Analysis

  • BP is facing a groundbreaking private criminal prosecution for alleged environmental crimes – building petrol stations without proper environmental clearance.
  • In final arguments BP said "everybody that is anyone" in South Africa has made the same type of "mistake", and that it should not be held criminally liable.
  • BP also had some harsh words for the man behind Uzani, the small, new environmental group set up to prosecute it.

"Everyone that is anyone in our society" – including MTN, Cell C, Vodacom, Caltex, and a number of city governments - have made the "error" that has seen it face criminal charges, fuel company BP told the high court in Johannesburg on Friday.

It should not be held liable for such mistakes made without malice or negligence, BP said, and it definitely should not be made to pay huge fines, with part of that money going to Uzani, the popup environmental group that brought it to trial.

Because, for one thing, Parliament never intended "an unbridled flurry of private prosecutions". And for another, confessions of environmental wrongs should not be further punished.

BP and Uzani have been locked in legal combat for more than a year in a landmark test of legislation that gives private entities special rights to act as the prosecutors in what are otherwise standard criminal trials. On Friday proceedings in open court ended with final arguments before Judge Brian Spilg, in a flurry of accusations and counter-accusations.

BP, Uzani says, built and upgraded a number of petrol stations around Gauteng around the year 2000 without proper environmental impact assessments, and is criminally liable for those failures.

In turn, BP accuses Uzani of running a money-making racket engineered by a "liar" and a "thief" trying to misuse the law.

The two sides have many technical and legal disagreements about process, and each has accused the other of withholding vital evidence from the court. They have also argued at length about whether the motive of a prosecutor matters, and even whether everything in a criminal trial, including the right to prosecute, has to be proven beyond a reasonable doubt.

But on Friday Spilg zoomed in on one issue in particular that will be closely watched by many other companies that could be in trouble if he decides against BP: can a confession of past wrongdoing that leads to a fine be used as evidence to further pursue a company years later?

BP did build some filling stations without all the paperwork in place, its advocate Mike Hellens told the court. In some of those cases, such as a station in Melrose Arch in Johannesburg, it was assured by a reputable developer that all approvals were in place, only to find out down the line this was not the case. So BP made use of a "rectification" process in the National Environmental Management Act (Nema), where companies in such circumstances can explain what happened and pay a fine.

Those explanations are also proof of criminal failures under Nema, Uzani insists. Crimes were committed and admitted - there was never any criminal prosecution - and, if anything, the extent of the problem is proof that private citizens must step in.

"We were astonished by how rife disregard for Nema was," prosecuting advocate Koos Pretorius told the court on Friday.

Gauteng provincial records obtained by Uzani show that 391 different companies and individuals applied for 1,774 environmental rectifications. BP calls these "pots of gold" that Uzani is trying to tap; Uzani says these are individual crimes it is entitled to prosecute.

The two parties also disagree vehemently about the potential impact of each of these instances. In Centurion, south of Pretoria, Uzani says, BP installed underground petrol tanks in areas rife with sinkhole-causing dolomite, and the "rectification" process, less rigorous than a prior environmental impact assessment, make these all the more dangerous. Not so, says BP, because it followed the proper safety protocols that come with a hazardous installation anyway, regardless of the process.

Uzani and BP disagree even more vehemently about the importance of the character of Gideon (Kallie) Erasmus, the small-town lawyer who is the driving force behind Uzani. Erasmus is "a liar.. he's a thief," Hellens told the court on Friday, citing Erasmus being struck off as an attorney (before being reinstated) for his management of public money, and his evidence under oath that he had abandoned his practice as a lawyer.

Erasmus, BP says, has set up contingency agreements that would earn him up to 50% of the damages secured for competing petrol stations in the Gauteng area.

Erasmus' team did not reply to those allegations in court on Friday. If BP's sentence should be mitigated on the basis that it already paid a civil fine, that is something to be decided during sentencing, said Uzani advocate and chief prosecutor Schalk Burger. Uzani would also be willing to come up with a court-sanctioned ring-fencing structure to ensure any money it earns is used for the good of the environment.

But first the court must decide if BP is guilty.

Judgement was reserved.

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