Interdict discharged, licence remains suspended, subject to the conditions imposed by the Minister

On 18 June 2018, EnviroServ circulated a letter to its clients advising that if the Court lifted the interdict which the Upper Highway Air NPC had secured in April 2017, stopping the acceptance, treatment and disposal of new waste at the Shongweni landfill site, pending the outcome of the UHA’s action / review of the Minister’s decision, then it would “resume operations”. Click here to view

It also claimed that thousands of jobs would be affected should Shongweni remain closed and that it had undertaken a “huge amount of remediation work at significant cost to the business”.

Today, 21 June 2018, the Court handed down its decision in the interdict matter. It discharged the interdict, which means the UHA interdict stopping the receipt, treatment and disposal of all waste is no longer in place while the UHA litigation to review the Minister’s decision and to direct further remedial work, proceeds through the Courts. The site is now in the hands of the DEA and Minister.

Importantly however is the following:

1. At paragraph 40 of the judgment the Court held as follows:

“The appeal has now been finalised and the license remains suspended, subject to the conditions imposed by the Minister.”

2. The Minister’s revised conditions of the license suspension is that only solid, inorganic waste containing no Sulphur may be disposed of at Shongweni, which we understand is a “fraction” of the waste streams formerly received at Shongweni.

3. The Court also found there was no evidence that metal containing waste which is reactive and heat generating will be received at the site, and further that if it is and causes increased emissions there is no evidence it will not be stopped by the Minister.

4. The Court found that the DEA should be allowed to continuously scrutinise and supervise the operations at Shongweni for now and this was not the role of the Court pending the litigation by UHA.

UHA is proceeding with the application to review the Minister’s decision and to direct further remediation measures as advised by UHA experts and monitoring.

It is also proceeding with its action which will address the matter of impacts possibly still continuing by the time the action comes to trial, and which the Court hoped would not be the case.

EnviroServ have admitted in papers before the Court that only 293 employees are engaged by EnviroServ in KZN, and of those 24 are at Shongweni.

It has also conceded under oath that of the R70 million spent on “remediation”, R44 million was on legal and consulting fees and only R18 million on remediation. R8 million was spent on the capping of the front face which should have been done long ago.

UHA experts have demonstrated that the flare is not working and there is no continuous monitoring of the flare emissions or proper reporting to the DEA. These have all been addressed with the DEA and no response received to date!

UHA will continue its challenge to the Minister’s decision and the action. It will also be formally putting the DEA on terms to comply with its “scrutiny” and “supervision” of EnviroServ.

To EnviroServ’s clients who have been misled into believing it is operations as usual after today, take note of the above, as any waste disposed of at Shongweni outside the limited waste permitted by the Minister will be unlawful.

Lastly, and by no means least importantly, at the hearing of the matter, Counsel for the Minister, recorded, that the limited trading permitted by the Minister was for 6 months only and not a day longer. After the 6 months if the Minister does not permit any additional trading, Mr Gordon’s decision suspending the operations, will kick in as a matter of course.

Click here to download the judgment.

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Upper Highway Air