Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the South Gauteng High Court, Johannesburg  is available here.

• Judge: Lagrange J
• Heard: 1 November 2018
• Judgment delivered: 8 July 2019
• Outcome: Application by community for an order requiring Glencore to cease creating a nuisance through mine blasting operations dismissed.

Summary:

The Applicant, a community organisation consisting of residents of the town of Ogies whose lives were affected by nearby coal mines, applied to court seeking relief against Glencore. The mine’s blasting activities had the following impacts on residents in the surrounding areas:

• creating vibrations which instilled fear, unsettlement and often trauma in the children and people of Ogies;
• air and dust pollution, which led to increases in respiratory illnesses amongst residents;
• loud, unexpected sounds of the ‘screeching’ and ‘frightening’ warning sirens preceding blasting aggravates the situation;
• polluting and contaminating water, which had the effect of depriving worshipers at a mosque and learners at a madrasah of access to running water.

As a result of these impacts from the mine’s blasting operations, the Applicant approached the court seeking an order against Glencore to:

• reduce the air and noise pollution it allegedly creates by reducing its blasting activities to below 125 dB, as measured by six seismographs located at various specific locations in Ogies;
• install an additional seismograph and maintaining the seismographs in question and providing the applicants with calibration certificates from the seismographs at six weekly intervals;
• cease blasting activity between 7 PM and 7 AM daily and not to activate any sirens during the same time interval;
• obtain expert advice and install automated dust suppression technology at the site of both its Goedgevonden and Tweefontein mines, which must be equipped with systems to monitor their activation and deactivation;
• provide the applicants with regular reports on the utilization of the dust suppression technologies, and
• provide 10,000 litres of fresh drinking water to water storage tankers located at the Mosque in Ogies.

This application is based on common law principles of nuisance. The applicants also applied for the review of Glencore’s mining rights and various other authorisations in a separate application.

The court confirmed that in order to succeed, the Applicant must prove the nuisance law requirements of “…… a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy.”

In describing basic nuisance law principles, the court agreed with established precedent:

“(A)lthough an owner may normally do as he pleases on his own land, his neighbour has a right to the enjoyment of his own land. If one of neighbouring owners uses his land in such a way that material interference with the other’s rights of enjoyment results, the latter is entitled to relief.”

The court also confirmed that the interference of enjoyment must be material or substantial and that some discomfort, inconvenience or annoyance should be endured in modern society.

Furthermore, the court agreed that what level of disturbance qualifies to be remedied depends on the circumstances of each case.

“The test, moreover, is an objective one in the sense that not the individual reaction of a delicate or highly sensitive person who truthfully complains that he finds the noise to be intolerable is to be decisive, but the reaction of ”the reasonable man” – one who, according to ordinary standards of comfort and convenience, and without any peculiar sensitivity to the particular noise, would find it, if not quite intolerable, a serious impediment to the ordinary and reasonable enjoyment of his property.”

The Applicant presented evidence of the impacts on their lives as a result of the mine’s blasting including affidavits from community doctors, minutes from meetings between Glencore and the community and photographs of polluted water in close proximity to the mine and affidavits expressing concern regarding damage to buildings in the community as a result of the blasting.

Glencore denied that they were blasting excessively and put forward evidence that the blast levels were below the recommended 134dB standard for air shockwaves, and below the 25mm/s for ground vibrations for formal houses and 12.5mm/s for informal structures. They denied that the increase in respiratory illness was as a result of their activities alone. Glencore produced a dust report from an expert which showed dust levels below the 600 mg/m2 limit set in Regulation 3 of the National Dust Control Regulations published under the National Environmental Management: Air Quality Act 39 of 2004. Glencore denied that it was the source of the community’s polluted water.

The court relied on the Plascon-Evans rule in evaluating the contradictory evidence presented by the opposing parties relating to blasting excessively and throughout the night and day at unacceptable levels. The Applicant had not placed evidence before the court rebutting Glencore’s expert reports.

The court found that Glencore’s compliance with the Dust Control Regulations and generally with the recommended blast levels compelling.

Lagrange J held that “Living in a rural town situated near open cast coal mines entails enduring at least some of the unwelcome features of being in close proximity to such activity, in a similar way that living under the flight path of a busy airport or living near traffic lights on a busy main road diminishes the quality of residential life in those environments. However, not every imposition arising from the manner in which another uses their land and detracts from the untrammelled enjoyment of one’s property is actionable. 

To sum up the court’s reasoning, Lagrange J concluded: “To the extent that the blasting activities of Glencore do impact negatively on the residents of Ogies, the applicant has failed to make out a case on the evidence available that such impact is the result of an impermissible abuse of Glencore’s rights to conduct mining operations in accordance with the regulatory framework governing such operations.

Also, to the extent that Glencore had breached air blast maxima on four occasions in three months, that is insufficient to constitute a regular and persistent abuse amounting to a material and unreasonable interference with the rights of residents of Ogies, taking account the duration of each blast, the overall compliance with statutory limits on air blasts, the marginal character of those exceptions, the locations where the excess decibel values were measured, and the frequency of blasting.

In passing, it is also noteworthy that an undertaking offered by Glencore to ensure that no blasts exceeded the limits was not accepted by the applicant.  In respect of dust and vibrations the recorded values were well within the environmental standards set, and in respect of dust no other alternative measures of air quality backed with the necessary supporting data were placed before the court.”

The judge mentioned that the outcome may have been different had the application been conducted by way of a trial instead of application proceedings. The judge also cautioned the Applicant to make use of remedies available in specific environmental laws such as the National Environmental Management Act 107 of 1998 and the the National Water Act 36 of 1998 as well as the Mineral and Petroleum Resources Development Act 28 of 2002.