The protection of the environment through the use of criminal sanctions : a comparative analysis with specific reference to South Africa.

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.