Environmental crime is more than just poaching
How often do you think about the environment? With the global increase in climate-related events, such as the recent catastrophic floods in Spain, the answer might be “quite a lot”. But you probably don’t think of the environment in terms of crime. In fact, environmental matters are highly regulated in South Africa, and environmental rights are enshrined in our Constitution. These rights are protected via a range of environmental laws at national, provincial and municipal levels. The principal environmental statute is the National Environmental Management Act, 107 of 1998 (NEMA). South African environmental law encompasses social, economic, philosophical and jurisprudential issues raised by the need to protect and conserve the environment in South Africa, and includes natural resource conservation, land use planning and development, and waste disposal. Environmental crimes range from rhino poaching to illegal dumping and even air pollution. Although these offences may seem unrelated, they are all a threat to our natural environment and the beauty and uniqueness of our land. What do you need to know about environmental legislation and what is your role in keeping South Africa clean and unspoiled?
A constitutional right
Although Section 24 of the Constitution provides everyone with the right to an environment that is not harmful to their health or wellbeing, the lives and livelihoods of many people and communities are currently at risk from the destruction of our natural resources and activities that harm our health and compromise ecological integrity. The Department of Forestry, Fisheries and the Environment plays a vital role in combatting environmental crimes by protecting and improving the quality and safety of our environment. The department aims to ensure that current and future generations will continue to enjoy their constitutionally enshrined right to an environment that is not harmful.
Environmental crimes – blue, green and brown
Examples of environmental crimes in South Africa include the hunting of a protected wild animal without documentation; possession of ivory without documentation; sale of ivory without a permit; hunting of rhinoceros without a permit; possession of rhinoceros horn without a permit; picking or possession of endangered flora without a permit; illegal picking of flora; and possession of flora without a permit. Illegal waste disposal is also a crime against the environment.
The Department of Forestry, Fisheries, and the Environment established an environmental crime and incident hotline in 2005. The Vuvuzela Hotline, an independent fraud hotline hosting service, was the service provider during 2017, 2018 and 2019, a period in which environmental crime incidence was logged and analysed. During this study period a total of 17 types of environmental crimes were reported. The crimes were categorised as blue, brown or green crimes.
Crimes related to environmental impact assessment, air pollution, waste, and developments were classed as brown crimes. Blue crimes were environmental crimes involving managing and protecting the coastal environment or water pollution. Crimes concerning the sustainable use and protection of biodiversity, biosecurity and the management of protected areas were classed as green crimes. Brown crimes were the most reported environmental crimes during that period (69%). Air pollution was the biggest single culprit. More environmental crimes were reported in Gauteng, a fact consistent with the province’s population density and disproportionate share of South Africa’s industry.
Transnational crimes
An environmentally criminal activity with transnational impact is wildlife crime, which attracts organised criminal networks due to its high returns. The significant expansion of this environmental crime has left a stain on society, generating violence and instability and wreaking havoc on our already fragile ecosystems and biodiversity. With a complex set of dynamics, wildlife crime has become an urgent problem that needs to be addressed at the international, national, and individual levels.
South Africa is a hotspot for illegal wildlife trade, particularly in the Kruger National Park. The illicit trade of animal parts, mainly to Asian markets, has increased since the Covid-19 pandemic, reversing the declining trend in rhino poaching since 2014. However, illegal killings of elephants have been consistently declining since 2015, mostly due to a near-total ban on elephant ivory trade implemented by the US in 2016, followed rapidly by the UK, Singapore, Hong Kong, and other elephant ivory markets. Most significantly, China closed its legal domestic ivory market at the end of 2017.
Legislation
Waste and pollution have always been at the forefront of the environmental challenges we face, nationally and globally. Waste is regulated in South Africa by the Waste Act 2008. The Waste Act provides a more comprehensive basis for the regulatory control of waste management practices than its predecessor, the Environmental Conservation Act 1989. The Waste Act emphasises the need to avoid the generation and unnecessary disposal of waste. This requirement is aligned with current approaches to environmental legislation which aim to prevent harm from occurring and not just penalise perpetrators after the fact. The definition of waste as contained in the Act is expansive and includes all types of waste. However, it is qualified by an “end of waste” provision that excludes by-products or waste that has been re-used, recycled or recovered.
This definition of waste may result in the defence that a substance is a by-product rather than waste. Such defence should be treated with caution as it has been used to justify practices that contravene international conventions and have extremely significant environmental impacts.
Waste disposal in South Africa
South Africa has a relatively high rate of waste generation compared to other developing countries, with a disproportionate amount of waste generated by the affluent. Only c.44% of the 1280 known landfills in the country are authorised, and there is an overall low level of auditing and compliance monitoring. Our growing industrial and manufacturing economy contributes to an increase in overall waste of 2% to 3% annually. E-waste is also a concern, as electronic goods become obsolete or displaced by newer models. Consumers often dispose of e-waste, LED lamps and other inappropriate items in their household rubbish, which goes into landfill, often because they don’t know what else to do with the items. But this is actually illegal and there are depots that accept all types of waste and ensure safe disposal or recycling where appropriate. Information is widely available online, and collection is often provided. Some major supermarkets accept items like batteries and LED lamps. We all have a part to play in ensuring toxic waste doesn’t wind up in landfill, where chemicals like mercury will seep into the ground and eventually into our waterways.
Protecting our biodiversity
South Africa is the third most biologically diverse country in the world. Our natural resources are the basis for several commercial sectors including forestry, fishing, tourism and agriculture based on indigenous species. Our ecosystems need to function properly for these sectors to provide jobs, particularly the tourism sector, which is directly dependent on the conservation of natural areas of environmental beauty and biodiversity.
In the words of Nelson Mandela: “We cannot afford to wait for others to stand up for our environment – as nobody stands to lose more than we do. It is our duty to be proactive in the battle to protect Africa’s natural environment.”
What can you do?
If you started reading this article thinking, “environmental crime is nothing to do with me,” hopefully it is now apparent that we all have a duty to treat our environment respectfully and responsibly, whether that means taking our litter home from a picnic or separating our recycling from landfill waste. Environmental criminals are not always as obvious as poachers; we may all at some point unwittingly commit an environmental offence. With a bit more awareness we can prevent that and help make our country a cleaner, safer place to live.
For more information
If you have questions about environmental crimes, the Waste Act, or any other legal matter, give Cape Town attorney Simon Dippenaar a call on 086 099 5146 or email sdippenaar@sdlaw.co.za.
Some resources:
SD Law
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.