Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

Uzani Environmental Advocacy CC successfully prosecuted BP Southern Africa (Pty) Ltd as a private prosecutor for contraventions of s 29(4) of the Environmental Conservation Act 73 of 1989 (ECA) for failing to obtain required written environmental authorization under s 22(1) of that Act. BP was convicted and sentenced on 6 September 2024 to substantial fines totaling approximately R59.5 million (R6,245,424 under s 34(3) of NEMA; R6,187,650 under s 29(4) of ECA; and R47,112,970 as an additional fine under s 29(4) of ECA). The prosecution was brought after the National Prosecuting Authority remained silent when notified of the intended private prosecution. This judgment (Uzani 4) dealt exclusively with the costs issues arising from the successful prosecution.

• Whether a private prosecutor is entitled to an award under s 34B of NEMA (which allows up to one-quarter of the fine to be paid to informants)
• Whether s 34B applies retrospectively to offences committed before the provision came into effect on 1 May 2005
• Whether a private prosecutor can obtain costs in advance for opposing an appeal under s 33(3) of NEMA
• Whether a private prosecutor is entitled to attorney and client costs rather than party and party costs
• If party and party costs are awarded, whether Rule 67A of the Uniform Rules of Court applies and which scale (A, B, or C) is appropriate
• Whether Rule 67A applies retrospectively to costs incurred before 12 April 2024
• Whether certain costs should be excluded from the costs order

1. BP shall pay the costs of the prosecution including the s 34(3)(g) enquiry on the attorney and client scale, except: a) all costs associated with the application to compel of 10 November 2017; b) all costs associated with the fraud charges which were subsequently withdrawn; c) postponements occasioned on 20 March 2018, 19 February 2019, 25 March 2019 and 18 March 2022. 2. The costs payable by BP shall include: a) qualifying fees of Professor Kobus van der Walt and Mr Karl Steyn; b) costs of senior counsel and if applicable junior counsel.

1. Section 34B of NEMA, which allows payment of up to one-quarter of fines to informants, is confined to informants/whistleblowers and does not extend to private prosecutors, whose costs are separately dealt with under s 33(3) of NEMA. The ordinary meaning of "informant" in the heading and text, read with the comprehensive treatment of private prosecution costs in s 33, requires this interpretation. 2. Section 33(1) of NEMA does not permit advance payment of costs for opposing an appeal. The provision only allows costs to be claimed after completion of proceedings. Granting advance costs would usurp the appellate court's discretion and create practical difficulties. 3. Private prosecutors under NEMA are entitled to attorney and client costs where: (a) they have successfully prosecuted environmental offences in the public interest; (b) the State has failed to prosecute despite notification; (c) the prosecution vindicates constitutional rights under s 24; (d) the prosecutor possesses specialized skills indispensable to success; and (e) the accused has engaged in conduct warranting such an order (such as misleading the court). This ensures private prosecutors are not out of pocket when fulfilling functions the State should have performed. 4. Costs attributable to the court's own postponements, the accused's legitimate applications that become unnecessary, and charges subsequently withdrawn, should be excluded from costs orders against the accused.

The court expressed important obiter regarding Rule 67A of the Uniform Rules of Court: 1. The court respectfully disagreed with Mashavha v Minister of Police regarding Rule 67A's retrospective application, suggesting that the rule affects adjectival/procedural rather than substantive rights. 2. No vested rights exist regarding party and party costs until the court makes its costs order - prior to that there is only a spes or legitimate expectation. 3. Rule 67A does not change the maximum recoverable amount (R4,500/hour under Scale C, same as the previous regime), so no substantive rights are affected. 4. The change in who determines the scale (from taxing master to judge) is procedural, and under Unitrans principles, the new procedure applies when the court is asked to determine the scale, regardless of when costs were incurred. 5. If attorney and client costs had not been awarded, the court would have granted costs on Scale C throughout, given the complexity, importance of constitutional environmental rights, engagement of senior counsel by both sides, specialized knowledge required, and public interest nature of the case. 6. The court noted difficulties with the subjective vs objective test for determining importance under Rule 67A, and suggested that the taxing master's discretion within the scale set by the court remains unchanged. 7. The court emphasized that NEMA's streamlined private prosecution provisions (not requiring a nolle prosequi) reflect the legislature's recognition of the State's inability to prosecute all environmental offenders and the constitutional importance of environmental protection for present and future generations.

This is a landmark judgment on costs in environmental private prosecutions in South Africa. It establishes important principles regarding the recovery of costs by private prosecutors under NEMA, particularly: (1) clarifying that s 34B awards are limited to informants/whistleblowers, not private prosecutors; (2) confirming that private prosecutors cannot obtain advance costs for appeal; (3) establishing that attorney and client costs can be awarded to private prosecutors in appropriate cases, particularly where constitutional environmental rights are vindicated and the State has failed to prosecute; (4) providing important obiter regarding the interpretation and application of Rule 67A, including respectful disagreement with the leading Mashavha decision on retrospectivity. The judgment recognizes the constitutional importance of private environmental prosecutions in protecting s 24 rights and ensures that those undertaking such prosecutions in the public interest are not financially disadvantaged. It is the only reported case dealing with such a prosecution and appropriate sentence under these provisions. The judgment contributes to the broader jurisprudence on costs, statutory interpretation, and the distinction between substantive and procedural/adjectival rights in the context of retrospective application of new rules.