SDCEA sues municipality

THE South Durban Community Environmental Alliance (SDCEA) and partners have taken legal action against eThekwini Municipality in a bid for clarification on emission licence reports.

“We have a constitutional right to know what industries’ impacts are on our health and the environment. Polluting companies can no longer try to hide this kind of information,” said Vaal Environmental Justice Alliance (VEJA) co-ordinator, Samson Mokoena.

Represented by the Centre for Environmental Rights (CER), SDCEA along with VEJA lodged the appeal in the KwaZulu-Natal High Court to force the municipality to give them access to the atmospheric emission licences and compliance reports of the Engen and Sapref refineries in the South Durban Basin.

“Reports have shown that the poor air quality in the South Durban Basin has had a devastating impact on the health of residents, particularly children, living within the area. The municipality should be doing everything in its power to hold the refineries accountable. Instead, it has forced us to resort to litigation to obtain basic documents,” said SDCEA co-ordinator, Desmond D’Sa.

According to SDCEA and VEJA, the municipality refused their Promotion of Access to Information Act (PAIA) requests for the information, stating that it constituted commercial information relating to the refineries. In an email from the two environmental organisations they claim that the municipality said the “records contained trade secrets; financial, commercial, scientific or technical information, which, if disclosed would be likely to cause harm to the financial or commercial interests of Engen and Sapref; or that the information was supplied in confidence and its disclosure could put Engen and Sapref at a disadvantage or prejudice them in commercial competition.”

CER attorney, Nicole Löser disputes this claim. “The Air Quality Act, 2004 requires all applications for licences to be made available for public comment. It is therefore not clear on what basis the municipality can argue that the licences themselves are confidential. In any event, we have been provided with the air emission licence for Chevron’s Cape Town refinery. It cannot be so that some refineries have secret licences, while others don’t,” she said.

SDCEA and VEJA add that PAIA requires the disclosure of records that would reveal evidence of a substantial contravention of the law or an imminent and serious public safety or environmental risk and where the public interest in the disclosure would outweigh any potential harm to the third party.

“For too long, government and other polluting industries have failed to account properly for the devastating health impacts and costs of air pollution,” said Bobby Peek, director of groundWork, which works closely with SDCEA.

VEJA and SDCEA added that the release of these reports and those that pertain to other refineries is essential in terms of the community’s constitutional right to an environment that is not harmful to their health and that municipalities, as licensing authorities, have to safeguard that this right is respected.

“Only through information can we begin to hold corporate polluters accountable. It is the right of any community to know about how clean the air is that they breathe,” said Right2Know KZN provincial co-ordinator. Phezu Ntheta.

eThekwini Municipality’s head of communications, Tozi Mthethwa said “The matter concerning licences issued to Sapref and Engen by the city is still pending in court, therefore the municipality cannot comment on a matter that is before court.”

The municipality has until Thursday, 14 May to oppose the litigation.