‘Amandla!’ Suburb hails small victory against ‘bullies’
Embattled Durban community is fighting a R4.5bn development that poses an environmental and health risk
Internationally acclaimed environmental activist Desmond D’Sa punched the air in jubilation outside the Durban High Court on Tuesday.
His celebration came after Judge Rashid Vahed granted the South Durban Environmental Alliance (SDCEA) leave to appeal a 2018 judgment in favour of a massive R4.5bn Clairwood development.
In December, the Durban High Court sided with former KwaZulu-Natal economic development MEC Mike Mabuyakhulu’s approval of a logistics park and redistribution centre in Clairwood, in the south of the city.
The SDCEA, through the Legal Resources Centre, appealed that judgment.
In what was called a David vs Goliath case, Vahed granted the community leave to appeal the 9,000-page judgment in the Supreme Court of Appeal. The residents challenged the high court’s earlier ruling because they believed another court would come to different conclusion.
Shouts of “amandla!” rose from the public gallery packed with jubilant Durban south residents, following Tuesday’s ruling.
The 76.4ha site is to be developed by the Capital Property Fund, which has approval for a warehouse, buildings, parking and a distribution yard to service heavy haulage vehicles transporting containers to and from the logistics park.
It was argued in court previously that the approved development abutted the residential suburb and the community – comprising 22,000 households and 200,000 residents – which was already surrounded by heavy industry.
It is in close proximity to several major hazard installations, including two petrochemical refineries, a large paper mill, a motor manufacturer and a major storage area where hazardous chemicals are stored and pipelines carry flammable substances in large volumes.
The SDCEA alleged that in approving the development and turning down its subsequent appeal the then MEC Mabuyakhulu had not taken into account the findings of two major health studies into the effect of air pollution.
He had also not taken into account “the prevailing air quality conditions” and the impact the development could have on the wellbeing of residents.
But current MEC Zikalala claimed in his affidavit that these were taken into consideration and that if the alliance felt strongly about this aspect, it should have put up a more recent air impact assessment of the effects the development would have in the South Durban Basin.
D’Sa said they were very excited about the court’s decision to grant leave to appeal against what he described as “bullying by the government and developers”.
“I think we are all completely excited. It justifies all the meetings we had in our community and the strength of the people in south Durban to stand firm and take the case back to the high court, because we have been bullied by the developers and government.
“It is saying that in this day and age of democracy, we have a government and developers that are bullying communities and putting [in place] bad developments that are impacting on our lives, health and wellbeings. So we’re quite happy about this decision,” said D’Sa.
He said they were confident that the Supreme Court of Appeal would rule in their favour.
“So as we march on to the Supreme Court of Appeal, we’re confident that we will take the communities along with us – and the communities will be happy that we stood firm against this bad development.
“They think that money will continue to dominate and control our lives and destroy us. We have shown today ... that money is not the need for local and ordinary people, for the quality of life is the most important thing. Our people are dying of cancer, asthma and leukemia and we can’t accept that any more.”
D’Sa said they were prepared to fight “tooth and nail”, and warned the government and the developers against thinking that they could take community for a ride. They were not soft, he said.
The SDCEA also slammed the court’s decision to slap the community with costs as “totally abhorent” and a way to put “pressure on the community groups who are facing massive threats, and badly constructed development that posed a risk to the lives children and their families”.
Bongani Tembe, spokesperson for current KZN economic development, tourism and environmental affairs MEC Sihle Zikalala, said they had noted Tuesdays' judgment.
“We will abide by the court’s decision and we are committed to working with communities in ensuring that their concerns are considered,” he said.