The Tzaneen mining company director convicted for violating environmental laws earlier this year has been dealt another blow – this time in the form of an civil order obtained by the Asset Forfeiture Unit.
On Friday 21 November 2014, the Naphuno Regional Court handed down a confiscation order against mining company Blue Platinum Ventures 16 (Pty) Ltd (Blue Platinum) and its managing director, Matome Maponya. This order resulted from a proceeding instituted by the Asset Forfeiture Unit in terms of the Prevention of Organised Crime Act, after Blue Platinum and Maponya pleaded guilty to and were convicted of a violation of the National Environmental Management Act, 1998 (NEMA) in January 2014.
The offence pertained to the company’s failure to obtain environmental authorisation for activities associated with mining before commencing with these activities.
In January 2014, Maponya was sentenced to five years’ imprisonment suspended for five years on the condition that he rehabilitates the entire area disturbed by Blue Platinum’s mining operation before 31 July 2014. The Centre for Environmental Rights represents community organisation the Batlhabine Foundation, who initiated the criminal complaint against Blue Platinum and Maponya. Maponya has not adequately complied with the court order handed down in January 2014, and further proceedings to bring the suspended sentence into effect are likely.
The confiscation order directs Blue Platinum and Maponya to pay R200 000 to the Department of Environmental Affairs (DEA) for the loss that it suffered as a result Blue Platinum and Maponya’s criminal activity.
In terms of section 18 of the Prevention of Organised Crime Act 121 of 1998 (POCA), when a person is convicted of a criminal offence, the Court convicting such a person may, on the application of the public prosecutor, enquire into any benefit which the defendant may have derived from that offence. If the Court finds that such a person has so benefited, it may, in addition to any punishment which it may impose in respect of the offence, make an order against such a person for the payment to the State for any amount it considers appropriate.
From the confiscation order it is clear that Maponya entered into a settlement agreement with the National Director of Public Prosecutions (NDPP) for the payment of R200 000 to the DEA. This amount represents the value of appointing an environmental assessment practitioner and relevant environmental specialists to conduct an environmental impact assessment that would have informed a decision by the DEA to grant or refuse Blue Platinum environmental authorisation. Payment must be effected by Blue Platinum and Maponya in 4 tranches, with the last payment to be made on or before 28 February 2015.
Should they fail to satisfy the confiscation order, the NDPP may in terms of section 30 of POCA apply to court for a “realisation order”. Such an order involves the appointment of a curator bonis, who will be responsible to realise any realisable property in such manner as the court may determine. Maponya agreed that such an application will not be opposed and waived his right to be notified of such application by the NDPP.
Note that the confiscation order does not impact on Mr Maponya’s obligations under the original criminal sentence.