Sanctioning corporate environmental offenders by means of deferred prosecution agreements

Abstract

Environmental protection for current and future generations is a fundamental constitutional right. The National Environmental Management Act 107 of 1998 aims to give effect to this right. Despite efforts to prevent pollution and ecological degradation and to promote sustainable development through criminal enforcement of environmental crimes, there are significant procedural limitations. South African environmental law relies on a command-and-control approach, using criminal sanctions to enforce compliance. However, these criminal measures are reactive. This study identifies and examines the nature of environmental crimes and the shortcomings of criminal enforcement concerning corporate environmental crimes. It considers the implementation of deferred prosecution agreements (DPAs) in South Africa as an alternative to the primarily criminal-sanction approach. DPAs are agreements that allow offenders, often corporate entities, to avoid criminal prosecution by following certain conditions. The aim is to divert corporate offenders away from the criminal justice system while still achieving deterrence and promoting restorative justice. The study analyses the implementation of DPAs in the United States and England and Wales to provide a comparative perspective. In South Africa, the use of DPAs is still unexplored. The need for a procedure of this kind has been acknowledged in reports, including the recommendations of the Judicial Commission of Inquiry into State Capture. However, there is no specific statutory process for diverting corporate offenders involved in environmental crimes away from the criminal justice system. The study will explore DPAs' advantages, such as limited reputational damage, reduced collateral consequences, and the opportunity for corporations to implement proactive compliance measures, thereby deterring environmental transgressions and promoting corporate responsibility toward the environment. This study aims to assess the practicability of DPAs as a viable solution in the South African environmental law enforcement context. It explores the benefits and challenges associated with implementing DPAs, considering their potential to achieve environmental protection, corporate accountability, and the overall goals of justice in the South African context. Finally, the study makes recommendations to support the implementation of a DPA scheme in South African criminal procedural law.