UPL lawyers fight NPA prosecution decision on Durban chemical blaze

A tide of farm chemicals poured into the environment north of Durban in July 2021, killing more than four tons of fish and other aquatic life. It also led to the prolonged closure of several swimming beaches north of the city, while thick clouds of poisonous black smoke swirled around parts of the city for several days, sparking concern about the long-term health impact on people exposed to the fumes.

Now, in response to questions from the Daily Maverick, the National Prosecuting Authority (NPA) has confirmed that KwaZulu-Natal’s director of public prosecutions (DPP) has reached a decision on laying criminal charges against UPL in criminal case docket CAS 06/09/2021.

While the NPA did not state explicitly what the decision was, or the exact nature of the charges, a spokesperson confirmed that UPL had been notified of the provincial director of public prosecutions’ decision, and that the company was now “requesting a review of the decision” — strongly indicating that representatives of the Mumbai-based agrochemicals group will end up in the dock shortly if their latest legal representations to the national director of public prosecutions are rejected.

Read more: UPL criminal investigation ‘still in progress’ three years after toxic chemical spill in Durban

UPL has consistently argued that, as one of the many companies whose premises were looted or set alight by arsonists during the July 2021 unrest, it was not responsible for the consequent chemical spill, which led to ecological damage to large sections of the uMhlanga River lagoon, the closure of beaches and widespread air pollution.

UPL, the fifth largest agrochemicals company in the world after Bayer, Corteva, Syngenta and BASF, has also claimed that the security measures and “state-of-the-art safety features” at its brand-new Cornubia chemical warehouse were overwhelmed during the riots.

However, it later emerged that UPL had rented space in a newly built goods warehouse (shared with a clothing retailer), apparently without any specific environmental impact studies or detailed assessments on public health impacts while storing hazardous compounds at Cornubia, a mixed-use commercial, residential and light industrial development at Umhlanga.

Health risks

Roughly three months after the incident, a preliminary compliance report by the Green Scorpions environmental inspectorate noted that the National Water Act and National Environmental Management Act recognised that “any unlawful, intentional or negligent conduct” that results in serious pollution or degradation of the environment or water resources was considered to be criminal conduct.

At the time, the inspectorate said that: “Further investigation is required to determine whether UPL, as a result of its failure to comply with specific legal requirements (either in terms of the National Environmental Management Act or other relevant legislation), acted negligently by creating a point source of pollution which resulted in significant environmental impacts, despite the fact that the fire was started by other individuals…

“Had the relevant licences been applied for, the environmental assessment processes that would have been required may have identified risks that could have been avoided, or could have been guarded against,” read the report.

“The desirability of storing large quantities of agricultural chemicals in close proximity to people and sensitive environments would have been evaluated. Bypassing these processes, no doubt, contributed to the seriousness of the pollution that resulted.”

According to the compliance report: “It is the view of the investigative team that UPL may not have undertaken the necessary (Major Hazardous Installation risk) assessment.”

Since then, a human health risk assessment commissioned by UPL has suggested that residents living in the immediate vicinity now face increased risks of cancer, heart disease and other health impacts due to the toxic dust particles they inhaled while the warehouse burnt or smouldered.

UPL responds

In a statement at the weekend, UPL said it “cannot comment on an ongoing investigation and open case”. However, it continued to engage with all relevant authorities and governmental departments.

“Despite suffering substantial damage from the riots, UPL South Africa has made extensive efforts to contain the aftereffects of the incident and has committed enormous resources to this effort. 

“In the immediate aftermath of the event, UPL South Africa instituted an extensive and ongoing rehabilitation and remediation plan of the affected area under the direction of a team of independent experts and a Rehabilitation Action Plan approved by the Department of Forestry, Fisheries and the Environment (DFFE).” 

Read more: Durban residents aim for up to R1.5bn damages in aftermath of UPL chemical inferno

Last week, a public meeting of the Cornubia Multi-Stakeholder Forum was held at the Grace Family Church in uMhlanga to discuss the ongoing treatment of chemically polluted water that is still being stored in a dam close to the fire site.

At this meeting, the Department of Forestry, Fisheries and the Environment was scheduled to provide an update on the status of the proposed criminal charges against UPL.

Department officials were not present to provide this update, but UPL attorney Norman Brauteseth told the meeting that he understood that criminal charges were still being investigated against UPL — as well as the Fortress property group (which developed the Cornubia warehouse) and Tongaat Hulett and eThekwini Municipality (joint landowners of the Cornubia development).

Limited charges

Significantly, however, the NPA said it was not aware of charges against Fortress, Tongaat Hulett or eThekwini.

A spokesperson said:

1. “The NPA received one docket addressing a criminal complaint against UPL. We are not aware of the other matters you mention.
2. “The matter is at an advanced stage, and we can confirm that the NPA is addressing legal representation from UPL.
3. “A decision was taken by the Director of Public Prosecutions (DPP) KwaZulu-Natal (KZN), and this was brought to the attention of UPL through their legal representation. UPL has now written to the National Director of Public Prosecution, requesting for a review of the director of public prosecutions KZN’s decision.”

A spokesperson for Tongaat Hulett Limited said: “We don’t have any knowledge of a criminal investigation against Tongaat Hulett Limited on this matter. Since the incident, as an impacted party we continue to actively engage with the authorities and UPL on the remediation work undertaken by them as land owned by Tongaat Hulett Limited surrounds the UPL warehouse.”

A Fortress spokesperson said: “No — we are not aware of any criminal investigation (against Fortress).”

The eThekwini Municipality said: “We are not aware of the matter in question.”

Regarding Brauteseth’s comments at the Grace Family Church last week, UPL said: “In 2021 the findings of a governmental joint preliminary investigation into the incident recommended that the role that all parties played should be investigated, including not only UPL but also Tongaat Hulett, Fortress, and the relevant authorities.” DM