Right2Know Campaign

Media Release: Environmental justice organisations sue eThekwini for access to refinery licences

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Environmental justice organisations the South Durban Community Environmental Alliance and the Vaal Environmental Justice Alliance have launched legal proceedings in the KwaZulu-Natal High Court to force eThekwini Metropolitan Municipality to release the atmospheric emission licences and compliance reports of two south Durban refineries.

Atmospheric emission licences govern the amount of pollution industries can emit into the atmosphere.

These court proceedings [1] form part of a critical larger battle to achieve public access to all industry environmental licences and compliance reports.

South Durban Community Environmental Alliance (SDCEA) [2] and Vaal Environmental Justice Alliance (VEJA) [3] are represented by attorneys at the Centre for Environmental Rights (CER) [4].

eThekwini had refused requests for these records for the Engen Petroleum Limited (Engen) refinery and the Shell and BP South African Petroleum Refineries (Pty) Ltd (Sapref) refinery in south Durban in terms of thePromotion of Access to Information Act (PAIA), arguing that they constituted commercial information of the refineries. The Municipality claimed that the records contained trade secrets; financial, commercial, scientific or technical information, which, if disclosed would be likely to cause harm to the financial or commercial interests of Engen and Sapref; or that the information was supplied in confidence and its disclosure could put Engen and Sapref at a disadvantage or prejudice them in commercial competition. Internal appeals of these decisions also failed.

The environmental justice organisations argue that neither licences nor compliance reports contain trade secrets or commercially sensitive information. Nicole Löser, attorney at the CER, highlights that: “The Air Quality Act, 2004 requires that all applications for licences be made available for public comment.   It is therefore not clear on what basis the Municipality can argue that the licences themselves are confidential. In any event, we have been provided with the air emission licence for Chevron’s Cape Town refinery. It cannot be so that some refineries have secret licences, while others don’t.”

In addition, PAIA requires the disclosure of records that would reveal evidence of a substantial contravention of the law or an imminent and serious public safety or environmental risk and where the public interest in the disclosure would outweigh any potential harm to the third party.

Sapref and Engen’s refineries are significant contributors to the high levels of air pollution within the south Durban basin, and local community organisations have long fought to reduce dangerous pollution from these two refineries in the already polluted area of south Durban [5].

According to Desmond D’Sa, Coordinator of SDCEA, “Reports have shown that the poor air quality in the south Durban basin has had a devastating impact on the health of residents, particularly children, living within the area. The Municipality should be doing everything in its power to hold the refineries accountable. Instead, it has forced us to resort to litigation to obtain basic documents”.

Bobby Peek, director of groundWork [6], adds that: “For too long, government and other polluting industries have failed to account properly for the devastating health impacts and costs of air pollution.”

The information concerning the atmospheric emissions of Engen and Sapref, and all emitters of harmful pollutants, as well as their compliance with their licences, is vital for the exercise and protection of the Constitutional right to an environment that is not harmful to our health or wellbeing. Municipalities, as licensing authorities for air polluters, have an essential role to play in ensuring that this right is respected and protected for all South Africans, and in promoting the Constitutional objective of an open society.

Samson Mokoena, Coordinator of VEJA – the community organisation who successfully compelled disclosure of environmental records by ArcelorMittal South Africa in the Supreme Court of Appeal in November 2014 [7] – says: “We have a Constitutional right to know what industries’ impacts are on health and the environment. Polluting companies can no longer try to hide this kind of information.”

Phezu Ntheta, Right2Know [8] KZN Provincial Coordinator, says “Only through information can we begin to hold corporate polluters accountable. It is the right of any community to know about how clean the air is that they breathe.”

If the Municipality seeks to oppose this litigation, it must do so by 14 May 2015.

Issued by: Centre for Environmental Rights, groundWork (Friends of the Earth South Africa), South Durban Community Environmental Alliance, Vaal Environmental Justice Alliance, Right2Know Campaign

Contacts

  • South Durban Community Environmental Alliance:
  • Vaal Environmental Justice Alliance:
    • Samson Mokoena, Co-ordinator, email: mokoena@gmail.com, tel: 016 933 9079 / 084 291 8510
  • Centre for Environmental Rights:
    • Robyn Hugo, attorney and Programme Head: Pollution and Climate Change, email:rhugo@cer.org.za, tel: 021 447 1647 / 082 389 4357; and
    • Nicole Löser, attorney, email: nloser@cer.org, tel: 021 447 1647 / 082 788 0873
  • groundWork:
  • Right2Know campaign:
    • Phezu Ntetha, R2K KZN provincial coordinator: 0827157010
    • Mark Weinberg, R2K Spokesperson: email: mark@r2k.org.za tel: 0849930591

Footnotes

[1] The Notice of Motion and Founding affidavit can be downloaded at: http://cer.org.za/wp-content/uploads/2015/04/SIGNED-NOM-FA-SDCEA-VEJA_ETHEKWINI.pdf 

[2] The South Durban Community Environmental Alliance (SDCEA) is a non-profit organisation which aims to, inter alia, service the common interests of participating civil society organisations, provide a common structure through which different sectors of civil society can explore, strengthen and promote matters of common interest justice or relating to environmental justice and sustainable development and create a culture of environmental justice and sustainability – www.sdcea.co.za.

[3] The Vaal Environmental Justice Alliance (VEJA) is a voluntary association of non-governmental and community-based organisations that advocates for a culture of transparency, environmental awareness and sustainable development and a healthy, safe and sustainable environment in accordance with the Constitutionally-enshrined right to an environment that is not harmful to health or well-being” –http://vaalenvironmentalnews.blogspot.com

[4] The Centre for Environmental Rights (CER) is a non-profit company and law clinic based in Cape Town, South Africa. The Centre was established in October 2009 by eight civil society organisations (CSOs) in South Africa’s environmental and environmental justice sector to provide legal and related support to environmental CSOs and communities. Its mission is to advance the realisation of environmental rights as guaranteed in the South African Constitution by providing support and legal representation to civil society organisations and communities who wish to protect their environmental rights, and by engaging in legal research, advocacy and litigation to achieve strategic change – www.cer.org.za.

[5] See groundWork report at: http://www.groundwork.org.za/factsheets/Oil%20Refineries.pdf

[6] groundWork is an environmental justice organisation working with community people from around South Africa, and increasingly Southern Africa, on environmental justice and human rights issues focusing on Coal, Climate and Energy Justice, Waste and Environmental Health. groundWork is the South African member of Friends of the Earth International – www.groundwork.org.za.

[7] See press release http://cer.org.za/news/victory-for-the-vaal-communities-as-the-supreme-court-of-appeal-orders-arcelormittal-to-release-environmental-records. The court papers and relevant media coverage of Vaal Environment Justice Alliance v ArcelorMittal SA can be accessed and downloaded under case 4 at:http://cer.org.za/programmes/transparency/litigation.

[8] Right2Know (https://theright2know.org) is a coalition of many civil society organisations organisations, mobilising around four campaigns: Stop Secrecy (ongoing mobilisation and advocacy against secrecy in law and practice – including the Secrecy Bill, and lingering apartheid secrecy laws such as the National Key Points Act), InfoAccessNow! (Supporting communities and groups in our coalition to access existing information that is critical to their broader struggles for social justice), Media Freedom for All (Promoting a free and diverse media sector by monitoring and responding to legislative developments, educating and organising activist organisations on the ground on these issues, and advocating for more support for community media organisations), and Justice for Whistleblowers (Linking whistleblowers to appropriate partner organisations for legal support and advocacy). Right2Know operates through four provincial working groups — in the Eastern Cape, Gauteng, KwaZulu-Natal and the Western Cape — as well as an elected national committee made up of representatives from key civil society organisations, community groups and social movements from across our provincial support bases.

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