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ENVIRONMENT: Environmental Practitioner Convicted


Recent Gauteng Business News

An Environmental Assessment Practitioner (EAP) was recently convicted of an offence having submitted incorrect or misleading information as part of an Environmental Impact Assessment (EIA) conducted in terms of the National Environmental Management Act, 107 of 1998's EIA Regulations. He was also initially charged with fraud but was not successfully prosecuted on this charge. This is according to Justine Sweet, Senior Associate in the Environmental Practice at Cliffe Dekker Hofmeyr.

“The EAP was instructed to conduct a basic assessment required for certain listed activities relating to the development of the Pan African Parliament’s new building. As part of that assessment, the Gauteng Department of Agriculture and Rural Development (GDARD) had specifically required him to conduct certain further studies including wetland delineation. His client, the Department of Public Works, had also been advised that the proposed construction may affect a wetland system and had therefore asked the EAP to conduct the relevant studies. No wetland studies were done,” explains Sweet.

“Instead,” Sweet notes, “ the EAP represented in the Basic Assessment Report (BAR) that no river, stream or wetland occurred within a 500 m radius of the site. As part of his defence, he said that he did not think a wetland study has been necessary based on the information and assumptions he had drawn from other studies commissioned.”

“Based on the information contained in the BAR, an environmental authorisation was granted. Construction commenced. However, seepage and other indications of the presence of a wetland caused the construction site project manager to seek the advice of another consultant. Construction was put on hold and investigations began.”

Ignorance by the Environmental Practitioner

In its judgment, the Court deliberated extensively on expert evidence regarding what wetlands are and whether a wetland in fact existed on the site. It concluded that the assumptions made by the EAP regarding the non-existence of the wetland had not been confirmed by an appropriate expert. It further held that the EAP had not acted according to the requests made to him by the competent authority and the applicant.

“The Court dismissed the charge of fraud on the basis of the EAP not having unlawfully and intentionally made representations causing either actual or potential prejudice (although it remarked that the rehabilitation costs would result in prejudice to the state and the tax payer),” she explains.

Charges Laid Upon Environmental Practitioner

Sweet notes that in convicting the EAP on the charges raised in terms of the EIA Regulations, the Court held that the EAP had failed to comply with prescribed norms, that he had been negligent and had not properly applied his mind. Regulation 81(2) provides for a maximum sentence of two years or a fine not exceeding the amount prescribed in terms of the Adjustment of Fines Act, 101 of 1991.

“The applicant in this matter was not charged. That potential does exist, however, and for that reason, (together with significant negative publicity that could arise in these circumstances) it is recommended that in appointing an EAP, an applicant carefully considers who it appoints as an EAP and what his or her track record is, that the EAP’s appointment and mandate is in writing and that the EAP is registered with the newly established Environmental Assessment Practitioners’ Association of South Africa. In addition, the applicant may wish to stipulate that the EAP must indemnify the applicant against the rehabilitation costs of damage negligently or fraudulently caused by the EAP's conduct,” she adds.

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