Department of Water Affairs on the state of South Africa's waste water treatment: Briefing

Water and Sanitation

10 May 2010
Chairperson: Ms M Sotyu (ANC)
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Meeting Summary

The Department of Water Affairs briefed the Committee on the state of waste water treatment plants in South Africa and enforcement of waste water regulations.

The Department had intensified waste water service regulation but preferred not to have recourse to litigation. Incentive-based regulation used the Green Drop Certification. Waste water improvement actions were outlined. The Department sought to continue and intensify the Waste Water Risk Abatement Programme and introduce alternative waste water treatment technologies.

 

The Department said that the criminal prosecution of a state organ was not a simple process. There was the option to lay criminal charges in terms Section 156 of the National Water Act 1998. The Department had developed an enforcement protocol. If an assistive approach to regulatory compliance failure failed then litigation would ensue. From 2008 to 2010, 49 pre-directives and seven directives were issued to municipalities and there were seven criminal prosecution cases. Environmental Courts were in the process of being established in conjunction with the Department of Justice and Constitutional Development

Members were concerned about funding issues, the inability of some municipalities to repair their water treatment facilities, and the need to resort to legal action against organs of state. Members highlighted the need to involve the three spheres of Government was highlighted, as well as the responsibility of the Department to ensure compliance through effective monitoring and enforcement.  
 

Meeting report

Department of Water Affairs (DWA) on the state of waste water treatment plants in South Africa
Mr Leonardo Manus, Acting Director, Water Services Regulation, DWA, briefed the Committee on the State of Waste Water Treatment Plants in South Africa. The Department had intensified waste water service regulation with the objective of stimulating effective management and operation of waste water systems within the realm of funding constraints and preferably without recourse to litigation.

A three pronged approach making use of enforcement, risk-based targeted regulation and incentive-based regulation was embarked upon. The latter method made use of the Green Drop Certification (GDC) process and was considered a more pro-active approach. Through the Green Drop Report (GDR) it was discovered that seven percent of water treatment facilities assessed received an excellent score, 38 percent a score of acceptable to good and 55 percent required attention. Effluent quality was the most weighted criterion. The risk based approach assessed risks and prioritized appropriate interventions according to cumulative risk rating. Waste water improvement actions were outlined. The Department saw the way forward as the continuation and intensifying of the Waste Water Risk Abatement Programme (WWRAP), targeted coaching, the introduction of alternative waste water treatment technologies, litigation, awareness programmes for the public, contracting public or private service providers to operate and maintain facilities where municipalities had failed, and alternative refurbishment options.

Department of Water Affairs (DWA)
on Waste Water Service Legal Action
Mr Harish Jhupsee, Deputy Director, Legal Support, DWA, briefed the Committee on legal matters.  He stated that in cases of non performance the criminal prosecution of a state organ was not a simple process. There was the option to lay criminal charges in terms Section 156 of the National Water Act (NWA) of 1998. The National Environmental Management Act (NEMA) of 1998 did not allow for this. Litigation against a state organ needed to be contextualized in terms of Chapter 2 of the Constitution, the Bill of Rights, and Section 41 of Chapter 3 of the Constitution, the
Principles of co-operative government and intergovernmental relations. Chapter 3 specified that before criminal charges were laid against a state organ all other avenues needed to be exhausted. However the Constitutional Court provided guidance that Chapter 2 was more important, despite Chapter 3 qualifications, as Chapter 2 contained rights which the court could enforce. Therefore the DWA had developed enforcement protocol. If an assistive approach to regulatory compliance failure failed then litigation would ensue. From 2008 to 2010 49 pre-directives and seven directives were issued to municipalities and there were seven criminal prosecution cases. Environmental Courts were in the process of being established in conjunction with the Department of Justice and Constitutional Development (DOJ & CD).

Discussion
Mr G Morgan (DA) said that the GDC was an excellent mechanism and hoped that over time municipalities would start writing their compliance will the GDC into their performance contracts as well as use the GDC to improve their standards by next year.

The situation was quite dire despite now having a monitoring mechanism; the number of plants reviewed using the GDC only represented 3.8 percent of the total. He asked how they intended to turn-around non-compliers. Prosecution would not help in all cases. He asked whether the seven cases were against state organs or municipalities specifically. The national Department was not the only entity that had charged state entities, as many organisations and individuals had also done. He asked whether in cases such as these the DWA assisted the plaintiff and police in their investigations.

The issue of whether the police were capacitated to do their part was raised, as there was a focus on prosecution and magistrates. He added that whilst the Department issued many directives on non-compliance there were surely some cases were the lack of funding, necessitated the DWA to go in and provide help.

Ms
Nobulele Ngele, Acting Director-General, DWA, replied that the around the issue of funding in the past they had indicated that maintenance of infrastructure was the responsibility of municipalities and that they were supposed to make allowances for maintenance. She was aware that municipalities did have funding issues and added that Minister of Co-operative Government and Traditional Affairs was ensuing more funding. The DWA had R4.4 billion which would assist funding issues a little; however there still was a strong need for funding. There was also a need to see who would be doing the implementation.

In terms of capacity to follow directives a workshop on 26 May 2010 would be held. There needed to be a linkage between people doing monitoring and support on the ground. More people were needed in the Environmental Management Inspectorate (EMI) unit; so far 14 more appointments had been made, which were insufficient. There was a need to fund more positions.

Mr Jhupsee replied that the municipal managers were charged in their personal capacity and that the DWA did assist plaintiffs, but preferred for them to collaborate and let the DWA take the lead due to its larger resources and ability to gather information.

Ms A Lovemore (DA) stated that compliance monitoring was an area of failure and that if this was done correctly over the years then the current problems would not exist. She asked why this had not been done. With regard to targeted risk based assessments it was indicated that they would be made available electronically. She asked why they had not been made public.

She asked what happened if water services were given said risk plan, but unable to fund its implementation. The Blue Crane Route Municipality stated that were aware that they were a failure and asked the DWA not to bother assessing them. This municipality should have been assessed and given a score of zero. She asked what the Water Sector Leadership Group (WSLG) had actually achieved. The timeframe required for the submission of an action plan, in the event of non-compliance, to the DWA by the offending entity was required. More information on alternative refurbishment funding options was needed.

She asked why the public was mentioned as being an entity that needed to be involved, as they had nothing to do with effluence treatment. The extant of the problem had been underestimated by marking R23 billion to solve the problem as the Western Cape alone would cost R8 billion. She hoped that during the next round of discussions the Department of Public Works would be involved and  she asked for details on the charges laid against the Ministers of Agriculture, Forestry and Fisheries and Water and Environmental Affairs.

Ms Ngele replied that information on the case against the Ministers needed to be referred to the State Law Advisor, as she had not received any information on the issue. The WSLG report and presentation was requested and the relevant Director-General’s report back to the Department. It was decided that terms of reference were needed and the WSLG’s role was to advise the Department. They were not responsible for implementation and they had no budget.

In terms of interventions, the Department needed to know exactly what was needed and where. She acknowledged that some institutions have done some work and that targeted interventions were there in order to streamline the process.

Mr H Muller, Acting Chief Director, Regulation, DWA, replied that the principle behind making the public aware of issues was in order to avoid past allegations of the department not sharing information. He agreed that compliance management had been neglected and that this was due to a focus from 19994 on extending access to water and basic service roll-outs. As a result monitoring compliance was neglected. There were a number of norms and standards that were not being enforced as the department had to prioritise.

With regard to alternative refurbishment options, a lot of problems could be solved by fixing what already existed. He stressed that the people at the plants made all the difference and that they were doing a very good job. He added that the public needed to be made aware of the work they were doing and invited the media to write an article about GDR facilities and people that had succeeded.

Mr Manus replied that in terms of the Blue Drop Report (BDR) the Blue Crane Route Municipality in Somerset east did receive a score of zero and that they knew were they stood. The Department was engaged with the Department of Co-operative Government and Traditional Affairs (COPTA) in terms of a local government turn-around strategy for the Blue Crane Route Municipality. He added that each situation was different with specific timeframes. These timeframes would be assessed by the department by September 2010 in order to determine whether the municipalities’ timeframes were adequate and reasonable. During the next round of evaluations all municipalities would be targeted. The reference to information being available electronically meant that the GDC information would be available in real-time as it changed, not simply static reports.

Mr L Greyling (ID) stated that the public was right to be concerned as the GDR had painted a bleak picture. The problem with the approach being taken was that they were talking about levels of government in terms of litigation and that having to take legal action against a state organ was extremely concerning. The DWA needed to look at ways to alleviate this problem. Working with a municipality or charging them would not work if they did not have the funds necessary. Many of the coastal facilities discharged material into the ocean and there was an international treaty which could be applied to for funds to alleviate coastal issues, this option should be pursued by such facilities in order to get some funding assistance.

He noted that the volume of water posed a problem, not necessarily the effluence only and that in this regard grey water systems could help lessen the volume of water circulating through the system.

Mr Muller stated that they were working with COPTA about support services and added that the Local Government Equitable Share (LGES) distribution often was not allocated to water. With regards to grey water, the issue was related to water demand losses as more wastage of water also resulted in higher volumes in the waste system, storm water resultant from increased paving also contributed. Indeed all these issues were interlinked.

Mr Manus replied that Mr Greyling was absolutely correct about the grey water, but that there needed to be a balance as some degree of liquid was needed to carry solids through the system.

Mr M Nepfumbada, Acting Deputy Director-General, Policy & Regulation, DWA, relied that they would take not of the potential offered by Mr Greyling’s statement about coastal facilities.

Mr Jhupsee stated that pre-directives took too long and that the NWA was introduced in 1998 and that only compliance monitoring was done up until now and that enforcement had only started this year.

Mr J Skosana (ANC) stated that without regulation there was nothing that could be done in terms of monitoring and compliance. The DWA should be strict on monitoring issues, because it was crucial to implementing the law. The departments affected needed to be on board with the regulations because there was a large gap between local government and the departments in provinces. He asked how they assisted municipalities to draw up bylaws and whether there were prosecutors who were formally trained in environmental law. He asked whether the DWA was trying to fast track the training of environmental lawyers in universities in order to assist the issue. He noted that Ms Lovemore’s question about the case facing the ministers mentioned could not possibly be discussed because the matter was sub judice.

Ms Ngele replied that engagement with the provinces was essential and stated that they would be engaging with them on the GDR and would be working with the relevant MECs.

Mr Manus replied that they were engaged in risk profiling with seven out of nine regional provincial offices and that in the course of this risk profiling they had found that there were minor things that could be done to improve the situation. He added that they were helping regional offices and commencing with training of DWA employees around the monitoring process.

Ms J Manganyane (ANC) said that the Department was going in the right direction. She stated that emphasis needed to be put on water quality improvement in rural areas and that the crippled municipalities in these areas needed to be brought up to standard. The act of naming and shaming non-compliers was not enough.

Mr Jhupsee replied that criminal prosecutions would impact much more than naming and shaming.

Ms H Ndude (COPE) said that there was huge dam in the North-West Province which the department did not seem to be aware of. She had met with the local community which said that illegal mining was taking lace on the banks of the dam and that there was a fight between two communities as the Department of Mineral Resources (DMR) had awarded the rights to a company without consulting the community. She felt that the DWA should investigate because they were up in arms.

She noted with interests that the DWA was training assessors and promised to check on the progress of this next year. She asked which rural areas were actually receiving water and sanitation services.

The Chairperson, Mr P Mathebe (ANC), urged members to be short and specific and asked what compounds were found in the water at plants in the top two levels of the GDR. He added that there were allegations from Mpumalanga that no black owned company’s services were used despite being selected as service providers.

Ms Ngele replied that service provider were deployed in some cases and that I other cases the department deployed there expertise. Exact information on the service providers would be supplied to the committee. A follow up would be done on the allegation from Mpumalanga.

Mr Muller asked for details to be forwarded to him on the Mpumalanga issue.

Mr Manus replied that the first level facilities in the GDR with a score of 90 percent and upwards would still have some pollutants in their discharge, but that these were within the specified limits. Last year micro-biological contaminants were not focused on, this year both non-organic and organic pollutants would be focused on. A score of less than 50 percent was worrying as it indicated, in contrast to those which scored above 50 percent, that adequate management processes were not in place to turn the business around.

Ms Lovemore stated that 91 percent of facilities in Limpopo did into have licences and that this meant that licence conditions mentioned in slide 9 of the presentation did not exist. She asked whether there was any interaction the Department of Human Settlement (DHS) as housing came with flush toilets and water delivery. She noted that with reference to catchments management that municipalities were not liable for there downstream impact. She encouraged the DWA not to deny the crisis and enforce where necessary. She asked how intervention in terms of Section 63 of the Water Service Act (WSA) of 1997 would be done. She asked whether there were any more courts that were to be targeted for Environmental Courts.

Ms Ndude asked what the relationship between the DWA and municipalities around licensing was.

Mr Muller corrected Ms Lovemore and stated that she was referring to Section 66 of the WSA and that the route entailed was that of going to COPTA if the municipality in question was not performing and then asking the province to intervene, followed by the DWA. This route was too long and circuitous and needed to be amended.  The DWA now had a programme to deal with licence backlogs. He acknowledged that there had been problems in this sphere.

Mr Manus replied that they had introduced an integrated planning process looking beyond the effects of just one municipality in terms of downstream impact. Through this process responsibility was instilled.

Ms Ngele replied that they had a challenge around the issuing of licences and that the Minister of Water & Environmental Affairs had established a task team to work around the clock to eradicate the backlog within the next eight months.

Mr Jhupsee added that dedicated Environmental Courts would be piloted in the first year and that after this they would look at the roll-out of specialised courts throughout the country.

Mr Muller added that dedicated courts dealt with both environmental and normal matters, but that specialised courts would deal solely with environmental cases.

The Chairperson thanked the delegation.

The meeting was adjourned.

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