Will Gerrie Nel pursue the prosecution of environmental crimes? March 2017

By GARYN RAPSON, Published in The Law

After 36 years of service as a state prosecutor for the National Prosecuting Authority, Advocate Gerrie Nel, aka the "Bulldog" and "Pitbull", who is best known for his prosecutions of the likes of Oscar Pistorius and Jackie Selebie, resigned.

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Advocate Nel decided to head-up a private prosecution unit for the NGO, Afriforum, which is to run parallel to the National Prosecuting Authority. This has sparked great interest from the public in relation to the rights surrounding private prosecution in terms of the Criminal Procedure Act (51 of 1977) (the CPA) in South Africa.

Although s7 and s8 of the CPA provide for instances where private prosecution of persons may occur, it should be noted that there is no express constitutional right to privately prosecute, and these instances are exceptions to the general rule that the National Prosecuting Authority is responsible for criminal prosecution. Section 7 provides that an individual, who must be a victim of the crime or a relative of the victim (or the appointed legal representative), can implement a private prosecution where the Director of Public Prosecution (DPP) has declined to prosecute and issued a nolle prosequi certificate.

Section 8 provides that a private person (natural or juristic) can implement a private prosecution against another party, where this right has been expressly provided under specific legislation. Under these circumstances, private prosecution can be instituted without receiving a DPP certificate. However, a party wishing to institute private prosecution in terms of s8 of the CPA may only exercise this right after having consulted with the relevant attorney-general, and once the attorney-general has withdrawn his or her right of prosecution in respect of the specified offence.

The National Environmental Management Act (107 of 1998) (NEMA) is one such piece of legislation that expressly provides for the right of private prosecution. Section 33 provides that any person may institute a private prosecution against a person (natural or juristic) if they have breached, or threaten to breach, a legal duty concerned with the protection of the environment, and where the breach of that duty is an offence. Such a duty may be imposed in terms of any provincial or municipal laws, by-laws, regulations, licence conditions and permissions or authorisations that relate to the environment. In addition, a private prosecution in terms of NEMA must be brought either in the interest of the public or in the interest of the protection of the environment.

Section 33(4) of NEMA states that the private prosecutor "shall be liable to pay the accused's costs if the court finds that the private prosecutor did not institute the proceedings in the interest of the public or the protection of the environment or if the prosecution was unfounded, trivial or vexatious." This risk must be front of mind when considering whether to invoke the right of private prosecution afforded under NEMA. When a private prosecution has been instituted in terms of NEMA, the attorney-general is barred from prosecuting the accused for the same offence, except with leave from the court concerned. The right to private prosecutions in terms of the CPA is seldom invoked and, in the case of NEMA, we are not aware of this right ever being invoked. Time will tell whether the Bulldog will be pursuing the prosecution of environmental crimes. Other NGOs are also likely to take a keen interest in this development, and may set up their own environmental crime private prosecution units.

Rapson is a Partner, Projects practice, Webber Wentzel.