Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Tomorrow, 24 January 2012, and 25 January 2012, Parliament will hold public hearings on the South African Weather Service Amendment Bill, 2011.

Many civil society and community organisations, including groundWork [1], the South Durban Community Environmental Alliance (SDCEA) [2], and the Vaal Environmental Justice Alliance (VEJA) [3], are particularly concerned about the offence the Amendment Bill proposes if an air pollution-related warning (which is not defined in the Bill) is issued without written permission from the South African Weather Service. If the Bill is passed in its current format, this offence is likely to have negative implications for the environment, public health, and particularly, civil society participation in environmental governance and community information dissemination.

Community organisations who conduct independent monitoring of air quality by sending samples for laboratory analysis, and advising the public (including through media releases) of the results of such analyses, face a R5 million fine and/or five years’ imprisonment for a first conviction of this offence. They can also be held liable for any loss or damage that arises as a result of the offence. This is despite the fact that such organisations disclose air pollution-related information in the public interest, and as a check and balance for air pollution information generated by major emitters such as Engen, Shell and ArcelorMittal, as well as by authorities.

There are other cases in which awaiting the Weather Services’ permission could undermine the protection of public health. For instance, an acute air pollution incident by industry in close proximity to a school requires speedy dissemination of information in order to evacuate the school urgently. In these and similar circumstances, it would not be appropriate to require permission from the Weather Service before alerting the school.

The offence created is also at odds with the National Environmental Management Act, 1998 (NEMA). Section 30 of NEMA obliges the reporting of certain incidents which may result in serious danger to the public or potentially serious pollution of or detriment to the environment, and does not require the Weather Services’ permission. Also, section 31 of NEMA – which, in certain circumstances, protects whistleblowers from prosecution if they disclose evidence of an environmental risk – does not require this permission.

Constitutionally, the offence well may impinge on the right to freedom of speech in terms of section 16 of the Constitution, as well as the environmental rights in section 24.

“Placing such draconian restrictions on how people make air pollution information publicly available, and criminalising such actions, is unconstitutional, and smacks of the heavy-handedness of the Protection of Information Bill,” warns Bobby Peek, Director of groundWork, Friends of the Earth, South Africa.

“Over the years there have been various oil refinery incidents which have resulted in air pollution events in south Durban that have affected peoples’ health.  Shell and Engen will be directly ‘protected’ by this Bill, as community people would not be able to make this air pollution event public knowledge – locally, nationally or globally,” comments Desmond D’Sa, Coordinator of the SDCEA.

“This Bill will further restrict community activism in places such as the Vaal, where major polluters such as Sasol, Eskom and ArcelorMittal regularly impact upon communities’ lives.  People will be scared to speak out against these companies and their air pollution,” warns Samson Mokoena, Coordinator of the VEJA.

The Centre for Environmental Rights [4], on behalf of groundWork, SDCEA, and VEJA, has made written submissions to Parliament calling for the deletion of the “air pollution-related warning” offence from the Bill [5], and will support these submissions with oral submissions in Parliament tomorrow, 24 January 2012.

For queries:

• about how the offence proposed by the Bill impacts the work of community organisations, contact Bobby Peek at groundWork: [email protected]; 033 342 5662; 082 464 1383
• about legal aspects of the Bill, contact Robyn Hugo at the Centre for Environmental Rights: [email protected];  021 447 1647; 082 389 4357

Footnotes:

[1] groundWork, Friends of the Earth South Africa, is a environmental justice organisation working with community people from around South Africa and increasingly in Southern Africa on environmental justice and human rights issues focusing on air pollution, waste (including health care waste) and corporate abuse. groundWork is a member of Friends of the Earth International. www.groundwork.org.za

[2] SDCEA is an environmental justice organisation based in south Durban. It is made up of 16 affiliate organisations, and it has been active since its formation in 1996. It is considered successful for many reasons, one of which is that it is a vocal and vigilant grouping in terms of lobbying, reporting and researching industrial incidents and accidents in this area. It contributes to the struggle against environmental racism for environmental justice and environmental health.

[3] VEJA is a non-racist, non-sexist democratic alliance of empowered civil society organisations in the Vaal Triangle, who have the knowledge, expertise and mandate to represent the determination of the communities in the area to control and eliminate emissions to air and water that are harmful to these communities and to the environment.

[4] The Centre for Environmental Rights is a law clinic established in 2009 by 8 non-governmental organisations in the environmental and environmental justice sectors to provide legal expertise and support to communities, community and civil society organisations. Its mission is to advance environmental rights, and to promote civil society participation in environmental governance that is stronger, more streamlined, and better legally and scientifically equipped. www.cer.org.za

[5] The submissions are available at: http://cer.org.za/wp-content/uploads/2012/01/CER-Letter-to-PPC-re-SAWS-Amendment-Bill-2011_12-January-2012_final.pdf