Waste management giant EnviroServ has accused the Department of Environmental Affairs (DEA) of bias and fuelling a “trial by media” through its handling of the Shongweni landfill.

It further accused the DEA of having decided, despite no formal resolution or action taken, to suspend the company’s Shongweni licence, which could see the indefinite closure of the site.

The dressing-down was done in an email from EnviroServ’s lawyers on Monday to the DEA’s deputy director-general for chemicals and waste management, Mark Gordon. Gordon has denied the allegations.

The emails form part of documents filed in the Durban High Court in a case related to an urgent interdict being brought by EnviroServ in a bid to silence London-based Shongweni landfill activist, Jeremy Everitt. That matter is expected to be heard next week.

In an email, EnviroServ’s legal representative, Christo Reeders, cited instances where the media and the Upper Highway Air NPO – a grassroots organisation lobbying for accountability from EnviroServ – appeared to be privy to information affecting the company.

“You have been reported in the media as also having stated that certain of [EnviroServ’s] submissions to you regarding the cause of the problems at Shongweni are not to be believed,” said the letter.

Reeders said Gordon had told the NPO that a decision to suspend or revoke the licence for the Shongweni landfill would be made by 10 March.

“Under the circumstances, the only reasonable inference that can be construed from your various disseminations is that you have already elected to suspend or withdraw [EnviroServ’s] WML (Waste Management Licence). This is notwithstanding the fact that you have clearly not met the prerequisites to do so.”

The Director of Public Prosecutions announced last week that the company was being criminally charged for contravening the National Air Quality Act. ANA understands other charges have been added to the docket.

The company has come under fire from community members living near and around the landfill, who believe that “toxic fumes” from the site have been making them ill.

EnviroServ has denied any culpability for symptoms experienced by the communities, but has admitted that it is partially responsible for the malodour.

In February, Gordon told ANA that he did not believe EnviroServ’s explanation for the stench. The company had said the bacteria Desulfovibrio vulgaris contributed to the malodour, and that because of a drop in pH level – sanctioned through regulation changes by the DEA – the bacteria had been able to thrive.

In the emailed letter, Reeders cites media reports in late February saying that the NPA had decided to prosecute EnviroServ. This was done before the company had received a charge sheet or appeared in court, according to Reeders.

“We have on numerous occasions raised with you in writing our concerns regarding an obvious and unchallenged information ‘leak’ in the department, the existence of which you have actually confirmed in writing,” according to Reeders.

He further said that the NPA’s decision to initiate criminal charges against EnviroServ were premature.

“Equally premature is your purported intention to take a precipitous decision in respect of [EnviroServ’s] WML until the agreed process has been exhausted,” said Reeders.

He said that EnviroServ was concerned that “public opinion is significantly, if not exclusively, influencing [Gordon’s] and the Department’s decision making”.

He said that Gordon’s statements and “the apparent trial by media” was fuelling the fire against EnviroServ.

Reeders further said that on 28 February, EnviroServ presented the department with a “definitive action plan” with additional remedial actions that were expected to “substantially mitigate the odour within six months”.

He said the immediate closure of the site would significantly delay the remedial action that had commenced and was on going.

“Valuable work that has been effected would likely be immediately rendered nugatory and would likely require repetition in due course,” Reeders said.

In the letter, dated 5 March, Reeders demanded that by 6 March (Monday) Gordon, before making a decision on whether to suspend EnviroServ’s licence or not, provide the company with a “substantive and comprehensive written response” to the company’s previous representations to DEA, as well as those made by the Upper Highway Air NPO.

Reeders said EnviroServ needed time to respond and also demanded Gordon to “detail the process to be followed in reaching your decision”. It was not immediately clear if Gordon met this demand.

In his response, Gordon said that he had acknowledged allegations made by EnviroServ CEO Dean Thompson regarding leaking of confidential documentation. “At no point did I agree that information had leaked from the department,” he said.

Gordon said that he had not replied to certain correspondence sent by EnviroServ because he had taken the time to “fully understand the physical, engineering and biochemical dynamic resulting in the continuous emissions of gaseous odours from the Shongweni landfill site”.

“My response therefore serves to further confirm that before any decision is made regarding the suspension or revocation of the Shongweni WML, due consideration will be given to all relevant information and representations, as well as that due process will be followed in terms of the relevant legislation.”

Gordon said he was not averse to giving EnviroServ another opportunity to present further evidence and that he would make arrangements for the company to do such “as soon as possible”.