Community members protest outside the Durban High Court as EnviroServ appears in a civil case initiated by the Upper Highway Air NPO. File picture: Desiree Erasmus/ANA Pictures Community members protest outside the Durban High Court as EnviroServ appears in a civil case initiated by the Upper Highway Air NPO. File picture: Desiree Erasmus/ANA Pictures
Durban – There was singing and dancing outside the Durban High Court this week as Judge Gregory Kruger granted an interim order compelling waste management giant EnviroServ to cease all acceptance, treatment and disposal of waste at its Shongweni landfill.
The company has come under intense scrutiny as residents and communities near and around the landfill have been complaining for over a year about “toxic fumes” from the site that they believe are making them sick.
Handing down ruling on Wednesday afternoon, Kruger did not mince his words when dealing with the company’s senior counsel, Johan Wasserman. He told Wasserman he had to “balance your clients interests and the dumping of hazardous material with human lives”.
Wasserman said there could be severe complications if the site was shut down, and suggested the judge had been influenced by media reports.
“I am here to protect the community, not the back pockets of your clients,” said Kruger. “The buck stops here and it stops here today.”
He also lambasted the company for failing to make available its much awaited toxicology report.
Wasserman said the company had paid for the report and it was confidential.
Kruger said he was unhappy with the company’s “cloak and dagger” behaviour when it came to submitting the report to the court. “Human lives are at stake here,” he said.
In a press release issued last week, the company exonerated itself from any health implications at the site because of the toxicology report, but refused to make the report available to the Upper Highway Air (UHA) non-profit or the media. Kruger demanded that a copy of the toxicology report be filed with the court immediately.
The department of environmental affairs issued a notice to suspend EnviroServ’s waste management licence in February, saying the company had failed to comply with the terms of its licence.
In April, portions of the company’s licence were suspended, meaning it could not accept, treat or dispose of waste at the site because there was a “potential threat to human life” emanating from the “unacceptably high level of landfill gases”.
While EnviroServ is appealing what it calls the “premature” decision with the minister of environmental affairs, operations at its site continued, much to the dismay of community members, leading the UHA to institute civil charges against the company.
Advocate Charmane Nel, counsel for UHA, told the court that her client was seeking a total suspension – as ordered by the department of environmental affairs. Nel said that her client needed access to all reports and “raw data” so that it could be scrutinised by UHA’s experts.
“We have never seen the raw data on anything, on none of their reports,” said Nel.
Wasserman told Judge Kruger that he would be “interfering” if he made a decision to grant the interdict while the company’s appeal was with the minister of environmental affairs.
“I am telling you now I am interfering. These are human lives. The minister can take it up with me,” said Kruger.
He said that while EnviroServ had said it had identified other parties that were doing the polluting that may be causing health problems in the area, the company had failed to supply any names or evidence of this.
“It is important and urgent that this gets resolved. We are not talking about profit margins here, but about human beings,” he said.
Commenting on the outcome via email, EnviroServ’s chief executive, Dean Thompson, said: "With the Durban High Court today granting a temporary interdict against EnviroServ, the company is concerned the science regarding the problems at Shongweni Landfill has been misunderstood.
“The risk now is that the communities may be further compromised by the closure decision as hazardous waste disposal experts fear the malodour will increase. We also need to remain cognizant of the background atmospheric hydrogen sulphide that already exists in the area from other sources aside from Shongweni, which are yet to be identified by the National Air Quality Officer or the eThekwini Municipality."
He said the company requested departmental intervention and an investigation some weeks ago, but there has been no official response.
"Further affidavits will be prepared by both parties and filed before approaching the judge for a preferential court date.”