Dept welcomes confiscation order against York Timbers

Last week, the court ordered the company to pay R450,000 plus interest, being the amount that it saved by failing to obtain environmental authorisation prior to the commencement of a listed activity, as required by the National Environmental Management Act 107 of 1998 (NEMA).

The granting of the confiscation order of R450,000 followed a sentence of R180,000 handed down by the Nelspruit Regional Court after York Timbers pleaded guilty to the commencement of a listed activity in the absence of an environmental authorisation in contravention of Section 24F of NEMA.

York Timbers operates a sawmill and plywood manufacturing facility in Mpumalanga and was charged with contravening certain provisions of NEMA.

The contraventions were detected after the national Department of Environmental Affairs, in conjunction with the then Mpumalanga Department of Agriculture and Land Administration (MDALA), conducted an investigation at the premises of the accused.

The accused pleaded guilty on one count, which relates to the commencement of a listed activity without environmental authorisation.

York Timbers commenced with the widening of a forest road in 2007 without having employed the services of an environmental assessment practitioner or obtaining environmental authorisation from the relevant authorities.

When York Timbers eventually did submit an application for such authorisation, it omitted to inform authorities that it had actually already commenced with the activity more than six months prior to the application.

In placing his argument before the court, Senior State Advocate Kobus van der Walt, of the Asset Forfeiture Unit (National Prosecuting Authority), equated York's failure to incur the costs involved in obtaining environmental authorisation before the commencement of a listed activity with the more well-known evasion of tax or customs and excise duties.

In both these circumstances, there is a deliberate avoidance or evasion of a regulatory regime and the financial consequences thereof. In this instance, the financial benefit sought by York Timbers was the monetary savings that accrued to it by avoiding the costs it would have needed to incur in order to comply with its statutory environmental obligations.

The court also showed its displeasure with York's behaviour in this matter by awarding a punitive order of costs against them on an attorney and client scale, including the costs of counsel.

Department spokesperson Albi Modise said although this type of order granted under the Prevention of Organised Crime Act, Act 121 of 1998 (POCA) has previously been used to deprive offenders of the benefits obtained from wildlife crimes, this was the first successful application for such an order relating to a contravention of environmental impact assessment legislation in South Africa.

Modise said it was hoped that this court order would not only provide an appropriate sanction for existing offenders, but would also send a strong deterrent message to people and companies who may be thinking of engaging in similar unlawful activities.

"The POCA is a suitable tool to deter and prevent big companies like York Timbers from evading or avoiding their obligations in terms of environmental legislation, and harming our natural heritage.

"The department hopes the judicious application of the POCA will encourage such companies to not only pursue profit, but to also care for our precious environment in undertaking their operations," said Modise.