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The successful prosecution of the politically connected directors of Aurora Empowerment Systems (Aurora) for environmental damage may be among those matters that not only restores public confidence in the National Prosecuting Authority (NPA) but demonstrate the ruling party’s commitment to fulfilling its promise to “strengthen law enforcement agencies” such as the NPA.
Indeed, the new National Director of Public Prosecutions (NDPP), Advocate Shamila Batohi, faces a myriad of challenges which include cleaning up the institution to ensure that cases like Aurora are effectively prosecuted.
As indicated by President Cyril Ramaphosa in his latest State of the Nation Address, the appointment of Advocate Batohi seeks to achieve two things; the revival of the NPA and, through it, strengthening South Africa’s fight against crime and corruption.
Having being seized with the case between Corruption Watch and Others v President of the Republic of South Africa and Others last year, the Constitutional Court, among other things, ordered President Ramaphosa to appoint a new NDPP within 90 days from the date of the order.
The Court, in highlighting the importance of an independent NPA, noted that “[t]he NPA plays a pivotal role in the administration of criminal justice. With a malleable, corrupt or dysfunctional prosecuting authority, many criminals – especially those holding positions of influence – will rarely, if ever, answer for their criminal deeds”.
The directors of Aurora are among those influential people who have not answered for their alleged criminal actions.
The directors are Khulubuse Zuma, former President Jacob Zuma’s nephew; Zondwa Mandela, former President Mandela’s grandson; as well as Thulani Ngubane and Raja Alam Shah.
After years of dithering since charges were laid, the NPA informed the Organisation Undoing Tax Abuse (Outa) last year that it intends to prosecute the above directors for environmental and water transgressions at the failed Grootvlei mine near Springs in the Upper Vaal Management Area.
The latest correspondence received from the NPA indicates that they have issued summons and that a court date has been set for 28 May 2019.
It is presumed that the prosecution will lean on, among other legal provisions, section 151 of the National Water Act (36 of 1998) that criminalises any non-compliance with water licence conditions.
According to the provision and considering that this may be the Aurora directors’ first conviction on this charge, they may be liable for a fine or be sentenced to a term of imprisonment for a period not exceeding five years, or to both a fine or imprisonment.
Nearly a decade ago, Aurora took over the management of Grootvlei mine when the Pamodzi group went into liquidation.
Aurora ran Grootvlei from October 2009 to May 2011 and eventually left it devastated and abandoned.
While under Aurora’s control, a plethora of issues were reported on the mine, which include the discharge of acid mine water which contaminated the Blesbokspruit that feeds into the Marievale wetland and ultimately the Vaal River.
Acid mine water is water that is very acidic with high concentrations of metals, sulphides and salts owing to mining activity. When this water flows or seeps from mining areas it can adversely affect the surrounding ecosystems. It pollutes surface-and ground water and eventually the soil.
The Marievale wetland into which acid mine water was reported to have flowed, is regarded as a Ramsar site. This means it is recognised as a wetland of international importance in terms of the 1971 “Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat” which South Africa ratified in 1975.
The wetland supports a variety of animal species and vegetation. The region is also known for its natural water systems that are conducive to farming.
Accordingly, the discharge of acid mine water from mining activities poses a threat not only to the natural environment but also to the farming industry.
It has been widely reported that the collapse of Aurora left approximately 5 300 workers unemployed and desperate.
It resulted in legal action taken against its directors. As an organisation, we believe that the legal action taken against Aurora’s directors should not only address the harm suffered by its employees but also extend to the unmitigated environmental damage flowing from its activities.
As such, Outa engaged with the NPA for more than two years to get this prosecution under way as we believe there is enough evidence to do so.
As with other projects undertaken by Outa, exerting pressure on institutions like the NPA aims to ensure the efficient and effective use of taxpayers’ money.
What has become clear during the past decade’s spate of tax abuse in South Africa, is the adverse impact it has on the quality of life of South Africans – especially the poor.
The state’s failure, through its departments and law enforcement agencies, to hold accountable those responsible lends itself to hazardous governance - a situation whereby failing to hold persons responsible for their transgressions aids the development and preservation of poor governance in public - and private entities.
The non-prosecution of Aurora directors would tacitly endorse their total disregard for the law.
Moreover, it would squander an opportunity to contribute to the body of legal precedent relating to the criminal liability of company directors for environmental crimes, an area of law in need of more judicial attention.
Having commenced employment in February this year, we hope that under Advocate Batohi’s leadership, the successful prosecution of Aurora’s directors will demonstrate the NPA’s desire to restore public confidence in its ability to execute its mandate without fear or favour.
Yamkela Ntola is the portfolio manager for water and environment at the Organisation Undoing Tax Abuse (Outa). Prior to this appointment, Yamkela was a senior lecturer of public international law at the University of South Africa as well as a legal consultant. Among other areas, Yamkela, specialises in international environmental law.
