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STELLENBOSCH MUNICIPALITY 1 PLEIN STREET STELLENBOSCH Per email 20 January 2011 Attention : Municipal Manager David Daniels mm@stellenbosch.org CC Alice Wilton AliceW@stellenbosch.org Barnabe de La Bat BernabyB@stellenbosch.org Mervin Williams MervinW@stellenbosch.org Basil Davidson BasilD@stellenbosch.org Dear Mr Davids

BREACH OF THE GENERAL DUTY OF CARE PRESCRIBED UNDER SECTION

28(1) OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998

(“NEMA”): STIAS VINEYARD, VINEYARDS IN AND STELLENBOSCH &

FRANSCHHOEK

1. TATIB is an NGO that has been formed, by the people and for the people, of

Stellenbosch, Franschhoek, Paarl & Somerset West, as a platform from

which the residents, parents, students, rate payers, farmers & farm workers

can campaign against the harmful effects of exposure to potentially toxic

spray drift from the adjacent vineyards & orchards, into bordering dwellings

/residential areas.

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2. The preamble to NEMA provides that the law should be enforced by the State

and that the law should facilitate the enforcement of environmental laws by

civil society.

3. One of TATIB’s objectives is to support the State in fulfilling its role as

custodian holding the environment in public trust for the people.

4. TATIB has been endeavouring to resolve a dispute with the University of

Stellenbosch regarding the harmful effects caused to human health and the

environment by exposure to agricultural pesticides, fungicides and herbicides

as a result of spray drift from vineyards on land owned and farmed by or on

behalf of the University in and around Stellenbosch.

5. Several letters have been sent to The University of Stellenbosch & STIAS

requesting that they (University of Stellenbosch & STIAS) furnish TATIB with

a list of all pesticides/fungicides/herbicides that they use/plan to use, on

vineyards owned and or managed by University of Stellenbosch & STIAS.

TATIB have also requested that written notification (prior to the spraying of

the vineyards in question) be forwarded to TATIB via email, 24 hours prior to

spraying and that the notification is to list the name of the product to be

sprayed as well as its manufacturer/supplier. Meetings were held and the

STIAS Vineyard Committee formed. This committee consisted of

representatives from the University of Stellenbosch and the TATIB

Foundation. After several meetings, the STIAS Vineyard Committee

concluded that the use of the erf in question was unlawful and in this regard

a recommendation was made that the vineyard removed as a matter of

urgency. Despite the recommendations made by the committee, the

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University management has made it very clear that the STIAS Vineyard will

not be removed . The result of this is that the University of Stellenbosch has

lifted the moratorium on spraying whilst at the same time ‘disbanding’ the

STIAS Vineyard Committee.

6. The experimental vineyard at Mostertsdrift in Stellenbosch which is managed

by STIAS (the Stellenbosch Institute for Advanced Study) on land owned by

the University is of particular concern to TATIB considering its close proximity

to University residences and homes in Stellenbosch. TATIB has been

endeavouring to resolve a dispute regarding the products being applied to the

STIAS vineyard with the STIAS management, the University and attorneys

representing the University for some time, but without much co-operation from

any of these parties who do not appear to take our concerns seriously.

7. The harmful effects of pesticide spay drift are well documented and

scientifically verified. Doctors in Stellenbosch have attributed various

symptoms which include respiratory disorders, severe allergies and depleted

immune systems to being caused by exposure to agricultural pesticides.

Certain of the pesticides which are commonly applied to vines and orchards

in and around Stellenbosch include known carcinogens. TATIB is concerned

that the STIAS vineyard will become a platform from which to experiment with

new and un-tested pesticides/fungicides/herbicides. In this regard the

“precautionary principle “ should always be applied – and this is that one must

first assume that a pesticide is harmful until such time as it has been proven

to be safe for use. In this regard many pesticides that were considered ‘safe

for use’ 5 years ago, have now been banned.

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8. TATIB is in the process of lobbying the Stellenbosch and Winelands District

Municipalities to promulgate air quality standards in terms of their bylaws as

provided for in the National Environmental Management: Air Quality Act, 2004

(“NEMAQA”). While this has the potential to manage and mitigate the

problems being encountered in the long term, it does not address the

immediate problems being encountered by students, employees and

residents in and around Stellenbosch.

9. TATIB have requested that both Municipalities do a full audit of all the

surrounding farms and then furnish TATIB with a list of all

pesticides/fungicides/herbicides used in the area. It has also been brought to

TATIB’s attention, via a study done by Professor Leslie London, that there are

large stockpiles of banned and obsolete pesticides to be found on farms

surrounding Stellenbosch. As an example there are 2,7 tonnes of DDT to be

found in storage on farms. Attie Hofmeyer, a Devon Valley farmer, who

happens also to be a member of TATIB and part of the TATIB Steering

Committee, has admitted that he has DDT on his farm and has no idea of

how to get rid of it, besides just pouring it into his mistblowers and spraying it

into the air!!

10. The STIAS Prospectus reveals its admirable principles and objectives and Mr

Albert Strever of STIAS has assured us that the vineyard is managed

according to standards which exceed even the minimum standards for

organic production, that the methods used to spray the vines result in

minimum risk of spray drift and that the products sprayed hold no threat of

damage to human health or the environment. Documentation that we have at

our disposal contradicts this.

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11. In the light of these assurances, TATIB was shocked to learn (from Terason,

one of the companies that supply STIAS with the products for their vineyard)

that the following products are sprayed on the STIAS vines:

8.1 FOLPAN

8.2 THIOVIT

8.3 PHOSPHITE

8.4 NU-FILM

8.5 DITHANE

12. FOLPAN is a highly toxic pesticide that also happens to be on a few

international carcinogen lists (California Prop 65 Known Carcinogens; U.S

EPA Carcinogens, Tri Carcinogens) and has been labelled by the Pesticide

Action Network of North America as a problem pesticide. It is also a

developmental and reproductive toxin. The EPA have specifically warned that

this product must under no circumstances be used near residential areas,

parks and schools and under no circumstances must children be exposed to

this pesticide. The Material Safety Data Sheets (as supplied by the

manufacturer) make reference to the product being carcinogenic.

13. THIOVIT, which contains mainly sulphur, is slightly toxic, however its Material

Safety Data Sheets specifically state that one must not enter the area that

has been treated until the product has dried, unless wearing protective

clothing.

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14. PHOSPHITE is a phosphate based fertilizer that causes skin and respiratory

problems due to its corrosive nature.

15. NU-FILM contains chemicals designed to extend the life of pesticides once

they have been sprayed onto the vines and is highly flammable.

16. DITHANE is a highly toxic fungicide that happens to be on the same

international carcinogen lists as Folpan. It is also a known Endocrine

Disruptor and appears on the Keith, Colborn & Benbrook lists. It is also a

Developmental and Reproductive toxin and appears on the U.S TRI

Developmental & U.S TRI Reproductive Toxin lists and has also been banned

in a few countries. Prof London , of UCT, has stated that it contains

Manganese which is a known neurotoxin.

17. STIAS / University of Stellenbosch, then via its attorneys, denied that they

were using the products as supplied by Terason, and in a letter stated that

they were using Mamba, Sorgomil Gold, Hygrobuff & Hygrowett. It is to be

noted that Mamba & Sorgomil Gold are both herbicides (weed killers) and are

highly toxic to both man and the environment. Both these products are not

permitted (according to the organic certification body) to be used on an

organic vineyard due to their high toxicity. It should be noted that ‘weed

killers’ are not sprayed on the vines themselves, but rather on the ground

beneath the vines. Hygrobuff & Hygrowett, are not pesticides but rather

additives (to be combined with pesticides in the same mix) that make the

spray mix last longer or flow better when applied. TATIB has thus got very

good reason to believe that STIAS /University of Stellenbosch are withholding

the full details of the products that they spray on their vineyards. TATIB, its

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members and the public has a right to know what is being sprayed on the

vineyards, so that we can all take evasive action in order to minimise our risk

of being exposed to potentially toxic spray drift. If STIAS/University of

Stellenbosch are going to refuse to furnish the names & details of the

products they use, then they need to be compelled to do so via “The

Promotion of Access to Public Information Act.

18. If spray drift, from adjacent vineyards is allowed to be blown into the

residential area of Stellenbosch this amounts to a contravention of section

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

Remedies Act 36 of 1947.

19. Jurgen Schirmacher, who is chairman of TATIB’s Steering Committee,

previously lived in Riebeek-Kasteel, where he and his family were exposed to

toxic spray drift as a result of the unlawful spraying done by JL Vlok/ Morester

Boerdery. Jurgen took farmer Vlok to the Cape High Court on numerous

occasions in order to force Vlok to obey the law (Act 36 of 1947). Despite 2

High Court Orders, farmer Vlok has continued to spray toxic pesticides into

the residential area of Riebeek-Kasteel, despite receiving written warnings

from the National Department of Agriculture (NDA) and both Municipalities.

20. Despite the fact that Provincial Administration: Environmental Affairs (Gottlieb

Arendse) stated that they were waiting for the NDA to do something about it,

Provincial Admin has yet to take action in order to protect the health and the

rights of the residents of Riebeek-Kasteel. The NDA approached the DPP,

who stated that Vlok had been allowed to get away with doing things his way

long enough, and that he should be arrested and brought to Cape Town.

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Despite the fact that the NDA had investigated and found Vlok to be in

contravention of the law, and the fact that numerous residents of Riebeek-

Kasteel met with the DPP in June 2007 (and deposed Affidavits) Vlok

continues to spray toxic pesticides as he pleases. It is not necessary to prove

that exposure to pesticides will make one ill – there are endless studies that

have been done (by renowned professors) that prove, without any doubt, that

prolonged exposure to pesticides will have a negative impact on ones health.

Dichlorvos , for example, is labelled by both the NDA and WHO as a class 1b

Highly Toxic compound. This means that after a lot of research the WHO and

NDA have found Dichlorvos to be harmful to human and environmental

health. The LRC of Cape Town, prepared a ‘synoptic list ‘of most of the

agricultural chemicals used on a typical vineyard in the Western Cape – as is

evident from this list are the alarming Product Label warnings pertaining to

the harmful effects of exposure – both human & environmental. Jurgen

Schirmacher & his family, after becoming ill and being attended to by various

specialists, were told to sell their house and move back to Cape Town, due to

their ill health as a result of living in the toxic environment of Riebeek-Kasteel.

21. We have made mention of the Riebeek-Kasteel issue above, so as to show

you what was done (and achieved) and what was not done. There was

overwhelming proof insofar the Riebeek-Kasteel issue as to what was being

sprayed, how it was being sprayed and how it blew into the residential area.

There was also a lot of medical evidence that was submitted to the relevant

authorities. And have they done anything? NO.

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22. The Stellenbosch / Franschhoek pesticide issue is much larger than that of

Riebeek-Kasteel. There are a larger number of complainants (residents &

students) involved and several medical practitioners that have come forward

with their concerns regarding their patient’s exposure to pesticides. You may

very well feel that this is all heresay and that there is insufficient proof in order

to take action. However if potentially toxic pesticides are being allowed to be

blown out of the vineyards and into the residential areas then there is

certainly a problem, as these pesticides will damage both human and

environmental health. Is it going to take a public outcry and class action

lawsuit before you do something about it ? At a recent conference in

Johannesburg, the Registrar of Pesticides of the NDA stated pesticides are

designed to kill and that they will make one ill.

23. As you are aware, section 24 of the Constitution guarantees the right of all

citizens to an environment that is not harmful to their health or well-being.

This right is further entrenched in various statutes, regulations and by-laws,

including NEMA.

24. NEMA defines “environment” as:

“the surroundings within which humans exist and that are made up of –

(i) the land, water and atmosphere of the earth;

(ii) micro-organisms, plant and animal life;

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(iii) any part or combination of (i) and (ii) and the interrelationships

among and between them; and

(iv) the physical, chemical, aesthetic and cultural properties and

conditions of the foregoing that influence human health and

wellbeing.”

25. The NEMA principles prescribe that sustainable development requires the

consideration of all relevant factors including the following:

“2(4)(a)(ii) that pollution and degradation of the environment are avoided, or, where

they cannot be altogether avoided, are minimised and remedied;

(vii) that a risk-averse and cautious approach is applied, which takes into account the

limits of current knowledge about the consequences of decisions and actions; and

(viii) that negative impacts on the environment and on people’s environmental

rights be anticipated and prevented, and where they cannot be altogether prevented,

are minimised and remedied.”

26. Section 2(4)(o) provides that the environment is held in public trust for the

people and that the beneficial use of environmental resources must serve the

public interest and the environment must be protected as the people’s

common heritage.

27. Section 28(1) of NEMA obliges every person who causes, has caused or may

cause significant pollution or degradation of the environment to take

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reasonable measures to prevent such degradation from occurring, continuing

or recurring or, in so far as such harm to the environment is authorised by law

or cannot reasonably be avoided or stopped, to minimise and rectify such

pollution or degradation. The obligation to take reasonable measures is

imposed on, inter alia, an owner of land, a person in control of land or a

person who has the right to use the land on which an activity is undertaken or

a situation exists which causes, has caused or may cause significant pollution

or degradation of the environment.

28. In terms of section 28(3) of NEMA the measures required in terms of section

28(1) may include measures to:

(a) investigate, assess and evaluate the impact on the environment;

(b) inform and educate employees about the environmental risks of their work

and the manner in which their tasks must be performed in order to avoid

causing significant pollution or degradation of the environment;

(c) cease, modify or control any act, activity or process causing the pollution

or degradation;

(d) contain or prevent the movement of pollutants or the causant of

degradation;

(e) eliminate any source of the pollution or degradation; or

(f) remedy the effects of the pollution or degradation.

29. Section 28(4) of NEMA provides, inter alia, that the provincial head of

department may, after affording a person the opportunity to make

representations, direct him/her, in the light of their failure to take the

measures contemplated in section 28(1) of NEMA to: –

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“(a) Investigate, evaluate and assess the impact of the pollution and

degradation and report thereon;

(b) Commence taking specific reasonable measures before a given date;

(c) Diligently continue with those measures, and;

(d) Complete them before a specified reasonable date:

Provided that the Director-General or provincial head of department may, if

urgent action is necessary for the protection of the environment, issue such

directive, and consult and give such opportunity to inform as soon thereafter

as is reasonable”

30. As we have already indicated above, we have been endeavouring to resolve

the dispute on the assumption that the University’s management would share

our concerns and would take the necessary steps available to it to ensure that

STIAS immediately ceases the use of any pesticides, fungicides, herbicides

or other products which may pose any risk to human health or the

environment and that the nature and application of any products which are

applied in future is strictly monitored and controlled. As we have stated, it

appears that neither STIAS, nor the University are taking our concerns

seriously.

31. It is of further concern to TATIB, that the STIAS vineyard is operating in

breach of its zoning in terms of the zoning scheme under the Land Use

Planning Ordinance. We have copies of the zoning certificate and also

reports from two independent town planners confirming that the erf is in fact

zoned ‘single residential’ and that its current use is in fact unlawful. In this

regard I refer you to previous correspondence addressed to yourselves.

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32. In the light of the above we are of the considered view that the management

of STIAS, University of Stellenbosch, Stellenbosch Municipality & Cape

Winelands District Municipality are in breach of their duty of care prescribed

under section 28(1) of NEMA.

33. The vines at the Mostertdrift STIAS vineyard, are to be removed as a matter

of urgency as the present use of the erf in question is unlawful and the

continued use of agricultural “gifstowwe” on these vineyards poses a very

serious health risk to anyone who comes into contact with the spray drift and

or volatile compounds emanating from these vineyards.

34. Insofar other vineyards in and around Stellenbosch & Franschhoek, TATIB

has received a large number of complaints from residents who allege that

they have suffered ill health as a result of their exposure to spray drift of

agricultural ‘gifstowwe’ that are being sprayed in such a manner that clouds

of spray drift get blown into the residential areas.

35. TATIB is concerned that a number of parents, who have children at Paul

Roos, have complained of their children’s ill health, following the spraying of

the vineyards adjacent to the school. It is common knowledge that many of

the products being sprayed on the vineyards adjacent to the school contain

ingredients that not only cause respiratory problems, but are also endocrine

disruptors, developmental and reproductive toxins. These products are

extremely dangerous to children and teenagers as they alter their endocrine

systems.

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36. TATIB also requests that in the event that you disagree (that exposure to

spray drift is harmful), that you furnish us with written proof (including case

studies) that exposure to agricultural chemicals (pesticides, fungicides,

herbicides / the products being applied) and the manner in which they are

being applied, does not pose any risk to the environment or human health.

37. We also request that you furnish us with copies of the vineyard management

plans, including the spray programmes and/or pest/fungus control

programmes, together with a list of the products supplied for application on all

other vineyards adjacent to the residential areas of Stellenbosch &

Franschhoek, which is to be verified under oath by the person responsible for

managing the vineyards, and also by the relevant supplier’s agent. We feel

that we are entitled to this information as allowance is made in section 32 Act

108 of 1986 (Access to Information)

38. We look forward to hearing from you urgently regarding the steps which you

intend to take to investigate this matter and will assist your investigation in

any way we can.

39. We would like written confirmation from yourselves, as to how you are going

to enforce regulations of Act 36 of 1947 as well as your “Suppression of

Nuisance By Laws” , as mandated to do so under NEMA and various other

laws, not to mention section 24 of The Constitution of the Republic of South

Africa. In other words what are you going to do to prevent the exposure of the

Stellenbosch & Franschhoek residents to spray drift?

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40. We also draw to your attention, the latest Pesticide Management Policy Act

36 of 1947 (attached herewith as file “Pesticide Management Policy”), which

as you can clearly see, confirms that the National Department of Agriculture

(NDA) has acknowledged that there are health problems associated with

exposure to agricultural chemicals, and that each and every citizen has the

constitutional right not to live in an environment that is harmful to his/her

health and well being.

41. Following meetings held at the Sustainability Institute on 27 Jan 2010, we

refer you to the minutes of your Community Services and Public Safety

Meetings held on 12/05/2010 and 25/05/2010 (file ref 17/1/4) and the

undertakings made and agreed to at these meetings. We request that you

give us an update as to what you have done, to address the problems and

concerned raised at the abovementioned meetings, and your progress on this

matter over the past year (Angela Andrews of the LRC first reported the

problem to you in November 2009)

42. TATIB would also like to take the opportunity to become your ‘eyes and ears’,

to become a watch dog for you and also ‘Green Scorpions’, and to enter into

a partnership of support with you and the Green Scorpions.

Kind regards

Jurgen Schirmacher

CHAIRMAN : THE TATIB FOUNDATION