Abstract
This research focuses on the criminal liability of corporations for environmental offences. While environmental offences can occur across various types of business entities, this dissertation focuses specifically on incorporated companies. Globally, corporations play a significant role in causing environmental damage, underscoring the need for greater enforcement of environmental laws and the prosecution of offending corporations and their associates. This is against the backdrop that companies are prohibited from acting recklessly and that directors must uphold their fiduciary duties as outlined in the Companies Act of 71 of 2008.
To facilitate the enforcement and prosecution of corporations for environmental damage in South Africa, the National Environmental Management Act (NEMA) 107 of 1998, various environmental sector-specific legislation, and the Criminal Procedure Act (CPA) 51 of 1977 are used in conjunction. This dissertation examines the sufficiency of relevant provisions in the NEMA and the National Environmental Management: Waste Act 59 of 2008, a sector-specific statute focusing on waste management. To assess the effectiveness of corporate criminal enforcement mechanisms for environmental crimes, section 332 of the CPA is reviewed to determine whether it provides a robust legal foundation for prosecuting corporations.
A comparative study is conducted on corporate criminal liability laws in Australia relevant to the scope of this study, focusing on the Criminal Code Act 1995, the Environment Protection and Biodiversity Conservation Act 1999, and the Protection of the Environment Operations Act 1997. The comparative study assessed the corporate criminal liability statutes in South Africa and Australia, contrasting similarities and differences. The objective of the comparative study is to leverage the Australian approach as a benchmark to propose sound reforms that will enhance the South African legal framework for prosecuting and imposing liability for environmental offences. The outcome of this research indicates that, although South Africa has a solid legal framework to address corporate environmental crimes, a more specialised and robust prosecutorial and enforcement system is required to effectively combat environmental crimes.