S v Die Straat Trust as represented by Daniel Petrus Hugo Jordaan

Die Straat Trust, a registered trust (IT 3784/99) represented by Daniel Petrus Hugo Jordaan as trustee, was charged with four environmental offences arising from conduct during February 2015 at Torpedo Farm, Rawsonville, Western Cape. The accused contracted a transport company to excavate sand from the Breéderiver, a watercourse defined under the National Water Act. The sand was used elsewhere on the farm and by the transport company. This excavation impeded or diverted the flow of water and altered the bed, banks, course and characteristics of the watercourse. Additionally, the accused constructed a road across the Breéderiver using building rubble to avoid unnecessary traveling time and expenses between portions of the farm on either side of the river. The accused failed to register these water uses with the responsible authority as required. The accused had no permission or authority for these actions. Following receipt of the summons, the accused instructed legal and environmental specialists at a cost of R250,000 and commenced rehabilitation according to a compiled rehabilitation plan.

• Whether the accused unlawfully used water by excavating soil from the Breéderiver and impeding or diverting water flow contrary to section 151(1)(a) read with section 151(2) of the National Water Act 36 of 1998
• Whether the accused failed to register water use as required by Regulation 3(b)(i) of the Water Use Registration Regulations (GN R1352 in GG 20606 of 12 November 1999) promulgated under the National Water Act
• Whether the accused committed acts that detrimentally affected or were likely to affect a water resource by excavating sand from the Breéderiver contrary to section 151(1)(j) read with section 151(2) of the National Water Act
• Whether the accused committed acts that detrimentally affected or were likely to affect a water resource by constructing a road with building rubble across the Breéderiver contrary to section 151(1)(j) read with section 151(2) of the National Water Act
• Whether a plea and sentence agreement in terms of section 105A of the Criminal Procedure Act 51 of 1977 should be accepted by the court

The accused was convicted on all four counts (taken together for purposes of sentence). Sentence: Fine of R150,000 wholly suspended for 5 years on condition that the accused is not convicted of: (1) contravening Section 151 of Act 36 of 1998 (National Water Act); or (2) contravening Regulation 3(b)(i) of the Water Use Registration Regulations (GN R1352 in GG 20606 of 12 November 1999) promulgated under the National Water Act 36 of 1998, committed during the period of suspension. Further conditions: rehabilitation and rectification regarding the charges must commence and be finalized as per the attached rehabilitation plan (Annexure F) within the scheduled timeframes indicated therein.

Excavating sand from a river, thereby impeding or diverting water flow and altering the bed, banks, course or characteristics of a watercourse, constitutes unlawful water use under section 151(1)(a) of the National Water Act 36 of 1998 where done without permission or authority. Constructing a road with building rubble across a watercourse constitutes an act that detrimentally affects a water resource under section 151(1)(j) of the National Water Act. Water uses as defined in section 21 of the National Water Act must be registered with the responsible authority as required by the Water Use Registration Regulations; failure to do so constitutes a criminal offence. Where an accused in an environmental prosecution pleads guilty, demonstrates genuine remorse through cooperation with authorities, incurs substantial costs in engaging specialists and implementing rehabilitation, and presents a comprehensive rehabilitation plan, a wholly suspended sentence may be appropriate to balance punitive and restorative objectives, particularly where the accused is a first offender and contributes to community economic development.

The court noted the severe drought conditions affecting South Africa at the time, emphasizing that water as a scarce and unevenly distributed national resource must be used with extreme care and that every drop of water matters. The court observed that section 24 of the Constitution provides rights for current and future generations to have the environment protected, to have an environment not harmful to health or wellbeing, to prevent ecological degradation and pollution, and to secure ecologically sustainable development. The court recognized that all citizens have a right and responsibility to ensure that everybody, including animals, has access to clean and sustainable water. The court implicitly endorsed the restorative justice approach in environmental prosecutions, noting favorably that the accused's immediate response upon receiving the summons was to instruct legal and environmental specialists rather than to contest liability, showing that the intention from the beginning was to cooperate and rectify the situation. The substantial curtailment of criminal proceedings through the guilty plea was noted as beneficial to judicial economy and in the public interest.

This case demonstrates the application of section 105A of the Criminal Procedure Act 51 of 1977, allowing for plea and sentence agreements in criminal matters, particularly in the context of environmental offences. It illustrates the criminal enforcement mechanisms available under the National Water Act 36 of 1998 for unauthorized water use and activities that detrimentally affect water resources. The case emphasizes the constitutional imperative of environmental protection under section 24 of the Constitution, particularly the protection of water as a scarce national resource. It demonstrates the court's willingness to accept suspended sentences in environmental cases where the accused shows genuine remorse, cooperates fully with authorities, and commits to comprehensive rehabilitation and rectification. The case provides guidance on balancing punitive measures with restorative justice approaches in environmental prosecutions, particularly where significant costs have already been incurred for remediation and the accused contributes to the local economy and employment.