South Durban Community Environmental Alliance
9 July 2003
JUDGE DECLARES DODGY DECISION A NULLITY
A Durban High court decision made history today, 9 July 2003. Heavily polluted communities of south Durban can take solace in the fact that the Mondi-Biotrace Combuster proposal will not be allowed to be given the go ahead by the provincial environmental department.
The reserved judgment of Judge Hugo in High Court Review proceedings brought by the South Durban Community Environmental Alliance (SDCEA) was delivered in the Durban High Court today. Judge Hugo ruled in favor of SDCEA, and declared a purported exemption granted by Sarah Allen of the Department of Agriculture and Environmental Affairs (DAEA) a nullity.
The court application was brought by SDCEA to set aside a purported oral 'exemption' granted to Biotrace by the DAEA's Sarah Allen on 29 August 2001. Biotrace was orally 'exempted' from following certain EIA regulations, as a consequence of which an incomplete environmental impact assessment (EIA) was conducted in respect of a proposed R320 million Combuster planned to be built at Mondi Paper Mill in South Durban Basin (SDB).
The SDB is a highly polluted area where 200 000 largely vulnerable and disadvantaged residents live side by side with heavy industries. Mondi Paper is the 3rd largest air polluter in South Durban, and emits about 9 tons of Sulphur Dioxide (SO2) into the atmosphere per day (only the two oil refineries in the area emit more air pollutants than Mondi). In addition to wanting to burn its residual waste material on site to generate steam, Mondi also plans to continue operating two dirty coal-fired boilers at its plant which emit about 3 tons of SO2 a day each.
Sarah Allen authorized the construction of the Combuster in September 2002.
SDCEA appealed against the authorization to the MEC of Agriculture and Environmental Affairs in October 2002, and decided to take the matter on review to the High Court after Sarah Allen confirmed the oral 'exemption' in writing in February 2003.
The matter was argued on behalf
of SDCEA on 24 June 2003 by Advocate Angus Stewart. Advocates Parmanand
and Winfred appeared for the Head of Department of the DAEA.
'I have come to the conclusion that the application was properly and timeously brought and that the exemption purportedly granted in terms of s28A was a nullity, it having not been given in writing nor was it based on a written application wherein reasons were given for the exemption'.
The chairperson of SDCEA, Desmond D'Sa, has welcomed Judge Hugo's decision:
"This sets an important precedent that shows that neither the DAEA nor Sarah Allen are above the law. We trust that the DAEA will in the future take the concerns that SDCEA has about the unacceptably high levels of pollution emitted from the Mondi Paper Mill, and the effect this has on the health of the community, seriously. We also trust that the DAEA will no longer marginalize community groups in environmental decision-making processes by issuing exemptions from procedural requirements behind their backs. The judgment shows that we were correct in placing our faith in the court and taking up this battle on behalf of the community. We believe that the judgment will go a long way to ensuring that the rights of communities to fair and transparent environmental decision-making are respected in the future'.
In terms of the order, the Member of the Executive Council: DAEA has been directed in deciding the EIA Appeal to regard Biotrace as enjoying no EIA exemption. Judge Hugo also noted in his judgment that:
"It is not in dispute that were it not for such exemption being granted the process followed in granting the respondents leave to erect the fluidized bed Combuster was flawed in as much as the necessary steps in terms of the regulations were not taken'.
LRC environmental justice attorney Adrian Pole, acting for SDCEA, has also welcomed the judgment:
"We believe that this judgment will have a decisive bearing on the outcome of SDCEA's EIA Appeal. The judgment shows that Biotrace was not justified in ignoring important provisions of the EIA regulations, and that the DAEA was not justified allowing them to ignore the EIA regulations. The EIA process was fatally flawed, and must be recommenced de novo".
The Head of Department of the DAEA was ordered to pay the costs of the application, with Biotrace being ordered to pay the costs of unsuccessfully opposing interim relief jointly and severally. The MEC:DAEA and Mondi did not oppose the application.
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