Legal update – March 2018

The legal position: status and update.

There are currently 5 proceedings pending. They are:

(i)                   The civil action (i.e. summons and particulars of claim) in which the UHA NPC seeks, inter alia, a final interdict against EnviroServ (“Es”) operating at the site, if by the time the action is heard the contraventions of its license and resultant negative health and environmental impacts still persist, plus additional relief against Es disgorging the profits they have made as a result of the breaches, plus orders directing them to conduct any activities from the site in accordance with their license – after remediation if applicable. Es have in order to avoid having to discover (i.e. produce documents in the pretrial stages which not only support their defence but also harm it) raised a spurious exception to our particulars of claim alleging we have no right/s to the relief sought and that it is “vague”. This exception is set down for argument on 26 April 2018. After this they will be required to file their plea. We know this is their approach because right at the outset Es refused our PAIA requests and has also repeatedly complained that no documents should be given to us as the UHA NPC use it against them. Every document we have secured is through the objection process to the compliance notice before the DEA which we intervened in and the PAIA requests and appeals we pursued against the DEA, as well as our opposition to ES’s appeal against the suspension decision. The Municipality and Es denied our PAIA requests and in order to avoid a long and protracted process we proceeded directly to institute the action which also allowed us to use the subpoena process to obtain information. It was in this process and pursuant to subpoenas issued against, inter alia, Dr Van Niekerk and Dr Burger that we managed to obtain a lot of the information we have now been able to share with the community and attach to our replying affidavit. In addition we have subpoenaed 6 other entities, including clients Mondi, Hulamin, Sapref, Engen, Foskor and Transnet. Mondi, Hulamin, Sapref and Engen have complied. Transnet have refused and Foskor as well. These will form the subject of contempt applications in due course.

(ii)                 The interdict proceedings in which we secured pendente lite relief (i.e. interim relief pending the action above) stopping Es from trading, and which is due to be set down (albeit irregularly by EnviroServ) for hearing on 15 June 2018. In this dispute there is an interlocutory (procedural) application concerning the refusal by Es to provide inter alia all the documents referenced in their supplementary answering affidavit, including the monitoring results from the community monitors. We will probably set this down on or before the 15th of June 2018 as this will possibly delay the finalisation of the application on 15 June 2018.

(iii)                An application concerning the validity of the irregular reconstitution (i.e. hijacking) of the monitoring committee and resultant change in terms of reference, the provision of data by Es including from the community monitors they still refuse to provide, compelling a peer review of the tox report and relief against the Municipality emanating from the breach by Es of the Sewage Bylaws of 2015 (not set down for hearing yet);

(iv)                The Equality Court action. We filed a pretrial minute on 15 February 2018 and are waiting for the allocated judge to convene a directions hearing at which the further pretrial stages will be agreed/ directions made by the Judge; and

(v)                 The review (of the Minister’s decision to conditionally uplift the suspension against trading, and the decision of the Minister to vary the compliance order issued in October 2016), coupled with ancillary relief including mandamuses (positive orders) against the DEA, Province and Municipality. The orders against the DEA and Province direct them to consider revoking the Es license for the site as a result of the contraventions of their license, compliance notices and instructions given by the DEA in relation thereto. The UHA NPC also seeks an order against the Municipality and Es declaring that the use by Es of the Shongweni Landfill site (Kirkfalls farm as described in the Title Deed – portions 36, 37 and rem of the Farm Kirkfalls 14227) is not a permitted land use as the Township which was ostensibly proclaimed in order to circumvent the necessary EIA and special consent application, was not validly done. The UHA NPC also seeks an interdict preventing the Municipality from issuing Es with a Scheduled Trade Permit to conduct its waste disposal operations at the site given the nuisance resulting from its operations and which prohibit the grant of the permit in terms of the applicable Bylaws.

The review and interdict are the most critical proceedings at this stage.

It is common cause in the interdict (as it was in the administrative appeal before the Minister) that until remediation has been successful commercial trading cannot take place at the site. Es have duped the Minister into believing misstatements by them concerning the data (unreliable as it is) in support of a contention that there is significantly reduced H2S emanating from the site and that they thus deserve to commence limited trading pending further remediation. They contend that there is only 26ppb emanating from the site. The 26ppb is still substantially higher than the WHO annoyance threshold over 30mins of 5ppb (7ug/m3). More importantly that average figure is from only 1 monitor on the site which usually misses the plume (not the monitor next to the contaminated storm water dam which will be orders higher), and in any event is a fallacious basis on which to work considering that there are odour events, so one needs to measure the average peak of the event. Our expert analysis of Es’s own data shows the odour events are of the same intensity and in fact the average (if one was to consider averages) is increasing over time even after the completion of their remedial steps.

Our experts have shown that the flare is not working and Es are also no complying with their monitoring obligations in this regard as per the DEA instructions in June 2017.

The full ambit of all that is wrong with what Es has done and is doing is set out in our papers currently before the Court.

The review and mandamus is what will secure the further steps be taken to compel remediation and/or a permanent closure of the site before the action is finalised. The timelines applicable to prosecuting the review are coming up quickly and all the expert evidence we can afford to marshal in that process will have to be produced in this timeline. We will not be afforded another opportunity unless the matter goes to oral evidence, which is generally not the case unless we request the court to do so, and even then this only means that more expert fees will be necessary later to give that oral evidence. It will not absolve us from producing our evidence now and making out a case for the relief we seek.

The next steps to finalise the review papers are as follows:

1.   The DEA produces the record in respect of the appeal and compliance process. Hopefully this will include the monitoring results which the Minister looked at / or did not but which the DEA had access to and commented to the Minister on before a decision was made.
2. Our experts will then be called upon to provide additional input based on that record. We want to file our supplementary founding affidavit as soon as possible thereafter in order that we can expedite the completion of the papers.
3. Es then have 30 days after we file our supplementary founding affidavit to file an opposing affidavit. They have indicated they intend to.
4. We then have 10 court days within which to file a replying affidavit. Our experts will be required to consider any evidence placed before the Court by Es in opposition and assist us with delivering replying affidavits dealing therewith. This will be a comparable effort to what has just been undertaken in February 2018.

Once the papers are complete and should the matter be remitted for oral evidence the experts will be required to attend in order to give evidence. There are presently 6. Two come from Cape Town. They have reduced their hourly fees but these range from R1,150 to R1,550 per hour plus VAT. This is the rate at which they charge for considering the evidence and preparing reports. They have also thankfully discounted the hours charged in addition to the rate because of the relationship we have managed to develop with our experts.

Moreover, we have rented a gas analyser and which we have used for continuous H2S monitoring in Winston Park and which we have used in order to refute Es’s dodgy data.

This is a monthly expense. We have managed to secure a further 6 months which will take us until the end of September 2018.

Without the evidence we cannot prosecute the matters to conclusion as required.

The corrupt activities by Es in the rural communities are detailed in our replying affidavit in the interdict including the requested “budget”. We have the proof of the allegations.

We are also supporting the DEA criminal prosecution. We have prepared expert affidavits for our experts in that matter for the DEA free of charge.

We continue to support those efforts.

Please keep reporting, supporting and donating.

Our banking details are:

Upper Highway Air NPC
First National Bank
626 538 45291
250 655

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Upper Highway Air