NPO No. 023-004 PBO No.

930003292
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

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

National Office: J Love (National Director), K Reinecke (Director: Finance), HJ Kim (Development Director)
Cape Town: JW Pienaar (Director), WR Kerfoot, A Andrews, CM Fortuin, S Kahanovitz, C May, HJ Smith , LP Kubukeli
Durban: MR Chetty (Director), S Samuel, C Penn
Grahamstown: S Sephton (Director)
Johannesburg: :
Constitutional Litigation Unit:
N Gobodo (Director), S Dhever, N Fakir, Z Sujee
A Friedman (Acting Director), G Bizos SC, J Brickhill
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