We tried to lay criminal charges against Joburg for water pollution - the SAPS didn’t know how

24 May 2023

The state of the rivers and streams in South Africa is a major concern. High levels of pollution from agriculture, industry, mining and wastewater treatment works mean that sewage pollution is killing our river ecosystems. South Africa is a water-scarce country and such high levels of pollution have a direct effect on people’s livelihoods, health and wellbeing.

Municipalities are now the biggest water polluter in South Africa. It is estimated that since 2017, 50,000 litres of sewage seeps into our rivers every second.

According to an article by Anja du Plessis, an associate professor at Unisa, in Johannesburg the water crisis can be attributed to poor planning, lack of service delivery, water infrastructure, unreliable water supply, sewage spills, and mismanagement of funds and corruption.

Du Plessis argues that one way to fix this is through effective enforcement of existing legislation.

After some research across the City of Johannesburg, we at WaterCAN (an initiative of the Organisation Undoing Tax Abuse) decided to challenge the polluters using basic water and environmental legislation. We believe we have to fight back to ensure safe, sustainable water supplies for all and that someone has to be held accountable.

WaterCAN decided to open a criminal case against the City of Johannesburg (CoJ) and its municipal managers. While we are aware of numerous cases of sewage pollution in municipalities and other Gauteng areas, we chose the CoJ because it has been issued with a directive by the Department of Water and Sanitation (DWS) to stop polluting. But it continued.

Failure to comply with the law

On 27 April 2022, the generator at the Goudkoppies Wastewater Treatment Works (WWTW) broke down, meaning sewage inflow had to be rerouted to the nearby Bushkoppies WWTW during power cuts.

Less than two weeks later, cable theft at Goudkoppies and still no generator meant that all inflow was rerouted to Bushkoppies, despite it not having the capacity to cope with the flow. A resident alerted the DWS to the pollution and it conducted a site visit, following which it issued the CoJ with a directive for polluting the Harrington Spruit, a tributary of the Klip River, with raw sewage.

The directive ordered Bryne Maduka, the CoJ acting city manager at the time, to provide an action plan to correct non-compliance within seven working days, to appoint an environmental expert to compile a rehabilitation plan within 30 days, and to implement the full rehabilitation plan with 30 days of the DWS approving that plan.

Despite the DWS’s directive, the CoJ has failed to take adequate corrective action. Water pollution in the Klip River continues.

Inspections conducted by the DWS on 23 February at Bushkoppies and on 1 March at the nearby Goudkoppies in Riversdale have shown no improvement in the situation. The Klip River has been at the centre of recent cholera cases in Johannesburg, further highlighting the urgent need for action.

A year later the Goudkoppies inflow is still rerouted to Bushkoppies, so raw sewage is still spilling into the Harrington Spruit and from there flowing into the Klip River and ultimately the Vaal River.

Both WWTWs are managed by the CoJ through its entity Johannesburg Water. However, although the DWS has oversight, it does not appear to have followed up with action to enforce its own directive.

Criminal charges

Unfortunately, issuing a directive may not have the effect one would hope for. According to the national DWS, since 2014 it has issued 135 notices and 72 directives against municipalities, mostly in Mpumalanga, Northern Cape, KwaZulu-Natal and Gauteng. Most had been issued since 2020.

It is unclear if these have been followed up with action. It was this lack of enforcement that led to WaterCAN taking up the challenge. Our first step was to obtain copies of the DWS directive and reports about site visits.

A request for information was made in terms of the Promotion of Access to Information Act (PAIA), and a PAIA request was submitted in December 2022. We received a response in January 2023.

Once we received the documents from the DWS, we needed to establish whether the CoJ had remedied the situation or had plans to do so. In February 2023, we were informed that the sewage pollution was ongoing. It was then that we decided that laying criminal charges would be one way to hold authorities accountable for ongoing sewage pollution. Sections 19 and 20 of the National Water Act deal with the prevention and remedying of the effects of pollution and provide the basis for laying the criminal charges against the CoJ.

We believe its failure to comply with the directive constitutes a criminal offence in terms of Section 151 of the act and, as such, the CoJ and the municipal manager should be held to account. Offences under these sections carry penalties of a fine or imprisonment for a period not exceeding five years for the first conviction.

Difficulties in laying charges

We prepared our affidavit with supporting documents, and on 12 April went to the police station in Parkview to lay criminal charges. The police officers, while very helpful, told us they did not know how to log this type of complaint. Instead, we were told to “go to the police station closest to the scene of the crime”.

It should be possible to lodge the complaint at any police station within the City of Johannesburg, given the fact that this is the municipality that has not met its directive and can therefore be regarded as having acted unlawfully. We were also told by the policeman assisting us at the Parkview Police Station, that “we need to first lodge a complaint with the CoJ, then our councillor and then the ombudsman”.

This is not correct.

On our second visit to the Parkview Police Station on 20 April we were accompanied by a DWS environmental management inspector (known as a Blue Scorpion, a core regulatory arm within the DWS that was set up to ensure the protection of all water resources in the country as well as the enforcement of all water and sanitation laws and regulations). Despite this, several hours were again wasted trying to figure out how to deal with this case.

Eventually, we left our affidavit with the SAPS who said they would get advice from their legal department. Leaving the police station, without laying criminal charges was not a defeat — but neither did we achieve our goal.

We left with a few things on our minds. The first realisation is that there is a need to build awareness and education programmes, particularly within the SAPS) that all pollution and illegal dumping is a crime, even if it is done by the government.

The second is that we will continue our efforts to lay criminal charges no matter how many hoops we have to jump through. There is too much at risk to stop. We will document our steps and share them with activists across the country so that people in other municipalities can also take action.

The bottom line is: sewage pollution in our rivers is a crime and it must be punished across South Africa. There must be justice for the 17 lives lost to cholera in Hammanskraal. DM

Ferrial Adam is the executive manager of WaterCAN, an initiative of the Organisation Undoing Tax Abuse (Outa).

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South Africa

Failure to comply with the law

Criminal charges

Difficulties in laying charges