Final Report of the Gauteng Provincial Inquiry Into the Sewage Problem of the Vaal River

17 February 2021

Executive Summary

The South African Human Rights Commission (‘the Commission’) had been alerted to online and print media reports, published during July and August 2018, reporting that raw sewage, from the Emfuleni Local Municipality (‘the Municipality’)’s Rietspruit Waste Water Care and Management Works situated in Vanderbijlpark, the Leewkuil Waste Water Care and Management Works situated in Vereeniging and other areas within the Municipality, had for weeks and months been leaking into and polluting the Vaal River and the Rietspruit.

In addition to the raw sewage polluting major and essential bodies of water, the media reports stated, amongst other things, that: the main sewers in Vanderbijlpark were blocked and that raw sewerage was flowing into people’s yards and properties.

In September 2018, in order to test the veracity of the media reports, the Commission’s Gauteng Provincial Office conducted an inspection-in-loco at certain sites within the Emfuleni Municipality, and observed: raw sewage flowing in a small stream that cut across the Emfuleni Golf Estate; two burst sewerage pipes on the banks of the Rietspruit that runs through the Emfuleni Municipal area; defective bio-filters at the Rietspruit Waste Water Treatment Works; a clogged sewerage manhole at the Sharpeville Cemetery and children swimming in, and consuming, polluted waters in the area of a school.

Having established a prima facie violation of human rights in the Emfuleni Municipality, regarding the flowing of raw, untreated sewage flowing in the streets, homes, graveyards and also flowing into the Vaal River, the Dam, the Barrage and the Rietspruit (referred to collectively as ‘the Vaal’), and acting within its legislative mandate, the Commission established an Inquiry.

The purpose of the Inquiry was to ascertain:

- the extent and consequences of the human rights violations;

- the causes of the violations;

- the persons and/or public and private entities responsible;

- whether sewage spillage into the Vaal constituted a disaster as defined in the Disaster Management Act of 2002;

- the various accountability, disciplinary and/ or prosecution mechanisms which can be implemented against persons and/or entities responsible; and

- to understand what appropriate recourse or remedy, within the Commission powers, could be given effect to, to promote, respect and protect human rights of persons in the Emfuleni area, and provide just and equitable relief for any determined violations.

Oral and written submissions were presented to, and received by, the Commission’s Inquiry Panel, from local, national and provincial government, other organs of state, non-profit organisations, ratepayers’ associations, and academia and private-sector engineers.

Information presented during the Inquiry was assessed against our domestic, as well as regional and international legal framework. In addition to our Constitution, the domestic legal framework referred to includes the Municipal Systems Act of 2000, the Water Services Act of 1997 (WSA), the National Water Act of 1998 (NWA), the National Environmental Management Act of 1998, (NEMA) the Municipal Finance Management Act of 2003 (MFMA) and Emfuleni Local Municipality’s water and sanitation By-Laws.

The regional framework includes the African Charter on Human and Peoples Rights and the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples Rights. The international legal framework makes reference to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, United Nations General Assembly and Human Rights Council Resolutions and General Comments and World Health Organisation Resolutions.

Findings

The importance and economic value of the Vaal was made very clear during the Inquiry. National Treasury emphasised that approximately 19 million people depend on the Vaal for water, for drinking and for domestic and commercial use.

It also became clear during the Inquiry, that the , and that the cause is the kilolitres of untreated sewage entering the Vaal because of inoperative and dilapidated wastewater treatment plants which have been unable to properly process the sewage and other wastewater produced in Emfuleni as well as the sewage and other wastewater from the City of Johannesburg Metropolitan Municipality as well as the Midvaal Municipality, that is also directed towards the wastewater sewerage systems situated in the Emfuleni Municipality.

The consequence is that the pollution is impacting natural ecosystems directly dependent on the water in and from the Vaal. The population of Yellowfish peculiar to a few South African rivers such as the Vaal are under threat of extinction on account of the change to the balance of river flora and other competing species in the river caused by pollution of the Vaal. Livestock which consume water from the Vaal have reportedly died. The flow of raw sewerage on public streets, paths, and into homes poses a major health hazard to people and is an obvious violation of their rights to dignity as well.

In addition, and apart from the long-term effects of pollution of the water source on life; are the direct concerns relating to the negative impact the pollution has had on the economy. Evidence was provided and accepted regarding a decrease in tourist and recreational activities on the river due to the severity of the pollution of the Vaal.

The impact of the discharge, occurring over more than five years at the time of writing, violated a number of constitutional rights which includes the rights to: human dignity, freedom and security of the person, an environment that is not harmful to health or well-being, not to be deprived of property, health care, food, water and social security, just administrative action and the rights of children to be protected from maltreatment and degradation.

In relation to accountable parties, in terms of the Commission’s assessment and findings, the Water Services Act (WSA) creates a clear responsibility on the Municipality to provide water supply services and sanitation services to its customers living in formal and informal settlements. The Municipality did not dispute this responsibility or that it had not fulfilled the responsibility, and instead conceded that these failures were attributable to its failing wastewater infrastructure.

In addition to not providing water supply services the Municipality has, by not maintaining the water sanitation infrastructure, caused sewage pollution of the Vaal and in the streets and homes of persons living in the Emfuleni municipal area. This occurred in contravention of the National Water Act (NWA) and the National Environmental Management Act (NEMA).

Despite having the ability to do so, it did not appear to the Commission that the Department of Water and Sanitation (DWS) and the Department of Environment Forestry and Fisheries had been able to hold the Municipality accountable for causing sewage pollution as required in terms of section 19 of the NWA and section 28(2) of NEMA. The pollution in fact continued for a number of years without being successfully contained.

Generally, in respect of the domestic legal framework relating to the environment and water and sanitation services, all applicable legislation provides for accountability or contains accountability mechanisms. While the information provided to the Panel did not provide evidence of these mechanisms not being applied or given effect to, the time period (being decades) over which the wastewater systems in the Emfuleni Municipality was allowed to degrade without maintenance and/or repair and the extent of the pollution, over multiple years does not instil confidence that legislation, such as the WSA meant to prevent degradation of wastewater systems and ensure water and wastewater service delivery and legislation such as the NWA, NEMA and MFMA, which enable accountability, have effectively applied.

Deviations from municipal management which posed serious risks for the Municipality and service delivery recipients are detailed in the independent forensic reports and identified by the AGSA. Such risks arose in respect of contracts with service providers, choices made in the appointment of appropriate service providers, and the actual delivery by such service providers which has affected the management of wastewater corrective actions.

In certain instances the Commission was advised that contracts concluded by the Municipality with service providers were not honoured despite the provisions of section 116 of the MFMA requiring that contracts entered into with a service provider includes terms for termination in the case of non-performance or under performance. Where full delivery was not achieved, or delivery was not of the standard required to address the problems in wastewater management, and infrastructure, such contracts ought not to have resulted in payment for the service provider.

Alternatively, where contracts were entered into, a Municipality has a common law right to cancel the contract and claim damages for breach of contract. The Municipality has a responsibility to enforce controls and oversight to check its spend of public funds, in the interests of delivery. The Municipality did not provide any evidence of termination and claim for breach where service providers did not deliver. This amounted to another avenue of wastage of state resources.

To add to the dismal form of the Municipality presented to the Inquiry Panel, the Commission was made aware that the Municipality owes ‘billions of rands’ to Rand Water for Bulk Water provision. While the Gauteng Provincial Treasury (GPT) detailed that in relation to the growing outstanding Rand Water Bulk Account, the Municipality has been on many previous occasions assisted by the GPT working with Gauteng Department: Co-operative Governance and Traditional Affairs (Gauteng COGTA) on payment proposals in an effort towards entering into repayment arrangements to address the arrear accounts. Despite efforts made by GPT and COGTA, the Municipality, did not service and honour the repayment arrangements established, causing the arrangements to lapse and become nullified. However, GPT advised the Commission that with the continued section 139 Constitutional intervention, introduced in 2018, negotiations to establish a payment plan with Rand Water, remain ongoing.

The DWS indicated that it had already taken steps to prevent the pollution on behalf of the Municipality, but that it is now struggling to recover its costs from the Municipality, in terms of the NWA.

Several submissions informed the Commission of a lack of skills within the Municipality to effectively manage the challenges that had been identified in respect of wastewater management systems, more than ten years ago. However, according to private engineers’ submissions, the necessary skills are available in South Africa. It is the responsibility of the Municipality to, in accordance with the MSA and the Municipal Structures Act, appoint skilled workers and/or develop capacity for employees to be able to provide the necessary services.

Theft and vandalism were cited as factors contributing to the ineffectiveness of wastewater management, particularly because of the damage it causes to infrastructure. Theft has caused monetary losses to the Municipality, but no estimated cost impact was provided for any financial year relating to the problem, nor were clear containment and preventative plans submitted to plug this additional leak in scarce resources caused by theft from the SAPS or from the Municipality.

Recommendations

The impact, of the raw sewage running into the Vaal and the streets of the Emfuleni Municipality, on the rights of the community, and to a vital water resource, is significant. In the absence of timely and effective response from the multiple spheres of government, Gauteng’s most vital water resource may very well have been irreparably damaged.

The Commission is aware of the various interventions made by the National DWS, National Treasury and Gauteng Provincial Treasury in its attempt to address the sewage pollution and general collapse of the Emfuleni Municipality. The DWS’s plan to combat pollution in the Vaal and National Treasury’s significant cash injection through the Regional Bulk Infrastructure Grant is acknowledged.¹ DWS indicated that as part of its intervention in terms of the implementation protocol, it had appointed the East Rand Water Care Company, an entity of the Ekurhuleni Metropolitan Municipality, as implementing agent of the plan. The specialist wastewater company, is to ensure that the infrastructure is made operational and wastewater pollution in the Vaal River is stopped.

Unfortunately these efforts have not been enough to address the unmanageable situation that is occurring in the Emfuleni Municipality. The contents of this final report, media reports and publications by experts lends itself to a conclusion of extensive non-compliance at all spheres of government with legal frameworks which seek to protect water resources, and to regulate water and sanitation services. These levels of poor compliance resulted in the situation observed by the Commission: the pollution of the streets and homes of persons living within the Municipality and the pollution of the Vaal and the Rietspruit. Despite concerted efforts by DWS and National and Gauteng Provincial Treasury, the information presented in this report demonstrates further, the level to which degeneration must occur within a local municipality before a firm intervention is made at much cost to the public and the state.

It further appeared from Parliamentary reports that the current section 139 intervention by the Gauteng Provincial Government /COGTA have not yielded successful results. Reports from Parliament stated that the first two years of the intervention were a failure, and that the Province is trying again.² It is understood that in June 2020, the Gauteng Provincial Treasury stepped-up and strengthened the intervention with the deployment of a Lead Administrator and team of (section 139) Administrators focusing on key municipal functions.

Given the situation, there is a need for both urgent and comprehensive intervention, in and above the current section 139 intervention by the Gauteng Province.

The Commission’s recommendations include recommending that:

- the National, Provincial and Local Government to take active steps to know and understand all of its constitutional and legislative obligations and to comply and implement them as is the duty of any a public servant or municipal administrator.

- the Municipality uphold the Rule of Law and Constitutional Supremacy in South Africa.

- in the short term that DWS or Gauteng COGTA, together with experienced wastewater management specialists, and respective Treasury Departments draw up a cost- effective interim plan to urgently stop or limit the flow of sewage in the streets and homes of people living in the Emfuleni area and also into the Vaal.

- the National and Provincial governments, for the medium and long term, conduct a detailed needs assessment for the clean-up and rehabilitation of the Vaal. Such an assessment should be supported by experts including financial experts, to cost and make available a project plan and budget for the implementation of such plan on a short, medium and long term basis.

*  This includes DWS and/or Gauteng COGTA engaging with experienced wastewater specialists for job specifications to be drawn up in order to employ or contract the necessary skilled people to repair and replace the defective sewerage systems in the Emfuleni Municipality.

- DWS develop and implement policies and standards to deal with water crises in South Africa, and the contamination of the Vaal River in particular.

- vandalism and theft be regularly reported to the SAPS.

*  the DWS consider placing private security guards at the sewerage infrastructure to prevent further vandalism and theft;

- DWS reintroduce the Blue and Green Drop transparent quality measuring system.

- DWS collaborate with DEFF and use the inspectors provided for in NEMA to investigate offences relating to water and sanitation, as they are likely to relate environmental damage.

- in order to prevent a repeat of the issues, the Vaal River and the associated water infrastructure be declared as critical infrastructure as per the Critical Infrastructure Act

8 of 2019. Declaring the Vaal and the respective sewerage systems as critical infrastructure would ensure that it will be protected, and restored.

- municipal councils develop mechanisms to interact with communities and identify service needs and priorities.

*  Without capacity to strategize, integrate and interface with non-municipal groups, many local governments are unlikely to be sustainable in the future.

*  The implementation of new strategies and policies requires strong municipal leadership, with the necessary support and belief of the municipal council. Continuous communication between all role players and regular oversight and training should be provided and encouraged.

- regular inspections of the Vaal and regular meetings to report on all of the above take place between Respondents and the Commission; and

- The Commission would like to reiterate that no evidence was put before it in order for the Commission to make a finding on if, who, when and/or why existing legislation was not given effect to. The Commission would however like to request, a renewed or continued commitment to accountability and to ensure where not already implemented:

*  public servants and municipal administrators and staff who failed to comply with their obligations under the PSA, the MSA and the MFMA, and contributed to the disintegration of the Municipality be disciplined or dismissed in accordance with the PSA, MSA and labour relations legislation -- The PSA and MSA set out a lengthy list of responsibilities for public servants and municipal staff. These obligations are a minimum duty on government through its officials to render mandated services to the public in an effective, efficient and economically cost effective manner. Effective performance management requires vigilance over the quality of delivery and development to build and strengthen the public service. Performance management also requires that municipal staff who do not give effect to their obligations experience the consequences of repeated poor delivery such as dismissed if warranted. In the absence of stringent consequence management, the public purse is impacted and constitutional duties flouted while people continue to live in deteriorating conditions;

*  any irregular or fruitless and wasteful expenditure be investigated and the relevant parties be made to repay monies to the Municipality and that where applicable the actions be reported to SAPS -- In terms of section 32 of the MFMA, any accounting officer, political office-bearer or municipal official who deliberately or negligently made or authorised irregular expenditure or fruitless and wasteful expenditure is liable for that expenditure. A municipality must recover unauthorised, irregular or fruitless and wasteful expenditure from the person liable for that expenditure;

*  any allegations of corruption be referred to the Public Protector or the SAPS -- In terms of section 32(6), an accounting officer of a municipality must report all cases of irregular expenditure that constitute a criminal offence, to SAPS. Where the charge is against the accounting officer, the municipal council must report the alleged offence to SAPS;

*  where contracts are not being honoured, that the Municipality or its administrators institute legal action in terms of the MFMA to cancel the contract or to, under common law institute legal action for breach of contract and claim damages, alternatively claim lost money under unjustified enrichment – There is a general need to create precedent that communicates to service providers that they will be held to account.

The Commission is hereby notifying the National, Provincial and Local Government that the Sewage Problem is a crisis and an obvious liability to the State. The consequences of the pollution could result in a string of legitimate civil claims against DWS for damages (as provided for in the NWA). In addition failure to implement the WSA, NWA and NEMA in respect of water and sanitation and pollution of the Vaal area will result in further litigation that could escalate all the way up to the Constitutional Court. Section 151 of the NWA makes the intentional or negligent commission of any act or omission which pollutes or is likely to pollute a water resource unlawful and a statutory offence which carries penalties. Where harm, loss or damage caused by the offence, for which a person was convicted, is proved in Water Courts, the person or persons who suffered harm, loss or damage be may awarded pecuniary damages.

The Commission also recommends that in terms of section 139(7) of the Constitution and section 63 of the WSA and sections 19 and 63 of the NWA, Cabinet seriously consider taking a decision for National Government to intervene in the running of the Emfuleni Local Municipality.

- The failure to repair and replace the sewerage systems of the Municipality is not only a failure to comply with the WSA, it is a failure of many people over many years to properly run the Municipality.

- It is proposed that all departments of the Municipality, save for ones the Provincial and National Government can show is operating adequately, be taken over by National Government.

Such an intervention can also make use of the services of organs of state such as Rand Water and SALGA, given that the Minister for DWS can issue directives to Rand Water, and further facilitate the implementation of DWS’ current and impending interventions.

The Commission requests that all parties to which the above recommendations apply, respond to the Commission jointly or separately, within 60 days of receiving the final report.

ENDS

The full report can be accessed here – PDF.

Footnotes:

¹ The DWS Minister, Gugile Nkwinti announced on 10 April 2019 that an Implementation Protocol was signed on 29 March 2019 by the Departments of Water and Sanitation, Cooperative Governance and Traditional Affairs in Gauteng, Emfuleni Local Municipality, the South African National Defence Force, the Municipal Infrastructure Support Agent and the East Rand Water Care Company.

²    See      https://www.parliament.gov.za/press-releases/gauteng-provincial-government-failing-people- emfuleni and https://pmg.org.za/committee-meeting/30497/.