The protection of the environment through the use of criminal sanctions : a comparative analysis with specific reference to South Africa.
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Date
2002
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Abstract
The purpose of this work is to examine critically the use of criminal sanctions in the
enforcement of environmental law in South Africa. The two principal issues considered
are, first, whether criminal sanctions are the best enforcement instrument and, if not, what
alternative enforcement tools exist. Second, the thesis considers ways in which the use of
criminal sanctions can be made more effective in those cases where it is found that
criminal sanctions do have a role to play.
In determining the object of criminal law in the context of environmental regulation, it
is concluded that the primary aim is deterrence. The question that this raises is whether
deterrence can adequately be achieved through use of alternatives to the criminal
sanction.
A comprehensive analysis of South African environmental legislation reveals an
overwhelming reliance on the command and control approach to regulation, with criminal
sanctions being used in almost all cases as the primary enforcement mechanism. It is
argued that there are several shortcomings of criminal law that militate against its use as
the default enforcement mechanism and the conclusion reached is that they should be
reserved for the most serious contraventions of the environmental law. The thesis
examines several viable alternatives to criminal sanctions, both administrative and civil,
and makes recommendations as to how these can be used effectively instead of criminal
sanctions.
Following this initial conclusion, the focus then shifts onto how the use of criminal
sanctions can be improved in those (serious) cases for which they should be reserved. It
is agued, first, that the use of strict criminal liability is not necessary. This is followed by
an examination of vicarious and corporate liability where recommendations are made for
ways in which these aspects can be improved. The issue of sentencing environmental
crime is then considered and it is argued that penalties are largely adequate but
suggestions are made as to innovative sentencing options. Finally, several procedural
improvements are put forward.
In conclusion, a model enforcement chapter for environmental legislation is mooted,
taking into account the various recommendations made in the course of the thesis.
Description
Ph. D. University of KwaZulu-Natal, Pietermaritzburg.
Keywords
Environmental law--South Africa., Theses--Environmental law.