Eskom and Sasol, the country's biggest polluters, have been allowed to postpone, suspend or substitute minimum emissions standards since 2015. (Wald Swegers/Bloomberg via Getty Images)
vinegarSouth Africa has “great potential” and its people and environment are its most valuable assets, but they must be protected from toxic pollution “driven by corporate greed and government negligence”, said Marcos Orellana, the UN special rapporteur on toxic substances and human rights.
This is documented in a recent report on the human rights impacts of the environmentally sound management and disposal of hazardous substances and waste.
This follows visits to the country in July and August last year.
Orellana focused on air pollution, a just energy transition, mining, the control and management of hazardous substances such as mercury, asbestos and polychlorinated biphenyls, pesticides and waste management.
He highlighted the South African Constitution's progressive position on human rights, including recognising the right to a healthy environment 25 years before the UN General Assembly endorses it in 2022.
But he warned that the legacy of pre-1994 environmental racism remains, exacerbated by outdated laws and poor enforcement: “The harmful effects of toxic pollution from mining, coal-fired power plants, greenhouse gas-intensive projects, landfills, pesticides and other harmful substances disproportionately affect marginalized and low-income communities along racial lines.”
In his report, Orellana noted that South Africa has ratified important multilateral environmental agreements on chemicals and waste and has a leadership role in the areas of human rights and the environment.
The country's legal framework provides a strong basis for protecting the rights to life, health, and a healthy environment, “but this is severely undermined by widespread lack of enforcement due to limited financial and human resources, and the low priority given to environmental crimes.”
He said outdated laws such as the Hazardous Substances Act and the Fertilisers, Feed, Seeds and Medicines Act “have led to human rights violations and abuses”.
Under the guise of economic development, job creation and security, enforcement has been further weakened and compliance deferrals and exemptions have been extended to even major corporations.
“For example, Eskom and Sasol, the two biggest polluters in the country, have been allowed deferrals, suspensions or alternative limits on minimum emission standards since 2015,” he said.
Air pollution, caused mainly by burning coal, is taking a toll on people's health and the economy. The country has national air quality standards, but they are not as protective as World Health Organization (WHO) guidelines, “and the ability to monitor compliance is undermined by non-functioning equipment.”
Regulators are struggling to hold public institutions accountable, with non-compliance from wastewater treatment plants and municipalities a prime example. The Department of Water and Sanitation has sent non-compliance letters to 90 municipalities and 334 wastewater treatment systems in crisis, asking them to submit corrective plans.
By March 2023, only 168 of 334 sewerage systems had submitted plans. After exhausting administrative enforcement procedures, authorities filed criminal cases against 52 municipalities.
Orellana said the country's aging water and wastewater infrastructure is “on the verge of collapse”, mainly due to a lack of investment in maintenance. Around 40% of clean water is lost, mainly through leaks. Water safety is further threatened by polluted wastewater. At least 39% of wastewater treatment plants are in critical condition.
He said responsibility for enforcing environmental laws was spread across various departments and difficult to coordinate, but South Africa had enforcement tools, the Green Scorpions and the Blue Scorpions.
The rights to information, public participation and effective remedies are embedded in national laws and environmental policies, but “information about hazardous substances and toxic pollution is often lacking or unavailable, public participation processes are widely perceived as a matter of simply 'ticking the box', and polluters go unpunished.”
Orellana said South Africa had taken important steps towards a just energy transition, including establishing a Just Transition Framework and a Just Transition Partnership, but “the approval of new greenhouse gas-intensive projects undermines these efforts.”
While mining has brought huge economic benefits, it has “caused irreparable harm” to people's health and the environment, especially those living in informal settlements.
“Without warning signs or adequate buffer zones, residents are exposed to the threat of radioactive tailings dams and acid mine drainage, which contaminates water sources and contributes to geotechnical instability. Moreover, mining companies often evade environmental remediation obligations upon closure, passing on the costs to local communities and governments,” Orellana said.
Although the use of mercury is regulated, there are reports of mercury use by Zama Zama in the small-scale gold mining sector. Following the 2008 asbestos ban, the country is also faced with abandoned asbestos mines and a trail of asbestos-containing roofs.
He said commercial agriculture relies on dangerous pesticides and expressed concern about the “apparent corporate control over pesticide registration.” But Orellana welcomed new regulations enacted after his visit.
Law enforcement efforts also need to be stepped up as poor management has led to a range of violations, including the spread of “street veterinarians” to control pests in informal settlements.
Although 25 percent of household waste is not formally collected and is dumped illegally, and landfills are reaching the end of their lifespan, Orellana praised efforts to establish a circular economy and include waste collectors in the national waste management strategy.
Among his recommendations are for the government to clarify overlapping roles and responsibilities of various public agencies to ensure accountability, enforce stronger measures against non-compliant public agencies, and prioritize the maintenance of critical infrastructure such as waste management, water, wastewater and energy in budgetary allocations.
Orellana also recommended the government conduct epidemiological studies to investigate the risks associated with exposure to toxic pollutants, invest in technology to make it easier for customs officials to detect harmful substances such as mercury, and ensure effective access to relief and compensation for victims of dangerous incidents and poisonings, including those affected by the UPL fire during the 2021 unrest.
Another recommendation was for the government to prohibit gradual postponements or exemptions to compliance with minimum emission standards, align national air quality standards with WHO guidelines, ensure regular maintenance of air quality monitoring stations, and invest in upskilling people to find employment outside polluting industries, especially under the Just Energy Transition initiative.
He said governments needed to “stop approving new greenhouse gas-intensive projects” and put in place infrastructure and waste management plans to accommodate new waste streams resulting from renewable energy technologies.
It requires requiring adequate buffer zones between mining operations, including tailings facilities, and human settlements, protecting water sources from “abuse” by mining, mandating adequate financial provisions for the rehabilitation of mining operations, and implementing more sustainable solutions “beyond pH adjustment” for treating acid mine drainage.
He recommended that governments ban aerial spraying of pesticides, take “decisive action” to ensure environmentally sound management and disposal of pesticide containers and outdated stockpiles, including tracking mechanisms, ban the import of pesticides banned in their countries of origin, and ensure access to sanitation services in informal settlements to eliminate demand for pesticides on the streets.
They should also initiate training programmes for farmers on their legal rights and obligations, the dangers of misusing pesticides, how to handle them safely, and how to read labels, and make pesticide labels available in more languages.
Governments should introduce incentives to encourage waste sorting and recycling at source, and continue efforts to ensure decent working conditions for waste collectors, including the provision of personal protective equipment.
