South Durban Community Environmental Alliance
6 May 2003

Judge Piet Combrinck today granted an order in the Durban High Court interdicting and restraining the Minister of Agriculture and Environmental Affairs (KZN) from making a decision on an Appeal submitted to him by the South Durban Community Environmental Alliance (SDCEA). The Minister is interdicted pending the finalization of Judicial Review Proceedings brought by the Legal Resources Centre (LRC) on behalf of SDCEA.

Advocate Angus Stewart (briefed by the Legal Resources Centre) successfully moved the application for the interim relief on behalf of SDCEA. Advocates N G Winfred and S K Parmanand (briefed by the State Attorney) appeared for the Head of Department (HoD) of the KZN Department of Agriculture and Environmental Affairs (DAEA) and the Minister. Advocate J. A. Ploos van Amstel S.C. (briefed by Shepstone & Wylie) appeared on behalf of Biotrace and Mondi Limited.

On 11 October 2002, the LRC lodged an Appeal on behalf of SDCEA with the Minister in terms of section 35 of the Environment Conservation Act 73 of 1989 (ECA). The Appeal was against a Record of Decision granted by the KZN Department of Environmental Affairs and Tourism authorising Biotrace Trading 37 (Pty) Ltd to build a Multifuel Fluidised Bed Combuster at the Mondi Paper Mill in South Durban.

SDCEA, a community-based environmental justice alliance, has disputed Biotrace's contention in its Environmental Impact Assessment (EIA) application that the combuster would benefit the environment.

Dr Eugene Cairncross, who was appointed by the LRC to provide technical assistance in preparing SDCEA's appeal, has advised that a proper analysis of the data put up in the EIA conducted shows that the existing unacceptable (from a health perspective) levels of atmospheric pollution emitted from the Mondi site would be perpetuated by the proposed combuster. After analyzing the data, Dr Cairncross flatly rejected Biotrace's assertion that the proposed project would be positive for the environment.

High levels of industrial pollution in the South Durban Basin are linked to serious health problems suffered by the historically disadvantaged and vulnerable residents of the SDB who live alongside Mondi and other industries. Studies have shown that the % of residents who suffer from aggravated asthma and leukemia far exceeds national averages. SDCEA believes that the authorization will result in a violation of the constitutional right of the residents of South Durban to an environment that is not unhealthy.

The Appeal also showed that the EIA conducted by Biotrace did not comply with the requirements of the ECA and the EIA regulations. This included a failure to appoint an independent consultant to comply with the EIA regulations on behalf of Biotrace as required by regulation 3(1)(a), and also included a failure to adequately identify, investigate and assess feasible alternatives that have the potential to significantly reduce pollution emitted by Biotrace and from the Mondi site.

In replies to the SDCEA's appeal, the DAEA, Biotrace and Mondi contended that Biotrace had on 29 August 2001 been granted an oral exemption from conducting a full EIA. SDCEA disputes that this exemption is valid, as neither Biotrace nor the DAEA complied with the statutory requirements for obtaining and granting such an exemption. In addition, SDCEA had not been given an opportunity to make representations prior to this decision being made. This is a violation of its constitutional right to fair administrative action.

It emerged during the appeal process that, on 27 November 2002, Biotrace applied to the DAEA for an exemption under section 28A of the ECA. This was a month and a half after SDCEA had lodged its appeal.

After queries by LRC environmental attorney Adrian Pole, the DAEA furnished a copy of a purported s28A exemption dated 06 February 2003 to the LRC. SDCEA are contesting the validity of this ex post facto confirmatory exemption confirming the terms of the earlier alleged oral exemption. In addition, it was granted in secrecy and without due regard to SDCEA's constitutional right to fair administrative action.

When the HoD of the DAEA refused to withdraw this purported exemption, the LRC briefed Advocate Stewart take the 06 February 2003 purported exemption on Judicial Review, as well as to review the validity of the 29 August 2001 alleged oral agreement that a full EIA was not required.

The order obtained today, interdicting the Minister from making his Appeal decision until the Judicial Review has been finalized, was sought by SDCEA after the Minister refused the LRC's request that he provide an undertaking not to make his EIA Appeal decision until the Judicial Review had been finalized.

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For comment, please contact:

1. Desmond D'Sa (chairman, SDCEA) : Tel: (031) 461 1991 or Cel: 083 982 6939
2. Adrian Pole (LRC): : Tel: (031) 301 7572