The use and impact of criminal sanctions for environmental law transgressions in industrial facilities in South Africa: Determining the boundaries of overcriminalization

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South Africa has many environmental laws that apply to industrial operations, which laws contain numerous criminal offence and penalty provisions. On conviction, criminal liability may be substantial and far-reaching, including maximum prescribed penalties of up to R5 million or R10 million or imprisonment of up to five or ten years, depending on the offence’s nature. The National Environmental Management Act 107 of 1998 also contains instances where additional criminal liability may be imposed. Writers have described these environmental laws as being ‘littered with new criminal offences’. Criminal law theorists express strong views against overcriminalization, describing it as ‘one of the most serious problems facing criminal law’ because although the criminal sanction should be the state’s ‘ultimate weapon against assaults threatening societal coexistence’, it ‘has become a blunt instrument through its indiscriminate use by legislatures as a tool to ensure obedience’. South African environmental law scholars have considered the criminal sanction in environmental law, but not how the landscape of criminal sanctions has changed over the years, how the criminal sanction is used against industrial facilities that contravene such laws, and what impact this has had on the operation of these facilities or effective enforcement. This research frames these considerations in terms of theories of criminalization and overcriminalization, by establishing a normative framework that can be used to assess what behaviour should be criminalized or what may indicate overcriminalization. This study analyzes changes to four selected South African environmental laws and specific offence categories and considers concluded prosecutions relating to such offences. It reflects the perspectives of 32 participants involved with environmental compliance and enforcement in South Africa, gauging their opinions on themes including criminal law as a last resort, certainty and practicality of the law and its frequent changes, the deterrent effect of criminal sanctions, and challenges in criminal enforcement. These aspects are analyzed within the normative framework to answer the overarching research question- whether the use of criminal sanctions for environmental transgressions in industrial facilities in South Africa has led to overcriminalization and when the use of the criminal sanction is appropriate and effective. The study’s recommendations aim to contribute to the more effective use of criminal sanctions through improved legislative design
A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy to the Faculty of Commerce, Law and Management, University of the Witwatersrand, 2022
Criminal sanctions, Environmental law transgressions, Criminal law, UCTD