Eskom and Sasol, which are considered two of the country’s biggest polluters, have been granted postponements, suspensions and/or alternative limits of the minimum emissions standards since 2015. (Waldo Swiegers/Bloomberg via Getty Images)
South Africa has “enormous potential” and its people and environment are two of its most valuable assets, but they must be protected from toxic pollution being “fuelled by corporate greed and government inaction”, said United Nations special rapporteur on toxics and human rights Marcos Orellana.
This is contained in his recent report on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes,
after his visit to the country in July and August last year.
Orellana focused on air pollution, the just energy transition, mining, the control and management of hazardous substances, including mercury, asbestos and polychlorinated biphenyls, pesticides and waste management.
He highlighted the advanced stance of South Africa’s Constitution on human rights, including its recognition of the right to a healthy environment, 25 years before the General Assembly recognised that right in 2022.
But he warned that the legacy of pre-1994 environmental racism persists, exacerbated by outdated laws and inadequate enforcement. “The negative impacts of toxic pollution from mining, coal-fired power plants, greenhouse gas-intensive projects, landfills, pesticides and other hazardous substances disproportionately affect marginalised and low-income communities along racial lines.”
South Africa has ratified key multilateral environmental agreements on chemicals and wastes and has also taken on a leadership role in the human rights and environmental areas, Orellana noted in his report.
The country’s legislative framework offers a strong basis for the protection of the rights to life, health and a healthy environment. “However, this is severely undermined by a widespread lack of enforcement, owing to limited financial and human resources and the low priority given to environmental offences.”
Outdated laws, including the Hazardous Substances Act and the Fertilisers, Farm Feeds, Seeds and Remedies Act, are “resulting in human rights violations and abuses”, he said.
Further weakening enforcement, postponements of, or exemptions from compliance have been extended to powerful corporate actors under the guise of economic development, job creation or security.
“For example, Eskom … and Sasol … which are considered two of the country’s biggest polluters, have been granted postponements, suspensions and/or alternative limits of the minimum emissions standards since 2015,” he said.
Air pollution, largely caused by the burning of coal, imposes a heavy toll on the health of the people and the economy. The country has in place national air quality standards but they are less protective than the World Health Organisation (WHO) guidelines. “Also … its ability to monitor compliance is undermined by non-functional equipment.”
Oversight authorities have struggled to keep public entities accountable, with the non-compliance of wastewater treatment plants and municipalities being a case in point. The department of water and sanitation has sent non-compliance letters to 90 municipalities and 334 wastewater systems that are in a critical state, asking them to submit corrective plans.
By March 2023, only 168 of the 334 wastewater systems had submitted plans. After exhausting administrative enforcement processes, the department has opened criminal cases against 52 municipalities.
Orellana noted that the country’s ageing water and wastewater infrastructure is on the “brink of collapse”, primarily because of a lack of investment in maintenance. About 40% of clean water is lost, mostly through leaks. Water security is further threatened by effluent contamination. At least 39% of wastewater treatment works are in a critical condition.
The responsibility for enforcing environmental laws is spread across various departments, making coordination difficult, but South Africa does have enforcement tools in the Green and Blue Scorpions, he said.
The rights to information, public participation and an effective remedy are embedded in the laws and environmental policies of the country, but “information related to hazardous substances and toxic pollution is often lacking or inaccessible; public participation processes are widely perceived as a ‘box-ticking’ exercise; and violations by polluters are left unchecked.”
Orellana said South Africa has taken important steps towards a just energy transition, such as the establishment of the Just Transition Framework and the Just Transition Partnership, but “the licensing of new greenhouse gas-intensive projects undermines these efforts”.
While mining has brought important benefits to the economy, it has “perpetrated irreversible harms” on human health and the environment, particularly for those living in informal settlements.
“In the absence of warning signs and adequate buffer zones, they live under the threat of radioactive tailings dams and acid mine drainage, which pollute their water sources and contribute to geotechnical instability. Furthermore, mining companies often evade environmental remediation obligations upon closure, which externalises costs to communities and the state”, Orellana said.
Although the use of mercury is regulated, reports suggest it is used by zama zamas in the small-scale gold mining sector. Following the ban on asbestos in 2008, the country is also faced with the footprint of derelict asbestos mines and roofs containing asbestos.
He said commercial farming practices rely on hazardous pesticides and expressed concern about “apparent corporate capture in pesticide registration”. But Orellana welcomed the new regulations instituted after his visit.
Enforcement efforts must also be ramped up, because inadequate controls have led to a range of violations, including the prevalence of “street pesticides” to combat pest infestations in informal settlements.
Twenty-five per cent of domestic waste is not formally collected and is illegally dumped, with landfills reaching the end of life. But Orellana recognised the efforts to establish a circular economy and include waste pickers in the national waste management strategy.
Among his recommendations are that the government clarify overlapping roles and responsibilities of various public authorities to ensure accountability; enforce stronger measures against non-compliant public entities and prioritise the maintenance of critical infrastructure in budget allocations, including for waste management, water, wastewater and energy.
Orellana also recommended that the government conduct epidemiological studies to investigate the risks associated with exposure to toxic pollutants; invest in technologies that make detection of hazardous substances such as mercury easier for customs officials; and secure access to an effective remedy and compensation for victims of hazardous incidents and poisoning, including those affected by the UPL fire during the 2021 riots.
Another recommendation was that the government prohibit rolling postponements or exemptions of compliance with minimum emissions standards; align national air quality standards with WHO guidelines; ensure regular maintenance of air quality monitoring stations and invest in upskilling people to enable them to find alternative employment to those in polluting industries, particularly under just energy transition initiatives.
He said the government must “stop licensing new greenhouse gas-intensive projects” and set up infrastructure and waste management plans for new waste streams from renewable energy technologies.
It must enforce mandatory and adequate buffer zones between mining operations, including tailings facilities, and places where people live; protect water sources “from the abuse” of the mining industry; require adequate financial provisions for remediation in mining operations; and implement more sustainable solutions for the treatment of acid mine drainage “beyond pH adjustment”.
He advised the government to prohibit aerial pesticide spraying; take “decisive action” to ensure the environmentally sound management and disposal of pesticide containers and obsolete stockpiles, including traceability mechanisms; ban imports of pesticides that are banned in their country of origin; and ensure access to sanitation services in informal settlements to eliminate demand for street pesticides.
It should also initiate a training programme for farm workers on their rights and obligations under the law, the dangers of pesticide misuse, safe handling of pesticides and how to read labels as well as to make pesticide labels available in more languages.
The government should introduce incentives to encourage waste separation at source and recycling and continue efforts to ensure decent working conditions for waste pickers, including the provision of personal protective equipment.