Wednesday, 22 May 2013

Walking on caves of fire

Nnimmo Bassey

Mining always leaves its footprints in both the sands of time and on the lives of the people and their lives. You may think you have seen it all - especially if you have seen or lived in the horrors of oil activities in the Niger Delta. I thought so too, particularly because I have devoted at least two decades of my life in persistent pursuit of polluted lands (at home and abroad) searching for ways to comprehend the great harm generated by extractive activities.

Some of the places that have left deep impressions in my heart are documented in my book Oilwatching in South America - or, Guana Guara, Mudfish Out of Water: A pollution tour Of Venezuela, CuraƧao, Peru and Ecuador. This book is more or less the diary of a pollution tour of these countries carried out in 1997 under the auspices of Oilwatch International. Others can be found in To Cook a ContinentDestructive Extraction and Climate Impacts on Africa. 

After many years of following the heavy pollution of communities in South West Durban in South Africa, and with kin ears for developments related to proposed fracking in the Karoo, I was still not prepared for the level of impacts from mining in Witbank, Old Coronation mine and other Highveld communities. This filed trip was organised by groundWork (Friends of the Earth South Africa) as a prelude to Oilwatch Africa conference that was held in Midrand mid May 2013. On the group were activists from eleven African countries.

The field trip was in Mpumalanga Province where mines literally turned to walking in minefields! No, we did not rush to the mines. Our first port of call was the offices of the South African Green Revolutionary Council (SAGRC) in Witbank. It was early in the morning, but the comrades were already waiting to receive us. Led by Matthews Hlabane, we were quickly given a short introduction to the Witbank.

Mining started here in 1896 and with it began a reign of land grabbing and pollution  From the 1950s, the environmental problems began to intensify and were glaring and undeniable. Acid mine drainage polluted the water and coal dusts took over the air. With these contaminants it was not a surprise that the locals began to suffer from headaches, dizziness, kidney failures and other diseases.

We were informed that there are eight coal-fired plants in Witbank and up to 700 mines from where coal and platinum are dug. But that is not all as there is a pile of 5000 applications for mining permits, with many of them “linked to the ruling party”, we were told. Overall, there are 6000 abandoned mines in the country and among these are the many abandoned coalmines of the Highveld. 

He regretted that there were no direct gains to the community even though so much “wealth” was being excavated from beneath their feet. The coal extracted here is used for electricity generation and for export. The level of contamination here is so high that an estimated 30 billion Rand will be needed for environmental rehabilitation. We were told of sinkholes, unstable grounds and about the impacts on entire biodiversity.

Our visit took us to the abandoned Transvaal and Delagoa Bay Mine. On arrival we were greeted by a mountain range of various wastes and polluted water seeping from the tremendous pile. Walking in this field requires extreme caution. We had to go in a single file, trusting that our guide knew upon which spot to tread and which could be considered as safe ground. We were bemused and some thought it was preposterous for anyone to insist that we could not walk where we pleased. Soon enough we all saw why rebellion was not a good option here. There were cracks in the ground best picked out by trained eyes.

We soon knew we were on the devil’s territory when we began to smell sulphur. And then we saw heat waves simmering from holes ahead of us. The smell got stronger as we moved nearer. We were walking over caves of fire. A once luscious land was now 880 hectares of hell!

A mound of waste from a coal
mine in Witbank, Highveld
We were told of, and shown sinkholes scattered in the fields. Any place could crack up and anytime and a yelp may be the only goodbye to be heard before the victims disappearing into netherworld. These mines are located between two townships and kids and others traverse these burning mines daily either to school or to work. Some kids are said to have fallen into these sinkholes. And someone hazarded that criminals may also have used these burning pits as convenient places to bury their crimes.

Spontaneous fires started in the mines in the 1930s and they were eventually closed in the 1950s. Interesting. It is said that the fires in the mines were burning both the roof supporting pillars and the roofs themselves. We guess that before the mines were closed, perhaps while one portion of the mine was burning, miners were pressed to keep digging at other parts. That can be understood in an apartheid context. But why are the flames not extinguished and the land re-mediated today?

Our friends told us that because of lack of adequate public response to their complaints about the air quality and other pollutants, they have had to train themselves on how to do that for themselves. In fact, we were told of occasions when officials bring testing equipment and the community folks were the ones who showed the officials how the equipment were operated. Talk of community empowerment! Tests show that some of the water bodies here are either very acidic or highly alkaline.

Leaving the field of horror, we passed by the VANCHEM Ltd factory. Our comrades asked us to look up at the sky. Thick smoke bellowed from the stacks. That was not surprising. But they asked us to note that no birds were flying in the area. Well, that was true. “They simply die if they try,” we were told. Okay. Get me out of here!

We were told that to keep healthy, workers in this factory are compelled to drink milk everyday. I could not laugh. I have personally heard at an environmental health workers workshop of oil company workers (machine operators) in Nigeria who are urged to drink milk as a way of keeping their bodies purified of pollutants. This myth has also been heard of in India. Workers are kept in the dark hopes that milk eliminates the impacts of pollution. See my 2010 article titled The ‘Milking’ of Oil Workers for more about this and the cynical actions of corporations.

Our next port of call was the Old Coronation Township sitting on Old Coronation coal mines. The ground here is very unstable. We were taken to a huge pit into which a preschool disappeared after the ground gave way in 2012. Sinkholes started happening here more than five decades ago.

Many resident of this township ‘mine’ coal in huge waste heaps in the neighbourhood. Stories abound of kids and women who met their death here when the pile of waste collapsed on them as they dug for the carbon needed for cooking and for heating their shacks.

It was one story of woe after another. We saw women and kids digging for the occasional lump of coal. We heard of resource and job opportunities conflicts with migrant workers from the SADC (Southern Africa Development Community) region. We saw extensive acid/water ponds. Devoid of life as expected.

“The graves in Highveld are full,” one comrade tells us. “If you live here and drink the water, there is a 70 per cent chance you will end up with liver problems.” Sadly, kids sometimes swim in the warm ponds and there is a chance that they gulp in the lethal water. There is a high incidence of sinuses, asthma, tuberculosis and others. 

“The doctors work with the mines and the mines work with the government. The people are left to fall through the cracks. The Highveld is a compost,” another comrade insists without elaborating.

We were thoroughly depressed at this point. Getting to watch a youth drama perform was hopefully going to be a relief. Soon we were gathered in a community hall built and donated by a mining company!  Speeches and tales of woes from various cities, townships and communities over, the Mpumalanga Youth Against Climate Change drama group took centre stage.

The acting was excellent and the storyline and message was clear and direct. Global warming was better termed “global burning” and humans were shown as anointed to be the most foolish specie on earth. The youngsters declared, “our governments have failed us, but we will not fail ourselves”.

As we left these heavily polluted communities, Comrade Matthew declared that the Witbank is the most polluted city in the world. A Nigerian comrade retorted that the Niger Delta was the most polluted region on earth. An argument ensued but was happily settled that one was a city and the other a region. But best of all, we ought to be arguing about which is the cleanest and safest, not which is most based by capital. Would either of these places ever return to health?

This blog was first published on 21 May 2013 in Nnimmo's Reflections (Oil Politics).

Nnimmo Bassey is the International Coordinator of Oilwatch Africa and is based in Nigeria. He is the former Chair of Friends of the Earth International and Executive Director of Environmental Rights Action (ERA/Friends of the Earth, Nigeria).

Wednesday, 9 January 2013




Lonmin shortlisted in international Public Eye Awards

Pietermaritzburg & Johannesburg, South Africa, 04 January 2012 – The nexus between corporate power and the political elite, and what this means for people and the environment is being exposed in the run up to the World Economic Forum which will take place in Davos, Switzerland between 23 to 27 January 2013. Here the world’s elite 1% gather to discuss ways to increase deregulation of global markets and enable transnational corporations to gain further strongholds over the natural resources, livelihoods and labour of marginalized people across the world.

groundWork and The Bench Marks Foundation’s submission of platinum mining corporation, Lonmin Plc, to the Public Eye Award’s for the People’s Award, was recently shortlisted with G4S, Repower, Alstom, Shell, Coal India and Goldman Sachs. This submission was based on the human rights violations and environmental destruction that the corporation has carried out since the establishment of its mine in the Marikana region in the North West province of South Africa.

In 2011 and 2012, miners and the community at the mine showed their anger at the corporation by partaking in various protests. The Bench Marks Foundation, in their 2012 report Policy Gap 6: Communities in the platinum minefields highlights the following main issues as areas of concern: Worker health and safety; lack of local employment and mass firing of employees; failure of corporate social responsibility projects; and the impact of mining on agriculture and social stability in the area.

John Capel, Director of The Bench Marks Foundation: “Mines such as Lonmin need to stop obsessing with cutting costs which is usually at the expense of the environment, labour and communities. They continue to find ways to shift their social responsibilities. Often this turns into protests such as those we experienced in Marikana.”

From 04 to 23 January 2013, the public are given the opportunity through the People’s Award to make their voices heard about which of the seven corporations they think have had the worst reputation in 2012. Like so many mines across South Africa and the globe, Lonmin has continued to keep a horrendous track record where profits have been put before people’s ability to meet a basic standard of living. The tragedy that occurred at the mine on 16 August 2012, where a total of 44 miners were massacred and 78 others were injured during a protest for increased wages, illustrates this oppressive nature of the mining corporation.

Bobby Peek, Director of groundWork: “The events at Marikana must be seen in the context of a failed democracy and crumbling state, whose interest is tied up in protecting the wealth of the elite, rather than supporting the poor and responding to their call for the ANC’s promised ‘better life for all’.”
The submission can be accessed on groundWork's website

Friday, 14 December 2012

Oilwatch solidarity visit to Uganda - Fighting to keep the Oil in the Soil!

Siziwe Khanyile
                 Kaiso Tonya drama group
Six hours after leaving Entebbe and heading North West towards the Western Region of Uganda, we reach the lush, mountainous, green Rift Valley. We head to Kaiso Tonya in Hoima district where we are meeting with community people living a stone’s throw from Lake Albert.

We are welcomed by the Kaiso Tonya drama group who sing and dance as we arrive. The hall, a corrugated iron donation from the oil companies is hot but lively, already packed and abuzz with people from the very young to the elderly coming from Kaiso Tonya Village and some surrounding villages.

We are welcomed, and a discussion about the purpose of our solidarity visit is explained by our hosts the National Association of Professional Environmentalists (NAPE)/Oilwatch Uganda. We get to hear about the great work they are doing with their sustainability schools in the villages, and that the drama group is a result of this initiative. Without too much discussion, the drama group, clad in their NAPE/Oilwatch t-shirts and traditional fabric skirts and trousers make their way into the hall.

This group is clear that they are not just entertainers; they are community advocates, fighting for the protection of their communities against the oil companies. This is very clear as they present strong messages through their performances.  They communicate in a way that is both entertaining and educational.

For the next one hour, the drama group sings, dances, recites poetry in the native language and the audience responds with roars of laughter, clapping or murmuring as each scene is played out. After every scene, a discussion is held to allow the audience to participate – “what issues did the scene address and what are your thoughts on the issue?” was the question posed.  The responses demonstrated an understanding of the problems introduced by oil. The drama group did a sterling job of capturing these issues.

In the Buseruka sub-county of Hoima district, an area is earmarked for an oil refinery that is expected to soon begin construction. The area is 29 kmof virgin grazing land for cattle and goats, involves about 13 villages and proposes to displace about 8 000 people with what the community view as unfair compensation determined through an unfair consultation process. It is expected that the refinery will come with added infrastructures like a modern airport, petrochemical industries, waste management plants and houses for the refinery workers. The ministry of environment has made it impossible for the feasibility study of the refinery – charged at an amount of US$30 000 – to be viewed.

In the same Buseruka sub-county area a 9.0 MW mini hydroelectric power station has been built and transmission lines are now part of the landscape. The power station is located across the Wambabya River to supply the oil companies and labour camps with electricity while community remains in darkness. However, NAPE is promoting locally assembled low-cost solar lamps constructed from bamboo shells and wood in this community.

Currently, oil companies, including Irish multinational Tullow, Total and the Chinese National Oil Company have drilled 75 exploration oil wells. Three of these are off shore. 71 wells found oil and four are dry wells. Recently, one of the wells was drilled on a geological fault line and has been abandoned. Article 24 of Uganda’s Wildlife Act prohibits mining in protected areas; yet 90% of drilling is taking place in nature reserves and communities needing access to firewood from the game reserve where the oil wells are located are being denied access by patrolling soldiers.

With exploratory drilling taking place some 20km offshore, fisherfolk in Lake Albert complain that their catch of fish has reduced and that when there is active testing, they are prevented from fishing which directly affects their survival as real fears of future oil spills in the lake are a threat.

Through various scenes, the drama group communicated oil impacts, demonstrating a very good understanding of the issues and the problems with the system that facilitates oil development.
They expressed concerns about land grab and demolishing of houses for the construction of access road oil wells without adequate compensation.

Social issues such as the influx of men into the area leading to prostitutes coming from different parts of the country and beyond, fears of HIV infections, alcohol abuse, increased crime and concern about girls being enticed by money from oil workers have already begun to affect the once almost secluded community living peacefully fishing and stock farming along Lake Albert.

This was our second visit to the Rift Valley in two years. The experience this time around, however, was made far richer by the depth of the conversations with the communities and getting to hear their perspectives and actual experiences.

It will be sad to return in two years time. The pristine environment will be overtaken by the obvious signs of “development” and “growth” – displacement, poverty, lack of access to food and water, and state violence and oppression! Yet these communities must stand strong in resistance as they echo a worldwide call to Keep the Oil in the Soil

Tuesday, 11 December 2012

Toxic waste scandal: Justice delayed is justice denied

Bobby Peek
“This case goes to the heart of the greed, neglect and the failure of accountability that is sparking uprisings across the country” (The Mail and Guardian. Leader. “Choked up.”  24 July 2009, p. 30).

The case in mention is not about housing, the fight for anti-retrovirals or clean water, decent education or affordable energy, all of which are hot topics in the recent politic of South Africa. Rather it is a case of environmental injustices visited upon the community by government failing to take urgent and meaningful action against Thermopower Process Technology (Thermopower), a toxic waste disposal company who imports toxic waste into South Africa, and whose clients are some of the ‘blue chip’ JSE traded companies namely Sasol, Monsanto, BASF and AngloGold Ashanti to name a few.  For good measure also include Eskom.  Interestingly, Thermopower’s website no longer functions so information on their customers and partners is difficult to come by.

While the National Prosecuting Authority (NPA) and the Department of Environmental Affairs (DEA) are taking Thermopower to court, the KwaZulu Natal government ironically has agreed to send the historic mercurial toxic waste from Thor Chemicals in Cato Ridge outside Durban to Thermopower for disposal.   Both the Olifantsfontein community and groundWork has appealed this decision in vain.  To compound matters, Thermopower, Buhle Waste and Afrimedicals have all been linked to the shenanigans around the medical waste disposal tender in the Limpopo Province, in which Julius Malema of all people features.  What we are faced with here is a time bomb of epic proportions – a dysfunctional company under legal scrutiny with serious political connections running about expanding its business while its present business is under serious question.

Thermopower has had strong ANC political connection since the scandal broke years ago.  Alan Norman, known as the “ANC’s banker” and Smuts Ngonyama have all been linked to the wheeling and dealing around this toxic waste of saga.  This relationship has led to kowtowing by local ANC leadership when in a letter to the company the leadership responds with ‘greatest humility’ and welcomes the company’s ‘cooperation’ to engage on the local community.  This engagement however, is a distraction from the court case, which is yet to be finalised.

Thermopower been charged by the NPA and DEA for the following contraventions: (1) untreated and treated waste remaining on the site for a period of longer than the permitted (three months); (2) failure to dispose of some of the residue as legally required; (3) burying residue in one of the buildings on site; (4) disposing of residue in storm water drains; (5) storing waste in leaking containers not properly labelled and sealed; (6) treating healthcare risk waste and general waste together; (7) not submitting charge papers to the authorities; (8) not ensuring either that all residue generated in the treatment process was disposed of at a permitted hazardous waste landfill site on a regular basis or reclassified for delisting and disposal at a permissible disposable landfill site; (9) and not taking steps to ensure all floors were cleaned and disinfected.  Subsequent to these, additional charges have been submitted by the NPA, which at the time of writing groundWork has yet to see.

Despite these detailed charges, the case has yet again been postponed in court on 13 November for the sixth time. The magistrate in the case called for expert witnesses to give evidence.  This is bizarre considering that the original charges are uncomplicated charges, of which they are either guilty of or not. One of the reasons why the case has not been heard and finalised is because of the precedent set in the NPA’s case against Zuma, where he contested successfully his right to representation to the NPA before the case went to court.  Using this precedent, Thermopower has successfully bogged down the case outside the realm of the public scrutiny, and thus we may never know what the outcome of the case might be once it is dropped.   While South Africa’s environmental  legislation is advanced comparably, Thermopower is ‘able to hide behind complex legislative’ processes according to The Mail and Guardian, something which is common throughout South Africa when poor people deal with corporations abusing peoples’ rights and their environments.

Finally, in all these postponements, very little information is getting to the people who are affected on the ground.  But this delay and obfuscating of the issues is not new in South Africa.  This is the reality when the poor try and protect themselves from powerful corporate interest.  We are faced with the reality of the powerful nexus between the political elite and corporate wealth making for a beast of an animal that disregards our Bill of Rights and actively undermines it.

This appeared first in the December issue of Noseweek

Thursday, 1 November 2012

What to do with all this fracking gas?

Siziwe Khanyile
Now that the gas fracking moratorium has been lifted, oil and gas companies are ready to dig in and start exploring. Royal Dutch Shell is one of the companies that have applied for shale gas exploration rights in the Karoo in the hopes of exploring the gas reserves. Other big players are Sasol, in partnership with Statoil and Chesapeake Energy.

Sasol being our home-grown energy producer has a fairly long history of converting gas into liquid fuels.  The company has operations in Qatar, Canada and Nigeria, among others. In South Africa, however, they appear to be moving more cautiously by maintaining that they will continue to shelve their plans to explore for shale gas in the Karoo while considering the environmental impacts. With all the pressure from environmentalists, they appear eager to be seen as good corporate citizens. However, it is clear that their own studies have suggested that their block is not viable.

Another big player in the South African gas cabal is PetroSA (Petroleum Agency South Africa), who in 1992 started operating the world´s first gas-to-liquid (GTL) refinery, Mossgas, at Mossel Bay where natural gas found offshore is refined.

PetroSA’s  off shore gas reserves are dwindling and although Project Ikhwezi, which is PetroSA’s project to search for additional gas reserves off the coast of Mossel Bay has been authorized by the Department of Environmental Affairs, they have their sights set on the gas that Shell, Sasol and others will be extracting in the Karoo.

The question is, with all of PetroSA and Sasol’s expertise in GTL, what will happen to the shale gas that is produced in the Karoo? The answer is a no-brainer because as things stand at the moment, the biggest infrastructure that we have related to gas is for GTL.

Currently, PetroSA’s refinery is producing 45 000 b/d until 2020 and in a presentation to Parliament, PetroSA admitted that shale gas could play a key role in the long-term sustainability of the company after 2020. This means, therefore, that they need the Karoo gas to remain viable economically.

PetroSA’s interest in the Karoo is clear, which is why it was unethical that the team of experts on the investigation into hydraulic fracturing in the Karoo commissioned by our Minister of Mineral Resources, Susan Shabangu to advise cabinet on the exploration of the Karoo, was led by M.R. Xiphu who is CEO at PetroSA who no doubt pushed the agenda of Petro SA to benefit from shale gas in the Karoo.

Our view is that the gas is no doubt going to be developed into liquid fuel in the Mossgas refinery in Mossel Bay. Or maybe not …! Another possibility though, is for the development of a GTL facility at the Coega Industrial Development Zone in the Eastern Cape.

For several years, Coega has been on the cards to develop another oil refinery, Project Mthombo. Although PetroSA still holds this as a possible project in the future, there are several problems that the project presents including dwindling worldwide oil reserves and increasing oil prices, lack of a pipeline for transportation of fuel inland and non-feasibility of shipping the refined fuels from Coega to Transnet’s new multiproduct pipeline in Durban. The existing refineries would not benefit from the competition - possibly reducing their capacity to generate higher profits in future.

It appears too that with the possibility of substantial new shale gas from the Karoo and possibly from KwaZulu-Natal and Mozambique, the need would be for a new GTL refinery, rather than an oil refinery in Coega - even more so, considering the fact that our refineries are decrepit and uneconomical.

With the advent of increasingly high emissions and other environmental impacts from oil and oil refining, it would be easy to justify gas as a cleaner alternative source of energy, what with the added “benefits” of new jobs being created.

However, in the bigger scheme of things, whether coal, oil or gas, the environmental and human impacts far outweigh the perceived benefits to the country’s energy security, particularly when there are other more sustainable and renewable means to source our energy.

Having said all of this, we might even have a proposal to develop a GTL plant in Nieu Bethesda in the Eastern Cape, where the gas is close at hand, and we are sure there is a desperate need for “sustainable” jobs!

Wednesday, 22 August 2012

South Africa does not support the death penalty, or does it?

Almost a  week after the Marikana Massacre and in the midst of a week of mourning for those who were tragically killed at the Lonmin mine, the groundWork team sends their condolences to the families of the deceased and reflects on what this series of events means for South Africa.

The absurd nature of South Africa’s democracy has been exposed by the brutal deaths of the 42 workers and 2 South African Police Service members at Marikana.  May we never forget the painful events that culminated in the Marikana Massacre on 16 August.  These events cannot be seen in isolation as Lonmin’s continual search for greater profits at the expense of workers, and the worker struggles there, but rather in the context of a failed democracy and crumbling state, whose interest is tied up in protecting the wealth of the elite by using the Property Right (Section 25) in our Bill of Rights, rather than supporting the poor and responding to their call for the ANC’s promised ‘better life for all’.

As groundWork has said from 1999, the state together with corporate capital is failing the nation.  We in South Africa are in the middle of the perfect crisis, the elite crisis: the crisis of imperial capitalism, the crisis of energy resource depletion, and the environmental crisis.  This is amplified by the nexus between the political elite and corporate power.  The deaths of those in Marikana, have given us a graphic depiction of the crisis of capital.  Simply put, the workers were demanding more for toiling in the bowels of mother earth, and they were prepared to change alliances for this.  And this, the ruling class could not contend with.

The African National Congress (ANC) had its back against the wall.  It could not allow the National Union of Mineworkers (NUM), which is one of its strongest Congress of South African Trade Unions (Cosatu) partners, to lose workers to a rival union, the Association of Mineworkers and Construction Union (AMCU).  This could mean that the workers and their families might not vote for the ANC in the next election.  So it had to back NUM to ensure that AMCU was not successfully organising.  AMCU was raising worker issues no doubt because NUM was not serving their needs – better working conditions and remuneration.

Even General Secretary of Cosatu Zwelinzima Vavi admits that there might have been problems.  The Mail and Guardian reports that Vavi: ‘admitted that Cosatu's preoccupation with ANC politics is resulting in a growing distance between union leaders and its membership’.  Generally speaking, this then translates into workers never being allowed to demand too much from capital – if they do the state must manage this demand.  The ANC had to do it in this instance because they also had to protect vested corporate interests in the mining sector that many individuals in the ANC, and even the Chancellor House (the ANC’s investment arm) holds.  The ANC could manage NUM;  NUM managed the workers and ensured that demands never threatened corporate profits.  But when the rival union arrived, workers could not be managed anymore. 

The deaths of the first 10 in Marikana should have brought the nation to a halt – and we should have all asked what was going on.  Critically, President Zuma should have intervened; after all he has been touted as the ‘people’s president’ after the stiff upper lip nature of Mbeki.  But he did not.  He failed us by leaving the country at a critical point in time.  We are waiting for guidance.  We are waiting for our President to address the nation directly. But what is needed is not another commission of enquiry that will hold the truth back for many years, but rather direct action against the Minister of Safety and Security and the Presidency for allowing this process to get to this stage.

For the workers at Lonmin and the hundreds of thousand other miners throughout South Africa, there is no democracy in the long hours they have to work, the poor wages they have to be content with, the work related illnesses they have to endure, the high HIV rates that ravage the community, the shacks they have to live in, the lack of services they have to endure, and the broken social fabric of their families because of migrant labour.  For 18 years they have been asking for a better life for all and for a meaningful democracy promised by the ANC.  But all they have been given is the blood of their fellow workers spilt and the deaths of their comrades.

Whose rights are the state going to deliver on?  Those that own ‘property’ or those that die daily for they do not have ‘property’ and access to the basics of life: fair and safe employment, basic services and nutrition and a clean environment so that our children realise their potential to compete at the Olympics, rather than share their lives  with an asthma pump – if they can afford one.

We cannot continue blaming the victims and the workers for the crumbling democracy that allows people to be shot dead because they seek a better life.  

Wednesday, 20 June 2012

Throwing precaution to the wind: Section 24G of the National Environmental Management Act, 1998 (NEMA)

Undermining our constitution

Section 24 of the South African Constitution is what underpins the very foundation of the environmental justice movement in our country. Recent controversy has arisen around, in particular, section 24G of NEMA which effectively allows polluters to budget for and pay off their wrong-doings with apparently little legal ramifications or prosecution for their criminal activities.
Staff Attorney at the Centre for Environmental Rights, Robyn Hugo, has been working with groundWork and our partner communities and organisations on various issues of environmental justice in order to bring corporations, industry and government to bear the legal responsibility of their actions.
This is Robyn’s analysis of the failings of this legislation as it stands today.
Robyn Hugo
S24 of our Constitution gives everyone the right to an environment not harmful to their health or well-being, and to have the environment protected.

NEMA gives effect to this right. In order to serve present and future generations, development must be sustainable, integrating social, economic and environmental factors into planning, implementation and decision-making. The environment is held in public trust, and the use of environmental resources must serve the public interest. The precautionary principle requires a risk-averse, cautious approach, which takes into account the limits of current knowledge about actions’ consequences. The preventive principle entails that negative impacts on the environment and on environmental rights, are anticipated and prevented, or where they cannot be prevented, are minimised and remedied.

Integrated environmental management (IEM) requires that activities’ actual and potential impacts on the environment, socio-economic conditions and cultural heritage are evaluated, as are the risks and alternative options to mitigate these. Certain activities require environmental authorisation (and environmental impact assessments) before they can commence. Potential environmental consequences of the activity must be assessed, as well as less harmful alternatives to and modifications of it.  The option of not implementing the activity must be investigated. Interested and affected parties must have a reasonable opportunity to participate in public information and participation procedures. S24F makes it an offence for a listed activity to commence without prior environmental authorisation, punishable by a maximum fine of R5 million and/or ten years’ imprisonment.

But s24G permits ex post facto authorisation of activities that commenced unlawfully. An application can be made to the Minister/ MEC for a directive to compile a report containing at least: an assessment of the nature, extent, duration and significance of the activity’s environmental impacts; mitigation measures undertaken or to be undertaken; the public participation process followed; and an environmental management plan. The applicant then compiles a report and the authority determines an administrative fine – a maximum of R1 million per offence. After the applicant has paid the fine, the authority considers the documents provided, and may then either: direct the applicant to cease the activity – either wholly or in part – and to rehabilitate the environment within a certain period and subject to conditions; or issue an environmental authorisation, which may be subject to conditions. Failure to comply with a directive or a condition is an offence, punishable by an s24F penalty.

This section has resulted in widespread controversy and confusion. Because the fines imposed are so low, they are not a disincentive for non-compliance. Even if the maximum fine were usually imposed (which is not the case), R1 million is a small amount to pay when compared with the benefit of not having to follow the proper environmental authorisation route. In the context of recent amendments proposed to s24G (the most important of which is the increase in the maximum fine from R1 million to R5 million) the Department of Environmental Affairs confirmed that it had observed the trend of companies simply budgeting for the administrative fine and proceeding without authorisation. Other problems include the fact that, when there is an s24G application, the authorities are much less likely to prosecute the criminal contravention. Effectively, s24G becomes an escape route from criminal prosecution. It also permits a much less onerous public participation process.

The effect of s24G is that the authority is presented with a fait accompli. It is too late to consider alternatives - the damage to the environment has already been done, and may be irreversible. Granting retrospective environmental authorisation is inconsistent with the preventive and precautionary principles, and with IEM, which aims to ensure that the environmental impacts of activities (and alternatives), are properly considered before action is taken. By undermining the very purpose of environmental assessment, s24G could undermine s24 of the Constitution.

See the CER’s proposed amendments to s24G here: