By Amelia Naidoo
Plans to enforce national key points legislation at Durban Harbour and other big harbours in the country could be used as a pretext to restrict access to information on environmental incidents within these areas, environmental groups have said.
National Ports Authority General Manager Nozipho Sithole had proposed declaring South African ports national key points according to the National Key Points Act of 1980 at the African Ports and Harbour Congress 2006 in June. This had been necessitated by international maritime regulations, the recent security industry strike and international terrorism threats, she said.
However, South Durban Community Environmental Alliance chairperson Desmond D'Sa referred to the apartheid legislation as undemocratic and called for it to be scrapped.
"If ports are declared national key points, the impact on surrounding communities will mean that communities will be not allowed to take photographs, video incidents or take their own samples if they are affected by any chemicals emitted from the various chemical clusters at South African ports."
Some port facilities such as the large Island View oil and petroleum complex are still national key points.
D'Sa said people would fear being arrested if they tried to get close to the port or if protests were held at the complexes after industrial accidents.
Freedom of Expression Institute head Jane Duncan said the Act curtailed the right to report on political campaigns or environmental protests, or even to engage in such action in proximity to a listed institution.
Duncan said this was of concern as many listed plants or companies were embroiled in conflict with local communities over environmental and occupational hazards.
"These companies have used the National Key Points Act in the past to avoid communicating information and news regarding these issues. These anti-disclosure provisions enable the authorities to keep the public in the dark about places that pose potential or actual environmental hazards."
Bobby Peek, the director of environmental justice watchdog groundWork, said the Act was at odds with the Promotion of Access to Information Act that sought to advance transparency and accountability.
Peek said the legislation had been in place to protect key installations of the apartheid government but "we are no longer in a state of war and this Act should fall away". He added that the outdated Act was in conflict with the National Environment Act and Section 24 of the constitution, which ensures the right of people to live in a clean and healthy environment.
D'Sa said: "We will not be able to challenge the dirty polluting industry, just as in the apartheid era. And information denied will result in communities having no knowledge which, as in the past, will be held by a few government officials and industry."
D'Sa said access to the petrochemical hub in south Durban was controlled by permits issued by the industry. Environmentalists had difficulty in obtaining information after industrial incidents, such as risk assessments, as "the companies are reluctant to provide this information which they give openly in Europe or the US", he said.
Duncan said the institute was "deeply troubled" about the tendency of the government to invoke apartheid-era legislation to suppress rights and freedoms, while failing to amend such legislation to bring it in line with the constitution.
"The problem with the Act is that not only does it prevent attacks on national key points, it also prevents the free flow of information and expression in relation to the institutions listed as national key points, which is inappropriate in a democracy. There are less restrictive means of achieving the same ends... but to throw a general blanket of secrecy is unjustifiable," she said.
The institute has tried to have such legislation repealed or amended since 1994, with little success. Duncan said excuses, such as the cost of undertaking a comprehensive review, were made, but added that it was politically convenient to keep such legislation on call to be invoked at strategic moments to suppress dissent.
Duncan said it was disturbing that there was no public scrutiny of how institutions got on to the key points list. "This opens the Act up to abuse, where the government chooses to add institutions targeted for protest action on the list in order to suppress such action."
Open Democracy Advice Centre head Alison Tilley said requests for information in terms of the Provision of Access to Information Act would "not be governed by the National Key Points Act, and declaring ports national key points would not mean that records in relation to those ports could not be accessed".
"The Access to Information Act overrules the National Key Points Act and groups can get information... even if ports are declared National Key Points."
"We agree, though, that the National Key Points Act does need to be revised in light of the constitution, and particularly the right to freedom of expression, and the right to access to information."
Fishermen have also been affected by the security measures.
"Fishermen are not terrorists. We are simple people who need to feed our families," said local fisherman Max Magnussen.
Subsistence fishermen were unable to access South Pier, where fish tend to congregate, as the entire area was fenced off, he said.
Magnussen said increasing regulations made his livelihood difficult and fishermen were "slowly getting squeezed out".
Although the debate on increasing security at ports had been on the government's agenda for six months, Sithole said it was unclear if ports would be declared key points. She said a "basket of possibilities" had been presented at the congress last month and consultation with stakeholders would be held before a decision was made.
Sithole said the new measures were obligatory as the vulnerability of the maritime sector had prompted the United Nations Security Council to set up the International Ship and Port Security Code (ISPS). South Africa's seven commercial ports became fully ISPS Code-compliant a year ago.
However, Jyothi Naidoo, the National Ports Authority spokeswoman for Durban Harbour, and Acting Port Manager Hennie Strydom did not provide answers on where the security measures were being implemented and how they would affect access for the general public.
Safety and Security spokesperson Trevor Bloem was also unable to say if the government would make ports key points. He said it was convenient to call the key points act "an apartheid act". He said the act was based on security and safeguarding institutions and not industry-based.
"It seeks to promote better security for the citizens of South Africa as opposed to exposing them to risk. The National Key Points Act does not deny access to information. the Promotion of Access to Information Act does not exclude national key points."