Durban smokestacks back in court

The Right2Know Campaign (R2K) has applied to join the high court battle between a group of South Durban Basin activists and petroleum giant Engen as a friend of the court.

The two groups want the Regulation of Gatherings Act of 1993 — which Engen used to have the protests outside its Wentworth refinery banned — to be declared constitutionally invalid.

The application by R2K, which campaigns for access to information, the free flow of information and freedom of expression, to join the case between Engen and the South Durban Basin Community Development Trust as an amicus curiae (friend of the court) will be argued in the high court in Durban on Friday.

The development trust,whose members are a group of activists from the Wentworth area, had been involved in a series of protests at Engen during the course of 2018. It was trying to get Engen, which has run the refinery in Wentworth since 1954, to employ local people and involve local contractors in its multibillion dollar business.

The multinational responded by securing an interim interdict against the trust and its leaders, Frank Alexander, Melanie Haines, Allen Holmes, Terrence Ogle and Brandon Manique, using the gatherings act and the National Key Points Act to secure the order against them.

But they went back to the court to challenge the interdict and the terms of the Gatherings Act, arguing in court papers that section 12 (1) (a) of the Act violated their right to protest in terms of section 17 of the Bill of Rights and their labour rights in terms of section 23 of the Bill.

In its application to join the case, R2K said that as a civil society body with an extensive record in public law, it was well placed to assist the court in its consideration of the issues before it. It had also been involved in research about the Gatherings Act and had been admitted to the Constitutional Court as amicus in the case of Mlungwana and Others vs the State and Others.

R2K said its submissions would focus on the international treaties that South Africa was signatory to and the obligations it placed on the country.

The Act, it said, not only unjustifiably restricts the rights of citizens to protest, but also “falls far short of South Africa’s international treaty obligations on these issues”.

It also argued that the Act presented the “chilling prospect of a cost order” applied at the instigation of a private party contained in it.

Furthermore, R2K argued, the Gatherings Act contained a blanket restriction that made it an offence to protest without permission and contained an arbitrary criminal sanction, which was contrary to section 36 of the Constitution.

Engen has objected to R2K joining the case.

In its heads of argument, Engen said the protests had been violent and potentially “catastrophic” and that the application of the act had been appropriate under the circumstances.

R2K, it said, had made submissions that were not relevant to the case, nor useful to the court and should not be admitted.

The Mail & Guardian has reported in the past on the negative effects of Engen’s refineries on the residents of Wentworth. Cancer rates in the valley are so high that many people speak about it as “cancer valley”.

Research by the University of KwaZulu-Natal shows that leukaemia is 24 times higher there than anywhere else in the country. And half the schoolchildren in the area suffer from asthma.

The two largest industries are the oil refineries, but the presence of many other petrochemical plants means there are about 300 smokestacks in South Durban.

The effect on people’s health has meant a decades-long battle between the residents and Engen and other industries to lower pollution levels.

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Paddy Harper
Paddy Harper

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