Mining Affected Communities: We need more than on-paper Social and Labour Plans

(Photo: An informal settlement close to the Lonmin mine, where 34 people were killed when police opened fire on protesting mine workers)

Mining within communities is viewed as a conduit for further development of the community. It creates an expectation of an improved standard of living and gives the community a sense of hope for better and sustainable living. This hope is often hindered by the breakdown in communication with respect to the implementation and the sustainability of the perceived progression of development. Was the Marikana massacre not the perfect example of a fatal breakdown in communication between the miners, their union representatives and Lonmin?

In looking at the socio-economic situation of the clients that approach civil society on a daily basis with cries of injustice in their communities, the land beneath their feet is the wealthiest. As a result, most of the communities affected by mining are those with very little economic freedom. But, after the granting of the mining permit, there is often even less economic freedom and often dire consequences for communities.

To ascertain whether there is mineral deposit on a piece of land, an application must be made for a prospecting right. No two people can hold a prospecting right, mining right, mining permit or retention permit for the same mineral and land at the same time. Communities on land on which there is a land claim are therefore in a state of uncertainty about who owns the mineral rights. Could mine companies be capitalising on the chaos?

Let’s assume, in this instance, that all the necessary land acquisition processes and procedures have been meticulously complied with. In order to obtain a mining right in South Africa, you have to have complied with the Mineral and Petroleum Resources Development Act (MPRDA). The Social and Labour Plan (SLP) is an important document that the Department of Mineral Resources has to assess to establish the benefit that will extend to the community in granting the permit.

Being a legally binding document, the SLP ought to be enforceable in a community; yet why is it that graduates in rural communities in which there is mining activity cannot complete their in-service training with such a mine? Or, the local councillor has neither a seat nor a say in the meetings held by the mining company? Is this a lack of representation in a democratic country?

The community of Mahlabathini in KwaZulu Natal is currently affected by coal mining activity and a “smokescreen” SLP. The traditional authorities of the area have isolated the local councillor for political reasons, resulting in her having no knowledge of the decisions taken that affect her community. Community members that worked at the mine and have since been retrenched have not been given any severance packages. The Municipality has cut off the water supply in the community; yet the mine has adequate water supply to remain fully operational. The trucks driving to and from the mine have run over livestock and children, with no compensation to the bereaved families.

With a mining permit being rewenable every 5 years, we must wonder why this would be renewed when the community has not benefitted from the mining activity as per the SLP – and in fact, has suffered considerably.

A report by the Centre for Applied Legal Studies (CALS) in March 2017 confirms that SLP’s are a requirement that is rarely enforced by mining companies. It is important to take cognisance of the fact that enforcement and accountability will not always lie with the same office. Budget may be allocated for the social-economic development of a community; however, community members give proxy to a representative who is their voice and is responsible for ensuring the upkeep of their communities’ best interests.

One cannot point a finger at the mining company alone, or the representatives of the community, for not being accountable where necessary. However, tension is bound to rise where there is no transparency. Accountability and transparency become fundamental in the socio-economic enforcement of rights in affected communities.

A more concerted effort and vigour by all the role-players is needed to question, challenge and call to book those in positions of power when decisions are made that affect communities.

The richness of the land has moved from below the feet the community to the hands of the decision-makers.

Nokukhanya Nkatha – ­2017 Bertha Justice Fellow

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Justice Fellows here: http://berthafoundation.org/

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LRC submissions: #BindingTreaty at IGWG 2017

STOP THE PLUNDER: AFRICA IS NOT FOR SALE

The Legal Resources Centre, as part of the Global Campaign to Dismantle Corporate Power and, separately, the Treaty Alliance, was in Geneva during the final week of October 2017 for the third session of the open-ended intergovernmental working group (IGWG) on the elaboration of a binding treaty on transnational corporations and other business enterprises with respect to human rights.

The Global Campaign and Treaty Alliance are working collectively to advocate for a strong Binding Treaty to Stop Corporate Abuse and to prevent and remedy human rights abuses by transnational corporations and other companies.

The Binding Treaty process has been going on for many years. This was the crucial third session of the Inter-Governmental Working Group, where the draft elements of the Treaty were submitted by Ecuador, as the chair, for discussion. The submissions made during this session are on those elements.

The EU and others tried to force an end to this process by arguing that the resolution that constituted the Working Group provided for 3 sessions only and a new resolution must be sought to continue the work. The Treaty Alliance and allies worked hard on lobbying against this backlash and supporting South Africa, who is pushing for the process to continue. The outcome of the meeting, after tense negotiations on Friday last week, was that the chair must informally consult on how to take the process forward.

The Alliance and allies are pushing for a draft zero of the Binding Treaty to be presented and discussed at the 4th IGWG meeting at the end of next year.

The LRC made the following submissions during the sessions: 

Oral Submission – Subject 1: General framework

Thank you Chairperson and congratulations on your appointment. My name is Lucien Limacher. I am from the Legal Resources Centre from the Johannesburg office in South Africa.

I am viewing the draft elements document from a viewpoint of respecting, protecting and promoting the core environmental and sustainability principles widely accepted and fundamental to the survival and development of vulnerable communities who face, often unwanted, development projects imposed by TNCs, OBEs and states.

At Preamble: In terms of the preamble, there are two core international environmental laws or policies that are currently not mentioned within the draft elements document, which play a critical role on the impact TNCs and OBEs have on human right violations. The first pertains to the lack of reference to the various international treaties on climate change; we cannot ignore the anthropocentric impact of TNCs and OBEs have on climate change and of course then on human rights. The second international environmental issue relates to the failure to acknowledge the Development Sustainable Goals that were agreed upon in terms of the 2030 Agenda for Sustainable Development read with the Rio Declaration and the Johannesburg Declaration on Sustainable Development. It is critical that TNCs and OBEs follow a sustainable development pattern that does not impact the livelihood of communities. As such the treaty should reflect in the preamble the above two aspects.

At Principles: Taking the above context into consideration, the same problem can be expanded on under the principles section wherein the draft elements document failed to take cognisance of the following critical environmental principles that impact the human rights discourse:

  • The first principle that must be included is the Cradle-to-Grave principle;
  • The second principle that must be included is Prior Environmental Impact Assessment Principle (this must go along with the human rights impact assessment mention in the draft element document);
  • The third principle that must be included is the Public Trust Principle;
  • The fourth principle that must be included is the Polluter Pays Principle; and
  • Lastly, the fifth principle that must be included is the Sustainable Use and Equity Principle.

Lastly, at Purpose: Within this section, it was mention that adequate remediation is to be used as an effective remedying tool. It is this submission that remediation must include rehabilitation of the environment if the environment has been degraded by an activity of a TNC or an OBE.

Thank you.

Oral Submission – Subject 2: Scope of Application

Thank you Mr Chairperson Rapporteur

The Legal Resources Centre is a public interest law firm based in South Africa. We represent individuals and communities in protecting their rights against the impact of often unwanted and imposed development projects in the extractives and other sectors.

We endorse the principle of the primary responsibility of States to protect and promote the human rights of its citizens against all transnational corporations and other businesses enterprises who abuse these. We cannot afford another narrow instrument that creates yet more loopholes for impunity to thrive. But we also cannot pretend that States do not operate in the context of the corporate capture of their law and policy making processes and its implementation. This is pervasive on the African continent, a continent regarded as the new frontier for extractivism and large scale agri-business.

While we strongly endorse explicit measures to be included in the treaty to guard against corporate capture suggested by colleagues earlier, we fear that these may not be sufficient to break the stronghold of corporate capture over the States mandated to protect and promote the human rights of their citizens. In order to make meaningful progress, this process must acknowledge the importance of placing relative power in the hands of the peoples, communities and individuals whose rights are affected by the actions of TNCs and OBEs.

They must be central to the decision-making processes that authorize projects and their implementation. The inclusion in decision-making of affected individuals provides a further safeguard against corporate capture. The principle of Free, Prior and Informed Consent, already entrenched in international law and increasingly recognized as imperative to the success of international voluntary standards, must be included in the treaty as a step towards not only providing remedies to human rights abuses, but indeed preventing those abuses from occurring. There is growing consensus in this room that prevention of abuse is indeed what we are collectively pursuing.

FPIC creates a meaningful seat at the table for those directly affected by the actions of TNCs and OBEs and at the same time strengthens the hands of States to act decisively in the interest of their people in the face of corporate interests. Even better, it ensures that rural women, who continue to bear the brunt of the impacts of TNCs and OBEs, are recognized as actors in their own development paths, rather than mere victims.

We thank you.

Lucien Limacher at the UN BindingTreaty negotiations

Oral Submission – Subject 4: Preventive Measures

Good afternoon Chairman Rapporteur. My name is Lucien Limacher from the Legal Resources Centre, South Africa.

One of the Legal Resources Centre’s missions is to seek cre­ative and effec­tive solu­tions by using a range of strate­gies. These, amongst others, include impact lit­i­ga­tion, law reform, par­tic­i­pa­tion in part­ner­ships and devel­op­ment processes, edu­ca­tion, and net­work­ing within South Africa, the African con­ti­nent and at the inter­na­tional level.

In capturing this spirit above, this section, Preventive measures, under the draft elements document can be the start of a creative and effective tool to stop the corporate impunity currently impacting affected communities and the environment.

Taking my colleague’s statement made yesterday that, “we cannot pretend that States do not operate in the context of the corporate capture of their law- and policy-making processes and their implementation,” it is fitting at this juncture that the following three points are made relating to the section on preventive measure:

The first point relates to the phrase, “all concerned TNCs and OBEs shall adopt a vigilance plan consisting of due diligence procedures to prevent human rights violation abuses.” Although a binding vigilance plan is welcomed it does not go far enough in preventing human and peoples’ rights including community rights that revolve around environmental pollution, degradation and even destruction of livelihoods. It is therefore proposed that the draft elements document incorporates, over and above a binding vigilance plan, an article or clause that allows for a procedure for public comment, consultation and, where relevant, consent or agreement with the plan at this early stage of a human rights risk assessment exercise or vigilance plan.

This brings me to the second point namely elaboration in the draft elements document to incorporate unequivocally the right to free prior informed consent (“FPIC”). The words “states shall promote adequate consultation” must, in the case of directly affected communities, include, “free prior informed consent to be obtained from affected communities.” Failing to recognise FPIC will leave affected communities by the wayside and allow the status quo to continue and over shadow universal human rights and to degrade the environment. FPIC and the right to development is recognised in the African Charter on Human and Peoples’ Rights, it is emphasised in the UN resolution A/HRC/RES/26/9 and in the Declaration on the Right to Development, adopted by the General Assembly through its resolution 41/128 on 4 December 1986.

Lastly, the third point refers to the human rights impact assessment. As mentioned in the Legal Resources Centre submission under general frameworks, it is critical than when a human rights impact assessment is undertaken that a similar impact assessment is carried out regarding the environment.

I thank you.

Oral Submission – Subject 9: Mechanisms for Promotion, Implementation and Monitoring

The Legal Resources Centre firstly responds to a comment made by a panelist on the topic of Jurisdiction this morning that corporate violations happen only in countries with “fragile democracies”. We strongly reject that suggestion. Evidence suggests that there is hardly a country in the world that is not the location of human rights violations by corporates. Perhaps our disagreement lies in what the panelist regards as human rights abuses. The purpose of this legally binding treaty is not only to end the grossest of human rights violation, but also those violations that, through corporate capture, have become normalized and even legalized in several countries. For examples, look no further than the land and resource grabbing and environmental degradation pervasive on the African continent.

The LRC notes that civil society and even states from across the world have persistently raised the principle and right of Free, Prior and Informed Consent (or FPIC) to be included in this treaty in this forum. As we move towards negotiating a draft text in 2018, we wish to elaborate on how FPIC should act as a mechanism for the promotion, implementation and monitoring of the human rights of affected communities. FPIC refers both to a substantive right under international-, regional – and indigenous customary law as well as a process designed to ensure satisfactory development outcomes.

To realise this right, the affected community’s decision whether to allow development that will affect their rights, should be made free from any obligation, duty, force or coercion. Secondly, the community has the right to make the development choice prior to any similar decisions made by government, finance institutions or investors. In the words of the African Commission on Human and Peoples’ Rights, the community’s right to FPIC is not realised if they are presented with a project as a fait accompli. Thirdly, the community must be able to make an informed decision. That means that they should be provided sufficient information to understand the nature and scope of the project, including its projected environmental, social, cultural and economic impacts. Such information should be objective and based on a principle of full disclosure. The community should be afforded enough time to digest and debate the information.

Finally, consent means that the community’s decision may be to reject the proposed development. Consent is not mere consultation. The community can say no. Because the right to say no places the community in a position to negotiate, it is also a process. FPIC is not designed only to stop undesirable projects, but also to provide communities with better bargaining positions when they do consider allowing proposed developments on their land or resources.

FPIC should not be relegated to a risk-management exercise. Rather, FPIC should be the basis upon which the relationship between the affected community and the company is built. The role of the State in enforcing this right is crucial, but not a prerequisite for building more equitable negotiating and bargaining positions between the affected communities and the developers.

Thank you.

Oral Submission: Subject 10: Victims

The Legal Resources Centre is a 4 decades old public interest law firm based in South Africa.

My colleagues and I are community lawyers who have represented communities against corporates and mining companies for 4 decades between us. We base our arguments on our experience, community instructions and numerous court cases.

We are adopting this slightly pompous introduction in reply to the expert corporate lawyer on the panel yesterday who introduced himself and rooted his knowledge and experience in taking instructions from corporate TNCs for a decade.

Communities in the south know themselves far better than TNCs, they know their histories and they will take responsibility for their destinies and that of their children.  Our communities have knowledge and they have agency.  They are not victims. Faceless TNCs in the capitals, their directors and their shareholders, their legal and financial advisors and financiers may never know what it means to be cared for in a community context.

We have time for just one story, but please know that there are many. This is the story of the Xolobeni community.

Ms Nonhle Mbuthuma Forslund is one of the great women leaders of the Xolobeni community, Pondoland South Africa, a community that has held out for more than a decade against an Australian mining company TEM … a titanium mine that would destroy the community and the livelihoods of the families on their ancestral land.  The struggle against a mine that has also lead to the callous murder of the community leader Bazooka Radebe 18 months ago.  The murder remains unresolved.  Nonhle cannot be here today because a bureaucrat in the Swiss Consulate in South Africa rejected her visa application three times over… partly because her village does not have street numbers and electricity bills.  But in fact she has much more …. She belongs.  She belongs to her community and the community’s land.  They know their history, they have an indigenous legal system and they remain committed to choosing their own development path in terms of pace and scale. Nonhle’s community went to court saying that law from below gives them the right to say no and we should support her with a binding instrument at the level of international law.

Yesterday, the Southern African Permanent Peoples’ Tribunal[1] Jurors’ report, was released. The Xolobeni and Marikana communities together with 17 other communities gave evidence before a jury consisting of peoples’ jurors. They have respect for law from below. The expert corporate lawyers should take note of what the report says (and we can provide them with copies), for example:

  1. With economic gain as the prime motivation, anything that hinders that objective is treated by states and TNCs as an obstacle that must be subdued or eliminated. The pursuit of gains and profits for the TNCs and as revenue for governments place the communities and the environment at great risks.
  2. The constant refrain “NOT without our consent,” demonstrates a peoples-rooted development.
  3. It is important to explore legal mechanisms making the national governments and the TNCs accountable at domestic, regional and national level. It is vital for States to recognise progressive and participatory indigenous customary law.  We must engage in the discussion of treaty law and state domestic law that can be self-executing and monitored by communities as principal actors, in co-operation with civil society.  The evidence presented to the peoples’ tribunal shows that state and corporate law continues to mistreat the poor.

Chair Rapporteur, whoever tries to stop or delay this process today, and those who have not even showed up, shall have that reality on their conscience.

We thank you.


For more on the Binding Treaty: https://www.escr-net.org/corporateaccountability/hrbusinesstreaty

Twitter: Follow Treaty Alliance @treatyalliance and the hashtags #BindingTreaty #StopCorporateAbuse

 

 

Binding Treaty on Transnational Corporations discussed at the African Commission

On the 6 April 2016, the Legal Resources Centre (LRC) held a side event at the 58th session of the African Commission on Human and Peoples’ Rights in Banjul, The Gambia. The side event discussed the United Nations proposed treaty on transnational corporations and other business enterprises with respect to human rights.

The side event attracted participants from various organisations across Africa. Our panel consisted of three staff members of the LRC and a member of the African Commission’s Working Group on Extractive Industries, Clement Voule. Unfortunately, Nomonde Nyembe from the Centre for Applied Legal Studies was unable to join us as a panellist due to an unanticipated injury.

LRC researcher, Mabatho Molokomme, facilitated the session. She gave a brief background on the Human Rights Council resolution and what it envisages for the treaty. This was followed by a summary of the first open-ended intergovernmental working group (IGWG) session that took place in Geneva, Switzerland in July 2015.

IMG-20160428-WA0002
The 58th session of the Africa Commission on Human and People’s Rights

 

Drafting the binding treaty

LRC attorney, Sayi Nindi, spoke about community participation and the drafting process of the binding treaty. Some of the key points she raised are as follows:

  • The drafting process of the binding treaty is at its preliminary stage and no one knows how the treaty will look like.
  • The following still need to be determined, amongst other questions: what rights will be covered by the treaty; what companies the treaty should apply to; if the treaty should define in greater detail the content of states’ duties to protect human rights and ensuring access to justice for the affected people.
  • There are different views on whether corporations should be subjected to international law. Positivists say corporations should not be subjects of international law because no international law instrument recognises them as such. Other flexible interpretations say that corporations may have limited international legal personality. Pragmatists are of the view that the issue of whether corporations are subject to international law (and what legal responsibility can be imposed on them) is irrelevant as clearly corporations have both rights and responsibilities.
  • The development of this treaty has to be people- and community-centred. Local communities must be empowered to lead and participate in this process. They must bring their experiences to the table.
  • Communities have to bear the brunt of the so-called “development” that allegedly comes with transnational corporations.
  • There’s a clear gap in the international human rights law framework in its failure to address human right abuses by transnational corporations. They can now participate in debates and resolutions. This is the perfect opportunity to state the importance of Free, Prior and Informed Consent (FPIC)* and insist on it to be a requirement for developmental projects.
  • African civil societies should lobby their governments to participate and contribute at the IGWG sessions.

Cases that the LRC are litigating were used to illustrate how the treaty would be beneficial in situations where individuals or communities are victims of human right violations by multinational corporations. There are many examples on the continent where victims of human rights violations perpetuated by multinational corporations are left with no recourse if they solely relied on their domestic laws, which may not be as effective as an international instrument such as the binding treaty.

The LRC have been working with the South African government and we were encouraged that other civil society organisations do the same. The participants were informed of ways in which they can engage with their governments in order to promote the treaty movement at the UN level. A draft letter to be sent to governments was offered to those in attendance.

Right to Development

LRC attorney, Wilmien Wicomb, spoke on Right to Development as enshrined in the African Charter on Human and Peoples’ Rights and Free, Prior and Informed Consent. She raised the following key points:

  • The question is sometimes raised why we need yet another treaty with so many existing international and soft law instruments. It was noted that the treaty represents an acknowledgement that transnational corporations have become powerful enough as players in international relations and domestically to perform governmental functions; such as delivery of services and contributing to policy and development decisions. As such, the treaty represents a radical departure from existing international human rights law.
  • If that is the case, a key question that continues to be debated is whether transnational corporations should also be the bearer of international human right’s duties?
  • To answer this and other difficult questions, it is important to look at the current context. The current resource wave is targeting mainly rural communities – the poorest and furthest away from basic services – in South-South countries: in part because of their insecure and cheap tenure.
  • She noted that Africa can bring something different to the transnational corporation discussion. The African context has important differences: a different legal context (from, for example, Latin America with International Labour Organisation 169, FPIC entrenched in domestic law); a different history (in particular to indigenous peoples); old and new mining sectors.
  • From our unique legal context, Africa can contribute the African Charter and its Right to Development as a procedural and a substantive right; real choice with an emphasis on outcome and on community-driven development.
  • Furthermore, African customary law requires principle of consent, of local decision making, of local living law. Increased recognition of customary law must be utilised to counter common law and business-heavy legal frameworks.

There was a general discussion on why the treaty is not being favoured across the board, given that everyone is aware of human rights violations happening. There was general consensus in the room that the United Nations Guiding Principles on Business and Human Rights (UNGP) are preferred by the home states of the transnational corporations because of their voluntary nature. Much work and negotiation will be required before the treaty can reflect all we hope it will contain.

There was acknowledgement of the high standard of rights as set out in the African Charter. No one will be campaigning for anything less than that standard.

IMG-20160428-WA0004
Mabatho Molokomme, Sayi Nindi, & Wilmien Wicomb

 

African participation

Clement Voule spoke on civil society advocacy and mobilisation. He emphasised that there has been marginal participation from Africa in the process thus far. He encouraged people to be a bit more proactive in their involvement in the upcoming IGWG session in October 2016. He noted that the content and its negotiations will take a long time. There may not even be a treaty in the end but this should not deter people from joining the process. He also stated that the treaty conversation should not be kept separate from the UNGP conversation. The treaty must be viewed as the next step in the process and not a replacement of the other. States reaching common ground on the UNGP may be a window of opportunity and a better space to discuss the treaty.

Outcomes

The side event induced a worthwhile conversation and we invite the proposals that were put forward. A participant who works for the African Commission proposed that they could assist us to host a panel discussion at the next African Commission session in November 2016 in order to reach a broader audience. We also made contact with one of the Commissioner’s working with the Working Group on Extractive Industries, who is interested in participating – through the working group – in the work of the binding treaty. The participants at the side event also suggested that this conversation be opened at the African Union Summit.

 

By: Mabatho Molokomme, Sayi Nindi, and Wilmien Wicom

 

 

*Read more about the FPIC principle here: https://za.boell.org/sites/default/files/perspectives_april_2016_web.pdf

**Read more about the treaty debate here: https://realisingrights.wordpress.com/2016/03/31/south-africa-debates-the-merits-of-the-proposed-treaty/

Bracing for the Back of Port

South Durban’s residents fight back against corruption, destruction and neglect

Colleen steps gingerly out of her home in Clairwood, Durban. A large truck is stuck in the narrow residential road just outside her house; crumbling Colleen’s brick wall as it attempts to back out. Colleen runs out onto the muddy street, wading to her knees in rubbish as she berates the driver. “This is the third time this week!” she yells angrily. “These are homes, you cannot be here!” The driver ignores her and keeps moving, throwing a coke bottle out of the window as the truck leaves clouds of exhaust fumes in its wake. “Oh well,” says Colleen, “at least he didn’t hit anybody this time.”

Colleen is just one of many Clairwood residents forced to live with the effects of illegal trucking and the activities of mining businesses that are taking hold of the area in preparation for the Durban’s back of port development. Despite being zoned for residential use, over 150 illegal businesses have set up shop in the Clairwood community and nothing is being done to stop them. They are polluting the air and water, causing constant accidents, destroying property, killing children and making it impossible for residents to safely get to and from their homes. Rather than assisting residents, the eThekwini Municipality has continued to exacerbate the problem by failing to enforce zoning laws, withholding delivery of services such as rubbish collection, policing and infrastructure development, and allowing the community to fall into decay.

Accident scene
A traffic accident in Clairwood

A History of Exploitation

This is not the first time Clairwood residents has been a victims of the government’s purposful neglect. At the beginning of the 20th century, Clairwood was developed to house indentured labourers working under racial segregation laws. Many had been forcefully evicted from their homes and settled into the community without a cent to their names. Nonetheless, the ingenuity and passion of Clairwoods’ residents led to the creation of a diverse, culturally rich and vibrant community; with market gardens to serve local food needs, religious institutions and schools.

In 1956, the Apartheid government decided to convert the land in South Durban for industrial use. Unable to rezone the residential area entirely, the government neglected the area, removed informal structures unilaterally and cited the deterioration caused by its own neglect as an excuse to repossess formal structures and homes. During the Apartheid years, over 40,000 people were forced to move out, and those who did not move were forced to suffer from the effects of increased pollution from nearby industrial parks, causing illness and health concerns. Despite the forced depopulation and pollution, the greater Clairwood area remains the cultural heart of the Indian community in Durban; home to approximately half a million people, thriving markets, and multitudes of small businesses.

The Current Port Development

The communities of South Durban are again embroiled in a battle to ensure that the rights of residents are protected. In 2004, the South Durban Basin Area Based Management office released the South Durban Spatial Development Framework, a plan that facilitated further industrialisation, expanded the South Durban port and rerouted logistics operations through South Durban’s mainly residential areas. In 2012, the Municipality began discussions on new zoning changes required to accommodate a “back of port” development at the former Durban airport site, which had since been used by Clairwood farmers to supply produce to local markets.

These plans were developed without regard for public participation and research; or consideration of the communities they affect. To date, residents struggle to obtain full information about what is planned, with only partial information provided. While the eThekwini Municipality claims that there will be no forced removals, the increase in pollution, traffic, crime and decay caused by the port expansion project will amount to constructive eviction of South Durban residents. While the Municipality cites deterioration of these neighbourhoods as a justification for development, much of this deterioration was caused, and continues to be caused, by the Municipality’s own failure to provide services.

Pollution
Pollution in the Clairwood area, cause by trucks and businesses

Corruption in Action?

Both historical and recent evidence points to a long term plan to turn this area into an industrial centre. Since 2000, a plethora of land purchases have cropped up at prices over 20 times the current market value. Additionally, over 150 Clairwood properties have been identified as illegal businesses, with most operating as trucking or logistics hubs. These businesses, although not legally permitted, are able to take advantage of the lack of enforcement of the Municipality. The presence of these businesses further contributes to the pollution, deterioration and decay of Clairwood.

Recent evidence also points to the presence of illegal sand-mining operations on the property of the former Durban airport. According to the Airport Farmers Association, heavy machinery such as trucks and land-movers, has been carrying out large amounts of sand from the site. There have also been indications that some of the trucks are dumping hazardous waste into the resulting holes. The Municipality requires that any property owner who wishes to engage in sand-mining must obtain proper zoning and environmental permits before any activity is conducted. No permits or licenses have been acquired for this land.

Fighting for Clairwood’s Rights

The Municipality’s neglect, coupled with the sheer mass of undeterred illegal activity in Clairwood, indicates the presence of larger forces spurring the back of port development.

The Legal Resources Centre seeks to hold the government and these businesses accountable for the fulfillment of their legal obligations and ensure that the rights of citizens’ in this area are protected and enforced and that proper consultation and inclusive, transparent governance is practiced.

While the people of Clairwood continue to suffer from municipal neglect, shortage of housing and extreme pollution, their commitment to preserving their homes and community remains absolute.

By Bethany Bengfort

Bethany interned at the Legal Resources Centre. She is currently studying law at Standford University