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UPL chemical catastrophe: When a very public disaster gets turned into a very private affair

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Tracy-Lynn Field is Claude Leon Chair in Earth Justice and Stewardship. Professor Field is an enrolled advocate and Professor in the Wits School of Law.

Why is there such secrecy around the environmentally disastrous UPL fire in Durban? Various government departments and the scientific experts engaged by UPL sit on the Joint Operations Committee, but the reasonable request for civil society voices on this structure have been countered with a range of condescending excuses.

In The New Apartheid, Sizwe Mpofu-Walsh develops a simple, powerful thesis: Apartheid did not die, it was privatised. The overt markers of grand apartheid are no more, but their fragmented afterlives, fed on private power, are thriving in the new apartheid.

The old discriminations live on through space (the “social cordon” of road closures, security estates, gated booms); law (the hardy survival of private contractual freedom); wealth (a steady accretion of private wealth, abetted by financialisation and globalisation); technology (personal computing, the racially biased algorithm) and punishment (the rapid growth of the private security industry).

As the tragicomic eruptions of the public South African constitutional drama unfold centre stage, private power pulls the strings backstage.

The one blind spot in Mpofu-Walsh’s otherwise brilliant analysis is the environmental commons which seems to have moved in the direction of greater public control. For surely one of the jewels in the crown of democratic self-rule is the sophisticated system of laws that now protect breathable air, drinkable water, fertile soils and functioning ecosystems.

In pursuit of protecting this environmental commons, lofty principles of “national environmental management” proclaim the importance of openness and transparency, the participation of interested and affected parties and vulnerable persons, and decisions that take into account the interests, needs and values of all. The state has been instituted as “public trustee” and “custodian” of water, biodiversity, mineral resources, the coastal zone and protected areas, while the “polluter-pays principle” and cradle-to-grave responsibility for environmental harm apparently restrict actors from using the commons as their private dumping ground.

This is a far cry from the secrecy that prevailed during the bad old days of grand apartheid. It was secrecy that allowed the Thor Chemicals disaster — the mercury contamination of the river system of KwaZulu-Natal’s Valley of a Thousand Hills — to be treated like a private affair. It was not government, but non-government organisations Earthlife Africa and Greenpeace that revealed shocking mercury concentrations in the urine of Thor Chemical workers.

The government allowed British-based Thor Chemicals to cloak its operations in secrecy and the NGO’s attempts to obtain and publish details of the alleged mercury contamination were consistently obstructed and blocked. Even after three workers died in 1992, the pre-democratic department of environmental affairs forwarded a secret memorandum to the Cabinet in which it praised the “sound work” of the Thor Chemicals plant. Repeated calls for rigorous health surveillance, environmental monitoring and remediation in and of the affected area have fallen on deaf ears.

In the second week of July 2021, another public environmental disaster gripped KwaZulu-Natal: a looting-initiated fire that gutted Mumbai-based multinational UPL’s chemical warehouse in Cornubia, north of Durban. The smoke from the chemical blaze choked rich and poor residents alike for days, while the ill-advised use of water to douse the flames transported the company’s toxic herbicides, fungicides and insecticides into the estuarine and marine environments.

Again, it was not government, but civil society actors in the form of the UPL Cornubia Fire Civil Society Action Group that insisted on the public disclosure of the substances excreted into the environmental commons, and investigative journalism of the ilk of amaBhungane that eventually secured the release of the inventory into the public domain.

Neither the company nor any of the government departments involved in dealing with the incident have responded satisfactorily to requests for proof of the myriad regulatory authorisations that could and should have mitigated the risks associated with the chemicals stored in the warehouse, prompting the action group to submit a Promotion of Access to Information (PAIA) application.

Calls for participation to ensure that the interests, needs and values of interested and affected parties are taken into account have been rebuffed. The action group has repeatedly asked to sit on the Joint Operations Committee (JOC) — a structure set up by the KZN Department of Economic Development, Tourism, and Environmental Affairs to decide on the appropriate mitigation and remediation measures that must be implemented.

Various government departments and the scientific experts engaged by UPL sit on the JOC, but the reasonable request for civil society voices on this structure have been countered with a range of condescending excuses: The organs of state have separate statutory mandates and they are enjoined to act strictly within those parameters; the state’s response to the disaster is not administrative action; in the absence of a state-UPL expert decision on what is a “conclusive” finding, no one beyond the JOC really has any right to know or participate.

It is these excuses that reveal the form of the new apartheid in the environmental commons. For despite the noble edifice of principles and rules that mandate openness, transparency and participation in matters of common environmental concern, it seems that, once again, a public disaster may become a private affair. DM

Disclosure: Prof Field is a committee member of the Cornubia UPL Fire Civil Society Action Group.

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  • “For surely one of the jewels in the crown of democratic self-rule is the sophisticated system of laws that now protect breathable air, drinkable water, fertile soils and functioning ecosystems.” Yes these are great laws all observed more in the breach than the observance. How many water supply systems are horrendously polluted due to failing municipal water infrastructure? No one seems to be able to enforce and degree of compliance by the municipalities. In a number of instances these problems have been sorted out by civil society who have been, at the same time, denigrated by those who SHOULD be enforcing the rules.

  • Why everything bad about SA today has to reflect as a derivative of apartheid at worst or somehow a similar copycat practice at best is irritating. We are 27 years into the new order (more than 50% of our population never even lived under apartheid) and yet those old chestnuts get dragged out time and again.

    Let’s call a spade a spade here. Do not deflect from the reality of the Cornubia situation by implying subliminally that what lies behind it is actually white capitalist apartheid. What lies behind the UPL warehouse disaster is KZN African government and Indian capitalist graft, corruption, incompetence, cover-up and a desperate attempt to avoid liability for the environmental and health costs that will follow. This is not apartheid, not even new apartheid – it is old-fashioned thuggery played out by actors that are plainly not white capital.

  • Go international big time. Involve India as that is where UPL is registered. UPL know the international regulations for the storage of toxic substances and by virtue of many products being banned internationally then zero protection in Umhlanga should be a criminal offence. The Engineer or failing a responsible engineer the Managing Director is liable. They are registered om Mumbai and Bombay stock exchanges.

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