On guard: A member of the Gariep Watch NGO tests sediment in the Orange River, along which grapes are farmed. Photos: Fritz Bekker & Hoberman Collection/Getty Images
A Northern Cape NGO has filed criminal complaints against the municipal managers of 11 towns in eight municipalities over “rampant” sewage pollution that threatens agricultural exports, the quality of drinking water in the province and the health and livelihoods of the towns’ residents.
“The only lifeline of the entire province is the Orange River and it’s being contaminated with sewage,” said Fritz Bekker, one of the founders of Gariep Watch, which has opened a criminal case against the municipal managers of Vanderkloof, Hopetown, Upington, Kakamas and Vredesvallei on the Orange River; and Bloemhof, Christiana, Warrenton, Vaalharts, Jan Kempdorp and Barkly West on the Vaal River.
“The reason we’re following this process … is we found that if we litigate, it’s going to be the taxpayer that’s going to pay again for the government not doing its job.”
Environmental monitoring by Gariep Watch has been underway since 2017. It manages the only chemical, bacteriological and biological water quality database on the lower Vaal and lower Orange River.
“We sample upstream and downstream from the big impacts — the sewage plants that we’ve identified on the river. So, what we’re doing is actually allocating risk to the different municipal areas,” Bekker said.
There is a R10 billion export industry downstream from these municipalities, which poses a risk to the export industry, the main crops being table grapes and raisins.
“It’s not only the problem with the export industry, it’s jobs that will be lost as well,” he added. “Somebody has got to pay if these municipalities are responsible for the cancellation of export contracts.”
The water and sanitation department, as the custodian of water resources, is also to blame for the pollution.
Bekker said the department issues directives and has mitigating measures in place “but they don’t use the legal route because it is an unwritten law that the government doesn’t prosecute the government.
“If you get a municipality to pay a fine, it’s taxpayers money. That’s why we want to go after the municipal managers.”
The department’s 2022 Green Drop report showed that only 23 wastewater systems qualified for prestigious Green Drop certification, compared with 60 in 2013. The audit covered 995 wastewater networks and treatment works, identifying 334 municipal wastewater systems to be in a critical state in 2021, compared with 248 in 2013.
The provinces with the highest number of municipal wastewater treatment works in critical risk are North West (60%), followed by the Northern Cape (59%) and Free State (44%). Limpopo has 38% of its plants in critical risk and 48% as high-risk plants.
On 30 January, officials from the Umsobomvu local municipality in the Northern Cape will make a second appearance in the Colesberg regional court on charges related to environmental pollution because of the uncontrolled release of sewage in the Noupoort town centre and on a nearby farm. In their first appearance, on 13 December, the matter was set down for a plea.
The matter arose after Noupoort farmer Pieter Langenhoven registered a case with the local police,who referred the investigation to the Green Scorpions in the department of forestry, fisheries and the environment. It investigated and the Northern Cape director of public prosecutions’ office decided to prosecute. In the dock are Amos China Mpela, the former municipal manager, Simphiwe Nkcithiso, acting municipal manager, and Franklin Swartz, the head of water, sanitation and solid waste.
“My lambs died from the sewage water and I struggled with the municipality over that sewage water and they didn’t care,” Langenhoven said. “The sewage runs in the same direction as which the town’s drinking water is pumped from and there aren’t people that give the matter attention or who do the work.”
The municipality did not respond to queries from the Mail & Guardian.
Since the criminal case was instituted, the situation in Noupoort has improved. “The pumps are running and they check them every day and if there’s a fault, they fix it chop-chop. There’s not this sewage running all over anymore,” Langenhoven said.
The environment department spokesperson, Albi Modise, said the unlawful and uncontrolled release of sewage has the potential to cause damage to the environment, which may result in adverse effects on human health. “For this reason, there are several provisions which are contained in the National Environmental Management Act, and its subordinate environmental legislation, which criminalises such behaviour.”
The water department should take municipalities to court, said Ferrial Adam, project leader of the Water Community Action Network (WaterCAN), an initiative of non-profit civil action organisation Outa.
“They have not been doing that because they claim co-operative governance issues, but [that’s] rubbish. There is cooperative governance until a point but then there needs to be drastic action and they’re not taking the action.”
She accused the water department of continuously issuing directives which were a “waste of email energy”, adding: “They send these letters to the municipal managers, they sign off and say ‘accepted’ …
I don’t know if [the water department] follows up, or if it follows up months afterwards.”
The buck stopped with municipal managers and mayors, Adam said. “It’s their heads that need to roll. If you don’t charge them criminally, this shit, excuse the pun, will continue … We can have 1 000 court cases with every municipality, it will just carry on. We have to get rid of the rot of people not doing their job.”
The collapse of sewage infrastructure is a nationwide problem that is potentially more significant than South Africa’s electricity crisis, said water expert Anthony Turton.
“It is below the radar screen, but the extent of destruction is vast and the human health implications are yet to be felt,” he said.
“Every municipality in the country is affected, and all are bankrupt or insolvent in different ways. The means of repairing the damage is no longer within the financial reach of a typical municipality, so it will probably remain unrepaired as more pressing matters are dealt with.”
Foul: Sewage flows into the Vaal River. Criminal cases have been opened against municipal managers in Bloemhof, Christiana, Warrenton, Vaalharts and Jan Kempdorp and Barkly West. Photo: Delwyn Verasamy
The harm to health is difficult to predict, but “it’s not beyond the realm of plausible likelihood that we will see various outbreaks of a range of diseases directly related to sewage contamination”.
Most sewage works discharge into the same rivers from which drinking water is sourced, and no bulk water treatment plant has ever been designed to convert sewage contaminated feedstock into potable water.
Turton said South Africa is likely to see systemic failure across both wastewater and potable water systems as the country approaches the 2024 general election, accelerating as the Eskom grid disintegrates further. “The water and energy grids are interdependent, so the demise of one impacts on the rate of failure of the other.”
Water department spokesperson Wisane Mavasa said the department had taken criminal action against four municipalities in the past two years for sewage pollution under the National Water Act (NWA).
“Two municipalities have been criminally charged [Rand West Local Municipality and Thaba Chweu Local Municipality] and a fine has been imposed for failing to comply with any condition attached to a permitted water use under NWA; and for failing to comply with a directive.
“Both municipalities pleaded guilty and a plea sentencing agreement was reached,” she said.
The National Prosecuting Authority is guided by the Water Act in determining fines to be imposed against offenders. Since 2014, it has issued 135 notices and 72 directives against municipalities, mostly in Mpumalanga, Northern Cape, KwaZulu-Natal and Gauteng.
“The department is closely monitoring the implementation of these administrative actions to monitor compliance with the instructions outlined in the notices and directives,” said Mavasa.
The water department said that if remedial action is not taken, the department works with the ministry of cooperative governance and traditional affairs, the South African Local Government Association and the Municipal Infrastructure Support Agency to offer assistance, including grant finance and technical advice.
If this does not result in improved compliance with the notices and directives, then the water department initiates stronger action, including criminal charges against the municipality.
Increasingly, it is taking civil action to obtain court interdicts.Civil relief has recently been sought against the eThekwini, Tshwane, Sol Plaatje, Dr Ruth Mompati, Matjhabeng and Ngaka Modiri Molema municipalities, among others, according to the water department.
The department, Mavasa said, is strengthening its publicly accessible Integrated Regulatory Information System (Iris), which contains a dashboard of information about regulatory compliance and performance for both water and sanitation for all water service authorities.
“It is also in the process of putting in place standard decision rules for when notices, directives and follow-up actions must be implemented by its regional offices, based on the information in Iris,” with this work due to be completed during next year. It will result in “more consistent and systematic” implementation of regulatory compliance measures.
In many municipalities, the root cause of sewage spillages is weak governance and management. “This results in poor billing and revenue collection, a lack of attention to maintenance, a lack of prioritisation of sanitation projects for capital expenditure and inappropriate recruitment of staff without the requisite qualifications and experience, among other weaknesses. “The key solution to this problem is improvement in governance and management in municipalities, which is not something that DWS can improve on its own.”
In accordance with current laws and regulations, the department, Mavasa said, has determined that there are no provisions for administrative fines under the current NWA in the form of monetary penalties for violations related to pollution of water resources.
“To address this deficiency, the department is working on revising the NWA legislation to include prescriptive fines “as a means of enforcing penalties against offenders that violate the said legislation to ensure protection of water resources”.
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