CASE
IN
THE
REGIONAL
COURT FOR THE
REGIONAL
NO.:S?fL 7~/;;{o /~
DIVISION
OF
MPUMALANGA
HELD AT LYDENBURG
In the matter between:
THE STATE
and
SAMANCOR CHROME LIMITED
(Duly represented by Wessel Erasmus)
PLEA AND SENTENCE AGREEMENT IN TERMS OF SECTION 105A OF
THE CRIMINAL PROCEDURE ACT NO. 51 OF 1997, AS AMENDED
WHEREAS:
1.
The Accused is a registered corporate body in terms of the Companies
Act 71 of 2008 as amended, trading as Samancor Chrome Limited and
as such a corporation within the meaning of section 332(1) of the
Criminal Procedure Act 51 of 1977;
2.
Wessel Erasmus, the Chief Financial Officer ("CFO") and employee of
the Accused is duly authorised to enter into a formal Plea and Sentence
ri~ .
Agreement (Annexure "A");
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3.
3.1
The Accused is charged with the offences of:
Count
1: Contravening
section
20( 1)(a)
of the
Environment
Conservation Act 73 of 1989, read with Sections 1, 29(4) of the said
Act ("the ECA") and Section 34(4) of the National Environmental
Management Act 107 of 1998 (with reference to Schedule 3)also read
with Government Notice 1196 published in the Government Gazette
15832 of 8 July 1994 and further read with Section 332(1) of the
Criminal Procedure Act 51 of 1977
3.2
Count 2: Contravening section 20(6) of the Environment Conservation
Act 73 of 1989, read with Sections 1, 20( 1) and 29(4) of the said Act
("the ECA") and further read with Section 332(1) of the Criminal
Procedure Act 51 of 1977
3.3
Count 3: : Contravening section 151 (1 )(i) read with sections 1 and
152(2) of the National Water Act 36 of 1998, and read with sections 90
and 250(1) of the Criminal Procedure Act, No. 51 of 1977
4.
Advocate Mashudu Jeffrey Nethononda has, as required by section 105A
of the Criminal Procedure Act, been authorised by the National Director
of Public Prosecutions to enter into the Plea and Sentence Agreement
and to conduct proceedings in Court on behalf of the State in connection
with this Plea and Sentence Agreement. A copy of the authorisation is
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attached hereto as (Annexure "B")
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5.
The accused represented by Mr Willem Le Roux of Edward Nathan
Sonnenbergs Inc., reached an agreement in respect of a plea of guilty as
well as a just sentence to be imposed,
6.
This plea and sentence agreement has been negotiated in consultation
with the immediate supervisor of Adv. M.J Nethononda, being Mr V.
Nemaorani, a Deputy Director of Public Prosecutions who agrees with
the terms of this plea and sentence agreement,
AND WHEREAS THE ACCUSED:
7.
As represented by Wessel Erasmus, the CFO and employee of the
Accused , before entering into this Plea and Sentence Agreement, has
been fully informed as follows :
7. 1
That the Accused has the right to be presumed innocent until it has,
beyond reasonable doubt been proven to be guilty;
7.2
That the Accused has the right to remain silent and not to testify during
the proceedings;
7.3
That the Accused has the right not to be compelled to give selfincriminating evidence;
7.4
That the Accused is not obliged to enter into this Plea and Sentence
Agreement, but that should it do so, the contents of the Plea and
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find it guilty in terms of the provisions of the Plea and Sentence
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Agreement, and sentence it in terms thereof,
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a.
Admits having entered into this Plea and Sentence Agreement freely and
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voluntarily, while being of sound and sober senses and without having
been duly influenced thereto;
9.
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Acknowledges that it has been made aware that this Plea and Sentence
Agreement cannot bind the Court not to exercise its discretion to make a
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specific order or conduct a specific inquiry;
AND WHEREAS:
10.
The Prosecutor has complied with the provisions of section 105A(1)(b)(i),
(ii) and (iii) of the Criminal Procedure Act;
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The State has properly consulted in terms of section 105A(1)(b)(i) and (ii)
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with the Investigating Officer in this case, namely Ms Tsholo Matlou from
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the Office of Environmental Affairs, on the terms of this Plea
Sentence Agreement,
12.
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The State has properly, in terms of section 105A(1)(b)(iii) consulted with
the Complainant in this matter and has given him an opportunity to make
representations regarding the contents of this Plea and Sentence
Agreement, and he has agreed to the provisions contained herein,
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13.
The Accused admits guilt in respect of the charges so mentioned herein,
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and pleads guilty thereto on the basis as set out below, and the State is
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prepared to accept such plea of guilty.
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14.
Therefore the State and the Accused agree as follows in respect of the
plea of guilty and a just sentence:
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15.
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The Accused admits all the facts in relation to the charges as set out
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below.
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PLEA OF GUllTY AND ADMISSIONS
16.
16.1
Count 1
Mr Wessel Erasmus admits that he has the required authorisation from
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the Accused to submit this plea of guilty.
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16.2
The Accused admits that it is guilty of contravening section 20(1) of
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the Environment Conservation Act 73 of 1989 read with sections 1, j
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29(4) of the said Act ("ECA") and Section 34(3) & (4) of the National
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Environmental Management Act 107 of 1998 (with reference to
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Schedule 3) and also read with Government Notice 1196 published in
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16.3
the Government Gazette 15832 of 8 July 1994 and further read with
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Section 332(1) of the Criminal Procedure Act 51 of 177
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The Accused admits that upon or during August 1997 to march 2008, /
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at or near Steelpoort, in the Regional Division of Mpumalanga, it/ (
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unlawfully and intentionally established and/or provided
and/or
operated a disposal site without a permit issued by the Minister.
17.
Count 2
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17.1
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Mr Wessel Erasmus admits that he has the required authorisation from
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the Accused to submit this plea of guilty.
17.2
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The Accused admits that it is guilty of contravening section 20(6) of
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the Environment Conservation Act 73 of 1989 read with sections 1,
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20(1) and 29(4) of the said Act ("ECA") and further read with Section
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332( 1) of the Criminal Procedure Act 51 of 177
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17.3
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The Accused admits that upon or during August 1997 to march 2008,
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at or near Steelpoort, in the Regional Division of Mpumalanga, it
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unlawfully and intentionally established and/or provided and/or
operated a disposal site without a permit issued by the Minister.
17.4
The accused admits that during August 1997 to February 2005 and at (
or near Steelpoort at its Tubatse Ferrochrome plant,
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certain
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employees and managers of the accused allowed dus_
t from the bag~
~~ which dust contained chrome and hazardous substance, to
be disposed, within the fenced parameters of the plant, without a
course of the employment of such persons and that such conduct was
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waste permit. The accused admits that such conduct occurred in the
unlawful and negligent.
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17.5
Charges 1 and 2 relate firstly, to the operation of a disposal site
without having a permit and secondly for disposal of waste. At the time
referred to in the charges the shareholding in the accused was held by
Anglo South Africa Capital Limited and BHP Billiton SA Limited ("BHP
Billiton"). In terms of a management agreement between these two
companies, the Tubatse Ferrochrome Operations were managed by
BHP Billiton. Management of the operations by BHP Billiton ceased in
2005 when Kermas Limited ("Kermas") acquired the total shareholding
in the accused. Prior thereto, the accused had taken certain remedial
measures to prevent contamination. When Kermas took over the
management and control of the accused, it expedited the completion
of such remedial measures. The current arising of bag house dust
referred to in the charges, had been disposed of during the period of
approximately August 1997 to 2000 in dedicated unlined areas. The
accused admits that operating a disposal site without a permit and
secondly disposal of waste in an unauthorised waste disposal site is
unlawful and punishable by law.
17.6
During the period of approximately 1998 to 1999, the bag house dust
facility, where the bag house dust had been placed previously, was
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capped in order to prevent any entry of water and any resultant
leaching of any hazardous substance into the ground. These
measures had been discussed with, and approved by, the Department
of Water Affairs.
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17.7
Furthermore, part of the remedial measures also included the
establishment of a lined hazardous waste disposal facility, the
particulars and the design discussed with, and approved by, the
Department of Environmental Affairs. Smaller on site dumps,
&s-t~ containing bag house:' were moved to the aforementioned lined facility
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after construction was completed. From 2000 to 2005, current arising
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of bag house dust were disposed of into the lined disposal facility.
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The dump was prepared between 2005 and 2010 and the lined facility
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was decommissioned and capped in December 2010 and is regularly
inspected.
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18.
the State does not inten to pursue the charge in the near
ure because
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chain evidence was not folio ed in this matter,
19.
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against the Accused due to lack of evid nee and
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Charge
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19.1
The following charge is withdra
19.2
Count 3 - : Contrave ng section 151 (1 )(i) r
152(2) of the Nati
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al Water Act 36 of 1998, and
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(with referen e to Schedule 3) of the National Environmental
the C(
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d with sections 1 and
nt Act 107 of 1998 and further read with secti
inal Procedure Act, No. 51 of 1977
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SENTENCE
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20.
Mitigating Circumstances
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20.1
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It is recorded that the State and the representative of the Accused
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have had extensive negotiations and discussions with regard to the
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charges against the Accused and have considered the following
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factors:
20.1.1.1
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The length of the trial should the Accused plead not guilty to the
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charges. By pleading guilty the Accused drastically curtailed
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criminal proceedings. Had the Accused pleaded not guilty, the
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trial would have run for several weeks;
20.1.1 .2
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The expense to which the State and the Accused would be put
by such a trial, which would be a lengthy one;
20.1.1.3
The burden of the prosecution and the Court of being engaged in
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such a lengthy trial;
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20.1.1.4
The Accused has fully co-operated with the Prosecuting Authority
in this matter and has offered full assistance and co-operation to
the authorities, which is in the interests of society and law
enforcement agency;
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20.1.1.5
The interest the State has in securing a conviction on the
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20.1.1.5
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The interest the State has in securing a conviction on the
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charges against the Accused, such interest having a number of
purposes which are (a) the interests of securing a conviction
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against the Accused of the offences which it hereby pleads guilty
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to, (b) the interests to demonstrate to the community that such
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contraventions will be detected and prosecuted, (c) the interests
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to demonstrate that environmental compliance and sustainable
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mining is key to South Africa's future, (d) the interest to
demonstrate that environmental legislation applies equally to all
persons and the mining industry, in South Africa, (e) the interest
to demonstrate that the Constitutional rights as in Section 24 of
the Constitution of South Africa will be protected.
21 .
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Position of the Accused
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21 .1.1.1
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The following is common cause in relation to the Accused:
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21 .1.1.1.1
The Accused is a first offender;
21 .1.1.1.2
The Accused has admitted guilt, thereby showing remorse;
21 .1.1.1 .3
The Accused has contributed to the economic and social
development
of
the
Steelpoort
community
communities through its mining operations;
and
other
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21.1.1.1.4
The Accused
has historically provided
employment to
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employees in the Steelpoort area and/or the province of
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Mpumalanga,
21 .1.1 .1.5
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The Accused has obtained all necessary authorisations;
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21 .1.1.1 .6
The Accused commits to comply with its obligations in terms of
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the various environmental and related authorisations granted
to it.
22.
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Compliance with the
that the sources
22.1.1.1
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groundwater were th
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unlined dumping facilitie . Contaminaf n of the groundwater was
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already been imple ented in res ect of the identification and
treatment
of
areas.
Kermas
he remedial measures which included, inter alia,
d operation of the water tre ment plant to treat any
contam· ated groundwater with ferrous chlo ide.
22.1.1 .3
D ring the period 2000 to 2004, a wa r management
investigation was conducted. In terms of the
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estimated extent of the groundwater pollution
was
predicted, as well as the possible migration
on , inter alia, the Steelpoort
investigation and management pi
was essential to confirm that
the appropriate additional
attempt to treat any co
minated groundwater. In 2004, and as
part of the inves · ation conducted by the accused, it was
identified t / e borehole of Steelpoort Primary School had
been co7minated. Measures were taken to provide the school
with a p.ortable water source.
23.
Aggravating Circumstances
23.1
23.1.1
The following are common cause in aggravation of sentence:
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Section 24 of the Constitution of South Africa provides for the rights
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of current and future generations to have the environment
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protected, to have an environment that is not harmful to health or
wellbeing, to prevent ecological degradation and pollution , and to
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secure ecologically sustainable developments;
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23.1.2
The interests of current and future members of society;
23.1.3
The charges are of an environmental nature which are, in that
respect, of a serious nature;
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23.1.4
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Compliance with approved environmental authorisations is of
crucial importance in order to secure the future and the environment
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through regulated and sustainable development.
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23.1.5
23.2
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THE AGREED SENTENCE
The parties further agree that should the Accused be convicted of the
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abovementioned offences in terms of this Plea and Sentence
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Agreement, that the Accused be sentenced as follows with the added
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conditions:
23.3
That in terms of section 29(4) of the Environment Conservation Act 73
of 1989 read with section 280 of the Criminal Procedure Act 51 of
1977 count 1 and 2 are taken together for purposes of sentence and
the accused is sentenced to a fine of R200 000.
23.3.1.1
Having regard to the provisions of section 34(3) of the National
Environmental Management Act 107 of 1998 ("NEMA") with
reference to Schedule 3, and section 297(1 )(a)(i)(aa) of the
Criminal Procedure Act 51 of 1977 the accused shall pay an
amount of R700 000 00 (Seven hundred thousand Rand) before
or on 23 November 2014. The said amount of R700 000 00
(Seven hundred thousand Rand) be paid into the account of the
Department of Environmental Affairs who must in conjunction
with Steelpoort Primary School liaise with the Department of
Education to develop suitable environmental initiatives for the
benefit of Steelpoort Primary School. The Department of
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Environmental Affairs must keep proper records on the utilisation
of the said funds and that it be audited in terms of the Public
Finance Management Act 1 of 1999.
23.3.1.2
Having regard to the provisions of section 34(1) of the National
Environmental Management Act 107 of 1998 ("NEMA"), with
reference to Schedule 3 section 297(1 )(a)(i)(aa) of the Criminal
Procedure Act 51 of 1977 the accused shall pay an amount of R 1
000 000 (One million Rand) before or on 23 November 2014.
The said amount of R1 000 000 (One million Rand) be paid into
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the account of the Environmental Management Inspectorate of
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the Department of Environmental Affairs for the purposes of the
proper execution of their duties, environmental rehabilitation and
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enforcement training which entity must keep proper records on
the utilisation of the said funds and that it be audited in terms of
the Public Finance Management Act 1 of 1999.
Account Holder: Department of Environmental Affairs
Bank:
ABSA
Account Number: 1044240072
Branch code:
632005
Reference number: Burgersfort CAS 107/03/2008
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UNDERTAKING BY THE ACCUSED
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The accused hereby undertakes to endeavour to take all
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measures within its power to prevent contamination of the I
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environment by its activities and to continue to take the remedial
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measures which are being taken by it in order to remove such
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contamination which has occurred in the past. The Accused
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further undertakes to review the progress made by it from time to
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time in consultation with the Department of Water Affairs and
Environmental Affairs and to improve remedial measures, where
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appropriate.
23.3.1.3
In terms
of section
34(4)
of the
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National Management
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Environ menta~ Act 107 of 1998 ("NEMA"), the accused is
ordered to pay an additional amount of R100 000.00 (One
hundred thousand rand) for co~s i_
ncurred by_ the_. P.ublic
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prosecutor to tAe--elerk of the court, Lydenbuf9 for the benefit of
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the NPA.
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SIGNED AT LYDENBURG ON THIS THE 05 NOVEMBER 2014
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ADV. M.J. NETHONONDA
STATE ADVOCATE
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confir~ that the prosecutor Adv. M.J. Nethononda consulted with /
<~s- his--su-peHvis~c ·on-tl:le_Gp~tents of the agreement.
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V. NEMAORANI
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DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS
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LIMITED (HEREINAFTER
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REFFERRED AS
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Isenschmid, Elize {SCR)
From:
Isenschmid, flize (SCR)
Sent
16 October 2014 10:02 AM
Youness, Amre UMR) ([email protected]); Schalamon, Jurgen {SCR);
Gounden, Sivi (holgoun) ([email protected]); Gounden, Vanessa
(holgoun) ([email protected])
Erasmus, Wessel (SCR)
Round Robin Resolution in respect of Tubatse environmental plea and sentence
agreement
Round Robin resolution Plea and Sentence agreement 16 10 14.docx
To:
Cc:
Subject:
Attachments:
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Dear Directors
The company requires a board resolution authorising Wessel Erasmus to settle and sign the criminal
charges brought against the company in respect of the Tubatse environmental matter. A plea and
sentence agreement needs to be entered into in order to settle the charges. The salient points of the
agreement are contai ned in the resolution.
Please find attached the round robin resolution for your consideration and signature.
II
Kind regards,
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Elize Isenschmid
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samancor~
Group Legal Manager and Company Secretary
CORPORATE
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!4?iPNW:JB
c·._.J~:hl:_,'!i~"!.~.: ..~-:~ . ...:··::...2.·:-·_
J +27 11 245 1103 1 c::J +27 86 267 3407 I @+27 82 546 9590 I &JI [email protected]
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ROUND ROBIN RESOLUTION PASSED BY THE BOARD OF DIRECTORS OF
SAMANCOR CHROME LIMITED
Registration Number: 1926/008883/06
("the Company")
APPROVAL TO SETILE THE CRIMINAL CHARGES BROUGHT AGAINST THE COMPANY
REGARDING THE TUBATSE FERROCHROME ENVIRONMENTAL MATIER
Further to the above matter discussed at the previous board meeting the Company has come to an
arrangement with the State with regards to the matter and has entered into a Plea and Sentencing
Agreement in terms of Section 105A of the Criminal Procedure Act No.51 of 1977, as amended.
In terms of the agreement the Company will enter a plea of guilty on Count 1 and 2 and not guilty on
Count 3.
The agreed sentence is a Total fine of R2 000 000.00 (Two million rand), made up of R200 000.00 (two
hundred thousand rand) to be paid to the Clerk of the Lydenburg Criminal Court, R1 000 000.00 (one
million rand) to be paid to the Department of Environmental Affairs for the benefit of the Steelpoort
School, R700 000.00 (seven hundred thousand rand) to be paid to the Department of Environmental
Affairs, and R 100 000.00 (one hundred thousand rand) to be paid to the National Prosecuting Authority.
RESOLVED
The board of directors of the Company hereby resolves and authorises Wessel Erasmus, who has been
the Company representative during the Criminal Case, to enter into, sign and execute the Plea and
Sentence Agreement with the State.
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Name: Amre Youness
Designation: Director
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Date:
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on: Director
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Name: Sivandran Gounden
Name: Vanessa Gounden
Designation: Director
Designation: Director
Date:
Date:
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!/
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ROUND ROBIN RESOLUTION PASSED BY THE BOARD OF DIRECTORS OF
SAMANCOR CHROME LIMITED
Registration Number: 1926/008883106
("the Company")
APPROVAL TO SETTLE THE CRIMINAL CHARGES BROUGHT AGAINST THE COMPANY
REGARDING THE TUBATSE FERROCHROME ENVIRONMENTAL MATTER
Further to the above matter discussed at the previous board meeting the Company has come to an
arrangement with the State with regards to the matter and has entered into a Plea and Sentencing
Agreement in terms of Section 105A of the Criminal Procedure Act No.51 of 1977, as amended.
In terms of the agreement the Company WJ11 enter a plea of guilty on Count 1 and 2 and not guilty on
Count3.
The agreed sentence is a Total fine of R2 000 000.00 (Two million rand), made up of R200 000.00
(two hundred thousand rand) to be paid to the Clerk of the Lydenburg Criminal Court, R1 000 000.00
(one million rand) to be paid to the Department of Environmental Affairs for the benefit of the
Steelpoort School, R700 000.00 {seven hundred thousand rand) to be paid to the Department of
Environmental Affairs, and R100 000.00 (one hundred thousand rand) to be paid to the National
Prosecuting Authority.
RESOLVED
...
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The board of directors of the Company hereby resolves and authorises Wessel Erasmus, who has
been the Company representative during the Criminal Case, to enter into, sign and execute the Plea
and Sentence Agreement with the State.
Name: Amre Youness
Name: Jurgen Schalamon
Designation: Director
Designation: Director
Date:
Name: Sivandran Gounden
Designation: Director
Date: 11-/lo/lol!.j
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Date:
?t:::
Gounden
Designation: Director
Date: l':r jt o Jl 011.4
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Amre Youness <[email protected]> .
31 October 2014 08:10 PM
Isenschmid, Elize (SCR); Schalamon, Jurgen (SCR); Gounden, Sivi (holgoun);
From:
Sent:
To:
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Gounden, Vanessa (holgoun)
Erasmus, Wessel (SCR)
Re: Round Robin Resolution in respect of Tubatse environmental plea and sentence
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agreement
Cc:
Subject:
Dear Elize,
Please consider this email as my tempora;y signed authorization. I have signed t h e resolution but don't have a r~ x or
scanner at the moment.
Regards,
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.ll.rnre
From: Isenschmid, Elize (SCR) [mailto:[email protected]]
Sent: Thursday, October 16, 2014 09:02AM
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To: Amre Youness; Schalamon, JOrgen (SCR) <[email protected]>; Gounden, Sivi (holgoun)
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< [email protected]> ; Gounden, Vanessa (holgoun) <[email protected]>
Cc: Erasmus, Wessel (SCR) <[email protected]>
Subject: Round Robin Resolution in respect of Tubatse environmental plea and sentence agreement
I
Dear Directors
The company requires a board resolution authorising Wessel Erasmus to settle and sign the crimir.al
charges brought against the company in respect of the Tubatse environmental matter. A plea and
sentence agreement needs to be entered into in order to settle the charges . The salient points o the
agreement are contained in the resolution.
Please find attached the round .robin resolution for your consideration and signature.
Kind regards,
Elize Isenschmid
Group Legal Manager and Company Secretary
;;§"'
samancor ~~
CORPORATE
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.11 245 11.03 I B +27 86 267 3-l07
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goGreen
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I B +27 82
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.
546 9590
I ~ [email protected]
-Please consider the envi;·onmcnt bef.:;re priming th;s E- Hail
The information in this email may be confidential, legally privileged or otherwise. It is intended solely for
the addressee. Access to this email by anyone else is unauthorised. If you are not the intended recipiept, any
disclosure, copying, distribution or any action taken or omitted in reliance on it, is prohibited and mat be
unlawful. Whilst all reasonable steps are taken to ensure the accuracy and integrity of information anr data
transmitted electronically and to preserve the confidentiality thereof, no liability or responsibility
whatsoever is accepted if information or data is, for w~atever reasons, corrupted or does not reach its
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NATIONAL PROSECUTING AUTHORITY
South /\(:·ica
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AUTHORISATION IN TERMS OF SECTION 105A(1)(a) OF THE CRIMINAL PROCEDURE
ACT, 1977 (ACT 51 OF 1977)
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I, MENZI SIMELANE, National Director of Public Prosecutions, hereby in terms of section
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105A(1)(a) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) authorise the following
prosecutors to negotiate and enter into plea and sentence agreements in criminal
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proceedings within their areas of jurisdiction:
(a)
Any District Court Prosecutor on salary level LP4 and any prosecutor on a higher
salary level in respect of matters in the District Court: Provided that a prosecutor on
salary level LP4 must negotiate and conclude the agreements in consultation with his
or her immediate supervisor.
(b)
Any Regional Court Prosecutor on salary level LP6 and any prosecutor on a higher
salary level in respect of matters in the Regional Court: Provided that a prosecutor on
salary level LP6 must negotiate and conclude the agreements in consultation with his
or her immediate supervisor.
(c)
Any Senior State Advocate on salary level LP9 and any prosecutor on a higher salary
level in respect of matters in the High Court.
This authorisation is subject to the policy directives on plea and sente:nce agreements issued
from time to time by the National Director of Public Prosecutions.
Given at Pretoria on this
;2_~ day of s~
2011.
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