Green Scorpions:are their hands tied?

Unbridled mining activity is but one dimension to South Africans polluting more per capita than the Chinese. The Department of Environmental Affairs and Tourism’s Environmental Management Inspectorate (EMI),known as the Green Scorpions, is the authority most people think should be preventing such ecological devastation.
Issue date : 07 November 2008

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Unbridled mining activity is but one dimension to South Africans polluting more per capita than the Chinese. The Department of Environmental Affairs and Tourism’s Environmental Management Inspectorate (EMI),known as the Green Scorpions, is the authority most people think should be preventing such ecological devastation. But as Rudi Massyn discovered, after speaking to the EMI’s Frances Craigie, director of enforcement and Sonnyboy Bapela, the chief director of Regulatory Services, this is not the case.

What is your response to farmers who say you are small fry and afraid to take on big industry. What teeth do you really have to enforce environmental law?
Sonnyboy Bapela: We do have teeth. We issue directives that say you have to do X, Y, Z to comply. If you don’t comply you face criminal or disciplinary prosecution. What we can do, a mechanism with which the law provides us, is to shut down operations pending compliance.

What is the role of the Ssuth African Police Service (SAPS) and the National Prosecuting Authority (NPA) in the prosecution of environmental offenders?
Frances Craigie: The SAPS can investigate environmental crimes as well, but a lot of the environmental crime we deal with is very specialised and at the moment we are working closely with the SAPS. What often happens is that the SAPS hands over dockets to us and we do the investigation. The most important relationship though is with the NPA. SAPS prosecutes environmental crime, we don’t prosecute. We spend a lot of time training prosecutors in environmental crime.

Most cases we have now they have never seen before. So we show them the legislation and what needs to be proved.It’s taken a bit of time and we have had less success with the criminal prosecution side, but there are a few big cases that should be finalised soon. A lot of what we’re proving is obvious. For example, if somebody doesn’t have a permit to do something he can’t argue. Many of the cases are settled outside of court in a plea bargaining process where fines are issued.

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Why are mines still allowed to pollute our rivers and land?
Sonnyboy Bapela: As far as mining activities are concerned, the mandate sits with the Department of Minerals and Energy (DME). We aren’t allowed to manage that mandate. Our mandate is environmental legislation.

But if somebody is affecting the environment in a negative manner then that surely is an environmental affairs issue?
Sonnyboy Bapela: To monitor rivers is the responsibility of the Department of Water Affairs and Forestry (DWAF). We haven’t done any inspections on mines polluting land thus far.
Frances Craigie: I think what people need to understand is that unfortunately, environmental legislation is very fragmented. This means there are many issues that sit with different government departments, not just nationally, but also between provinces and local authorities.

We are working hard at the moment to coordinate this.
With regards to mining, the lead agent is the DME and in its legislation, it has significant provisions to deal with mines and a full mandate in terms of legislation to deal with the environment. But we get many complaints about mining issues and then we do need to work with the DME. We can’t just go out and do it on our own.
Similarly, water is something that falls under the National Water Act, under DWAF. In issues of water pollution we have to work with the department and sometimes it requires our support. But unfortunately, our mandate within the Department of Environmental Affairs and Tourism (DEAT) is to focus on air pollution and waste-type issues.

What about Ssasol’s air pollution, especially now that taxpayers don’t get any benefit from it being a private company?
Frances Craigie: We have done compliance monitoring on five refineries. The legislation is, however, very old and there are a whole lot of certificates that have been issued by the DEAT to Sasol and Engen. The problem with the permits is that because they’re so old, the standards they set are low and it’s easy for industries to comply.

The DEAT is going through a process of reviewing the permits. In the next six months to a year, many of those industries are going to have much stricter permits. Then we’re going to see some interesting times because they are going to have to comply with much stricter standards. We could then do proper enforcement. It has been a major challenge.

But I thought environmental legislation in South Africa was good?
Frances Craigie: Well it is, but with regards to air pollution one needs to understand that we are still operating under the 1965 Act.
There is a new Air Quality Act, but a lot of the relevant provisions will only be put in place in September 2009.

What are the ‘Green Scorpions’ doing about the extensive sand mining in Lowveld rivers?
Frances Craigie: It has been identified as an issue, but with regards to mining activities, once again it is in the jurisdiction of the DME.
However, certain legislative amendments are going through the parliamentary process. Eventually, three or four years from now, we will be able to do work around mining issues.

What successes have you had over the last year or two?
Frances Craigie: We have had success stories such as independent foundries. We came in, they put the measures in place and we could then allow them to continue and there has been quite an amazing change. But we also deal with large factories and huge sites.
We’re dealing with a situation where they can’t put the measures in place within a couple of days. These facilities have been operating for 60 to a 100 years so the impact that they have had on the environment is 60 to a 100 years old. In those cases they come up with certain plans.

We then issue directives to try and keep them to a time period.Two years is a long time in anybody’s life, but based on the impact of these industries we understand problems can’t be solved in less than two years. We then issue a notice saying we want to see them doing what they said they’d do in the two years. If they then don’t comply, we can take harsher action. So, a lot of what we have done at this stage is to issue those types of notices.

Two to three years from now you’ll see us coming in on companies who haven’t done what they undertook to do and we can issue directives and possibly proceed with criminal prosecution.

Who gave you the name “Green Scorpions”?
Sonnyboy Bapela: The media.

Do you like the name?
Sonnyboy Bapela: As long as people don’t confuse us with the other Scorpions.
Contact the Environmental Management Inspectorate on (080) 020 5005. |fw