THE ESTABLISHMENT OF DEDICATED WATER & ENVIRONMENTAL COURTS

COMPLIANCE MONITORING AND ENFORCEMENT Integrated Approach

Towards a Complied Society

Presented by: Harish Jhupsee

• Bill of Rights of the South African Constitution (Act 108 of 1996) - Environmental Rights (Section 24 & Section 27)– “Everyone has the right”

• to an environment that is not harmful to their health or well-being,

• to have an environment protected for the benefit of present and future generations, through reasonable legislative and other measures that

– prevent pollution and ecological degradation– promote conservation and secure ecologically sustainable

development and use natural resources while promoting justifiable economic and social development

• “Everyone has the right to have access to sufficient food and water” (section 27)

CONSTITUTIONAL MANDATES

• On the role of the courts in ensuring that the State fulfils its role in giving effect to these rights and thus ensuring that there is an effective guarantee of these rights, Judge Yacoob said in the Grootboom case:– I am conscious that it is an extremely difficult task for the

State to meet these obligations in the conditions that prevail in our country. This is recognised by the Constitution which expressly provides that the State is not obliged to go beyond available resources or to realise these rights immediately. I stress however, that despite all these qualifications, these are rights, and the Constitution obliges the State to give effect to them. This is an obligation that Courts can, and in appropriate circumstances, must enforce. (our emphasis)

CONSTITUTIONAL MANDATES

• DOJ will achieve its mandate is to uphold and protect the Constitution and the rule of law and will also achieve effective administration of justice in the interests of a safer and more secure South Africa.

• DOJ will meet its strategic goals as mentioned in its Medium Terms Strategic Framework 2009/10 document.

• DOJs vision and mission, that being, an accessible and transformed justice service committed to the promotion of constitutional values, where together DOJ provides accessible, fair, speedy, cost-effective and quality justice for all.

DOJ’s CONSTITUTIONAL MANDATE

Millennium Development Goals: By 2015, using 1990 as a benchmark –

• Halve the proportion of people living in extreme poverty and hunger;

• Halve the proportion of people without access to safe

drinking water (with sanitation added at the World Summit on Sustainable Development, 2002)

• In other words, to achieve the part of the objectives of

the National Water Policy for SA adopted by cabinet in 1997 and Environmental Affairs white paper.

CABINETS STRATEGIC GOALS

• The principles of co-operative government, entrenched in Chapter 3 of the Constitution, govern the relationship between national, provincial and local spheres of government. Chapter 3 of the Constitution aims to shape the attitudes of the levels of government to fit the co-operative model of federalism. The principles are concerned with the way power is exercised, not with whether or not a power exists.[1][1] Premier, Western Cape v President of the Republic of South Africa 1999(3) SA 657 (CC)

• Section 156 of the National Water Act binds all organs of state, and allows to prosecute non performing institutions

Organs of State

Problem Statement

• Consequences of Water & Environmental Crime - Environmental crime is damaging our environment, affecting people & the economy

• Climate change is effecting the reliability of supply to water users and the risk of supplying users are likely to increase.

• In the Vaal River system, the unlawful use of water by irrigators is a major problem, particularly upstream from the Vaal Dam;

• This unlawful water use is estimated to be equivalent to the yield of one of the Lesotho Highlands Water Project dams - (Mohale Dam)

• This multi-billion Rand project to ensure sufficient water for Gauteng is thus been compromised through theft. This “loss” is currently being masked by good rainfall and run-off but could change dramatically under drought conditions.

Problem Statement

• Delay in the prosecution of water & environmental crimes• Lack of dedicated prosecutors/courts to deal with water &

environmental crimes• Water & Environmental crimes regarded as low priority in courts• Lack of capacity and time to deal with water & environmental crimes• Technical complexity of water & environmental crime requires

specialised expertise• Insufficient return on investment in building Compliance and

Enforcement Capacity and training Justice officials.

• Before NWA, water use was based on riparian rights through permits and/or water rights

• Post NWA, new era of water use AUTHORISATIONS• Significant increase in unlawful water use has been

observed• Verification of existing lawful use is presently slowing

down practical implementation of compulsory licensing• Identification and successful prosecution of

transgressors are difficult under current strategies and mechanisms (Currently under review)

• One of the Department’s salient key focus areas is to ensure the protection of water resources, which include the entire WATER VALUE CHAIN

Reminder

Satellite: Spot 2

OVER ABSTRACTION OF GROUND H20

Interventions

• Hermanus specialised environmental court (Feb 2003 – July 2005)• Agreement with Justice college to train prosecutors and raise awareness

within the judiciary on environmental crimes (Ongoing, with in access of 300 prosecutors and 300 magistrates having attended these workshops)

• Produced Prosecutor manual and distributed countrywide (2007)• Request to NPA to allocate dedicated prosecutors to handle environmental

crimes (2008)• Novel provisions on supplementary orders on conviction of certain

environmental crimes (s.34 of NEMA) and Chapter 4 provisions of NWA• Increased maximum penalties for environmental crimes (NEMA

Amendments 2009)• Establishment of Public Interest Litigation Unit within the NPA and fresh

consideration of proposal for dedicated prosecutors (2010)• Advanced Prosecutor Training Course (2010) DWA is part of this training

• Subject to a directives being issued to an UNLAWFUL water use to rectify the non compliance-– Carry out the necessary measures to rectify the non

compliance (e.g break a dam, seal water pipes)– Suspend any entitlement to use water;– Withdraw such an entitlement

• Lay criminal charges• Approach the Court for appropriate relief

Powers to deal with unlawful water use

Interventions – Organs of State

Waste / Water Services Regulation

Enforcement ProtocolSupport

Towards Compliance

Regulate according to PoA

Plan of Action Submission(Municipal Commitment)

Meet Municipal Decision-makersDeliver formal notification

*(pre-Directive)

Detect Non-compliance

Reg

ulat

e Tow

ards

Acc

eler

ated

Impr

ovem

ent

* In Consultation with Provincial Government

Phase B: Enforcement Protocol

Legal Intervention

The Resources Available

• Currently 926 EMIs across National and Provincial Environmental Departments, and National Parks

• Training continuing this year at various tertiary institutions• Roll-Out to Municipalities and Water Affairs to significantly increase

numbers of EMIs• Increasing investigative capacity- number of reported cases increasing• SOP with SAPS (EMIs investigating environmental crime, with SAPS

assisting and taking the lead in organised and combination crime)• Currently DWA will est. a CME Directorate and soon a Chief Directorate to

enhance DWA’s enforcement of the NWA and WSA

Proposed Solution

• Dedicated v Specialised Courts

• Criminal and Civil Courts

• Establishment of 4 pilot phase Environmental Courts (Gauteng, KZN and Western Cape at Regional Court level, and Free State at District Court level)

• Appointment of dedicated prosecutors and judiciary (two per court) to handle environmental crimes to be supported by DEA

• Utilisation of existing court structures

• Evaluation of pilot phase after one year to determine sustainability