Democracy now: For the people, by the people

Everyone has the right to a healthy environment - but the Constitution is not being upheld as South Durban fights for clean air.

A stable climate is the bedrock upon which every right in the South African Constitution is built: the right to life, health, housing, education, food and good nutrition, a healthy environment, and more. Realising those rights through active citizenry, to create a democracy that is by the people and for the people, calls for more than just casting a vote every five years. 

Being an active citizen, to create a democracy that is by the people and for the people, requires more than casting a vote every five years. This is Part 1 of a four-part series exploring the importance of citizen’s engagement with government through the provincial or national legislatures, using the public participation processes provided for in South Africa’s Constitution. For a practical guide on how to go about this kind of active citizen engagement, download the Action 24 Toolkit for Citizens’ Engagement with Legislatures.

Democracy now: For the people, by the people

By Leonie Joubert

Being an active citizen in a healthy democracy calls for more than simply showing up at the voting booths every five years to choose the country’s next leaders. It means also being involved in the day-to-day processes of government policy making, checking how that policy is implemented, and holding accountable those who fail to uphold the law. When South Africa’s post-apartheid government drew up the Constitution, it wrote into law a set of practical steps that allow every citizen to be part of the running of the country. Public participation with the national and provincial legislatures is central to that, and allows citizens to ensure government meets its Constitutional responsibility to realise everyone’s right to a healthy environment. The fight for clean air in eThekwini shows how this works in practice.

One Monday morning, in October 2011, a fire broke out at the Engen oil refinery, just south of the central eThekwini. Toxic fumes plumed into the sky, and a shower of scorching oil droplets rained down on pupils at Settlers Primary School, just over a kilometre away. About 100 children were taken to hospital after inhaling fumes and being burned by the falling oil droplets, according to one incident report and coverage by local activist group South Durban Community Environmental Alliance (SDCEA). 

The incident has become one of the defining moments of ground-level activism to clean up the air in the industrial cluster of South Durban, where poorer communities living alongside polluting big industries find themselves in the long shadow cast by South Africa’s apartheid-era urban industrial development agenda.

This is why racial justice is central to the struggle for environmental justice in South Durban, where the SDCEA has been fighting for nearly three decades to clean up the air in a part of the city which now has amongst the most polluted air in southern Africa. According to one 1996 study, children attending school on the fence line with this Engen oil refinery are ‘three times more likely to be at risk from respiratory illnesses than children attending school north of Durban’, according to SDCEA’s Shanice Firmin, writing in the Daily Maverick in June 2019.

Apartheid-era city planning created an industrial hub here which today has some of the biggest oil refineries in the country, including the Engine and SAPREF oil refineries. SAPREF is a partnership between BP and Shell, whose South Durban operation makes up just over a third of the country’s crude oil refining capacity. Paper giants Mondi and Sappi also have mills here, and there are another ‘300 smaller chemical industries and… 150 smokestacks that pump the lethal poison that’s contained in the dirty South Durban air’, writes Firmin.

Firmin is the environmental project officer handling the development, infrastructure and climate change portfolio with SDCEA, a group that now includes 19 environmental organisations working together to ensure water and air quality for communities who live here as a consequence of the apartheid ‘project’ of creating enclaves of an under-paid urban labour class that was cheap to hire, and living close to industrial hubs like this one.

Even though today’s pollution in South Durban is the legacy of apartheid-era development, the new democratic state has nevertheless made it the current government’s responsibility to clean up the air here. The Constitution, drawn up in the early 1990s and which came into effect in 1996, gave every citizen the right to a healthy environment, and made it the state’s responsibility to realise this right. 

In the process of writing up the country’s new democratic Constitution, lawmakers also set up public participation processes that give the practical steps for how citizens can engage directly with the state, through working directly with provincial and national legislatures. This is how various communities and activist groups, including SDCEA, are working to realise the right to a healthy environment for those living in and around eThekwini.  

These public participation processes have been central to how activists here have supported the communities living in South Durban to be active citizens in how their small corner of the country is governed. SDCEA’s approach has been to educate communities about their rights, along with the health and environmental impacts relating to pollution caused by industries operating in the area. The work has also involved creating opportunities to bring the voice of these communities directly to the ear of government and demand that industries adhere to the air quality regulations.

One recent case, which brought together communities from rich and poor neighbourhoods alike, resulted in criminal charges being brought against a private waste management company and its operating licence being suspended, because public participation alerted the state to the air pollution coming from a west-Durban waste processing site. 

Something rotten west of eThekwini 

In the early 2010s, the smell of rotten eggs became a regular part of people’s lives in the communities in the Shongweni area, a 45-minute drive west of eThekwini. This was a telltale sign that the air was thick with hydrogen sulphide pollution coming from a landfill run by private waste management company EnviroServ which handles, amongst other things, hazardous industrial waste.

Residents from the affluent neighbourhood of Hillcrest came together to tackle the air pollution crisis and challenge EnviroServ’s operating license, under the umbrella of a group that is in the process of becoming a registered non-profit, Upper Highway Air (UHA). 

UHA campaigners drew on the experience of seasoned activist organisations, including SDCEA, Groundwork, and the Centre for Environmental Rights (CER), who assisted them with technical knowledge relating to environmental policies, and the nitty gritty of how to undertake various public participation processes. Through regular public meetings, including with communities from the historically lower-income areas around Shongweni, and coordinating activism through various online platforms, the cause picked up momentum.   

UHA’s concerns about air pollution eventually found the ear of national government, kicking off an investigation by the state’s Environmental Management Inspectorate (EMI), nicknamed the Green Scorpions. This resulted in the Department of Environment, Forestry and Fisheries (DEFF) suspending EnviroServ’s operating licence in 2017 and a call for the company to conduct a series of environmental tests, according to reporting by local newspaper The Mercury. The state also brought criminal charges against the firm for being in breach of the National Air Quality Act, seeing the company’s chief executive officer Dean Thompson appear in the Durban Magistrates Court in April 2017

UHA’s end-goal was to have the EnviroServ landfill site shut down completely. While this hasn’t happened, and the company was allowed to resume some of its operations again in 2018, the victory shows how citizens can leverage the Constitution to hold a private firm accountable for air pollution, and get the state to act on its mandate to achieve this. 

What happens when disaster strikes?

The 2011 Engen refinery fire showed in reality why any municipality or province needs an up-to-date disaster management framework or plan in line with the Disaster Management Act of 2002, particularly for a part of the country that has so many high-risk industries clustered together alongside residential neighbourhoods. 

Another disaster struck the city in 2017, exposing that little had been done in recent years to update the necessary policy documents in the city and province to ensure that there is the appropriate response and coordination during a disaster, according to SDCEA’s Shanice Firmin. These kinds of plans are necessary, whether a disaster is linked with an industry-related event, or a ‘natural’ disaster.

In October 2017, a ferocious storm hit eThekwini. Heavy rains, flooding, and high winds caused widespread damage across the city, including ripping the roof off the King Edward Hospital and structural damage to another seven hospitals, according to the Mail & Guardian (M&G). Six people lost their lives during the storm, including ‘a 12 year-old boy, one police officer, and two individuals who died leaving Prince Mshiyeni hospital when a wall collapsed’. 

Firmin remembers children in South Durban being trapped in their schools, with some unable to get home that night. The whole community was unprepared for a storm event of this magnitude, particularly the schools. No one predicted a storm as damaging as this, and it showed that communities didn’t have a plan to refer to during the crisis. No one knew what to do.

Firmin explains that SDCEA has been pushing for years for urgent updating of two disaster plans, the Municipal Disaster Management Plan, which was last revised in 2016, and the 2011 Off-Site Emergency Plan for the South Durban Basin. 

Rising global temperatures will drive stronger storms, bringing greater risk of heavy rains, winds, and flooding, adding to the risks faced by the South Durban community which is already faced with the health impacts of air pollution in their neighbourhoods.

African Climate Reality Project

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