Despite repeated requests by Uzani Enviromental Advocacy
The closest thing Gauteng has to an environment department is due to be subpoenaed to give evidence in a criminal environmental trial, because it has not responded to more polite requests.
The evidence is vital to what may be South Africa’s first private environmental criminal prosecution, the group seeking to conduct the prosecution told the high court in Pretoria in December.
Whether the trial goes ahead will only be determined in May, but in mid-December history was already made when the private prosecutor, Uzani Environmental Advocacy, served a formal indictment on BP Southern Africa.
The indictment, the equivalent of a summons in a lower court, lists 22 instances of when Uzani alleges BP built or upgraded petrol stations without environmental approval.
Uzani intends to set a precedent by prosecuting BP in terms of previously untested environmental legislation that empowers the public to pursue environmental crimes the state does not reserve for traditional prosecution.
But it has been having trouble getting the Gauteng provincial government to provide vital evidence, Uzani said in an affidavit in December.
“It has been particularly problematic for the prosecutor [Uzani] to obtaining [sic] witness statements due to the officials concerned failing to co-operate with the making and taking of statements,” Uzani representative Gideon (Kallie) Erasmus told the court.
Uzani said it had, since the end of July, been asking for assistance from the head of the Gauteng provincial department of agriculture and rural development. It requires that department to confirm documents it says shows BP admitted it did not follow environmental rules when it applied for “rectification of the unlawful construction”.
With no substantial response from the Gauteng government forthcoming, Uzani will ask for a subpoena in January, it said, using the same legal right to compel witnesses to appear before a court that is usually wielded by the National Prosecuting Authority (NPA).
Uzani also confirmed in its papers that, once it has secured a conviction, it may seek to recover “the unlawful advantage gained by BP pursuant to these crimes” and also to help the proprietors of competing filling stations to claim against the sales they have lost.
“This prosecution forms part of a broader private environmental prosecution initiative by Uzani in the course of which it, as a civil society entity, hopes to enforce environmental legislation … both in the public interest and in the interest of protecting the environment,” said Erasmus, alluding to “possible future prosecutions”.
Uzani has previously said it had notified the NPA of 2 500 instances of environmental crimes it may pursue, a necessary precondition to instituting an environmental private pro-
secution. Unlike in all other cases, the NPA need not consent to the private prosecution of environmental crimes but needs only to be notified and then do nothing for 28 days.
Uzani intends to secure “fines, penalties and awards resonant with the seriousness of the crimes”, said Erasmus. It will then use whatever money flows its way “to help finance a broader environmental advocacy initiative”.
BP has argued that Uzani does not have the right to prosecute it, is being opportunistic and has suggested that there may be hidden hands, perhaps those of its competitors, behind the attempt.
Uzani denied these allegations, saying it was acting within the law, for the public good and was funded by its members out of their own pockets.
BP is due to plead to the charges in May, or argue why it should not be prosecuted at all.