Responses by UPL South Africa

Questions from the Daily Maverick

24 October 2021

 
 Dear Tony

From the outset we note that much of the coverage afforded to this matter by your
publication seeks unfairly to frame UPL in a negative manner, for example referring to UPL
“as a poison company” as opposed to what it actually is - a supplier of critically needed
agricultural products, including plant nutrients, that contribute to South Africa’s food
security. The tone and manner of your questions presupposes wrongdoing by UPL – when
the fact remains that it is doing all it can to remedy the situation it did not cause, and is
committed to doing so well into the future. Little attention is given in your articles to these
aspects or to the failure of the state to warn and protect UPL and all the other businesses
and its citizens that were so badly affected, or to follow up against the perpetrators. 
 
Any objective commentator, if you asked them, would confirm that since the incident, UPL
has cooperated, and continues to cooperate, as far as reasonably possible with all three
spheres of government, in its clean up obligations. That has come at huge cost to its
business, both financially and in management time spent on the crisis. They would also,
after even the most cursory investigation, be forced to conclude that much of government’s
responses have been slow, frustratingly inconsistent and unhelpfully top-down.

The establishment of the forum is just the latest example of this, and UPL’s press statement
yesterday set out its disappointment that, once again, a great initiative in establishing the
forum was preceded by an uncoordinated, rushed and incomplete effort to establish the
basis upon which it would operate.
 
No company would have been prepared to commit to a forum established in this manner.
As stated in yesterday’s press statement, it did not have to be this way. And it is simply
untrue to imply that by objecting to the basis on which the forum has been established, it
objects to it in principle or is attempting to avoid accountability. 
  
As you may be aware, the first meeting of the Cornubia Multi-Stakeholder Forum was held
in Umhlanga this morning in an effort to ensure greater public transparency and
accountability concerning the Cornubia warehouse fire.
 
1. Notable by its absence at the launch of the forum, was anyone representing UPL
(officially or visibly at any rate)
 

Please read again our statement released yesterday, 23 October (attached), which sets out
UPL’s frustrations with the manner in which the draft Terms of Reference (TOR) for the
forum were released, and UPL’s concerns with them. UPL has expressed its support for a
forum that will enable stakeholders to be informed and express their concerns, but it has
objected to the overly broad mandate that was proposed for the forum and the extensive
powers afforded to it.

Those reasons were set out in an extensive memorandum to the EDTEA on 15 October, and
instead of engaging on the TOR before the launch, government simply went ahead with it.
UPL made its position known to the Department's lawyers on Friday, the day before the
launch, and in response received the following communication later that day:

“It is unfortunate that your client has decided not to attend tomorrow, but we have noted
the reasons contained in your letter and will bring them to the attention of our client.

We will prepare a response early next week, following other inputs we get at the meeting
tomorrow and possibly after the meeting of JOC on Monday, with a view to establishing an
appropriate avenue for your client’s participation and further input in/with the forum.”

That is how matters stand. And as already stated, UPL’s inability to support the forum was a
result of these matters not having been finalised before its launch.

 
2. It was further stated at the meeting by senior EDTEA representative Mr Heinz Kuhn that
UPL had "indicated that it does not intend to fund this forum".
 
With respect to Mr Kunz, assuming he has been correctly quoted, that is a gross
oversimplification. The TOR are so broadly cast that the forum will have unrestricted power
to demand that UPL should pay for things that lie only in the hands of the Department to
require, and which may go way beyond the requirements of UPL’s statutory obligations.
These are fleshed out in the formal response made to the Department.

UPL cannot be expected to give this forum a blank cheque, and that much has already been
accepted by the Department’s advisors. So the central point is that the powers of the forum
need discussion, and it is enormously disappointing that what could so easily have been
done before the launch is now to become another issue of public controversy. UPL is
committed to finalising the basis of its interactions with this forum. That will take place
sensibly, rationally and appropriately with the Department’s advisers.
 
3. Earlier this week, UPL's legal representatives also responded to an official PAIA request
for information from the Cornubia Fire Action Group - rejecting the bulk of the requests
made and invoking UPL's right to silence and right not to incriminate itself.
 
UPL responded to the Cornubia Fire Action Group's PAIA request on the 20th of October
through its attorneys, Cox Yeats. UPL’s response has recognized the rights of the Cornubia
Fire Action Group in terms of Section 24 of the Constitution, particularly to information
which would allow for an assessment of the nature and effect of any contamination on the
public and the environment pursuant to the incident. In line with this, UPL has provided all
relevant documentation for which the Cornubia Fire Action Group has substantiated a
vested right.
 
In relation to other documents requested, there were several legitimate grounds on which
the requests were refused, including UPL’s right to silence and the right against self-
incrimination; and irrelevance and vagueness of the requests.
 
General comments

UPL remains committed to working with all relevant authorities and stakeholders to
mitigate the impact of the spill. In line with this UPL have spent over R250 million to date as
part of the clean-up and rehabilitation efforts which began the day after the arson attack. It
has also provided all relevant documentation to the authorities and other stakeholders
when there is a reasonable and legal basis to do so including weekly reports to government
authorities on its ongoing clean-up efforts.  
 
 
I will submitting a news report on these issues for the next edition of the Daily Maverick
and would be grateful for any comments/clarity UPL might wish to make in response to
the issues raised above. especially in the context of UPL's latest media statement of
October 22 giving the assurance that "UPL remains committed to continue working closely
with government, civil society and surrounding communities in order to mitigate the
impact of the fire and chemical spill and move forward after the unfortunate and
unforeseeable events of the 12th of July."
 
Please note that I am working to a production deadline of 1pm, Sunday,  October 24
should UPL wish to comment or respond.