A “decisive” ruling delivered by the high court in the Northern Cape on sewage pollution signals hope for the beleaguered waterbirds of Kamfers Dam, according to BirdLife South Africa.
Kamfers Dam, near Kimberley, was once home to a thriving breeding colony of lesser flamingos. It is South Africa’s only lesser flamingo breeding site.
“However, the site has been abandoned by this iconic species because of the Sol Plaatje municipality’s failure to maintain the Homevale wastewater treatment works,” the non-profit bird conservation organisation said.
The sewage contamination has turned Kamfers Dam into a “de facto cesspool”, it noted. The deaths of more than 160 waterbirds in the latest outbreak of avian botulism, linked to the municipal sewage pollution, at the end of last year, “highlighted the severity of the situation”.
Historically, the pan hosted Southern Africa’s largest permanent lesser flamingo population, with more than 80 000 recorded in 2006.
BirdLife South Africa welcomed the recent ruling by Judge Almè Stanton, which confirmed an earlier order granted by the judge on 22 March 2024. This was in response to an application brought by Northern Cape Ranchers. It is the owner of the land on which Kamfers Dam is located.
“After months of inaction on the part of the municipality, lawyers acting for the landowner filed for a contempt order on 17 July 2024. The property on which Kamfers Dam is situated, a portion of the remaining extent of the aptly-named Farm Flamingo, has been in the Booth family for many years.”
Kamfers Dam, originally a closed basin non-perennial salt pan, spanning about 400 hectares, is wholly within the farm’s borders and in normal times comprises almost 40% of the farm’s total area. A deed of servitude allows the municipality to discharge effluent from the Homevale plant after it has been treated to the required standard.
According to landowner Brenda Booth, for several years it has been evident from water testing results, the foam around the banks of the dam and the smell, that the treatment standards were not being met.
Booth’s allegations against the municipality include the destruction of the flamingo wetland sanctuary, which caused the once-resident flamingos to abandon the wetland and the farm; serious pollution of the water resource and surrounding areas and inundation of approximately 700ha of the farm.
Her advocate, Danie Oliver, challenged the municipality’s excuse of a lack of funds, citing an amount of R492 million that had been made available from the treasury for 2024-25 infrastructure development and maintenance.
Judge Stanton, in confirming the rationale behind the issue of a structural interdict against the municipality, cited several sections of the Constitution including section 24, which enshrines the right of everyone “to an environment that is not harmful to their health or well-being”.
The ruling also noted that it is beholden on the administration at national, provincial and local level to adopt and follow reasonable legislative measures to prevent pollution and ecological degradation.
The court not only highlighted the need to alleviate the plight of the landowner, but also demanded that the local authority fulfill its constitutional obligations to “those whose interests it is there to serve.”
The municipality has until noon on 30 May to file a report on progress to ensure, among other requirements, that no untreated sewage or waste water with an E. coli content
exceeding the legally prescribed limit (1 000 colony forming units per 100 million litres) is discharged into any portion of Kamfers Dam or the farm.
Further requirements are that the amount of treated sewage or wastewater discharged into the dam on the farm is limited to 30 megalitres (30 million litres per day), alternatively to the extent that water levels in the dam return to 2015 levels.
The ruling, too, ordered that sewage and/or reticulation systems and infrastructure in and about the area of the Homevale plants are repaired and/or reinstated to be fully optimal and at full operational capacity “to ensure that no spillage, irregular discharge or overflow of sewage and effluent occurs over or onto the land in the area surrounding the water resource”.
The treatment works and the area around it must be properly secured, including the installation of CCTV cameras, according to the ruling.
The interdict comes as a huge relief, said Ester van der Westhuizen-Coetzer, an environmental specialist at Ekapa Mining who first reported the dead and dying birds at Kamfers Dam to BirdLife South Africa in December last year.
“We are hopeful that this will galvanise the municipality into making the necessary repairs to the Homevale plant so that the environment can recover,” she said.
Mark Anderson, the chief executive of BirdLife South Africa, commended Booth for her courage in standing up for their rights as well as for the environment.
“Although the flamingos have not been able to breed at Kamfers Dam since the sewage works fell into disrepair, we are encouraged by the court ruling — the town of Kimberley deserves to have its flamingos back where they belong,” he said.
“We hope that this ruling will serve as a caution to other local authorities who are failing in their duty to protect our valuable wetlands and water resources from sewage contamination.”
The municipality, in its supplementary replying affidavit, noted that the malfunctioning mechanical components in respect of the 15 megalitre module were repaired in full in September last year, and the mechanism that accommodates the chlorination process and that services both the 15 and 33 megalitre modules, was also repaired.
Three mobile pumps have been acquired and were delivered in October last year. These pumps will facilitate the distribution of water discharge from the Kamfers Dam to the Homevale plant, which would ensure that the water levels at Kamfers Dam would return to 2015 levels. The pumps are, however, not operational as the 3km water pipeline has not yet been replaced.
The municipality said the raw sewage discharge had been reduced by half. It said that, for the 33 megalitre module to become fully operational, funding of R106 million was required. A request was made to the department of water and sanitation that was still under consideration.
The court took umbrage at this figure. “… The participating respondents’ submission that funding in the amount of R106 000 000 is required for the repair of the 33 megalitre module is absolutely astounding as it is contrary to the common cause fact that a submission for funding had been made to the department [of water and sanitation] during June 2024.
“It is also common cause that the department had made available an amount of R492 000 000 000 for the 2024-25 financial year and an amount of R574 000 000 for the 2025-26 financial year to the municipality for water infrastructure refurbishment.”
The applicant, in its supplementary replying affidavit, noted the repairs alluded to, however, persisted that it had not made a material difference to the pollution and that untreated sewage was still being deposited into Kamfers Dam. There was, too, “paucity about the practical implementation of the steps alleged to have been taken”.
The municipality and its manager are required to report directly to the high court on steps taken every fourth month until the court determines that the situation has been resolved.
In justifying a cost order against the municipality, Stanton said the respondents had shown a “careless and negligent disregard” to the importance of the matter, not only to the applicant “but also to the City of Kimberley and members of their community”.
“I reach this conclusion in view of the cavalier approach to the implementation of the March 2024 order. Even though they conceded that the application is of a serious nature, one would expect the participating respondents to have a robust approach to resolve the disaster and not only to wait until the 11th hour to disclose to the applicant and the court what had transpired since the filing of the answering affidavit.
“Their conduct … leaves much to be desired and also warrants censure. In the circumstances, it would be just and equitable that the participating respondents pay the costs of the application.”