What happens then is anyone’s guess.
“From a case management point of view it appears unwise at this stage to regulate the running of the matter beyond that point,” Spilg said of the May court date.