Durban residents aim for up to R1.5bn damages in aftermath of UPL chemical inferno

In a case led by class action lawyers Zain Lundell and Richard Spoor, at least a dozen claimants have now put a legal marker in place to seek as yet unquantified monetary compensation from UPL South Africa, the local subsidiary of the world’s fifth-largest producer of agrochemical pesticides, herbicides and other crop products.

However, it is understood that the applicants are aiming for a final damages or settlement tab of anywhere between R500-million and R1.5-billion from UPL, which has confirmed that it will oppose the court application. These preliminary estimates appear very unlikely, however, unless a substantially larger number of claimants come forward to join the case.

The residents’ claim was filed late last week, just hours before the provisions of the Prescription Act of 1969 threatened to extinguish avenues for legal redress for alleged damage to their health, livelihoods and wellbeing – including the potential of developing further significant health damage several years from now.

A drone image showing the extent of the damage caused to the UPL warehouse north of Durban, 21 July 2021. (Photo: Shiraaz Mohamed)

This Act sets a general three-year time limit for legal claims to be instituted, and that legal clock stopped ticking just after midnight on 12 July – exactly three years after a mob of pro-Jacob Zuma looters set fire to more than 5,000 tonnes of toxic chemicals and other farm products stored in the new UPL agrochemical warehouse in Cornubia, Durban in 2021.

The resulting fire burnt for nearly 11 days, leading to clouds of toxic smoke billowing through the air in several densely populated residential areas north of Durban. Large volumes of poisonous chemical effluents also poured largely uncontrolled from the warehouse into the surrounding soils and rivers, killing nearly four tonnes of fish and leading to safety closures of local swimming beaches for several months.

Unlike a standard legal claim for damages, the case lodged last week by the South Durban Community Environmental Alliance (SDCEA) and 13 Durban “representative” residents is a class action suit, focused mainly on protecting the interests of poor and vulnerable communities.

This is a relatively new legal mechanism in South African law that allows people to institute civil action in court on behalf of a group or “class” of persons. But before their main application can start, the claimants first have to win permission from the KwaZulu-Natal Division of the High Court in Durban to “certify” that a class action is appropriate.

Johannesburg attorney Zain Lundell has taken up the legal cudgels on behalf of Durban residents claiming compensation from UPL. (Image: Supplied)

Lundell, from Johannesburg-based law firm LHL Attorneys, argues that the class action route is the most reasonable and viable mechanism for cases like this and says it will be run on a “no win – no fee” basis for current and future claimants.

This means that LHL Attorneys and its associates will bear the significant costs of procuring legal counsel, expert witnesses and other expenditure, rather than the mainly indigent claimants, who would pay no fees if the case is lost.

In this case, Lundell and Spoor have proposed four separate “classes” of claimants

1. People who have allegedly suffered physical injury or sickness as a result of the UPL disaster.


2. Subsistence fishers or mussel pickers who suffered economic harm after losing their ability to harvest marine resources due to the chemical pollution of the Ohlanga River and Indian Ocean, and the subsequent closure of a 40km stretch of coastline between the Umgeni River mouth and Salt Rock.


3. Other, largely indigent groups such as hawkers and vendors who lost their ability to trade goods and services such as souvenirs, tourist beachwear, snacks or refreshments along the northern Durban coast due to the closure of beaches for several months.


4. Residents of the Blackburn village informal settlement who lost their ability to grow or sell vegetables and other crops due to toxic chemical pollution of soils in the vicinity of the UPL Cornubia warehouse.

Should the cases succeed or be settled, Lundell indicated there would be a public claims process for the four categories, with payouts through a claims administrator.

The current 13 claimants are northern beachfront vendors or stall holders Thomas Mbuyazi, Sandile Ndlovu, Fikile Nene and Faizel Mohamed; Phoenix subsistence fishermen Abubaker Yedhub, Raheem Ally, Vadivelu Chetty, Vinayagam Govender and Zameer Harichand and Blackburn village residents Mcebisi Ndzimakhwe, Vuyokazi Nkungu and Aneliswe Bandezi. The South Durban Community Environmental Alliance is an applicant, but not claiming monetary relief.

The cover page of the 1,280-page bundle of court papers filed last week, listing the applicants. (Image: Supplied)

In his founding affidavit, attorney Richard Spoor acknowledges some of the significant legal hurdles (such as high standards of legal proof and discovery of documents) facing some of these applicants in getting a class action certified by the court.

“The risk of prescription being imminent, the applicants are simply not afforded the luxury to build the perfect case for certification in the time available. This places (them) in an invidious position.”

It was therefore in the interests of justice for the case to be certified, based on the “best case” currently available.

According to the court papers, advocates Andy Bester SC and Ross Bosman have agreed to be briefed as counsel for the applicants, while several expert witnesses are on standby.

Recipe for disaster

Spoor says in the court papers that farm chemicals are valuable commodities which help to feed the nation – but a recipe for “disaster” when handled wrongly.

“On July 12, 2020, such a disaster struck. What resulted was nothing less than an environmental and human catastrophe.”

Apart from the economic losses suffered by indigent or largely destitute people such as subsistence fishers, hawkers and crop growers “many people have suffered physical injury as a result of the disaster”.

“Primarily, this is the result of having contacted or inhaled the toxic smoke that was produced when the chemicals and pesticides stored at the facility burned”.

“The fire did not occur as a twist of fate alone. The disaster was months in the making. It was allowed to occur as a direct result of (UPL’s) indifference and neglect,” he suggests, further alleging that some of the chemicals stored at Cornubia “could not even have been legally possessed”.

An air pollution impact study lists residential areas that were worst affected. (Image: Supplied)

UPL has not had time to file responding papers, but has previously stated that “there is very little by way of serious health impacts attributable to either the fire or the overflow” and that “all of the products in the warehouse were … approved for use in South Africa by the Health Department and by the Department of Agriculture in terms of Act No.36 of 1947.”

Yet according to the applicants’ court papers (running to nearly 1,300 pages with annexures) the warehouse stored at least three “banned” or unregistered products that contain highly hazardous chemicals – including 2.4-D, Chlorpyrifos and Atrazine.

In response to our request for comment, the company said: “UPL South Africa denies that it is liable for damages which any claimants may have suffered whether based on statute or in delict.”

Nevertheless, the claimants have provided extensive lists of a wide variety of harmful chemicals that were stored at Cornubia, along with Material Safety Data Sheets describing some of the severe health risks associated with exposure.

Health risk assessment reports from North-West University toxicologist Prof Mary Gulumian and the Apex Environmental consultancy suggest that thousands of people living in the immediate vicinity of the UPL chemicals warehouse face twice to three times the risk of developing heart and lung diseases (including lung cancer) after breathing in a cocktail of poisonous chemical fumes.

Potential health impacts of some of the fungicide products. (Image: Supplied)

An extract from the court papers listing some of the health impacts of just two of the stored herbicide products. (Image: Supplied)

The documents also include government reports which appear to support the claimants’ argument that UPL failed to comply with multiple permit and approval processes that could have reduced the impacts of the chemical fire adjacent to residential areas and schools.

Outside this court forum, there are indications that other stakeholder groups may soon launch separate class actions.

The Cornubia Multistakeholder Forum (MSF) representing a wide variety of residential, commercial and public interest groups said on 12 July that it remained unsatisfied as to whether there had been full disclosure or compliance with various government directives.

The MSF was “disappointed” at the slow pace of a separate criminal investigation by government departments.

“The MSF is also disappointed at how ineffective the national and provincial authorities have been and how unwilling they have been to engage with the MSF. Officials of eThekwini Municipality, on the other hand, have always ensured that the MSF has been allowed to comment on the applications by UPL to discharge contaminated water into the municipal stormwater system, and have generally been willing to engage with the MSF.

“It was always envisaged that one or more of the groups represented on the MSF would lead a class action against UPL. There are a few ‘classes’ of people who suffered financially and otherwise from the UPL disaster. More class actions may follow and the MSF will support affected communities wherever it can.”

In its statement last week, the company said that: “Since the incident, UPL South Africa has worked proactively with the 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. The results of regular testing have shown, for some time now, that the Ohlanga River, its tributary and estuary, as well as the beach exclusion zone pose no threat to human health or the environment as a result of the fire and the spill.” DM

People who wish to pursue class action claims can contact LHL  Attorneys via email ([email protected]) or phone (011)  4830540.

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