Where we are and what you need to know for now – 16th August 2018

On 21 June 2018, the High Court lifted the interdict that UHA NPC secured in April 2017, interdicting EnviroServ from operating pending the outcome of the UHA NPC’s ongoing litigation against EnviroServ. The Court felt that the Minister should be in charge of the site while UHA NPC, EnviroServ and the Minister battled it out. The Court acknowledged that the review court will be finally responsible for determining whether the Minister should be held to account for her decision partially uplifting the suspension of EnviroServ’s license.

Contrary to EnviroServ spin, the Court confirmed its license remains suspended and the Minister has varied some of the conditions. That is EnviroServ can only receive solid, inorganic waste which does not contain Sulphur. EnviroServ has also conceded in papers filed on 31 July 2018 that it has had to self-limit other waste streams which the Minister did not limit in order to deal with the nuisance emissions still produced by the site.

On 6 February 2018, the UHA NPC instituted the pending review application to set aside the Minister’s decision of 9 December 2017, which allowed EnviroServ to recommence the limited trading operations mentioned above.

The UHA NPC has in the application sought not only the review and setting aside of this decision of the Minister, but a substitution to the effect that EnviroServ be compelled to cap and close Valley 2 (the active waste cell) and to install a proper functioning gas extraction system which is to be properly monitored. UHA NPC has also asked the Court to direct the Minister to consider revoking EnviroServ’s license.

Notwithstanding the above, EnviroServ is not able to commence trading in any event, until such time as Ethekwini have issued a Scheduled Trade Permit in terms of the Scheduled Trades and Occupations Bylaws.

Ethekwini has in the past allowed EnviroServ to apply for this permit without publishing the application in terms of the Bylaws, so as to allow objections to be made to the application.

On 22 June 2018,  UHA NPC lodged a formal objection to the granting of the permit, and raised with Ethekwini the fact that it had irregularly failed to oblige EnviroServ to publish the application. This resulted in Ethekwini informing EnviroServ to publish notice of the application to allow objections to be levelled. UHA NPC and many other community members and organisations have objected to the granting of the Scheduled Trade Permit.

On 14 August 2018, Ethekwini started sending official acknowledgements of receipt of objections to objectors.  If you have not received notification that your objection has been received, please follow up as these need to be counted.

These objections still have to be adjudicated.

UHA NPC has raised a number of irregularities regarding the process followed by Ethekwini to date, which have not been responded to, and UHA NPC fears, based on the answering affidavit filed by Ethekwini in the review application, that it has already prejudged the application for the permit.

Amongst other things Ethekwini have, somewhat alarmingly, suggested that the World Health Organisation odour annoyance thresholds are the most stringent in the world, implying that a higher level of annoyance should be used to adjudicate the nuisance caused by the Shongweni landfill.  EnviroServ also believe the WHO odour annoyance thresholds should be 8x higher than they presently are!

Ethekwini apparently has its own evidence to consider in granting or refusing the permit, and which it has thus far declined to provide to objectors for the purposes of the Scheduled Trade Permit application, which brings into question the existence or reliability of such evidence.

The UHA NPC continues to fight for the community who is still suffering the nuisance and health impacts from the Shongweni Landfill Site. The Judgment of the Court on 21 June 2018 confirms the impacts still continue notwithstanding EnviroServ’s denial.

If the permit is granted by Ethekwini, objectors will also have an opportunity to appeal that decision.

Please continue to report, support and donate. Remember, when the money runs out, the fight stops.

Upper Highway Air