In her presentation on the legal framework, Advocate Susannah Cowen, a member of Thulamela Chambers, told the webinar: “There is a clear absence of an effective legislative framework to regulate agrochemicals in South Africa, and this results in consistent and systematic breaches of human rights.”
These include the constitutional rights to life, dignity, an environment that is not harmful to health or well-being, fair labour practices, security and control over one’s body, access to information and just administrative action.
Cowen was reporting back on a legal submission, made on behalf of The Real Thing to President Cyril Ramaphosa and eight government ministers shortly before the outbreak of the coronavirus pandemic in March 2020. The submission called for a complete overhaul of the legislation but unfortunately has not been heeded.
The current law, Act 36 of 1947, is three-quarters of a century old and has not been updated, in stark contrast to the ever and rapidly advancing biotech industry and the plethora of associated chemical products in use in South Africa.
“The government is under a constitutional duty to remedy what I conclude as a systematic violation of rights,” said Cowen.
Euphemistically termed “crop protection solutions” and “chemical remedies” by industry (poisons designed to effectively kill pests in reality), agrichemicals are not just used on our crops. They are also used:
Domestically in homes and gardens, and in paints and handwashes;
For insect control on aeroplanes;
At borders for foot-and-mouth disease;
On grounds in public spaces, parks and sports fields;
In hotels and on golf courses;
For pest control in townships;
Painted on to the hulls of ships to prevent barnacles;
For mosquito control and malaria prevention;
In veterinary applications for animals; and
In forestry for alien vegetation removal and on treated timber.
They are used almost everywhere.
As a result, South Africa has 14 pieces of legislation governing agrichemicals scattered across seven different government departments. This fragmentation results in a lack of departmental accountability. This issue is compounded by inadequate regulations and entirely lacking enforcement thereof, attributed to the capture of the sector by industry, and because “social progress has been sidelined in South Africa for nearly a decade due to corruption”.
A public health perspective
Prof Leslie London, chair of public health medicine in the School of Public Health and Family Medicine at UCT, explained that despite an employment crisis and an abundance of available labour, municipalities invest in poisons rather than in labourers to weed roadsides. He also questioned why programmes like Working for Water use highly toxic herbicides for vegetation control, effectively poisoning the very water for which they purport to be working.
An article titled “Banned in Europe: How EU Exports Pesticides too Dangerous For Use in Europe”, published in September 2020, exposed the double standards of the EU and Britain in which chemical factories of these regions such as Syngenta, Bayer and BASF were found to export (and obviously profit from) the self-same pesticides that they have banned for use in the fields of their own countries. It’s a shocking display of global north hypocrisy, allowing dangerous agrochemical companies to flood low- and middle-income countries for the financial gain and profit of European nations.
“They sell us chemicals that they won’t use on their own soil, and then ban the import of produce for their own consumption that contains traces of these very same chemicals,” said Prof London.
However, while the selling of such poisons to developing nations is unethical, it’s legal. South Africa stands near the front of the queue as one of the largest pesticide importers on the continent, with the highest use concentrated in the Western Cape.
A draft regulation was circulated in October 2020 by Minister of Environment, Forestry and Fisheries Barbara Creecy “to domesticate the requirements of the Rotterdam Convention on the prior consent procedure for certain hazardous chemicals and pesticides in international trade”. This draft regulation sets out the official process for chemicals allowed entry into or exit from our country. While credit is due to Creecy for addressing what many ministers have not before her, the regulation is puzzling.
London explained: “The regulation relies on a receiving country to confirm that they got the notification about the hazardous chemicals being imported and respond that they are OK with it. If the receiving country doesn’t respond after a few efforts by the South African Designated National Authority (DNA) to alert them, the Department of Environmental Affairs and Tourism (DEAT) can still sign off an export permit.
“The regulations imply that the DEAT, as the DNA, will try hard to get a response (clause 5), but if it can’t, South Africa will still sign off on an export.
“Imagine if a pesticide company wants to sell dieldrin (an insecticide banned in most of the world) to Malawi, for example, and the Malawi infrastructure is so collapsed that nobody in the ministry is able to respond – well, the DEAT will sign the export off. A South African company can still send a banned pesticide to another country.
“It seems to defeat the whole purpose of the Rotterdam Convention. It’s not DEAT’s job to facilitate trade in pesticides or to assist a company to export a hazardous product to another African country.
“Let the company do the work to get a response that the receiving country doesn’t mind getting a carcinogenic endocrine disruptor sent to it. It should not be a default that if there is no response, it is taken as acceptance,” said London.
Pesticides and SA’s informal markets
While we are legally receiving tonnes of EU-banned pesticides from the developed world, pesticides are also flooding in from China and reaching our informal markets in two problematic scenarios.
Firstly: illegal pesticides. While there have been attempts to address this with raids and product confiscations, disposing of these quantities of poisons has proven unfeasible for authorities.
In one known example, the government has opted to legally register a pesticide containing organophosphate (a highly hazardous class 1A pesticide) as approved for sale in South Africa. In other words: if you can’t beat ’em, use ’em and eat ’em!
Secondly: Generic pesticides. Generic chemicals need to register under Act 36, but they don’t fall under an umbrella organisation, in this case CropLife —the registration body for agrichemicals. Therefore, while the chemicals are registered and “regulated”, the companies themselves aren’t.
To add insult to injury, we have double standards that further erode public health. South African consumers are blissfully ignorant of the fact that the produce we eat is not tested for minimum residue levels. By contrast, produce destined for export, however, requires strict testing protocols and compliance with Global G.A.P. standards.
Let that sink in. None of the fruit, vegetables or crops we eat in South Africa are tested for chemical residues.
Professor Andrea Rother, head of the environmental health division and associate professor in the School of Public Health and Family Medicine at UCT, described the example of an avocado shipment that was denied entry to the EU because of illegal toxic residue levels, which was turned back to be sold on our local market.
Another irony is that the responsibility of the correct use of the poison falls on the user, who is often a poorly educated or the farmworker, municipal worker or groundsman. The pesticide label is regarded as a legally binding document whereby using the product in any way other than what is stated on the label renders the user liable to a penalty. This protects the industry and shifts the liability on to the applicator and end-user – not the manufacturer, nor the “gifstofman”, nor the extension officer who distributes on behalf of the Department of Agriculture.
The labels are confusing.
London shared the findings of a study that asked workers to interpret chemical product labels. The symbol for “oxidising effect”, for example, was mistaken for a flower and there was a less than 35% comprehension rate for “chronic effects”. This highlights significant labelling failings.
There is no training nor educational material shared with users on how to interpret the symbol or the different colour coding given to the different class chemicals.
Did you know that chemical labels are colour-coded red, yellow, blue and green according to toxicity? Neither does anyone else, because this information is not publicly available and no awareness or education is facilitated by the Department of Agriculture or industry.
As Rother explained, there is no legal mechanism to ensure right-to-comprehend label information. Users have information, but no means to understand it. The labels generally also lack crucial information such as how to (or how not to) apply the chemicals; the size of buffer zones (the distance between spraying and residential establishments or bodies of water); the time required between spraying and allowing re-entry to the sprayed areas, and gendered risks such as the danger of exposure while breastfeeding.
London shared shocking examples of risk exposure and lack of label comprehension, including a photo showing a small-scale female farmer holding a container of class 1A pesticide (the most hazardous class) that she had been using as a candle holder in her shed, oblivious to the consequences of her exposure to the toxins and the risk of the open flame burning atop the container.
Another picture showed a mother with a very young baby sleeping on her back, decanting highly hazardous agrichemicals, without protective gear for herself or her baby, whose exposure carries significantly higher health risks.
A picture of a former farmworker who freelances as a spray operator in KwaZulu-Natal showed his trousers visibly soaked in pesticide due to not being equipped with protective gear.
Said London: “He is bathing in pesticide. The problem is that that’s his job. He has no other skill to offer and he can only get an income during the season. And the law will make him the culprit. There will not be an inspector [checking the safety compliance or storage, equipment and use] unless someone dies.”
READ MORE - Who are you buying your agrochemicals from?
How do we find out more about these chemicals?
Information on each pesticide and the active ingredients used to be openly available on the Department of Agriculture’s website, but no more. Anyone wanting to find information or guidelines about any agrichemical is now directed to this website. However, Agri Intel is owned and managed by CropLife, whose members represent 12 of the major agrochemical companies operating in South Africa including Bayer Crop Science, Syngenta, Corteva Agriscience and AVIMA.
CropLife is the organisation that manages South African agrichemical product registrations and houses the database with all the industry information on the various agrichemicals.
London said: “What this means is instead of government fulfilling its obligation and regulatory function, it has outsourced that to the “plant science” industry. Product information is fiercely guarded and secrecy is the status quo. There have been many attempts to compel companies to share information on testing processes or ingredients, but these have been unsuccessful.
“One would need to go the legal route and apply the Promotion of Access to Information Act of 2000 and even then it’s likely that industry would have further protection to stifle you. Should you make an inquiry on the website the response is, “Why do you want to know?”
“It’s the fox guarding the henhouse,” said London. “It’s absolutely unacceptable in this day and age when we have the right of access to information, that the information is controlled by the same people who profit from agrichemical use.”
The effects of pesticide exposure
Pesticide exposure causes a range of health problems from rashes, headaches, burning eyes, dizziness, nausea, vomiting and asthma to developmental problems in children, reproductive disorders for both men and women, immune and endocrine system dysfunction, nerve and brain damage, cancers, acute or fatal poisoning, and more. Yet workers and farm dwellers have little protection from exposure owing to lack of safety precautions and basic protective gear (such as masks and gloves), and little to no healthcare access.
For female farmworkers, in particular, the issue of hazardous chemicals and exposure to hazardous agrichemicals is not an isolated issue, according to Corlette Solomons of the advocacy group Women on Farms Project (WFP).
“It’s very much part of broader issues: social and economic justice, equity, land rights, health rights and labour rights. 73% of female seasonal workers are exposed without any protective clothing and more than half of them are forced to go back and work in vineyards within an hour of the area being sprayed.”
WFP member Tatina (*not her real name), 54, is a former farmworker. She is now unable to work due to respiratory problems. She described the white layer of pesticide present on grapes in the vineyards where she was expected to work with bare hands. When she asked the farmer about it, she was told that the residue was harmless food for the leaves. “We and our children are exposed every time they spray. There is no warning, and our homes are in the midst of it.”
Paraquat — banned in the EU, available in SA
One such pesticide is paraquat, a substance so dangerous that one sip can be lethal. It was first marketed in 1962, but has been banned in the EU since 2007 and in Switzerland since 1989 on the grounds that it is too dangerous for European farmers, even when wearing protective equipment.
In South Africa, the chemical is still widely used, not only on food but in residential estates and public places.
Dr Gerhard Verdoon of the Griffon Poison Information Centre, an organisation that endeavours to rid the country of illegal poisoning, explains that paraquat, also known as Gramoxone, is a herbicide which destroys all tissue. “It eats away at your mouth, your oesophagus, your stomach. It burns up everything inside. If you ingest it, it’s tickets.”
Angela Andrews, a former attorney in environmental law, explained the importance of labelling. She suggested that even without legislative reforms, and just by employing the National Environmental Management Act of 1998, South Africans should expect the use of such chemicals to be regulated.
She proposed that pesticides be regulated via the product labels, so that they can be used to correct the malpractice. If labels were required to cite easily verifiable information, they could be used very differently to ensure compliance.
“The labels say you will not allow drift into neighbouring residential areas, you will not allow pesticides to contaminate water bodies, you will wear protective equipment.” Absolute compliance with the labels would result in a significant change in how farmers are running their farms.
After hearing from experts on pesticides and their regulation the webinar discussed possible civil society action and legal approaches. In the legal submission that was sent to President Ramaphosa more than a year ago, it is proposed that:
The legislative framework needs to be overhauled and modernised.
The government needs to build capacity and skills to effectively regulate agrochemicals and enable intergovernmental cooperation and engage the public responsibly.
There needs to be a move away from the embedded culture of secrecy in the sector and effective right to know provisions must be placed at the centre of regulation.
The law should mandate a periodic review of agrochemical product registrations.
There needs to be an expedited procedure to facilitate the registration of non-toxic alternatives to chemical remedies.
There need to be coordinated and effective cradle-to-grave monitoring systems for the use and prevalence of chemical remedies.
It also calls for four minimum requirements regarding the public’s right to know:
Making provision for public access to product testing information generally, and specifically to enable meaningful public engagement during the process of product registration;
Aligning the system of product registration with the requirements of the right to administrative justice, the rule of law, and the Promotion of Administrative Justice Act 3 of 2000;
Improved labelling requirements; and
The adoption of effective public awareness and education initiatives.
Ethics has a human face. The constitutional rights of countless South Africans are being systematically violated by the use of these poisonous pesticides.
For all these reasons, the elimination of highly hazardous pesticides is long overdue, exposure reduction is key, and relying on current labels alone to educate is misguided at best and wilfully negligent at worst.
It’s high time that the public is informed and that government steps up to protect its citizens and that the citizenry takes up the mantle and advocates for these basic rights. DM/MC
