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TO: Stellenbosch Municipality 28 January 2011 ATT: Municipal Manager: Mr D Daniels Our ref. GN Daniels/jb/T028-001EMAIL:mm@stellenbosch.org greg@greencounsel.co.za  CC: TATIB Foundation ATT: Mr Jurgen SchirmacherEMAIL: jurgen@schirmacherdesign.com Total pages: 3
The information contained in this document is confidential and intended for the exclusive attention of the addressee. Unauthoriseddisclosure or distribution of the information is prohibited. Please advise us immediately should you have received this document in error.
 Dear Mr Daniels
MEETING OF 24 JANUARY 2011 REGARDING PESTICIDE AND FUNGICIDE USAGE
We refer to the meeting that was held at Stellenbosch Municipality’s office on 24 January 2011between TATIB and representatives of the Municipality and the Cape Winelands District Municipality.1.
 
During the meeting it became clear that the Stellenbosch Municipality (the Municipality) may havea different view of its obligations under the Constitution of the Republic of South Africa, 1996 andthe laws that were discussed. This letter briefly sets out the legal view with regard to theMunicipality’s obligation towards its residents and its constitutional obligation in environmentalmatters as well as seeking clarity on matters that were discussed. Please note that we are notgoing to deal with this in detail as it has already been exhaustively dealt with by the LegalResources Centre letter which was sent to the Municipality.
Municipality’s Competence
2.
 
The objects of local authorities include, among other things, to promote a safe and healthyenvironment and to encourage the involvement of communities and community organisations inlocal government matters (s152(1)(d) and (e) of the Constitution).3.
 
Local authorities may only exercise authority over those matters which have been allocated to itin the Constitution. Air pollution, municipal planning, municipal health services and control of public nuisances, local amenities and public places (Part B of Schedules 4 and 5) have been soallocated. These matters fall within the exclusive jurisdiction of local authorities who have the
 
 2executive authority and responsibility for the administration of these matters. The rationale beingthat these things have local impacts and local authorities are better placed to deal with them. Itis precisely the locality that has resulted in TATIB’s concerns with pesticides and fungicides thatare used in close proximity to urban areas.4.
 
The National Environmental Management: Air Quality Act 39 of 2004, specifically provides thatlocal authorities may set ambient air quality provisions that are more stringent than that proposedby national government and that local authorities may in terms of by-law identify substances inambient air that are harmful to human health and well-being and establish local standards forthose substances (section 11(2).5.
 
We understand that while the Municipality may not be the competent authority to decide whetheror not a pesticide or fungicide may be lawfully used within South Africa, it is the competentauthority to decide and establish local standards for those substances or mixtures that it willtolerate within its area of jurisdiction. Accordingly, local authorities have competence to deal withpesticides and fungicides notwithstanding that a national department may have approved of it.6.
 
Failure by the Municipality to deal with this matter means that it is not fully exercising the powersprovided to it to deal with Part B, schedule 4 and 5 matters respectively, to uphold and protectthe fundamental human right to an environment that is not harmful (section 24 of theConstitution) or to give effect to the National Environmental Management Act 107 of 1998.
STIAS Vineyard
7.
 
We confirm that the Municipality is going to undertake a factual enquiry as to whether theabovementioned property is being used in accordance with its current zoning which is “singleresidential”. We understand this enquiry will have been undertaken within 30 days (i.e.24 February 2011) of the date of the meeting. We look forward to receiving that finding.8.
 
We must add that we fail to understand why the Municipality has numerous matters that arewaiting input from the justice department. We act for numerous local authorities and know thatthey do not make use of the national justice department or the State Attorney for that matter.Court papers, where a local authority is involved, are usually served on the office of theMunicipality and not the State Attorney’s office. Accordingly, we respectfully request that theMunicipality provides clarity on the way in which it implements or institutes litigation with regardto land use planning matters.
The spraying of oak trees in the Municipality’s area of jurisdiction
9.
 
We note that since 2006 the oak trees are no longer being sprayed with pesticides or fungicidesbut with a foliar feed. We request to be informed of the feed that is being used and when theMunicipality deems it necessary to apply it. We are not familiar with processes where foliar feedis applied to the foliage and accordingly seek clarity on this.
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