Challenges in overcoming legacy of air and water pollution are ‘enormous’ in South Africa. (Mujahid Safodien/AFP/Getty)
South Africa faces the crude legacy of pre-1994 environmental racism with the toxic impact of pervasive air and water pollution continuing to disproportionately affect poor and marginalised communities, a United Nations expert has warned.
This “abhorrent practice” entailed the intentional siting of landfills and polluting industries along racial lines and in low-income and migrant communities, the UN’s Special Rapporteur on Toxics and Human Rights, Marcos Orellana, told a briefing on Friday.
He was delivering his end-of-mission statement after wrapping up a 12-day official country visit to South Africa, where he examined the human rights situation related to the environmental management and disposal of hazardous substances and waste.
During his visit, Orellana met with officials from various government ministries and provincial authorities, civil society organisations, human rights defenders, academics and industry actors.
He said he was heartened by the “open and frank discussions” with national and provincial authorities. Orellana described the commitment and passion of civil society organisations, academics, and local communities in defence of human rights and the environment as “inspiring”.
Toxic fallout
The challenges in overcoming the legacy of environmental racism in South Africa are “enormous”, compounded by structural inequality, widespread poverty, unemployment, corruption, a severe energy crisis and new environmental threats such as the climate emergency, he said.
But while the legacy and current pollution challenges are vast, the country has committed to the respect of fundamental rights in its constitution and international treaties, he noted, calling it “cause for hope and optimism”.
Before 1994, the distribution of environmental risks and harms “disproportionately and often deliberately” targeted low-income groups and along racial lines, he said, noting how since then South Africa has built a strong legislative framework.
The Constitution is renowned worldwide for its advanced stance on human rights, and recognises the justiciable right of everyone to an environment that is not harmful to their health or well-being.
“It took the UN General Assembly an additional 25 years before it recognised, for the first time at the global level in 2022, the critical importance of the right to a clean, healthy and sustainable environment,” Orellana said.
Outdated, fragmented
Since 1994, South Africa has adopted numerous and important norms governing chemicals and wastes, including the National Environmental Management Act, the Air Quality Act and the Waste Act. There are important measures in progress, he said, such as the Climate Bill and the banning of certain hazardous pesticides such as chlorpyrifos.
At the same time, there are pre-1994 laws resulting in harms and human rights infringements. Orellana cited the Hazardous Substance Act of 1973 and the Fertilisers, Farm Seeds, Seeds and Remedies Act 36 of 1947, which he said is “outdated, fragmented and allows the import of hazardous pesticides that are banned in their country of origin”.
This, he said, causes the legalised poisoning of agricultural workers in the fields and neighbouring communities.
Implementation and enforcement of legislation concerning chemicals and wastes falls under many departments, making “coordination and coherence challenging”.
Enforcement non-existent
While South Africa’s strong legislative framework should serve as the backbone for accountability and access to effective remedies, enforcement and implementation of the law is often nonexistent or insufficient, he said.
“Where powerful actors are allowed to act with impunity and disregard environmental protections, the confidence in democracy and the environmental rule of law begins to erode.”
Orellana said the strong, multi-dimensional legal and institutional framework that the country has built has, on its own, not proven effective to remedy the harm and human rights abuses that marginalised communities have suffered from decades-long exposure to hazardous substances and toxic pollution.
This legacy of environmental racism has meant the externalisation of costs of environmental degradation to marginalised and poor communities.
“The polluter pays principle is enshrined in legislation, but so often polluters act with impunity in South Africa. The progress made since 1994 has not only been eroded by corporate capture and corruption, but also by lack of accountability,” he said.
Rethinking development
Orellana said that for South Africa to overcome the legacy of environmental racism requires the state to rethink a development model that is often focused on the short-term objective of increasing jobs and economic growth at any cost.
For countless individuals and communities across the country, exposure to hazardous substances means loss of health and premature death. “For many people living without essential services, lack of clean water and sanitation means living surrounded by wastes. And many others feel their only way to procure food, for them and their families, is to work in polluting activities.”
The economic and health costs of widespread air, water and chemical pollution aggravate extreme poverty and the environmental injustices of inequality, he said.
“In the face of such problems concerning toxics and human rights, the state cannot abdicate its responsibility to enforce environmental laws and ensure that environmental quality standards are a reality, and not a legal fiction or simply another aspiration.”
The right to a healthy environment enshrined in the Constitution offers a “moral compass” to guide the continuous efforts to overcome the toxic tide of pollution, and “must be upheld for the benefit of all”.
In September next year, Orellana will present his report to the Human Rights Council.
Forestry, Fisheries and Environment Minister Barbara Creecy has said she looks forward to the outcome of the report and “hopes that the special rapporteur will continue to support South Africa in its quest to improve environmental management and the realisation of environmental rights”.