Water department in tricky legal waters
The department of water affairs, through the National Prosecuting Authority (NPA), is taking the Stellenbosch municipality to court for polluting the Eerste River. The charge comes after the department's investigative arm, the Blue Scorpions, directed the municipality to stop releasing damaging levels of polluted water from its waste-water treatment plant.
Linda Page, the spokesperson for the department, said it had provided technical assistance and financial support to the municipality, but little had been done to remedy the problem. "This is a continuing health hazard and it is harming the farming community because the water is not suitable for irrigation," she said.
The case has now been handed over to the NPA.
Eric Ntabazalila, the spokesperson for the NPA in the Western Cape, said the authority was still planning its case and a decision on whether or not to prosecute had not yet been taken.
A source in water affairs said the case was going ahead because it was frustrated with trying to work with local government.
"We always go through Cogta [the department of co-operative governance and traditional affairs] to try to resolve the problems municipalities have. But this has not been working. So we will instigate criminal charges against the municipality."
The case against Stellenbosch is also a way of testing whether the department can prosecute more government bodies. The department is hamstrung because the protocol it should be using to prosecute municipalities is still in its draft phase and has not been signed by the director general.
Asked why the draft guidelines for prosecution had not been completed, the department said it would respond but it had not done so by the time of going to press.
The Constitution makes local government equal to national government and tries to ensure that government departments cannot take each other to court. Until 2008, the department did not prosecute local government but this changed when it took the Matjhabeng municipality in the Free State to court for polluting the Losdoringspruit.
A report by the nongovernmental organisation Association for Water and Rural Development (Award) for the Water Research Commission, compiled from interviews with people such as Nigel Adams, the head of the Blue Scorpions, concluded that prosecution had had little impact on the environmental problem that had led to the Matjhabeng case. All it had yielded was a sense of justice and a demonstration that the regulator had teeth.
"The legal context has created a situation where it is extremely difficult, if not impossible, for one sphere of government to bring judicial action against another sphere," it said.
Paul Fairall, an environmental consultant specialising in water, said the department avoided prosecuting municipalities. "It is this brotherhood thing where they have co-operative governance and they are not willing to act against branches of government," he said.
This meant that the department was consistently failing a large section of its duty to uphold the National Water Act, he said, which made it the custodian of the country's water and gave it the duty to prosecute polluters. "The government, through the department, is not exercising its powers," he said.
Derick du Toit, project manager at Award, said water affairs was too scared to try cases. "It has all these policies but it is too scared to test them in case it loses," he said.
This was leading the department to rely on companies and municipalities to regulate themselves. "Water affairs just wants to avoid litigation because its record is awful," he said.
Vernon Bowers, the spokesperson for the Stellenbosch municipality, said a "plan" had been created to improve the quality of water in the river but would not provide further details. But she added: "It is hoped that the proposed plan will bring about a dramatic improvement in the water quality in the Eerste River by the end of June this year."
Up to quarter of positions remain unfilled in the water affairs department and its enforcement arm is no different.
At the last count, there were 26 people working in the national office undertaking compliance, monitoring and enforcement for the entire country. But it is at the very top where the game of musical chairs is the most profound.
The director general in 2008, Pam Yako, was suspended and then fired in 2010 after an investigation implicated her in corruption involving R300-million in departmental funds.
It took 30 months to find her replacement, Maxwell Sirenya. But, less than a year into his contract, it appears Sirenya is in limbo following a dispute between him and the department.
An acting director general, Trevor Balzer, has been appointed while the dispute is being resolved. – Sipho Kings