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[2018] ZAKZDHC 21
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Upper Highway Air NPC v Enviroserve Waste Management (Pty) Ltd and Others (3692/2017) [2018] ZAKZDHC 21 (21 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO:
3692/2017
In
the matter between:
UPPER
HIGHWAY AIR N P
C Applicant
and
ENVIROSERVE
WASTE MANAGEMENT (PTY) LTD First
Respondent
DEAN
LEE
THOMPSON Second
Respondent
ESME
GOMBAULT Third
Respondent
MINISTER
OF ENVIROMENTAL AFFAIRS
Fourth
Respondent
MINISTER
OF WATER AND
SANITATION Fifth
Respondent
THE
MEC: ECONOMIC DEVELOPMENT,
TOURISM Sixth
Respondent
AND
ENVIRONMENTAL AFFAIRS
ETHEKWINI
MUNICIPALITY Seventh
Respondent
ORDER
(a)
The application for a postponement is refused;
(b)
The application for an interdict
pendente lite
is dismissed;
(c)
There will be no order as to costs.
JUDGMENT
Delivered
on:
21
June 2018
Ploos
van Amstel J
[1]
This matter concerns the Shongweni landfill site, which has over the
last two years or so been the subject of many complaints
from members
of the community regarding offensive odours and harmful gases which
are said to have affected the health of many people,
including young
children. Many reports have been prepared by scientists and experts
in the waste management industry as to the
cause of the problem and
the steps that need to be taken to deal with it. As it turned out
there was no quick solution. Various
steps have been taken to remedy
the situation and the Department of Environmental Affairs has played
an active role. Central to
the dispute before me is whether the
matter should be left to be dealt with by the Department, which is
the statutory regulatory
authority, or whether intervention by the
court is required.
[2]
The applicant is the Upper Highway Air N P C, a company not for
profit. The first respondent is Enviroserv Waste Management
(Pty) Ltd
(Enviroserv), which is the operator of the site; the second
respondent is Mr Dean Thompson, the managing director of
Enviroserv
and the Group Chief Executive Officer of the Enviroserv Group; the
third respondent is Ms Esme Gombault, a technical
director of
Enviroserv; the fourth respondent is the Minister of Environmental
Affairs (the Minister); the fifth respondent is
the Minister of Water
and Sanitation; the sixth respondent is the M E C: Economic
Development, Tourism and Environmental Affairs:
KwaZulu-Natal; and
the seventh respondent is the Ethekwini Municipality.
[3]
Waste management in this country is regulated by, inter alia, the
National Environmental Management: Waste Act 59 of 2008 (‘the
Act’). One of the objects of the Act is to give effect to
section 24 of the Constitution in order to secure an environment
that
is not harmful to health and well-being. It also seeks to provide
reasonable measures for, inter alia, avoiding and minimising
the
generation of waste; treating and safely disposing of waste as a last
resort; preventing pollution and ecological degradation
and achieving
integrated waste management reporting and planning.
[1]
[4]
In terms of the Act the Minister is required to establish a national
waste management strategy for achieving the objects of
the Act; to
set national norms and standards for the classification of waste,
planning for and provision of waste management services
and storage,
treatment and disposal of waste, including the planning and operation
of waste treatment and waste disposal facilities.
The Minister is
also the licensing authority in respect of waste management
activities at a facility at which hazardous waste is
to be stored,
treated or disposed of.
[2]
[5]
The Minister is required to review waste management licences;
[3]
she may vary the licence;
[4]
and she may revoke or suspend a licence if she is of the opinion that
the licence holder has contravened a provision of the Act
or a
condition of the licence and such contravention may have, or is
having, a significant effect on health or the environment.
[5]
[6]
Enviroserv has been the holder of a waste management licence in
respect of the Shongweni landfill site for many years. Its current
licence was issued on 8 April 2014. The activities permitted by the
licence are listed under two categories. Category A refers
to the
storage of general waste, hazardous waste and waste tyres. Category B
refers to the reuse, recycling, treatment and disposal
of hazardous
waste and the disposal of general waste.
[7]
The conditions of the licence include the following: the activities
shall be managed and operated in accordance with a documented
Environmental Management System that identifies and minimises the
risk of pollution, and in accordance with any written instruction
by
the Director; the classification, acceptance and disposal criteria as
listed in the latest edition of the document ‘Minimum
Requirements for Handling, Classification and Disposal of Hazardous
Waste, Waste Management Series, Department of Water Affairs
and
Forestry ‘or its successor must be conformed to; the leachate
must not impact on a water resource or on any other person’s
water use, property or land and must not be detrimental to the health
and safety of the public and the environment in the vicinity
of the
activity; the licence holder must ensure that the impact of odour
from emissions from the site is minimised; the licence
holder must
prevent the occurrence of nuisance conditions or health hazards; if,
in the opinion of the Director, environmental
pollution, nuisances or
health risks may be occurring or is occurring on the site, the
licence holder must initiate an investigation
into the cause of the
problem or suspected problem; and should the investigation reveal any
unacceptable levels of pollution, the
licence holder must submit
mitigation measures to the satisfaction of the Director.
[8]
During 2016 members of the community started complaining about
offensive odours which they said emanated from the site and impacted
on the health of people. The complaints related in the main to
breathing problems, asthma and itchy eyes and noses. Enviroserv’s
group technical director, Ms Gombault, says whereas Enviroserv
received an average of one complaint per month in the years up to
the
end of 2015, an increase in complaints was noted during about
April/May 2016 and since August 2016 many thousands of complaints
have been recorded.
[9]
On 21 October 2016 the Department of Environmental Affairs issued a
compliance notice to Enviroserv in terms of section 31L
of the
National Environmental Management Act 107 of 1998 (NEMA) in respect
of the Shongweni site. In terms of the notice Enviroserv
was
instructed to cease with the disposal of all type one waste at the
site; ensure that all type one waste be routed to alternative
sites;
treat all waste that may be disposed of at the site by increasing the
pH of the waste; ensure that all leachate and contaminated
storm
water is removed and disposed of at a suitable facility; contract a
suitably qualified health practitioner to conduct an
appropriate
scientific study focusing on the impacts or possible impacts on
health and well-being associated with the operation
of the site;
submit for approval to the Department a detailed Landfill Gas
Management Plan which had to include clearly defined
measures for the
safe and lawful extraction, recovery, re-use and/or disposal or
destruction of landfill gas; submit for approval
to the Department a
detailed Odour Management Plan which had to include clearly defined
mitigation measures and identify abatement
technology to be
installed/used; contract the services of suitably qualified
specialists to conduct a technical assessment of the
site with a view
of establishing the root cause of the odours generated from the site.
The technical assessment had to include
the impacts of the current
co-disposal ratio; hydraulic loading capacity; leachate generation
and storage capacity; effectiveness
of the leachate treatment plant;
options for effective waste and leachate treatment in order to reduce
the generation of hydrogen
sulphide as well as sulphur reducing
bacteria; effectiveness of current landfill gas production and
treatment measures; recommendations
for improvement and timeframes
for the implementation of recommendation measures. In addition
Enviroserv had to submit regular
progress reports to the Department.
[10]
There was initially a dispute with regard to the nature, source and
cause of the offensive odours. The applicant contended
that the
odours came from the Shongweni site. It produced expert evidence to
the effect that the disposal of waste by Enviroserv
resulted in high
sulphate containing waste and an elevated landfill temperature, which
prevented the waste body from entering a
methanogenic state and the
production of desirable methanogenic bacteria. Instead it caused a
proliferation of sulphur reducing
bacteria, creating high hydrogen
sulphide levels and other compounds.
[11]
Enviroserv says the management of hazardous landfill sites is a
complicated science. It maintains that before November 2015
the waste
body must have been in a methanogenic state, otherwise odour would
have occurred soon after Valley 2 started receiving
waste in 2010.
Malodour was first detected in November 2015. It contended that the
pH change brought about by the new Waste Regulations
in 2013 reverted
the waste to a predominantly acetogenic state. This, together with
the associated proliferation of sulphur reducing
bacteria, was said
to be primarily the cause of the malodour.
[12]
By April 2017 the Department decided that insufficient progress had
been made and it suspended Enviroserv’s licence in
respect of
the site. In the letter of suspension Mr Mark Gordon, the Deputy
Director-General: Chemicals and Waste Management of
the Department of
Environmental Affairs, recorded that a technical assessment had shown
that the site was the source of elevated
levels of hydrogen sulphide,
and that in spite of steps taken by Enviroserv the Department did not
believe that the ambient concentration
of hydrogen sulphide had been
reduced.
[13]
The conditions of the suspension included the following: the
acceptance, treatment and disposal of all waste at the site had
to
cease; the permeate from the leachate treatment plant could not be
disposed of onto the waste site; Enviroserv had to implement
best
practical environmental options in dealing with odours and gas
emanating from the site; Enviroserv had to prevent the occurrence
of
nuisance conditions, including malodours or health hazards, and had
to comply fully with the compliance notice of 21 October
2016.
[14]
At about the same time, on 3 April 2017, the applicant instituted an
action against Enviroserv in the High Court. The relief
claimed is an
interdict restraining Enviroserv from conducting any waste management
activities on the site except those necessary
for the mitigation and
remediation of the problem; orders directing it to comply with the
conditions of its licence and statutory
obligations; and an order
directing it to account in respect of the advantages received by it
as a consequence of its alleged unlawful
behaviour on the site.
[15]
Shortly thereafter, on 13 April 2017, it launched an application in
which it sought an interdict, pending the outcome of the
action,
restraining Enviroserv from receiving, treating and disposing of
waste at the site, including the disposal of leachate
into the waste
body. In the alternative the interdict was sought pending the outcome
of an appeal by Enviroserv against the suspension
of its licence.
[16]
The application came before Kruger J on 26 April 2017. He gave
directions with regard to the filing of affidavits, adjourned
the
application and granted an interim interdict, pending the
finalisation of the matter, restraining Enviroserv from receiving,
treating and disposing of any waste at the Shongweni site, including
the disposal of leachate into the waste body known as Valley
2. The
interim interdict was sought because Enviroserv’s appeal would
have suspended the suspension of its licence.
[6]
[17]
Enviroserv appealed to the Minister against the suspension of its
licence. It later pared the appeal down and limited it to
some of the
conditions of the suspension. The appeal was upheld on 9 December
2017. In summary, the result was that the suspension
of the licence
remained in place but the conditions were varied in the following
respects: the acceptance, treatment and disposal
of solid waste that
is inorganic and does not contain sulphur may be accepted at the site
for a period of six months; on demonstration
of containment of odours
that are likely to be a nuisance, the Minister will review acceptance
of further waste streams; the brine
from the leachate treatment plant
can be disposed of onto the working face provided it is
micro-encapsulated; the waste body must
be monitored to determine if
the three identified hydrogen sulphide hotspots have been mitigated;
continuous monitoring of the
waste body must take place to ensure
that further hotspots do not develop; all necessary mitigation
measures to control this must
be implemented and should any new
hotspots be identified, the Minister and all relevant sections of the
Department must be notified
within twenty-four hours; no leachate is
to be recirculated into the waste body; no contaminated storm water
is to be recirculated
into the waste body unless as a last resort and
only if microencapsulated; extensive reporting to the Minister and
relevant sections
in the Department must be done on a monthly basis;
Enviroserv must continue to monitor the odours and gases emanating
from the
site; Enviroserv must implement best practical environmental
options in dealing with odours and gas emanating from the site to
prevent an increase of noxious and nuisance odours in the area;
Enviroserv must detail how the extraction and treatment of the gases
generated from the site are going to be dealt with; Enviroserv must
report on the quantity and quality of gas being produced as
it is an
indicator of the bacterial activity and the landfill as a whole;
Enviroserv must prevent the occurrence of nuisance conditions,
including malodours or health hazards; Enviroserv must investigate
the repositioning of the real-time monitors closer to the site
to
focus on any emissions leaving the site in the various directions; a
report in this regard must be submitted to the Minister
and relevant
sections of the Department within one month of the commencement of
operations at the site; all complaints relating
to the site must
continue to be documented and submitted to the Minister and relevant
sections of the Department on a bi-weekly
basis; the reporting must
overlay the wind direction, wind speed, complaints, levels of
hydrogen sulphide and mercaptons leaving
the site.
[18]
The applicant was not satisfied with the Minister’s decision in
the appeal and brought review proceedings in this court,
which were
later extended so as to include a claim for a mandamus. The applicant
contends that the application for the interdict
should be heard
together with the review, and that I should postpone it for that
purpose. Enviroserv contends that the application
should be finalised
and that it should be dismissed. In that event the interim interdict
will cease to operate.
[19]
The applicant brought a substantive application for a postponement of
the matter on 10 May 2018, by way of urgency. That application
took
on a life of its own and comprises of several hundred pages. After
representations from counsel for the parties I ruled that
the
application for a postponement should be argued together with the
main application for an interdict pendente lite.
[20]
The basis on which the applicant contends that the application should
be heard together with the review is primarily that a
decision
against it in the present matter may render the review academic, or
may prejudice it in its case. There is no substance
in this point.
The interdict is sought pending the outcome of the review or the
trial action and whether or not it should be granted
must be decided
on the papers before me. The requirements for an interdict
pendente
lite
are plainly different from those that apply to a review of
administrative action. My approach to the evidence before me in the
present matter will be irrelevant in the review proceedings. I do not
see how the outcome of the application before me can affect
the
outcome of the review proceedings, and I see no prejudice to the
applicant if the application for an interdict is dealt with
now.
[21]
In the light of the interim interdict granted on 26 April 2017
Enviroserv has been unable to act in accordance with the relaxation
of the conditions of the suspension of its licence. That interdict
was granted pending the finalisation of the application before
me.
That is its only relevance. At the commencement of the hearing
counsel for the applicant applied for an amendment to the order
sought in the notice of motion, which was not opposed. The question
before me is now whether I should grant an interdict in the
terms
provided for in the notice of motion, pending the outcome of the
action, alternatively the outcome of the review/mandamus
application,
whichever is the earlier.
[22]
I turn to consider whether there should be an interdict
pendente
lite
.
The dispute about the cause of the odours has become less important
in the application before me. The focus has now shifted to
remedial
measures and ensuring that there is no recurrence of the problem.
[23]
The summons in the action was issued on 3 April 2017. An exception to
the particulars of claim has been argued and the judgment
is awaited.
That is as far as the matter has progressed. I think it is plain from
all the expert reports, the differences of opinion
and the factual
disputes in the papers before me, that the trial is likely to be
lengthy. Once the pleadings are closed and the
matter is certified
ready for trial, after compliance with the pre-trial procedures, the
matter will have to take its place on
the trial roll. I doubt that
the trial will commence before the year 2020.
[24]
The applicant however, in terms of the amended order prayed, also
seeks the interdict pending the outcome of the application
for a
review or mandamus.
[25]
Enviroserv contends that whether or not the interdict is granted will
be irrelevant to the outcome and effect of the review,
the mandamus
and the action. The applicant is either entitled to the relief which
it seeks in those matters, or it is not. Whether
or not the interim
interdict was in place
pendente
lite
will be immaterial. It contends that the applicant’s prospects
of success in the action are poor and that the legal obstacles
in its
way are significant. It also contends that the applicant’s
prospects in the application for a review and mandamus
are poor.
[26]
In the action the interdict sought is to restrain Enviroserv from
conducting any waste management activities pursuant to its
licence,
other than those activities necessary for the mitigation and
remediation of the problem and ‘as may be further directed’
by the Minister. This is what Enviroserve says it is entitled to do
pursuant to the relaxation of the conditions of suspension.
Further,
in the action the interdict is only sought if at the time of the
trial the nuisance is still continuing. One would like
to think that
this will be unlikely by the time the trial is heard.
[27]
That brings me to the balance of convenience. The review proceedings
are not likely to be finalised for several months. The
interdict
pendente
lite
is
sought pending the finalisation of the review or the action,
whichever is earlier. It will therefore lapse when the review is
finalised, regardless of the outcome. If the review succeeds on the
terms sought by the applicant the Minister’s decision
will be
substituted by one dismissing the appeal. There will then be no need
for an interdict. And if the appeal is referred back
to the Minister,
she will have the power to direct that the suspension of the licence
not be suspended pending the appeal.
[7]
[28]
If the review fails, the Minister’s decision will stand. It is
not contended that there should then be an interdict.
The court
should not usurp the Minister’s functions if she is held to
have made a lawful and rational decision.
[29]
It is important for the community to understand that the Minister has
not reinstated Enviroserv’s waste management licence
in respect
of the site. She varied the conditions of suspension so as to allow
the introduction of solid waste that is inorganic
and contains no
sulphur, subject to extensive monitoring, reporting and supervision.
The Department of Environmental Affairs is
a specialist regulator
with access to scientists and other experts, and has the regulatory
powers provided for in the Act. The
Minister has the power under the
Act to vary or suspend or revoke the licence, and the applicant is
free at any time to make representations
to the Minister in this
regard.
[30]
The position seems to be that it will take time to get the site back
to normal, whether or not it is shut down. The debate
as to the
efficacy of different remedial actions will probably continue, but
this is a matter for the Department and not for the
court. See, by
way of comparison,
Hichange
Investments (Pty) Ltd v Cape Produce Co (Pty) Ltd
[8]
,
where Leach J said the following:
‘
The causes and consequences of
pollution are, by their very nature, matters of science, as are the
steps which can be taken to combat
it and to prevent it occurring.
Pollution is therefore a complex, technical and scientific issue,
which raises questions that can
only be answered properly with
insight into detailed scientific knowledge and information. It is
presumably for this reason that
certain functionaries, who hopefully
are possessed of the necessary scientific background, have been
appointed by the Legislature
in order to weigh up all the relevant
information necessary to enable them to take informed decisions on
matters of scientific
import, including the issue of a certificate
for a scheduled process and the conditions which should apply
thereto…These
functionaries are pre-eminently the persons who
should take the decision which the applicant has now called upon this
Court to
make, viz whether the first respondent should be obliged to
stop its operations. Without it being shown that the functionaries
concerned have not exercised the discretion vested in them by the
Legislature reasonably and properly, this Court would probably
not be
prepared to interfere by granting an order effectively usurping their
powers and functions’.
[31]
According to Enviroserv there have been ongoing engagements between
it and the Department and it has implemented the following:
the
capping of the front face of the landfill site in August 2017; the
installation of a gas extraction, treatment and flaring
system by 15
August 2017; the continued treatment of the waste body to maintain a
pH above eight; and permission was obtained to
discharge treated
contaminated storm water to the municipality’s waste water
treatment works. It contends that these measures
have dramatically
reduced the odour levels from the site. It seems plain that these
matters played a role in the relaxation of
the conditions of
suspension.
[32]
I do not think there is any basis for the submission that Enviroserv
has agreed or accepted that it should not be allowed to
receive any
waste at the site until the remedial process has been completed. This
is an ongoing process and Enviroserv contends
that its acting in
accordance with the conditions formulated by the Minister is part of
that process.
[33]
In the final analysis the question remains why there should be an
interdict pending the outcome of the review or the action.
The
Department of Environmental Affairs is dealing with the matter, the
waste management licence has been suspended and the activities
allowed by the Department are intended to accelerate the remedial
process. The assertion by the applicant that those activities
are not
likely to be effectual is not a basis for interdicting them.
[34]
Counsel for the applicant submitted that if Enviroserv is allowed to
act in accordance with the conditions formulated by the
Minister, the
pollution will become worse and the problem will be exacerbated. I do
not consider that the evidence establishes
this. Dr McStay supports
the prohibition on the acceptance of waste containing sulphur but
says the Minister should also have prohibited
the disposal of
potentially reactive heat generating waste. There is no evidence in
the papers that such waste is going to be disposed
of at the site or,
if it happens and it causes a negative reaction, that it won’t
be stopped. In terms of the conditions
formulated by the Minister
there will be ongoing monitoring and reporting and the conditions
pertaining to the licence or its suspension
can be changed as
circumstances require. I think the evidence establishes that the
Department and Enviroserv are acutely aware
of the need to achieve
the successful remediation of the site.
[35]
I must also consider the interests of Enviroserv and its employees.
The site has now been closed for more than a year, several
scientists
and experts have provided reports and made recommendations with
regard to remedial action, and if it is possible for
Enviroserv to
resume operations within the limitations imposed by the suspension of
its licence, without exacerbating the problem,
then I think it should
be allowed to do so. It will not be left to its own devices and will
be subject to continuous scrutiny and
supervision by the Department.
[36]
The impact which the emission of noxious gases has had on the
community was severe and unacceptable. The purpose of the application
before me is not to compensate anyone or to sanction Enviroserv for
what has happened. I am asked to consider whether, pending
the
outcome of the review or the action which has been instituted, there
should be an interdict in addition to the steps which
have been taken
by the Department. The court is not the regulatory authority in terms
of the Act. It is true, as the applicant
contended, that its function
is to protect people’s constitutional rights and hold the
executive accountable where that is
appropriate. The review of the
Minister’s decision, which will be heard in due course, is part
of that process, and so is
the action.
[37]
I think it needs to be emphasised that the granting of an interdict
pending the review or the action will not make the problem
go away.
The site has been closed for more than a year and the offensive
odours have not disappeared. An interdict will not make
them
disappear. Hopefully with the advice and assistance of the experts
and the oversight of the Department the remedial process
will be
concluded sooner rather than later.
[38]
The applicant also contended that Enviroserv’s activities on
the site should be interdicted on the basis that it is not
a
permissible land use in terms of the town planning legislation. This
is an issue which will be dealt with together with the review.
I do
not see the point in granting an interdict
pendente
lite
on
this basis, in respect of an activity which has been ongoing since
1997 with the full knowledge and permission of the authorities.
[39]
I have come to the conclusion that the ongoing management of the
Shongweni site should be governed by the Minister and her
Department
in accordance with their regulatory powers in terms of the Act. The
interdict
pendente
lite
which the applicant seeks is not designed to preserve anything which
will be the subject of the trial or the review, and for the
court to
effectively close the site will be to usurp the functions of the
Minister. I think the balance of convenience is catered
for by the
oversight of the Department pending the review and the action.
[40]
It follows in my view that the applicant has not made out a case for
the court to intervene
pendente
lite
,
in addition to the oversight and directions of the Department of
Environmental Affairs. This does not mean that the interim interdict
of 26 April 2017 should not have been granted. It was granted pending
the finalisation of the application before me, and it has
served its
purpose. It was necessary because Enviroserv’s appeal suspended
the suspension of its licence. That appeal has
now been finalised and
the licence remains suspended, subject to the conditions imposed by
the Minister.
[41]
With regard to the question of costs, the applicant’s attorney
has referred me to section 32 (2) of NEMA , which provides
that a
court may decide not to award costs against a person who, or a group
of persons which, fails to secure the relief sought
in respect of any
breach of any provision of an environmental management Act, if the
court is of the opinion that the person or
group of persons acted
reasonably out of a concern for the public interest or in the
interest of protecting the environment, and
had made due efforts to
use other means reasonably available for obtaining the relief sought.
I think it will be appropriate, on
this basis, to make no order as to
costs.
[42]
The order that I make is as follows:
(a) The application for a
postponement is refused;
(b) The application for
an interdict
pendente lite
is dismissed;
(c) There will be no
order as to costs.
_________________
Ploos
van Amstel J
Appearances:
For
the Applicant
:
C Nel
Instructed
by
:
Macgregor Erasmus Attorneys
Durban
For
the 1
st
,
2
nd
,
and 3
rd
Respondents
:
Wim Trengrove SC (together with)
A
Friedman
Instructed
by
:
Shepstone & Wylie Attorneys
Durban
Date
Judgment Reserved
:
15 June 2018
Date
of Judgment
:
21 June 2018
[1]
Section 2
[2]
Section 43
[3]
Section 53
[4]
Section 54
[5]
Section 56
[6]
Section 43
(7) of the
National
Environmental Management Act 107 of 1998
[7]
Section 43
(9) of the
National
Environmental Management Act 107 of 1998
[8]
Hichange Investments (Pty) Ltd v Cape
Produce Co (Pty) Ltd
2004 (2) SA 393
(ECD) at 412 D-I