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The UPL South Africa warehouse north of Durban was torched during the July 2021 unrest. (Thabiso Goba/The Witness).
Durban communities are seeking a class action for damages they incurred following a chemical spill at a UPL warehouse in July 2021.The warehouse was torched during a looting spree that rocked the country in the middle of the Covid-19 pandemic.The incident saw hazardous chemicals released into the environment.For climate change news and analysis, go to News24 Climate Future.Roughly three years following a chemical spill at agrochemical giant UPL’s warehouse north of Durban, affected individuals have approached the court as they seek compensation for damages.
Represented by LHL Attorneys (LHL) and Richard Spoor Incorporated (RSI), the 13 claimants want the KwaZulu-Natal Division of the High Court in Durban first to grant them permission to pursue a class action against UPL South Africa.
If successful, the class action would represent thousands more people, fishers, hawkers and vendors reliant on beaches for business, small-scale farmers whose livelihoods and subsistence were impacted, and individuals who suffered physical injury due to the fire and chemical spill.
“The class action intends to seek compensation for thousands of individuals that suffered harm as a result of the release of hazardous chemicals when the UPL chemical storage facility in Cornubia, KwaZulu-Natal, caught alight on 12 July 2021,” a statement from LHL read.
The warehouse, located near Blackburn, north of Durban, was torched amid a looting spree in the middle of the Covid-19 pandemic. The fire raged for 11 days, burning up all the chemicals that were stored at the facility.
What resulted was an environmental disaster.
“By the time that fire was extinguished, hundreds of tons of chemicals and pesticides which were stored at the facility had been burnt. As a result, an unquantifiable sum of toxic smoke had been produced,” the applicants’ court papers read.
Efforts to douse the fire with water meant that chemicals and pesticides were flushed into the immediate environment. Chemicals had seeped into the soil and ended up in rivers and the Durban North beaches. Access to rivers and beaches – spanning 40km – was also temporarily blocked. Harvesting of marine life for food was also banned.
At a briefing in August 2021, members of Parliament heard that a cocktail of 1 600 chemicals had runoff into water sources like the uMhlanga tributary and estuary as well the beach, killing aquatic life, News24 previously reported.
Former Forestry, Fisheries and Environment Minister Barbara Creecy said it would take several years to recover from the incident.
Surrounding communities were also exposed to toxic chemicals. An atmospheric impact report published by the provincial government revealed more than 60 chemicals were present in the smoke that residents of northern Durban inhaled, amaBhungane reported. The chemicals included hydrogen cyanide, hydrochloric acid and bromine, and pollutants associated with that from coal power plants.
A preliminary report issued by the Department of Forestry, Fisheries and Environment (DFFE), published three months after the spill, indicated that UPL South Africa did not have environmental authorisation from provincial departments to operate the Cornubia warehouse.
READ | UPL chemical disaster: A gaping legal loophole or jaw-dropping negligence?
At the time, UPL South Africa expressed disappointment that the report was released without proper consultation with the company. It also said it “does not admit any non-compliance with the law”.
In a separate statement shortly after the spill UPL South Africa also indicated that it was advised that leasing and operating the warehouse for its products would not trigger an environmental assessment as required by law.
The applicants, however, argue that UPL South Africa did not meet “a plethora of requirements” given the nature of materials (the chemicals) to be stored in the warehouse.
UPL South Africa said it would oppose the application.
“UPL South Africa denies that it is liable for damages which any claimants may have suffered whether based on statute or in delict,” the company said in a statement.
It also put forward that it has been working “proactively” with local, provincial and national authorities to address the incident. “This includes extensive monitoring and rehabilitation of the affected areas. Significant progress has been made in addressing the results of the arson attack and spill.”
If the application for the certification or permission for the class action is granted, the applicants will then seek a trial to determine UPL’s liability and the quantity of the damages payable to each class member.
“The damages will need to be fully quantified, likely with the use of expert evidence or input in due course,” said Zain Lundell, who represents the applicants.
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