MEREBANK ENVIRONMENTAL ACTION COMMITTEE Applicant
and
KWAZULU-NATAL MEMBER OF THE
EXECUTIVE COUNCIL FOR AGRICULTURE
AND ENVIRONMENTAL AFFAIRS First Respondent
KWAZULU-NATAL DEPARTMENT OF
AGRICULTURE AND ENVIRONMENTAL
AFFAIRS Second Respondent
SASOL GAS (PTY) LTD Third Respondent
SUPPLEMENTARY AFFIDAVIT
___________________________________________________________________
I, the undersigned
RAJAHRATHANUM MARIMUTHU NAIDOO
do hereby state under oath:
1.
I am an adult male mediator/ arbitrator residing at 749 Marine Drive Brighton
Beach, Durban, KwaZulu-Natal.
2.
The facts deposed to in this affidavit, save where otherwise stated, are all
within my personal knowledge and are true and correct.
3.
The real reason for this supplementary affidavit is that new evidence has come
to light very late on the 23 April 2001. It was not possible to present this
evidence any earlier. This evidence is material to the application before this
Honourable Court.
4.
I respectfully submit that given the recent emergence of this evidence and its
material impact on these proceedings this Honourable Court should exercise an
independent discretion to accept the supplementary affidavit at this stage.
5.
It would appear from proceedings conducted by Executive Committee that second
respondent is constructing the pipeline without the necessary approval from
the Durban Metropolitan Unicity Municipality and in contravention of the Major
Hazard Installation Regulations and one of the terms of the permit granted to
it by the second respondent. The third respondent is clearly acting illegally.
6.
At 14h30 on 23 April 2001 I attended a meeting of Executive Committee of the
Durban Metro Council. An application by the third respondent for the approval
of the construction and operation of the pipeline was on the agenda of the Executive
Council. The Executive Committee was requested to approve the construction and
operation of the pipeline. A copy of the Agenda and accompanying documents is
attached as Annexure ‘A’.
7.
The Major Hazardous Installation Regulations, framed under the Occupational
Health and Safety Act 85 of 1993 and promulgated on 16 January 1998 are applicable
to Local Authorities and control the construction and operation of “major
hazardous installations”
8
I respectfully draw the Court’s attention to page 17 of Annexure ‘A’
which confirms that the third respondent has submitted an application to the
Durban Metropolitan Unicity Municipality to erect a new major hazard installation
being a 300 millimetre high pressure gas pipeline.
9
Only the Executive Committee has the legal competency to approve such an application.
10
Nothwithstanding the recommendation, the Executive Committee deferred the granting
of the application on the basis that it needed to exercise an independent discretion
on whether to approve the construction of the pipeline.
11
The legislative authority required has not been obtained. It is therefore submitted
that the third respondent is acting illegally in the construction of the pipeline.
12
S J Wichstrom, Division Commander Fire Safety informed the Executive Committee
that that application could in any event not be considered as the necessary
requirement of advertising the proposed major hazard installation and inviting
comment from affected communities had not been complied with. Attention is drawn
to page 19 of Annexure ‘A’.
13
It bears noting in clause 4 and 5 that the advertisement should advise the community
of the proposed installation, inform where the risk assessments may be viewed,
invite comment and resolve any challenges to the risk assessment. The third
respondent has not advertised the construction of the pipeline, has not invited
comment and has not resolved the challenges to the risk assessment. Despite
being well aware of the applicant’s objection to the construction of the
pipeline and the challenges to the risk assessment the third respondent has
begun construction. The third applicant has made no attempt to resolve the challenges
to the risk assessment. It is submitted that the third respondent is in violation
of these conditions and acting illegally.
14
Further the third respondent is acting in contravention of the authorisation
and
record of decision granted to it by the second respondent. The second respondent
authorised the construction of a high pressure gas pipeline from the Mondi HPCMS
to the Engen Refinery. This authorisation is contained in the Record of Decision
dated 11April 2001 and a copy is attached as ‘B’.
15.
The said authorisation is subject to the conditions contained in the record
of decision. A copy of the conditions is attached as ‘C’.
16.
Condition 10.17 states that
“This authorisation does not absolve the applicant from compliance with
any other regulatory requirements”.
17.
The said authorisation and record of decision was communicated to the third
respondent on 11 April 2001.
18
The third respondent commenced construction of the pipeline on Tuesday 17 April
2001. As at Thursday 19 April part of the route in the vicinity of Badulla Road
sports ground had already been excavated and pipes laid into the trenches.
An affidavit from a witness confirms this and is attached as Annexure ‘D’.
19
The second respondent has not obtained the permission of the Durban Metropolitan
Unicity Municipality to construct the pipeline in terms of the Major Hazard
Installation Regulations. It is submitted that the second respondent is in breach
of Condition 10.17.
20.
Clause 10.18 of the Record of Decision states that:
“Failure to comply with these conditions of authorisation will render
this authorisation invalid and the applicant liable to legal action under section
29 of the Environment Conservation Act, 1989”.
It is submitted that the third respondent has breached the conditions of approval rendering the permit invalid and its actions in constructing the pipeline illegal.
21.
Despite the applicant’s request to cease construction of the pipeline
the third respondent has escalated its construction of the pipeline and is constructing
both ends of the pipeline simultaneously.
22.
The construction crews are working late hours and it seems that the third respondent
is seeking to expedite the construction of the pipeline.
23.
The completion of the construction of the pipeline or a substantial portion
thereof will undermine the statutory appeal to which the applicant is entitled.
The substantial cost of construction of the completed pipeline will adversely
impact on the Minister’s consideration of the appeal. The matter would
be a fait accompli and the balance of convenience would favour the third applicant.
24
Any delay in granting the interdict will render the relief meaningless. At the
speed and with the urgency with which the pipeline is being presently constructed,
any delay could result in the pipeline being completed before the matter returns
to court.
25
I respectfully submit that:
34.1 the applicant has no other remedy available to it other than to bring the
present application;
34.2 good grounds exist for the granting of the relief set forth in the notice
of motion;
34.3 this matter is one of urgency.
26
I respectfully crave the leave of this Honourable Court to dispense with the
forms and services provided for in the Rules of Court.
Wherefore the applicant prays for an order in the terms set forth in the notice of motion.
______________________
DEPONENT
I certify that the deponent has acknowledged to me that he knows and understands the contents of this affidavit which was SIGNED and SWORN to before me at DURBAN on this day of APRIL 2001, the regulations contained in Government Notices Nos. R1258 dated 21 July 1972 and R 1648 dated 16 August 1977, as amended, having been complied with.
________________________
Commissioner of Oaths
IN THE HIGH COURT OF SOUTH AFRICA
DURBAN AND COAST LOCAL DIVISION
CASE NO.:
In the matter between:
MEREBANK ENVIRONMENTAL ACTION COMMITTEE Applicant
and
KWAZULU-NATAL MEMBER OF THE
EXECUTIVE COUNCIL FOR AGRICULTURE
AND ENVIRONMENTAL AFFAIRS First Respondent
KWAZULU-NATAL DEPARTMENT OF
AGRICULTURE AND ENVIRONMENTAL
AFFAIRS Second Respondent
SASOL GAS (PTY) LTD Third Respondent
AFFIDAVIT
___________________________________________________________________
I the undersigned
SEETHARAM
do hereby state under oath:
1.
I am an adult male medical practitioner residing at
Isipingo Beach, Durban, KwaZulu-Natal.
2.
The facts deposed to in this affidavit are within my personal knowledge and
are true and correct to the best of my belief, save where the context indicates
otherwise, in which event I believe that the averments made to be true and correct.
3
I have read the supplementary affidavit of RAJAHRATHANUM MARIMUTHU NAIDOO and
confirm the contents thereof relating to the meeting of the Executive Committee
of the Durban Metropolitan Unicity Council. I also attended the said meeting.
4.
I further confirm that as at Thursday 19 April part of the route in the vicinity
of Badulla Road sports ground had already been excavated and pipes laid into
the trenches. Construction work has also commenced at the Mondi end of the pipeline.
______________________
DEPONENT
I certify that the deponent has acknowledged to me that he knows and understands
the contents of this affidavit which was SIGNED and SWORNED to before me at
DURBAN on this day of APRIL 2001, the regulations contained in Government Notices
Nos. R1258 dated 21 July 1972 and R 1648 dated 16 August 1977, as amended, having
been complied with.
_______________________
Commissioner of Oaths