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From the Editor Contents Volume 4. Quarter 4. 2012. EMI newsletter Contents From The Editor Welcome to the fourth edition of the Inspector, the official quarterly From The Editor 1 newsletter of the Environmental Management Inspectorate. Legally Speaking 2 All Rise In Court 3 This edition marks the end of the first year of the Inspector, as we Strategic Inspections 4 continue our efforts of establishing this newsletter as a key Take Note 4 NECEF 5 communication tool to connect Environmental Management Inspectors Media Briefing 6 and other important role players across national, provincial and local Gala Dinner 6 government institutions. Training Day 7 Excursions 8 Along with our usual newsletter features, we bring you information on a Debora Patta 8 number of successful prosecutions during the last quarter, as well as Stakeholder Discussion 9 important judicial guidance for EMIs to take into account in the drafting Workshop Discussion s 10 and execution of search warrants. EMI Institutions’ Feedback 11 Nice To Meet You 12 We also bring you extensive coverage of the fourth Environmental Nice To Meet You Too 12 Compliance and Enforcement Lekgotla (ECEL), hosted by the Nice To Meet You Three 13 Department of Environmental Affairs and held in Polokwane. Half a In Memory Of A Good Man 13 decade since the creation of the Inspectorate, the main objective of this On A Lighter Lekgotla Note 14 event was to discuss topics of general interest, develop capacity and Hot Off The Press 15 adopt strategies to tackle the current challenges facing the environmental compliance and enforcement sector. I would like to take this opportunity to thank all those officials who assisted in the organisation and hosting of the ECEL, as well as all the attendees who contributed in making this event a success. The true measure of success, however, is in the implementation, and we hope that officials will be inspired to continue to build on the achievements of the first five years of the Environmental Management Inspectorate. Ziyaad Hassam Ziyaad Hassam Environmental Management Inspectorate Newsletter Volume 4, March 2012 Legally Speaking WASTEMAN HOLDINGS (PTY) LTD v MINISTER OF ENVIRONMENTAL AFFAIRS The Department of Environmental Affairs (DEA), the KZN Provincial Department and Ethekwini Municipality received complaints from residents and community leaders in the Chatsworth area regarding the dumping of unauthorised waste on the Bulbul Drive Landfill site of Wasteman - a waste disposal company which collects and disposes of medical waste for their clients. On 9 February 2011, DEA applied for, and was granted a search and seizure warrant in respect of the Bulbul landfill site. The warrant was executed on 10 February 2011, after which Wasteman brought an application to set aside the search warrant on the grounds that it was unlawful, alternatively seeking to review and set aside the decision to authorise the search warrant on the basis that a proper case had not been placed before the Magistrate in the affidavit in respect of which the application was made. The application was heard in the Durban High Court on 14 June 2011 and judgement handed down on 20 December 2011, wherein the court ruled in favour of the applicant, in so doing, ordering that the search warrant that was issued on the 9 February be set aside, and further that all documents and objects seized and samples taken pursuant to the execution of the search warrant be returned to the applicants. The implications of this judgement should serve as critical judicial guidance to EMIs when applying for search warrants. For a search warrant to be valid, it must fulfill the test of being drafted in a “reasonably intelligible manner”, which includes the following: The statutory provision in terms of which the warrant has been issued; Identity of the person/s who will conduct the search; The legislative authority given to the searcher; Identity of the person, container or premises to be searched; Description of the article to be searched for and seized; Details of the offence/s which triggered the criminal investigation; Names of the suspected offender/s. For a copy of the full judgement, please contact Ziyaad Hassam at [email protected]. S v AESTHETIC WASTE SERVICES (PTY) LTD During July 2009, DEA received a complaint that Heath Care Risk Waste ("HCRW") was being stored unlawfully at a location in Butterworth, Eastern Cape. The complaint was followed up and a site investigation was executed by EMIs from DEA and the Eastern Cape Provincial Department, who discovered a large amount of HCRW being stored on site. As is often the case in matters of this nature, the area smelled of rotten and decaying human flesh and posed a threat to both human health and the environment. A criminal investigation was then undertaken by DEA. During January 2010, further complaints were received and investigated by officials from the Eastern Cape Provincial Department, and a further criminal case was opened against the company and its directors. The various contraventions were thereafter collated for trial purposes and the matter was heard in February 2012 at the Butterworth Regional Court. The accused was charged with contravention of section 20(1) of the Environmental Conservation Act (operating a waste disposal site without a license); and section 35(2) of the National Environmental Management: Air Quality Act (failure to take reasonable steps to prevent the emission of noxious and offensive odours). The company, represented by Mr. Nakin (a director) pleaded guilty on both counts and was sentenced to a fine of R200 000 suspended for 5 years. Compiled by Eugene Swart & Heloise van Schalkwyk 2 Environmental Management Inspectorate Newsletter Volume 4, March 2012 All Rise In Court SUMMARY OF BIODIVERSITY CONVICTIONS S v I Maluleke and two others - Case Number: RP 101/11, Phalaborwa Regional Court (Prosecutor J Manzini) Whilst on patrol, game rangers found a freshly dehorned rhino carcass. They followed footprints found near the crime scene and heard shots being fired, after which they found and arrested four people lying underneath some bushes. The arrested persons had in their possession rhino horns, two rifles, ammunition and two axes. One of the arrested persons later died. The remaining three accused all pleaded guilty on the following four counts: hunting of rhino (count 1), possession of a prohibited firearm, being an AK47 (count 2), possession of a rifle (count 3), and possession of ammunition (count 4). They were all sentenced to 10 years imprisonment or R100 000 fine on count 1, 15 years imprisonment on count 2, 8 years imprisonment on count 3 and 15 years imprisonment on count 4, with counts 2 and 4 to run concurrently. S v ES Sigauque – Case Number: SH 45/2010, Mokopane Regional Court (Prosecutor D Lamminga) After hearing a gunshot early in the morning, a Limpopo farm manager and trackers found a dehorned rhino, which had been shot with an R5 firearm. They found footprints and tracked them for approximately 5km, where they found 4/5 persons sitting down to eat. Having been disturbed by the trackers, they all split up and ran into the mountains. An axe was later found, which DNA analysis later confirmed had carried blood from a white rhino. One person was later found and was shot in the hip. The evidence of the tracker, who testified that he matched the shoes which the accused was wearing at the time of his arrest to the tracks at the crime scene, formed the crux of the case. Having denied that the shoe belonged to him, the accused’s’ foot was cast and the shoe sent for forensic analysis to make the necessary comparison, after which it was confirmed that the shoe was in fact that which was worn by the accused. The accused was charged and convicted in terms of the Limpopo Environmental Management Act for illegal hunting of a rhino (count 1) and for trespassing (count 2). Upon conviction, Col. Jooste testified in aggravation of sentence, which contributed significantly to the accused being sentenced to 12 years imprisonment on count 1 and 1 year imprisonment on count 2, with both counts to run concurrently. S v Els - Case Number: 1067A/2010, Musina Regional Court (Prosecutor A Weideman) A game trader in Thabazimbi pleaded guilty to the illegal buying, possession and conveyance of 30 rhino horns (count 1), which he bought from a now deceased acquaintance. The seller was the manager of Maremani Nature Reserve, owned by a Danish consortium, where rhino were dehorned and sold to the game trader. The game trader also dehorned 8 of his own rhino (count 2). He was sentenced to 10 years imprisonment, 2 of which were suspended for 5 years in respect of count 1, and to 4 years imprisonment, wholly suspended in respect of count 2. He was further ordered to pay R100 000 per month over a ten month period to the National Wildlife Crime Reaction Unit to assist in rhino research. S v D Mathebula and two others - Case Number: 230/11, Mokopane District Court (Prosecutor E Nel) A member of the public driving past the veld saw something that resembled a torch light. Aware of the cycad thefts in the area, he reported a suspicious red bakkie to the authorities. Four accused were later arrested, having been found in possession of one cycad, with another pointed out at the location where it had been hidden. The value of the two cycads was estimated at R18 250.00, and both could not be saved. The accused were later charged in terms of Section 57(1) of the Biodiversity Act. For their varying roles in carrying out the offence, Accused 1 and 3 were sentenced to 30 months imprisonment, Accused 2 sentenced to 4 years imprisonment, and Accused 4 sentenced to 2 years imprisonment, suspended for 5 years.
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