The residents of Merebank, represented by the Merebank Environmental Action
Committee (MEAC), hereby appeal against the decision of the Department of Environmental
Affairs (DAEA) granting Sasol an authorisation to construct and operate a high
pressure gas pipeline in Merebank, along route 3.
1.The grounds of appeal are as follows: -
We reserve the right to supplement these grounds of appeal. It is also requested
that the MEAC be allowed to present these grounds of appeal to the appeal adjudicator.
It is further requested that the MEAC be allowed to call witnesses and present
other documentary evidence to substantiate these grounds of appeal.
The MEAC, on behalf of the residents objected to the consideration of the application submitted by Sasol. The MEAC also objected to the granting of such a permit to Sasol. Pursuant to lodging the objection, the MEAC requested a meeting with DAEA. The meeting took place on the 30 March 2001 at 7pm at the Nizam Road School. At this meeting the MEAC raised a point (preliminary point), that the application for Sasol should not be considered as the application was incomplete, defective and in bad faith. The submission was presented orally. There are numerous witnesses who are present at the meeting who could testfy as to events in the meeting. At the end of the submission a ten-page memorandum was handed to Sarah Allan, confirming the contents of the oral presentation.
DAEA then submitted the submission of MEAC to Sasol, who then replied to the
submission. Further Mark Woods the consultant also submitted a separate reply.
The DAEA then made a decision on the point in limner. MEAC contends that the
DAEA should have offered MEAC the right to reply. The right to have sight of
Sasol’s response and to reply. There were a number of factually incorrect
statements in the Sasol reply and MEAC was not given the opportunity to correct
these incorrect statements. The MEAC contends that the process followed in arriving
at a decision was procedurally irregular and fundamentally flaued as Sasol was
given an opportunity to rebut the submissions of MEAC, but MEAC was not afforded
the similar right. Fair procedure dictates that the party brining the application
in this case MEAC should be given the right to reply to Sasol’s response.
The department is a public body sitting in a judicial capacity and is obliged
to follow the rules of natural justice and fairness. It is submitted that the
DAEA erred in not granting MEAC the right to reply and this has prejudiced MEAC
in terms of the decision taken by the DAEA.
2.DENIAL OF THE RIGHT TO MAKE SUBMISSIONS ON THE MERITS:
On the meeting of 30 March 2001, MEAC expressly stated that it had a twenty-page
document containing submissions on the merits as to why the application from
Sasol should not be approved. MEAC stated that on receiving a decision from
the department on the point in limned, it would then present the submissions
on the merit. MEAC requested that it be given a hearing thereafter to present
the submissions on merit. The copy of the submissions on the merit was shown
to Sarah Allan and Mohammed Ali. Not only was this approach expressly mentioned
in the submissions but it was also recorded at page ten of the non-consideration
submission made to the department, to the attention of the appeal adjudicator
is drawn to page ten of this document. A copy of which is attached to here as
“A.” A copy of the document shown to Sarah Allan and Mohammed Ali
is attached here to as “B.” At no stage did Sarah Allan or Mohammed
Ali indicate that they wish hear the submissions on the merits at that time.
It must be pointed out that the non-consideration submissions were completed
at approximately 21h00. At no stage did the departmental officials indicate
that MEAC would not be given an opportunity to present their submissions on
the merits. At no stage did the department request that the submission of the
merits be posted or delivered to them without a formal hearing being convened.
On the 09 April MEAC received a letter from the department confirming that it
had sufficient information to make a decision on the issue. MEAC wrote back
to the department on the 12 April and formerly enquired whether it would be
given the opportunity to present its submissions on the merits formerly. The
department wrote back on the 14 April indicating that it would not be granting
MEAC the opportunity to present its submissions on the merits. Copies of the
relevant letters are attached hereto as Annexure B, C and D.
The MEAC submits that there was express alternatively agreement that MEAC would
be allowed an opportunity to present its submissions on the merits. It is strike
law that there is an obligation on a public entity to give all interested and
affected a fair hearing. The department was obliged to give MEAC and the residents
of Merebank an opportunity to address them on the merits as to why the permit
should not be granted. The denial of this right is a fundamental procedural
irregularity and this is substantively unfair. The denial of this right has
severely prejudiced the outcome. The department has made a decision on an issue
affecting the Merebank Community without hearing its submissions on the merits.
Your attention is drawn to the case of where the court held that especially
in environmental matters, public entities are obliged to hear the representation
of the communities affected.
Accordingly it is contended that the department had erred in not granting the
community an opportunity to present their submissions on the merits. It is further
contended that this is a material irregularity that has fundamentally tainted
the entire process and the outcome.
Accordingly it is requested that the decision of the department to grant the
permit to Sasol be set aside and the status quo be restored.
3.MERITS
3.1. It is submitted that the department erred in concluding that the proposed
pipeline did not constitute a significant risk to the safety of the residents
of Merebank. Please find attached a detailed submission on the merits, which
confirm the intolerable risk to which the Merebank community would be exposed
to if the pipeline were to be constructed and operate on route 3.
3.2. The risk assessment reports submitted by Sasol consultants have not been
objectively and independently verified. No independent study has been conducted
to verify the conclusions arrived by the Sasol consultants. The peer review
of Ecoserve cannot be relied on, as this was a study commissioned and paid for
by Sasol. Neither the department nor the community was involved in the appointment
of Ecoserve reviewing the risk assessment.
3.3. The department failed to objectively verify the information it relied on
in coming to a conclusion. The obligation and responsibility is on the department
to ensure that the information on which it makes its decision is objectively
verified and factually correct. The department has not appointed any independent
experts to conduct such an exercise. This akin to a judge hearing a matter which
is beyond his technical competence. As is customary in our courts, experts or
assessors are brought in to assist the judge on technical matters. The departmental
officials have very limited risk assessment experience and expertise and as
such vulnerability to decide on this issue is questioned. The department should
have appointed it’s own risk assessors to evaluate and review the reports
submitted by Sasol and obtain the advice of their own technical experts before
coming to a decision. The department has made the decision based only on the
reports submitted by Sasol. Invariably the reports submitted by Sasol will favour
its cause.
4.ALTERNATIVE ROUTES:
The alternative routes proposed by the community have not been adequately investigated.
Two days was spent on investigating route 6. All the independent experts indicated
that they did not have sufficient time to conduct a proper investigation. The
independent experts concluded that routes 6B and 6C were geotechnically feasible.
The independent experts also concluded that the risk factor on both routes 3
and 6 are below the minimum international norm.
They submitted that it is improper to grant the permit and approve route 3 without
other alternatives being investigated and conclusively found to be worse of
or unsafe than route 3. The fact that route 3 falls below the international
norm cannot discard that there might be other routes which are even safer than
route 3. Hypothetically if route 3 has a one in a million risk factor and route
6 has a one in five million risk factor, the department is legally obliged to
select route 6, all things being equal. Failure to investigate other routes
is therefore regarded as a fundamental irregularity. This is especially the
case where one is dealing with human life. On the nature of the objection, relating
to the crossing of hazardous pipelines, like LPG gas and crude oil. Please regard
the attached submission on the merits to be as if specifically incorporated
herein.
5.USA EXPERTS
We bring to your attention reports obtained from gas pipeline experts in the USA. Kuprewitz states that there is no margin of error when one is dealing with LPG gas pipelines and any rupture could result in the area being detonated for miles around. Kuprewitz has suggested a number of safety mechanisms, which should be incorporated into the construction of the pipeline to mitigate and render it safer. The community was expecting to make these suggestions at the submissions on the merits, unfortunately it was denied its opportunity.
Sasol has specifically agreed that the fact that the pipeline has been partially constructed will be ignored for the purposes of this appeal. The adjudicator is requested to deal with this appeal on the basis that the pipeline has not been constructed. Sasol has indicated that the pipeline will be constructed at it’s own risk and if on appeal it is found that the pipeline has to be removed, it will do so. Sasol has also indicated that if modifications have to be made as a result of the appeal, it will do so at it’s own risk and cost.
6. VIOLATION OF CONDITIONS OF THE PERMIT
It is submitted that Sasol has violated material conditions of the permit granted
by the department. Please find attached Annexure F and G confirming in setting
out the alleged violation.
Accordingly it is submitted that the decision of the department should be set
aside.
It is requested that:
• The decision of the department of environmental affairs is set aside.
• The status quo prior to the granting of the permit is restored.