Fiona Macleod
South African taxpayers may have to fork out millions of rands for the environmental rehabilitation of asbestos mines abandoned by British multinational Cape plc, which has agreed to settle its marathon legal battle with locals suffering asbestos-related diseases.
A precondition of the legal settlement agreed shortly before Christmas between Cape and locals suffering asbestosis and related diseases is that the South African government must waive any claims against Cape for environmental rehabilitation.
Richard Meeran, a British lawyer who represented affected South Africans in their ground-breaking claim against Cape, told the Mail & Guardian this week the government had until February 15 to decide whether it will abide by the precondition.
If government rejects the condition, the settlement may be in jeopardy.
“Cape wants an assurance from the government that it will forego any claims for the rehabilitation of polluted land,” says Meeran.
“It’s a departure from the normal principle that the polluter should pay.”
Researchers say 27 out of Cape’s 38 asbestos mines need to be rehabilitated. Three have been partially rehabilitated, while eight are considered to have been fully rehabilitated. Estimates put the cost of rehabilitating all the mines at between R10-million and R180-million. These estimates cover restoration of the mines and dumps, but not surrounding residential areas where items like building materials and roads include asbestos.
Environmental exposure can cause mesothelioma, the disease that gave asbestos dust the name “killer dust”. It is a fatal tumour of the lining of the lungs or other parts of the body, and kills extremely rapidly and very painfully.
Mesothelioma can be caused by a single, tiny asbestos fibre. An Industrial Health Research Group/Brown University Report on asbestos-related diseases presented to the parliamentary portfolio committee on environmental affairs and tourism in October last year says that fibres can travel up to 100km in the wind, and most mines are well within 20km of settlements.
Enver Daniels, chief state legal adviser in the Cape case, says an earlier settlement condition suggested by the British mining company was that the South African government introduce legislation barring any locals from suing Cape again. This was rejected inter alia because it could have been unconstitutional.
“I then discovered in November last year that the rehabilitation waiver would be a precondition for settlement of the case,” says Daniels. He says that the government earlier instructed its lawyers to institute a claim for environmental rehabilitation.
Daniels was waiting this week to receive the terms of settlement so that he could formulate recommendations to the Cabinet. The provincial governments of the Northern Province and Northern Cape, where the Cape plc mines are based, have agreed to waive environmental rehabilitation claims but it is the national Cabinet that will have the final say.
If the Cabinet agrees to the waiver, the taxpayer may have to foot the bill to clean up the environment. The Cape settlement deal provides only for the setting up of a 21-million (R350-million at present value) trust to compensate people suffering asbestos-related diseases as a result of working on or living near its mines.
Meeran says the environmental waiver was introduced into the deal because Cape simply had no more money to allocate towards rehabilitation. He believes the South African government may be justified in asking the British government to help pay for environmental restoration.
“The British government knew about the conditions under which Cape plc operated in South Africa.”
According to Tommy Ndewa, spokesperson for Northern Province Premier Ngaoko Ramatlhodi, discussions along these lines have already started.
“The British government’s Department for International Development has indicated a willingness to get involved in the rehabilitation of Cape’s mine dumps. We are discussing diverting money intended for other aid,” Ndewa says.
Richard Spoor, a Nelspruit-based attorney who is suing local asbestos companies that took over Cape’s business after 1979, says the local mining industry should also be held responsible for environmental rehabilitation.
“Asbestos contributed significantly to the profitability of the South African mining industry. It needs to be called to account,” he says.