Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Uzani 4: Cost awards in private prosecution for environmental law violations

• Court: High Court of South Africa, Gauteng Division, Pretoria
• Case No: CC  82/2017
• Date: 20 March 2025
• Judge: Spilg J
• Judgment available here.

Note that this is the fourth judgment in the Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd private prosecution matter. See Uzani Environmental Advocacy CC v BP (Pty) Ltd for a summary of the other judgments in this matter.

Case summary of  Uzani 4: Costs of litigation

In an earlier judgment in this matter, BP Southern Africa (Pty) Ltd had been found guilty of offences in terms of the Environment Conservation Act (ECA) and the National Environmental Management Act (NEMA). In South Africa’s first successful private prosecution under section 33 of NEMA, the Court found that BP had commenced listed activities related to the construction and management of filling stations without environmental authorisation required in terms of those laws. BP had then been sentenced for the contraventions of NEMA and ECA to fines amounting to over R59 000 000.00 (fifty nine million rand).

In this matter, referred to as Uzani 4, the court considered three issues related to costs and other financial matters in the private prosecution.

Firstly, the court considered whether Uzani was entitled to an order for costs under s 34B of NEMA. This section of NEMA provides as follows:

34B Award of part of fine recovered to informant
(1) A court which imposes a fine for an offence in terms of this Act or a specific environmental management Act may order that a sum of not more than one-fourth of the fine be paid to the person whose evidence led to the conviction or who assisted in bringing the offender to justice.
(2) A person in the service of an organ of state or engaged in the implementation of this Act or a specific environmental management Act is not entitled to such an award.”

In this respect, the court held that Uzani was a private prosecutor (and not an informant) and therefore found that Uzani was not entitled to this award.

Secondly, the court considered whether Uzani was entitled to be covered in advance for the costs of appeal under s 33(3) of NEMA. This section provides as follows:

33 Private prosecution
(1) Any person may –

(a) in the public interest; or
(b) in the interest of the protection of the environment,

institute and conduct a prosecution in respect of any breach or threatened breach of any duty, other than a public duty resting on an organ of state, in any national or provincial legislation or municipal bylaw, or any regulation, licence, permission or authorisation issued in terms of such legislation, where that duty is concerned with the protection of the environment and the breach of that duty is an offence.

…

(3) The court may order a person convicted upon a private prosecution brought under subsection (1) to pay the costs and expenses of the prosecution, including the costs of any appeal against such conviction or any sentence.

The court found that Uzani was not entitled to appeal costs in advance, holding that awarding appeal costs in advance would amount to the High Court usurping the jurisdiction of an appellate court.

On the third and final issue, the court considered what costs Uzani was entitled to, and on what scale, as well as the applicability of Rule 67A of the Uniform Rules of Court. The court found that Uzani was entitled to costs, and on the scale of attorney and client costs. Judge Spilg held that:

The only way in which … private prosecutions can be given proper effect when the State remains silent, is to ensure that those taking up the cudgels are not out of pocket where there is a successful prosecution. Otherwise those who the Act calls on to protect the environment where the State fails to do so will be discouraged as philanthropic funding is unlikely to be readily available for such causes.”