Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Water pollution in Sasolburg (Photo: Robyn Hugo)

It is hard to imagine a time in which attention on water governance matters was more warranted than during National Water Week 2013, which runs from 18-24 March 2013. The 2nd Edition National Water Resources Strategy due in 2009 is still under construction; we have no Water Tribunal; and the Department of Water Affairs (DWA) has apparently suspended yet another Director-General. And those are just some of the governance issues.

In March 2012, the Centre for Environmental Rights published a report entitled Stop Treading Water: What civil society can do to get water governance back on track. A key recommendation from that report was the promotion of institutional stability within the DWA. Stop Treading Water spoke about addressing stability of senior management within the DWA, including finalisation of disciplinary action against various senior officials and expediting permanent appointments of senior managers in the DWA. The DWA was without a permanently appointed Director-General for almost 30 months when Maxwell Sirenya was appointed in February 2012; barely a year later, he has apparently also left the DWA “due to a dispute” with the DWA. For a large department with such an enormous task, and already facing dramatic institutional change through, inter alia, the roll-out of catchment management agencies, this ongoing turnover at top level sends the worst message to staff and senior management, not to mention to prospective candidates for senior positions at the DWA.

Another recommendation of Stop Treading Water was improved access to information and oversight of water governance. Last month, the Centre for Environmental Rights published two reports dealing with this issue. The first was Barricading the Doors: The latest on our work on transparency in environmental governance in South Africa, showing that the DWA’s updated Promotion of Access to Information Act Manual was yet to be published on its website. Turn on the Floodlights: Trends in Disclosure of Environmental Licences and Compliance Data showed that the DWA had a detailed database on water use, but no plans yet to make this database available to the public or interested and affected parties. We still struggle to access water use licences and other permits from the DWA. During our research for Floodlights, an official in the DWA’s Northern Cape regional office advised us that a water use licence is a confidential document between the Department and the applicant; therefore the licence information is not given directly to the public. Furthermore, we were advised that because of the “client information privilege” that the Department renders to their clients, a PAIA request is required. Sadly, this official saw only licence-holders and not members of the public as the DWA’s “clients”, despite the DWA’s statutory role as custodian of water resources.The official is also unaware of the fact that the DWA’s own (outdated) PAIA Manual lists water use licences as records automatically available, i.e. available without a PAIA request.

Stop Treading Water also recommended improvement of the quality of integrated water use licences and a review of general authorisations. The DWA has just published revised draft general authorisations for comment, which is a good sign. However, on the ground we continue to see poor quality integrated water use licences, and little attempt from regional offices to incorporate conditions designed to protect water resources in licences (occasionally even from the applicant’s own consultants).

Some good news is that the draft 2nd Edition National Water Resource Strategy (NWRS2) has encouraged networking and coordination amongst civil society and community groups; amongst many others, the South African Water Caucus submitted comprehensive comments on NWRS2, also incorporating detailed comments on water governance and regulation prepared by the Centre for Environmental Rights. Despite lack of planning and logistical challenges, the DWA has, to its credit, been open to engagement from civil society on the NWRS2. How much of our inputs will be incorporated into the NWRS2, which was supposed to be published in 2009, remains to be seen.

The problem of the Water Tribunal remains unresolved. During 2012, both the North Gauteng High Court and the Supreme Court of Appeal made scathing remarks about the Minister’s decision not to reconstitute the Water Tribunal pending an amendment to the National Water Act, 1998 (which amendment bill has not yet been published), and to refer all appeals to mediation under s.150 of the Act. In the case of Makhanya v De Goede Wellington, the SCA wrote that:

“Astoundingly, after acknowledging the foregoing in a communication addressed to Goede Wellington, the State Attorney informed it that should this court rule in the second appellant’s favour the matter will be referred to a mediation panel in accordance with s 150 of the Act. I say astounding, as the mediation panel provided for in s 150 is aimed at the settling [of] disputes through a process of mediation and negotiation. It is not a body appropriate to consider the application for awarding of licenses.” (at 47)

On 13 March 2013, the Centre for Environmental Rights wrote to the Minister requesting clarity on her intentions on the reconstitution of the Water Tribunal, pointing out the significant detrimental effects the absence of the Tribunal is having in practice. “In addition to denying parties aggrieved by decisions made under the NWA their right to a properly adjudicated appeal, it is also undermining their bargaining power in relation to their opponents. As is apparent from the Goede Wellington case, the absence of the Tribunal is also impacting on judicial decisions on whether to refer matters back to the Tribunal or not. It is simply not clear how the technicalities of appointing members to the Water Tribunal can ever outweigh the Constitutional rights of affected parties to fair administrative procedure,” we wrote. We have not yet received a response from the Minister’s office.

Finally, Stop Treading Water recommended that compliance monitoring and enforcement be strengthened through greater resourcing of the Blue Scorpions. The DWA does not publish an annual compliance and enforcement report like the Department of Environmental Affairs, so information about the activities of the Blue Scorpions is hard to find. What we do know is that there are somewhere between 20 and 25 officials at the DWA that are doing both compliance monitoring (conducting technical compliance inspections against water use licence conditions and statutory requirements) and enforcement (issuing directives, doing criminal investigations and prosecutions) in the entire country. This number – which has remained constant for several years – is a clear indicator of the DWA’s continued low prioritisation of compliance and enforcement.

In 2011-12, those 20 odd Blue Scorpions issued 53 pre-directives (notices of intention to issue a directive) and 11 directives; that number dropped to 32 pre-directives and 5 directives in 2012-13. In 2011-2, the DWA says they prosecuted 9 cases successfully; in 2012-13 a single plea and sentence agreement was finalised. In 2011-12 they reported 51 “ongoing investigations”; in 2012-13 there were 7 “ongoing criminal cases”. In 2011-12 and 2012-13, those Blue Scorpions audited 40 and “approximately 50” mines respectively. In 2012-3, 60% of those audited were found to be “partially compliant”. It is not clear where that leaves the status of the remaining 40%, but on the whole it doesn’t sound good. In the multi-department report against the Outcome 10 Delivery Agreement for July to September 2012, it is recorded that “the auditing of mines is a complex procedure that requires highly technical skills and resources”. The fact that the DWA needs orders of magnitude more and more skilled officials to undertake compliance monitoring is indisputable. In its submissions on the NWRS2, the CER has also expressly recommended to the DWA that DWA officials become part of the national Environmental Management Inspectorate in order to leapfrog some of the learning on compliance and enforcement gained by that inter-departmental virtual agency.

Last week, the DWA suddenly announced that they had drawn up a report and were considering criminal prosecution of polluters (including local and multinational mining houses, including directors) and claims for compensation to recover the R2.2 billion it will reportedly cost to address the current threats posed by acid mine drainage. Without commenting on the merits of such a proposal, even giving consideration to such measures only makes the need for a stronger, significantly expanded and adequately skilled Blue Scorpions more urgent.

Sources of compliance and enforcement data: DWA Annual Report for 2011-2, the Estimates of National Expenditure for FY2014