:

National Office: Cape Town: Durban: Grahamstown: Johannesburg: Constitutional Litigation Unit:

J Love (National Director), K Reinecke (Director: Finance), HJ Kim (Development Director)

JW Pienaar (Director), WR Kerfoot, A Andrews, CM Fortuin, S Kahanovitz, C May, HJ Smith , LP Kubukeli MR Chetty (Director), S Samuel, C Penn S Sephton (Director)

N Gobodo (Director), S Dhever, N Fakir, Z Sujee A Friedman (Acting Director), G Bizos SC, J Brickhill

3rd Floor Greenmarket Place • 54 Shortmarket Street • Cape Town 8001 • South Africa • www.lrc.org.za

PO Box 5227 • Cape Town 8000 • South Africa • Tel: (021) 481 3000 • Fax: (021) 423 0935

NPO No. 023-004 PBO No. 930003292

Your Ref:

Our Ref: 10274/09

30 November 2009

STELLENBOSCH MUNICIPALITY 1 Joubert St Stellenbosch Per Fax: 021 8988 651 munmanager@stellenbosch.org

Municipal Manager : Ian Kenned : munmanager@stellenbosch.org Adv Alice Wilton : AliceW@stellenbosch.org And To: CAPE WINELANDS DISTRICT MUNICIPALITY 46 Alexander St Stellenbosch Per fax: 021 887 2271 Att: Municipal Manager : Mike Mgajo mm@capewinelands.gov.za Andre Van Der Merwe andre@capewinelands.gov.za Dear Sirs COMPLAINT REGARDING PESTICIDES DRIFT / STELLENBOSCH MUNICIPALITY We act for the The Air That I Breathe Foundation (TATIB). Our clients have received

numerous complaints from residents of Stellenbosch and Franschoek, as well as their

members, that their health is being adversely affected by exposure to pesticide drift

from farms near to residential neighbourhoods. Our instructions are that the use of high

velocity mist blower technology and small droplet size in the application of agricultural

chemicals in these areas is conducive to the formation of pesticide drift which then

moves, according to wind conditions and may precipitate into residential

neighbourhoods, contrary to the instructions on pesticide labels.

The abovementioned constitutes an infringement and harm to property and person by

the unlawful conduct of persons using of pesticides in farming operations. These

substances transported as pesticide drift which are routinely used in the soft fruit and

other agricultural industries in Stellenbosch and Franschoek are in many instances

toxic to humans and exposure can cause serious damage to health as is clear from the

“Product Labels” and “Material Safety Data Sheets” of many commonly used

pesticides. For example commonly used pesticides would include organophosphate

and carbamates. Symptoms of exposure to these chemicals include:

• Acute exposure ie short-term exposure: numbness, tingling sensations, lack of coordination, headache, dizziness, tremor nausea, abdominal muscle cramps, twitching, blurred vision, difficulty breathing. High doses may result in unconsciousness, convulsions and death.

• Chronic exposure i.e. exposure over a long period: impaired memory and concentration, disorientation, severe depression, irritability, confusion, headache, speech difficulties, delayed reaction times, nightmares, sleepwalking, drowsiness.

• Symptoms which appear later in life as a result of the consequences of chronic exposure include learning difficulties, behavioural and reproductive defects, (eg accelerated puberty, infertility, attention deficit disorder in children)and increased susceptibility to cancer.

It must be noted that the conduct referred to by our clients amounts to a contravention

of section 7(2)(a)(i) of the Fertilisers, Farm Feeds, Agricultural Remedies and Stock

Remedies Act 36 of 1947 as the “Product Labels” and “Material Safety Data Sheets” of

most commonly used pesticides in RSA not only detail the above noted toxicology of

the substances, but also instruct the end user on specific methods of application so as

to prevent harm to the safety or health of any person, whether proximate or distant to

the substances and their usage. For example pesticide label instructions typically warn

the user to “prevent drift onto other crops, grazing, rivers, dams or areas not under

treatment” or in the case of aerial application, “do not spray over or allow drift to

contaminate water and adjacent areas” across the spectrum of labels and sheets we

have surveyed.

Pesticide spraying is regulated by the Department of Health pursuant to the Hazardous

Substances Act, 1973 (Act No. 15 of 1973) (“HSA”) and by the Department of

Agriculture pursuant to the Fertilizer, Farm Feeds, and Agricultural Remedies Act, 1947

(Act No. 36 of 1947) (“FFFARA”). Local authorities are under a duty to prepare

environmental implementation plans in terms of the National Environmental

Management Act and these plans must include air quality management plans. (See

sections 15 and 16 of the National Environmental Air Quality Act 39 of 2004). Such

management plans must seek to identify and reduce the negative impact on health and

the environment of poor air quality. This which would include air which has been

unlawfully polluted by pesticide drift. In interpreting its obligations in terms of this act

the Municipality should also have regard to the following provisions of the Constitution:

Duty to protect and promote the rights in the Bill of Rights

In exercising public power, functionaries must have regard to the fundamental rights in

the Constitution, and the paramount duty on the State to respect, protect, promote and

fulfill the rights in the Bill of Rights.1 The advancement of human rights and freedoms,

and adherence to constitutional imperatives, is foundational to our democracy. Section

2 of the Constitution provides that the Constitution is ‘the supreme law of the Republic,’

such that ‘law or conduct inconsistent with it is invalid, and the obligations imposed by it

must be fulfilled.’

The centrality of the Bill of Rights is expressed in section 7(1) of the Constitution, which

provides: ‘This Bill of Rights is the cornerstone of democracy in South Africa. It

enshrines the rights of all people in our country and affirms the democratic values of

human dignity, equality and freedom.’ Under section 7(2), the State has a

constitutional duty to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’..

The provisions of the Bill of Rights bind the State as well as natural and juristic

persons, as expressed in section 8:

‘8(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. (2) A provision of the Bill of Rights binds a natural or a juristic person, if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.’

1 Section 7(2) of the Constitution of the Republic of South Africa, 1996.

The Constitutional Court has repeatedly emphasised that constitutional rights must be

generously interpreted.2 The Constitution also lays down certain principles of

interpretation. These are embodied in s 39 of the Constitution, which provides:

‘39(1) When interpreting the Bill of Rights, a court, tribunal or forum – (a) must promote the values that underlie an open and democratic society

based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law;

(2) When interpreting any legislation, and when developing the common law or

customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

(3) …’

The meaning and import of the injunction contained in s 39(2) has been interpreted by

the Constitutional Court as follows:

This means that all statutes must be interpreted through the prism of the Bill of Rights. All law-making authority must be exercised in accordance with the Constitution.3

The relevant provisions in the Bill of Rights, which inform the exercise of regulatory

power by local authorities with regard to harmful agricultural remedies, include:

(i) The right to life

The entrenchment of an unqualified right to life in the Constitution requires the state to

take a leading role in affirming respect for human life and dignity. This obligation was

articulated by the Constitutional Court in the case of S v Makwanyane, where Langa CJ

held that the state should be ‘a role model’ for our society by demonstrating society’s

regard for human life.4 Importantly, the right to life imposes a positive duty on the state

to protect the lives of its citizens.5 Moreover, the right to life incorporates a right to an

2 S v Zuma and Others 1995 (2) SA 642 (CC). See especially para 14 where the Constitutional Court

approved the following passage from a judgment of Lord Wilberforce in Minister of Home Affairs

(Bermuda v Fisher [1980] AC 319 (PC 328-9: ‘[A supreme constitution requires] a generous

interpretation…suitable to give to individuals the full measure of the fundamental rights and freedoms

referred to….’ See also S v Mhlungu 1995 (3) SA 391 (CC). 3 Investigating Directorate: Serious Offences v Hyundai Motor Distributors (Pty) Ltd: In re

Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC), para 21. 4 S v Makwanyane 1995 (3) 391 (CC), per Langa J at paras 83-5.

5 See Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC), para 45 especially;

Minister of Safety and Security v Hamilton 2001 (3) SA 50 (SCA); Minister of Safety and

Security v Van Duivenboden 2002 (6) SA 431 (SCA); Mohamed v President of the Republic of

South Africa 2001 (3) SA 893 (CC).

existence consonant with human dignity, which the State must protect. As O’Regan J

stated in S v Makwanyane:

The right to life is, in one sense, antecedent to all the other rights in the Constitution. Without life in the sense of existence, it would not be possible to exercise rights or to be the bearer of them. But the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to share in the experience of humanity. This concept of human life is at the centre of our constitutional values. The Constitution seeks to establish a society where the individual value of each member of the community is recognised and treasured…The right to life, thus understood, incorporates the right to dignity. So the rights to human dignity and life are entwined….6

(ii) Children’s rights

Section 28(2) of the Constitution provides that ‘A child’s best interests are of paramount

importance in every matter concerning the child’. Section 9 of the Children’s Act 38 of

2005 similarly states: ‘In all matters concerning the care, protection and well-being of a

child the standard that the child’s best interest is of paramount importance, must be

applied.’ The ‘best interests of the child’ principle is affirmed in international

instruments, including Article 3 of the 1989 UN Convention on the Rights of the Child

(ratified by South Africa in 1995),7 and Article 4 of the 1990 African Charter on the

Rights and Welfare of the Child (ratified by South Africa in 2000).8 Article 4 of the

African Charter imposes a broad duty on officials, as it provides that ‘In all actions

concerning the child undertaken by any person or authority the best interests of the

child shall be the primary consideration.’

In the specific context of the regulation of pesticide spraying, consideration of the well-

being of children is particularly important. Children are especially vulnerable to certain

detrimental effects of pesticides, and in particular organophosphorous pesticides.9

6 S v Makwanyane (n 10), per O’Regan J at paras 326-7. See also para 271 (Mahomed J); para

311 (Mokgoro J). The statement was approved by the majority of the court in Soobramoney v

Minister of Health (Kwazulu-Natal) 1998 (1) SA 765 (CC) para 31.

7 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of

20 November 1989, entered into force 2 September 1990. 8 OAU Doc. CAB/LEG/24.9/49 (1990), entered into force 29 November 1999.

9 See e.g., VA Rauh, R Garfinkel, FP Perera et al (2006), “Impact of prenatal chlorpyrifos

exposure on neurodevelopment in the first three years of life among inner-city children,” Paediatrics (electronic publication) 118: 1845-1859; NRDC Petition to Revoke All Tolerances

and Cancel All Registrations for the Pesticide Chlorpyrifos (12 September 2007) at 9, citing VJ

Pop, EP Brouwers, HL Vader et al (2003) ‘Maternal hypothyroxinaemia during early pregnancy

(iii) Environmental rights

The environmental rights under section 24 of the Constitution provide:

‘Everyone has the right - (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future

generations, through reasonable legislative and other measures that - (i) prevent pollution and ecological degradation; (ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.’

By virtue of s 24, environmental considerations, often ignored in the past, have now

been given rightful prominence by their inclusion in the Constitution. Describing this

elevation to prominence, it was stated in Director: Mineral Development, Gauteng

Region and Another v Save the Vaal Environment and Others10 that:

Our Constitution, by including environmental rights as fundamental, justiciable human rights, by necessary implication requires that environmental considerations be accorded appropriate recognition and respect in the administrative processes in our country. Together with the change in the ideological climate must also come a change in our legal and administrative approach to environmental concerns.

In overseeing the regulation of local air quality management and the drift caused by

pesticide spraying, the local authority is at the centre of an administrative process

which fundamentally concerns the right of every person to an environment that is not

harmful to their health or well-being. Regard must be had to the importance of the

environmental rights guaranteed in the constitution, which was articulated by Claassen

J in BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment

and Land Affairs:11

[T]he constitutional right to environment is on a par with the rights to freedom of trade, occupation, profession and property entrenched in ss 22 and 25 of the Constitution. In any dealings with the physical expressions of property, land and freedom to trade, the environmental rights requirements should be part and parcel

and subsequent child development: a 3-year follow-up study’, Clin Endocrinol 59(3): 282-8;

and JE Haddow, GE Palomaki, WC Allan et al (1999) ‘Maternal thyroid deficiency during

pregnancy and subsequent neuropsychological development of the child’, N Engl. J Med.

341(8): 549-55; MD Saulsbury, SO Heyliger, K Wang & D Round (2008), “Characterization of

chlorpyrifos-induced apoptosis in placental cell,” Toxicology 244: 98-110.

10 1999 (2) SA 709 (SCA) at 719C – D.

11 2004 (5) SA 124 (W).

of the factors to be considered without any a priori grading of the rights…The balancing of environmental interests with justifiable economic and social development is to be conceptualised well beyond the interests of the present living generation. This must be correct since s 24(b) requires the environment to be protected for the benefit of 'present and future generations.

Therefore in light of the above, our client requests you to:

1. take the requisite steps to prepare an air quality management plan in terms

of the NEM Air Quality Act, for the Stellenbosch and Franschoek areas

which pays particular attention to the monitoring and prevention of pesticide

drift from agricultural land into human settlements and water bodies. Such

plan should include an audit to identify the sources of such emissions.

(NEMAQA section 16(1)(a)(vi)

2. advise our clients and the general public of such intentions and the manner

in which they can participate in the process;

3. advise that it is the Stellenbosch Municipality and Cape Winelands District

Municipality’s intention to ensure that farmers in your municipality follow the

“Product Labels” and “Material Safety Data Sheets” of the agricultural

chemicals, fungicides or pesticides at all times when applying them to the

vines and other agricultural products, and to ensure that none of the vapour

or mist from farming operations is allowed to leave the vineyards and

orchards and enter into the residential areas in the Stellenbosch areas.

4. advise that it is the Stellenbosch Municipality and Cape Winelands District

Municipality’s intention to ensure that written notice, is given of the intention

to spray any agricultural chemical, pesticide or fungicide within 5km of a

residential area or area where there are human settlements or schools a

minimum of 24 hours prior to the application. Such notices should state:

a) The name of the chemical products to be applied and the name of the

manufacturer of those substances;

b) Any danger (or other) warnings, such as exclusion periods, provided by

the manufacturer regarding a person's exposure to such chemicals and

the side-effects of any such exposure.

c) Should the wind be blowing in the direction of residential settlements,

any planned spraying for that day be delayed until such time as the

wind changes direction and there is no longer a danger that the

chemicals could come on to our clients property.

5. advise that it is the Stellenbosch Municipality and Cape Winelands District

Municipality’s intention to foster the use of the less toxic pesticides options,

within a five km radius of any human settlements or schools.

6. conduct a review of current by-laws with a view to ensuring the prevention

of nuisances caused by pesticide drift.

We request your response to this letter within ten (10) days of date of this letter.

Should you fail to comply with the above requests, our client reserves its rights to apply

to the High Court for the necessary relief on behalf of its members in order to protect

their rights.

Yours faithfully

LEGAL RESOURCES CENTRE Per: ANGELA ANDREWS