A critical appraisal of Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd 2019 (5) SA 275 (GP)

ABSTRACT

The recent court judgment of Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd 2019 (5) SA 275 (GP) found BP Southern Africa (Pty) Ltd (BP) guilty of environmental offences. The Court held that BP commenced with listed activities related to upgrades and construction work of filling stations without the necessary environmental authorisations (EAs) required by the National Environmental Management Act 107 of 1998 (NEMA) and the Environmental Conservation Act 73 of 1989 (ECA). Section 24 G of NEMA, however, allows for the rectification of the unlawful commencement or continuation of a listed activity conducted in the absence of the required EAs. Section 24 G therefore permits the ex post facto legalising or retrospective authorisation of the unlawful acts. In the case at hand, BP was found guilty, despite having applied for an ex post facto authorisation. This paper engages with the arguments put forward by the court, reflects on insights brought about by the foreign law, and provides possible recommendations for the retrospective environmental authorisation regime in South Africa.

KEYWORDS:

• Section 24G
• environmental impact assessment
• retrospective environmental authorisation