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 www.noseweek.co.za