Abstract

Recent reports from the South African Department of Environmental Affairs show that South Africa has seen an increase in the number of environmental offences in the last two years. The 2014/2015 annual report of the National Prosecuting Authority shows that ‘the number of environmental crimes finalised with a verdict increased from the previous year by 60.6% — from 165 to 265 cases’. All these offences were prosecuted by public prosecutors. Section 33 of the South African National Environmental Management Act 107 of 1998 (NEMA) empowers private individuals and juristic persons to institute and conduct private prosecutions for offences under the Act. There is no reported case in which section 33 has ever been invoked. The purposes of this article are to analyse section 33 of NEMA and suggest ways by which it could be interpreted or amended to strengthen the private prosecution regime. In doing so, the author deals with the following issues: locus standi to bring a private prosecution under NEMA; whether private prosecutions under section 33(1) of the NEMA are really private prosecutions; reimbursing the private prosecutor for the costs of a successful prosecution; costs in the event of an unsuccessful private prosecution; and instances where a public prosecutor may take over a private prosecution.