Case Study

02: Environmental Courts Prove to be Effective

Since the 1960s, the south-western coast of South Africa had been plagued with the illegal harvesting of abalone. The key elements that contributed to the abalone poaching and associated criminal activities included: the high value of the mollusc, the low risk of detection, and weak deterrence due to low fines and penalties as well as poor conviction rates. This was exasperated further by the low priority given to environmental cases in general courts combined with prosecutors often not having the expertise needed to successfully prosecute.

At this time, the conviction rate for environmental crimes in South Africa was around 10%[i]. In an effort to improve this rate, the South African Department of Justice and Constitutional Development’s National Prosecuting Authority (NPA) and its Directorate of Public Prosecution (DPP) in the Western Cape worked in collaboration with the then Department of Environmental Affairs and Tourism’s (DEAT) Marine and Coastal Management (MCM) branch to establish a dedicated environmental court in the Western Cape.

The creation of this first environmental court was strongly supported by the Ministers responsible for justice and environmental affairs, which lead to the court being established smoothly and quickly[ii].

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The Story

The environmental court which opened in Hermanus, South Africa, in 2003 was the first court in Africa specifically established to combat environmental crime.  Its primary purpose was to prosecute abalone poachers, although cases relating to other environmental issues such as the illegal trade in rhinoceros horns, water pollution, and various other marine offences were also heard[iii].

The court’s first cases were heard within three months of the initial discussions for its establishment. There was a dramatic increase in the number of convictions for environmental crimes. According to the Ministry of Justice the court heard 74 cases and had 51[iv] successful prosecutions in its first year. This translated into a 70 % success rate.

In parallel with the establishment of the court, the Marine Living Resources Act (MLRA) was amended. The changes allowed prosecutors to build stronger cases and obtain more custodial sentences.  It was determined that fines had little effect as a deterrent to poaching as crime syndicates could easily cover any financial penalty incurred.  Therefore, prison sentences were pursued. The court was successful in not just prosecuting individual poachers, but also in convicting other key players such as buyers, transporters, and processors. Whenever possible, prosecutors requested the court to forfeit boats, vehicles, and equipment in order to prevent them from further use by abalone poachers.

The regional status of the Hermanus court was particularly important as it meant it could deal with environmental offences committed throughout the Western Cape Province, rather than just those in the municipal area.  It also provided prosecutors with a higher penalty jurisdiction. Although it is difficult to verify, it is suspected that the Hermanus court had a displacement effect on abalone poaching. Some poaching syndicates relocated their operations further east, out of the court’s jurisdiction. This resulted in an increase in abalone cases in the Eastern Cape, prompting the opening of a second environmental court in Port Elizabeth only a year after the environmental court in Hermanus began operating. As it is a district court Port Elizabeth has a more limited jurisdiction, however the court has helped close off another area to poaching. By 2005 its two dedicated environmental prosecutors had managed an impressive 90%[v] prosecution rate.

One of the most important features of the courts was that it allowed prosecutors and magistrates to specialise in environmental crime for the first time. Being mandated to focus on environmental cases, the prosecutors were able to delve deeply into the nuances of South African environmental law, determining the best arguments to employ. They were also able to share their expertise with law enforcement officials dealing with environmental crimes as well as other prosecutors trying similar cases. They made themselves available by phone around the clock for any questions or advice on process and procedure the police might have.

One early weakness revealed was that many environmental lawbreakers were acquitted on the grounds of compromised evidence. In response, the prosecutors and MCM cooperated to improve evidence management procedures, making sure environmental enforcement officers were trained in the correct collection, documentation, and storage of evidence and that certified expert identification of specimens was used as often as possible to ensure sound legal standing.

The Hermanus court was originally meant to be a permanent institution in the fight against environmental crime. However, in 2006 a high level political decision was taken to close a number of specialised courts that lacked legislative mandates, this included the environmental court in Hermanus. People charged with environmental offenses were transferred back into the general court system.

During the last twelve months of its operation, the environmental court achieved an 85% conviction rate. Over the court’s tenure, 49 people were imprisoned for poaching-related offences, and numerous others received correctional supervision, fines, or suspended sentences[vi]. The National Environmental Compliance and Enforcement Report released in 2009 revealed that a total number of cases in which the National Prosecution Authority (NPA) declined to prosecute increased from 16 in 2007/08 to 100 in 2008/09 and the number of convictions decreased from 748 in 2007/08 to 258 in 2008/09[vii].

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Drivers

The main driver behind the decision to create a specific environmental court was the political recognition for the need for stronger deterrents for poachers in an effort to protect the valuable natural resources in South Africa, especially abalone.

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Key features and outcomes

• Allowed prosecutors to steadily build their expertise which meant they were able to identify effective arguments and block the defences that had previously set poachers free.
• A training manual was developed by the prosecutors. The manual detailed proper application of South African marine regulations and included information needed to successfully prosecute poaching cases. The manual was distributed at training sessions and was also posted online.
• Colloboration between all sectors of law enforcement agencies increased in order to ensure sound legal standing of cases and the success of the court rested largely on this collaborative effort.
• Environmental cases were given proper attention resulting in quick hearings and the prosecution of an unprecedented number of environmental criminals.
• Increase in poaching convictions boosted the morale of environmental enforcement officers and validated the dangerous actions required to apprehend offenders.
• The need for such a court was proven and its success supported the establishment of the Port Elizabeth court.

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Lessons learned

• The sharing of knowledge among prosecutors and other law enforcers both formally, through tools such a training programmes and the manual, and informally through relationship building was vital. The development and sharing of expertise was a major factor in the rising conviction rate for poaching-related cases.
• Publicity was a strong tool in the fight against environmental crimes. The court’s success helped win over public support for environmental law enforcement. The media was briefed on high profile convictions and the resulting publicity increased public faith in the system, encouraging bystanders to report crimes and come forward as witnesses.
• Public education increased general awareness, including among local officials, of the environmental and economic consequences of poaching and other environmental offences.
• In order to have a higher penalty jurisdiction and therefore be a more potent deterrent it is preferable that environmental courts are given regional status.
• Three key factors in the overall reduction of environmental crime were found to be high risk of arrest, probability of conviction and the possibility of heavy punishment.

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Challenges

• There were no specialists in environmental law fully prepared to take on the role of prosecutor, equally there were no specialist magistrates.
• As the work was not carried out nationwide it was believed that some poaching syndicates simply relocated their operations out of the court’s jurisdiction.
• Intially, there was a lack of training for enforcement officials in legislation, policy and proceedure which hindered having proper and sufficient evidence for conviction.
• It was a struggle ensuring enough prosecutors received training in environmental law to cover all of the cases which required this expertise.
• The lack of a legislative mandate for the court.

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Players involved

• High level political decision makers: The support by the Ministers responsible for justice and environmental affairs ensured the smooth and quick establishment of the court.
• Leading prosecutor: A state advocate with the knowledge and interest to take on cases andsecure convictions ensured that the process was guided and driven.
• State agencies: the South African Department of Justice and Constitutional Development’sNational Prosecuting Authority and its Directorate of Public Prosecution in the WesternCape, provided facilities, covered court-related expenses and, jointly with MCM, funded prosecutors’ salaries and operating costs.
• Training institutions: The Paarl Detective Academy provided training courses in the interpretation and application of the legislation for South African Police officers and compliancepersonnel from conservation bodies.
• Enforcement personnel: Fisheries officers, police officers and compliance personnel with knowledge of the specific laws applicable contributed to the securing of suitable evidence.

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Policy implications

• Legislation supporting the courts must be robust enough to allow strict penalties and custodial sentences.
• A clear legal mandate is required to allow such courts to be established and operate continuously and throughout the country.
• Magistrates and prosecutors should be legally certified to preside in environmental cases to ensure background and knowledge to prosecute them successfully.
• Government backing of the courts is essential.

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Next steps

In order to increase awareness of the effectiveness of environmental courts in the fight against illegal, unreported and unregulated activities, efforts should focus on:

• Encouraging advocacy campaigns that inform and educate the public and government officials about the benefits of such courts.
• Sharing best practice on how to establish these specialised courts.
• Sharing case studies on the widespread and positive effects of the courts.

Furthermore, to strengthen existing environmental courts the focus should be on:

• Promoting partnerships between the prosecutors and law enforcement officials so that legally sound procedures are followed which increase the likelihood of successful prosecutions.
• Working with governments to ensure that there are no geographical areas where poachers will not be prosecuted by a specialised environmental court or a prosecutor.
• Assisting to build proficiency of prosecutors and magistrates in environmental law through training, mentoring and experience sharing.