Victory for community against Outeniqua Poles
Parent Category: News
Created on Friday, 06 March 2009 15:07
Published on Friday, 06 March 2009 15:07
Written by Legal Resource Centre
Without the intervention of the Grahamstown’s Legal Resources Centre (LRC) the residents of Tergniet and Toekoms near Mossel Bay would still be living in conditions harmful to their health and well being.
The LRC’s action on behalf of the Tergniet and Toekoms Action Group (TTAG) and thirty-four others resulted in the Cape High Court ruling that Outeniqua (Pty) Ltd (Outeniqua) had to stop its creosote wood treatment immediately on 23 January.
Judge Van Reenen concluded that Outeniqua was interdicted and restrained from continuing with its tar pole operations unless and until it had a registration certificate and the property used was correctly zoned for such an activity.
The learned Judge also found that in terms of section 24 of the Constitution the residents of the two communities have a fundamental right to an environment that is not harmful to their health or well being.
Outeniqua’s plant originally housed a sawmill, but in 2002, the residents of the two communities noticed the unpleasant smell of creosote. All the applicants lived in varying degrees of proximity to the factory, some as close as 20 metres. In response to their complaints, Outeniqua’s representatives informed them that the plant would be relocating.
The residents of the two communities complained that the creosote emissions caused them asthma, sinusitis, bronchitis, vomiting, skin rashes, burning eyes, headaches, dizzy spells and nosebleeds, as well as cancer.
They also complained of their struggle to grow plants in the area and the unpleasant taste of their food. However, for more than six years, Outeniqua continued to operate tar processes during office hours, at night and on the weekends.
In 2007, the residents of the two communities joined to form the TTAG, which wrote to the Mossel Bay Council and the Department of Environmental Affairs and Tourism for assistance
The Department realised that Outeniqua was operating without the requisite registration certificate as required by the Atmospheric Pollution Prevention Act 45 of 1965.
In response, Outeniqua immediately applied for authorisation.
On 6 May 2008, the Chief of Air Pollution Control Officer (CAPCO) refused Outeniqua’s registration application because of the health hazards associated with creosote emissions and the fact that the area was not zoned for tar processes.
Outeniqua appealed CAPCO’s decision and continued to operate creosote processes. It contended that until the appeal was decided it could continue operating without the requisite permits. The appeal has still not been decided.
This led to the TTAG filing an application in the Cape High Court for declaratory relief or an interdict.
The case finally came to court on 9 September 2008, when judgment was reserved until last month.
Sarah Sephton of the LRC, who assisted the TTAG, said that the community was delighted that the creosote emissions were a thing of the past and hoped that they could now enjoy a quality of life and good health, though the fumes from the tar poles on site were still harmful.
‘The struggle faced by the residents of Tergniet and Toekoms that led to the court action by the LRC and ultimately victory should be of great encouragement to groups wanting to enforce their rights to a clean and healthy environment’, she added.
The residents of Tergniet are predominately pensioners and the Toekoms community comprises mostly poor, coloured residents.
However in a surprising note of caution the Judge warned that attempts on the part of parties to drum up public support or engender public sympathy for their causes prior to a hearing must be discouraged and censured in appropriate cases.
Download the judgment here.