Big stinkers cry foul: Suits charged over pong fight back
A 'rotten egg' smell is at the heart of a row between KZN locals and a waste company
Directors of embattled waste management company Enviroserv are raising a stink over criminal charges laid against them in connection with the “rotten egg” smell from their Shongweni landfill in KwaZulu-Natal.
In a legal constitutional challenge they claim the relevant environmental laws are “too broad”, with no clarity on what an “offensive odour” is and who decides if it is unpleasant.
The company, its managing director Dean Thompson, group technical director Esme Gombault, coastal operations manager Clive Kidd and group technical specialist Dr Johan Schoonraad were charged last year after authorities received more than 260,000 complaints from residents about the “toxic smell” wafting from the site.
There is a lot at stake. If convicted, the company can be fined up to R10m. And the directors can be sentenced to up to 10 years in prison.
Their targets, in papers lodged with the Pietermaritzburg High Court, are the laws that “create a crime” if an occupier of a premises fails to take reasonable steps to prevent emissions of any offensive odour and if it fails to manage waste in a way that it does not endanger the health of the environment.
A guilty verdict on either of these renders a director criminally liable for such negligence.
Thompson, in his affidavit, says the sections are “overbroad and vague”.
The charge sheet, he says, is not a “model of clarity”, and simply alleges that between January 2015 and January 2017 “we did not prevent the emission of an offensive odour similar to the smell of, amongst other things, rotten egg, and we failed to manage waste in such a manner that it does not cause a nuisance through odour”.
“There is no definition of a smell … there is no stipulation as to how long it must be emitted, how severe it must be, how many people detected it and for how long.
“And then the evidence of a commission of any of these offences, renders a director criminally liable even if there is reasonable doubt ... It absolves the prosecution of proving all the elements of the offence,” he says.
The complaints from residents surged in 2016 and ultimately led to the temporary suspension of the company’s licence and a flurry of litigation by activist group Upper Highway Air (UHA) NPC.
Residents complained that the smell was, literally, making them sick and they and their children were suffering from headaches, burning eyes and mucous membrane infections.
And it is for this very reason, the minister of environmental affairs says, that the laws were carefully crafted.
“These are not ordinary crimes. They are charges relating to regulatory offences which our courts have recognised as being in the public interest to secure the health, well-being and safety of the public,” Linda Garlipp, chief director of land reform and appeals, says in her opposing affidavit.
“Waste treatment facilities are recognised in law as activities which pollute the environment and generate odours which ordinary people may find offensive.
“For this reason they are highly regulated and the holders of licences have to be vigilant.”
She said the problem at the Shongweni site had arisen because of an imbalance in the PH level of the waste body.
This, in turn, led to a proliferation of sulphur-reducing bacteria and an increase in the emission of hydrogen sulphide gas – hence the smell of rotten eggs.
“This did not happen overnight.
“When the company made an application for a licence, it convinced the authorities that it had the capacity, skill, technology and systems to operate these activities with minimal negative impact on the environment.
“At no stage prior to this application has the company suggested it does not understand what odour nuisances or offensive nuisance entails.”
Garlipp says the concepts are “perfectly understandable”.
“Smell, unlike noise, cannot be measured other than by the impact on people, its frequency, strength, duration, offensiveness and location. These are internationally recognised means of assessing impact.”
Regarding the presumption-of-guilt issue, she said this only operated once a company had been convicted of an environmental offence when the state would then seek to hold directors accountable.
“All it does is place an evidentiary burden on those who managed the affairs of the company to demonstrate that they took all reasonable steps to prevent it.
“We say the directors’ rights outweighed public rights which these laws were passed to protect.”
UHA’s lawyer Charmane Nel said the organisation was presently drafting its papers.
“It is clear from the circumstances, timing and nature of the challenge that EnviroServ’s bid is no more than a self-serving tactic designed to delay the criminal proceedings.
“EnviroServ’s contentions that as an experienced waste management company it does not properly understand the meaning of ‘offensive odour’ and ‘nuisance’ is self-serving and obtuse.
“Despite obtaining the licence necessary to implement the most essential mitigation measures, we will say EnviroServ and its directors failed to do so.
“We are pleased that the state intends to pursue this important landmark case against a waste management company which to date has blamed everyone else, including a mystery polluter and the introduction of legislation itself, for the uncontrolled emissions from the site,” Nel said.
The eThekwini Municipality has yet to file opposing papers.