Court weighs class action bid against UPL over 2021 chemical spill

The Durban High Court will decide whether a class action can proceed against agrochemical giant UPL following the July 2021 Cornubia warehouse fire.

The blaze, which broke out during the unrest, burned for 10 days, from July 12 to 21, releasing about 6.3 million litres of chemicals into the environment. Contamination flowed into nearby waterways and the sea, forcing the closure of about 40km of coastline north and south of the Umhlanga River mouth for roughly four months. Harvesting of marine life was banned during this time.

Applicants include the South Durban Community Environmental Alliance (SDCEA) and 12 residents representing about 10 000 affected people. They argue the incident caused financial losses across three groups – fisherfolk, informal beach traders and subsistence farmers from the Blackburn informal settlement – as well as health impacts for residents within a 10km radius who allegedly suffered illness linked to toxic exposure.

Represented by LHL Attorneys and Richard Spoor Attorneys, the applicants told the court last week that a class action is the only viable way to seek compensation. They argue there is sufficient preliminary evidence that UPL failed to take reasonable steps to prevent the pollution.

SDCEA co-founder Desmond D’Sa told the Courier that the case includes about 2 000 subsistence fishermen north of the Umhlanga River mouth, including Tongaat and Phoenix.

UPL opposes the class action, denying liability and raising concerns about the scope of the proposed class.

Senior counsel Alfred Cockrell argued the fire was started by looters and that UPL cannot be held responsible for the consequences of criminal acts. The company also warned the class action could include individuals involved in the unrest, who would unlawfully benefit.

The applicants proposed excluding anyone convicted of arson at the UPL site. Judge Jacqueline Henriques questioned how this would be enforced. She said the matter raises complex legal issues. Judgment has been reserved, with the court expected to rule on certification in the next six to eight months.