Centre for Environmental Rights – Advancing Environmental Rights in South Africa

FOR IMMEDIATE RELEASE
20 April, 2022

In light of the deeply flawed environmental authorisation process and unresolved conflict of interest of major decision makers, a coalition of civil society organisations has appealed the decision to allow the Musina-Makhado Special Economic Zone (MMSEZ) project to proceed.

The coalition has also called on Environment Minister Barbara Creecy and the Department of Forestry, Fisheries and the Environment (DFFE) to intervene to protect residents’ rights.

The civil society coalition, which includes Earthlife Africa, Dzomo La Mupo, groundWork and the Mining and Environmental Justice Community Network of South Africa (MEJCON-SA), represented by the Centre for Environmental Rights (CER), is appealing the 23 February 2022 decision by the Limpopo Economic Development and Tourism Department (LEDET) to approve the environmental authorisation for the controversial MMSEZ project – an industrial metallurgical complex, to be comprised of a number of emission-intensive facilities, including (according to the EIA) a coal power plant, which is to be built in a water scarce and culturally and ecologically sensitive area of Limpopo Province.

The appeal is based on the fact that Enviroxcellence’s Final Environmental Impact Assessment (FEIR) report, submitted to LEDET in November 2021, fails to resolve concerns raised in the past by civil society regarding procedural fairness, including LEDET’s conflict of interest and lack of authority to be the decision-maker for this project’s EIA, given LEDET’s close involvement in the project.

This is the latest development in an ongoing matter in which local community organisations and environmental justice groups are disputing the viability and long-term environmental impact of the proposed MMSEZ project.

A fatally flawed process due to the decision maker and MMSEZ SOC’s conflict of interest

The most recent revised assessment has once again failed to address the conflict of interest that exists between the major role players in the matter: the Limpopo Economic Development Agency (LEDA), the Musina-Makhado SEZ (SOC) Ltd (which is wholly owned by LEDA) and LEDET, who is the decision-maker in the environmental authorisation process.

The conflict of interest exists because the decision maker is closely connected, if not the same entity, as the one who is seeking the environmental authorisation. As documented on their websites, LEDET (the decision maker) is the holding company of LEDA, and MMSEZ SOC is in turn wholly owned by LEDA (LEDA and MMSEZ SOC are the applicants of the Environmental Authorisation). Moreover, MMSEZ is a “flagship project” of LEDET. In other words, the decision-maker in the environmental authorisation process has a vested interest in the MMSEZ project being approved. The appeal authority, who is the MEC of LEDET, is similarly compromised since his department actively promotes and implements the MMSEZ.

In addition, the national Department of Forestry, Fisheries and the Environment (DFFE) has confirmed that it is the competent authority to decide on the MMSEZ EIA.

“The fact that these entities (LEDET and LEDA and MMSEZ SOC) are closely connected, if not essentially the same thing, represents a serious bias which wholly undermines the environmental authorisation process and any decisions based on it. As such we urge the Minister of DFFE, to intervene as the appropriate competent authority in this matter, to honour the requirements that an environmental authorisation be procedurally fair and free of bias and overturn the recent approval for the project,” says Makoma Lekalakala, Director of Earthlife Africa.

In addition to the problem of bias, the revised environmental assessment did not allow for effective public participation. In one case, community members were initially physically barred from a public participation meeting that took place on 29 September 2021 at Lekkerlag, Limpopo. At this meeting armed security guards were instructed to only allow entry to those who wore t-shirts supporting the project, while refusing entry to other local community members, activists and landowners. This is in direct contravention of public participation process in terms NEMA, EIA Regulations, and in contravention of fair administrative decision making in terms of the Constitution and the Promotion of Justice Administrative Act.

The Environmental Impact Assessment process was also flawed in that the process expired in May 2021 in terms of law.

At that time, Deltabec who submitted the FEIR, stated that the development is not a sustainable development and the land clearance should not go through without all the other industries first having obtained their environmental authorisation.  Deltabec since recused themselves from the process, having also been of the view that the EIA process had expired.

Despite the expiry, LEDET allowed the EIA process to continue through another environmental consultant, Enviroxcellence, who in the end recommended the land clearance despite the negative impacts. The EIA still contains inadequate specialist studies, inappropriate findings, does not address the cumulative impact of the project as a whole, and lacks mitigating measures for the cumulative impacts of the project.

MMSEZ project threatens long-term livelihoods, health, water and cultural heritage

Even if the procedural flaws of the latest environmental assessment were to be remedied, no environmental authorisation should be issued due to the MMSEZ project’s highly negative consequences for climate change, water scarcity in the region, and the effect the project will have on cultural heritage and human health.

According to Mphatheleni Makaulule of local community organisation, Dzomo La Mupo, there are many sacred sites in the area, including sacred forests, rivers, lakes, trees, which are irreplaceable and important to local communities’ way of life and heritage.

“These sacred sites are part of our culture, our history, our livelihood and our way of being. These and many ancestral burial sites have not been identified, including any agreement related to exhuming ancestors’ graves. MMSEZ are failing to address the concerns of marginalised communities about their cultural rights to these spiritual sites, which have been affected since the apartheid era due to forced relocations. MMSEZ are violating our human rights and the MMSEZ project is resulting in community division and conflict when we try to address these issues.”

The MMESZ SOC will have 20 days to respond to the appeal, and depending on the process followed, the decision maker will have approximately 50 days in which to make a recommendation on the appeal.

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FOR EDITORS

BACKGROUND AND TIMELINE OF THE MATTER TO DATE

• 1 November 2019: Civil society organisations, represented by CER, submit comments on the final scoping report for the proposed Musina- Makhado Special Economic Zone, also called the Energy Metallurgical Special Economic Zone.
• September 2020: the Environmental Assessment Practitioner (EAP), Deltabec, publishes a Draft Environmental Impact Assessment (Draft Assessment) for the EMSEZ.
• 22 October 2020: civil society organisations, represented by CER, submit comments regarding the Draft Assessment.
• 7 December 2020: the Environmental Assessment Practitioner partially releases a revised assessment for public comment.
• 28 January 2021: civil society organisations, represented by CER, submit comments on the additional revised assessment
• 2 February 2021: EAP Deltabec submits a Final Environmental Impact Assessment Report (Final Assessment) for public comment
•    19 May 2021: Environmental Impact Assessment expires
• 15 September 2021: Newly appointed EAP Enviroxcellence publishes an additional Final Assessment for public comment
• 3 November 2021: civil society organisations, represented by CER, submit comments on the additional Final Assessment
• 23 February 2021: The Limpopo Economic Development Environment and Tourism Agency (Ledet) approves environmental authorisation for the Musina-Makhado Special Economic Zone (MMSEZ).
• 28 March 2021: A civil society coalition, represented by CER, appeals decision to approve environmental authorisation for MMSEZ.