South African residents seek major UPL fire settlement

Exactly three years after a mob of pro-Jacob Zuma looters set fire to more than 5 000 tonnes of toxic chemicals in the new UPL agrochemical warehouse in KwaZulu-Natal (KZN), South Africa in 2021, residents have filed papers in the KZN High Court (Durban) seeking substantial financial damages against India’s UPL agrochemical giant. The Daily Maverick reports that the papers were filed just hours before the legal gun of prescription threatened to wipe out their rights to seek justice in the courts. 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 SA, the local subsidiary of the world’s fifth-largest producer of agrochemical pesticides, herbicides and other crop products. It is understood that the applicants are aiming for a final damages or settlement tab of anywhere between $27.8m and $83.4m from UPL, which has confirmed that it will oppose the court application. These preliminary estimates appear very unlikely unless a substantially larger number of claimants come forward to join the case.

The 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. DM notes that the Act sets a general three-year time limit for legal claims to be instituted which ended on Friday exactly three years after the warehouse was torched. The resulting blaze lasted for 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 and 13 Durban ‘representative’ residents is a class action suit, focused mainly on protecting the interests of poor and vulnerable communities.

DM notes that this is a relatively new legal mechanism in SA 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 court to ‘certify’ that a class action is appropriate. Johannesburg attorney Lundell has taken up the legal cudgels on behalf of Durban residents claiming compensation from UPL. He argues that the class action route is the most reasonable and viable mechanism for cases like this and said it would 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. Lundell and Spoor have proposed four separate ‘classes’ of claimants. They include 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; other, largely indigent groups such as hawkers and vendors who lost their ability to trade goods and services and 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.