/ 4 July 2023

NGO wins court order against ministers to stop Vaal River sewage pollution

'It’s not just a question of systems
Water and Sanitation Minister Senzo Mcunu

An environmental watchdog has won a major court victory against several government ministers, including Water and Sanitation Minister Senzo Mchunu and the minister of forestry, fisheries and the environment, Barbara Creecy, ordering them to stop the sewage pollution of the Vaal River and its tributaries.

Save the Vaal Environment (Save) has been awarded a structural court order against the two ministers, the Gauteng Premier, the MECs of cooperative governance and traditional affairs and finance and the Emfuleni local municipality, whose collapsed wastewater treatment system has caused the pollution.

Save was the applicant in the matter, while the River Property and Safety Association (RPSA) was an intervening party. The order was made by agreement between the parties and was made an order of court by Judge Gregory Wright in the Gauteng high court on 23 June. 

Wright’s court order describes how the “discharge of raw or inadequately treated sewage by the first respondent [Emfuleni local municipality] from its municipal wastewater care and management system into the Rietspruit River and/or the Klip River and/or the Vaal River and/or the Vaal River Catchment Areas” is in contravention of the National Environmental Management Act (Nema) and National Water Act “and must be prevented”. 

“This is a big win for Save the Vaal after the years of litigation and pressure placed on the authorities,” said Save chairperson Malcolm Plant. 

He said the heightened awareness of the sewage pollution had stimulated the implementation of the Section 63 Vaal Intervention, where former water and sanitation minister Lindiwe Sisulu took charge of the Emfuleni wastewater system, and the intervention by the South African Human Rights Commission.

Tide of pollution

Emfuleni’s wastewater system comprises three treatment plants — Leeuwkuil, Rietspruit

and Sebokeng — and each plant has its own system of pump stations (44 in all) and a network spanning more than 1 000km. The Sebokeng and Rietspruit plants discharge what should be treated effluent into the Rietspruit, while the Leeuwkuil plant discharges into the Vaal River at Vanderbijlpark. 

But the collapse of Emfuleni’s wastewater treatment system results in about 170 million litres of raw or partially treated wastewater entering the Vaal River daily.

In February 2021, a report by the Human Rights Commission found that millions of litres of untreated sewage enter the “irreparably damaged” Vaal River system daily from the dysfunctional wastewater treatment infrastructure. This affects 19 million people who rely on the polluted river for drinking, domestic and commercial use — ultimately threatening Gauteng’s water security. 

In October 2021, the water and sanitation department appointed Rand Water to stop the pollution of the Vaal River from Emfuleni’s wastewater system in terms of section 63 of the Water Services Act. This entitles the minister of water and sanitation to take over the operation, maintenance and refurbishment of the wastewater system. 

Put on terms

The court order requires that Mchunu provide an affidavit in 45 court days stating what has been done to deal with the problem and to attach an action plan with timelines and funding in terms of the Act’s section 63 intervention. The two NGOs must provide answering affidavits in 30 days after receipt of the minister’s affidavit and attachments. 

Creecy must provide an affidavit concerning criminal investigations relating to contraventions of Nema. Mchunu, meanwhile, is directed to invite both Save and the RPSA to participate at quarterly meetings to update them on progress with the action plan. These meetings are to include people with technical expertise of the implementation and the two NGOs must be given seven days’ notice of such meetings.

“We look forward to building a relationship with the relevant authorities because all parties

are working towards the same goal of a clean Vaal River within the Emfuleni jurisdiction,”

Plant said. “We know that work has been going on but it is surrounded in a veil of secrecy.”

‘Back to square one’

Maureen Stewart, the vice-chairperson of Save, told how it had successfully obtained a series of orders against Emfuleni to fix sewage leaks and spillages since 2008.

In February 2018, it obtained an interdict to prevent Emfuleni from allowing raw or poorly-treated sewage to flow from the municipal wastewater management system into the Rietspruit, Klip and Vaal Rivers.

“And in the meantime, Emfuleni, since 2018 was going down the tubes financially … This court order is the first court order that we’ve got against ministers; it’s a big step forward for us because we’re now holding ministers accountable so that’s the difference. It’s a very big win for us — and a very important win.” 

According to the order, if Save and the RPSA are dissatisfied with the progress, they are entitled to approach the court for further intervention. 

“Now they’ve got this time to give us an affidavit of what they’ve done and also to give us a plan with timelines and funding sources. That will be a map for us that we can hold them to. The court order is a structural order, which means if they don’t play the game with us, we can go right back to court.” 

Stewart added that severe flooding last year and this year had “scoured out” the sewage and black sewage sludge poisoning the Vaal.

But E coli counts are climbing. “The sewage spillages are in the Rietspruit, they’re at Vereeniging and also near Vanderbijlpark,” she said. “They’re just increasing every week because we’re out of the rainy season now so of course we’re going to be back to square one until unless they [government] really pull finger and get going.

The department of water and sanitation said this week that Mchunu will be filing a detailed affidavit, “containing among others, progress updates on the various elements of the intervention”, as per the agreement reached between the applicants and the respondents in the matter. Rand Water, as the implementing agent, was formally appointed on 5 October 2021.

The department said the Section 63 Vaal Intervention, one of the ministry’s priority projects in Gauteng, includes the upgrading of water infrastructure, refurbishment, operations and maintenance, sustainability, water conservation, water demand management, and advocacy within the Vaal arena. “This is meant to deal with urgent matters relating to security of supply and more urgently, matters relating to the pollution of the Vaal River, and enhancement of capacity for the embattled Emfuleni Local Municipality.”