Cape Town water quality data should be publicly and easily available

The City of Cape Town’s reluctance to make water quality data routinely available publicly goes against transparency law and undermines accountability

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04/11/2021 10:16:11

Cape Town water quality data should be publicly and easily available

The Organisation Undoing Tax Abuse (OUTA) and the Ratepayers’ and Residents’ Associations in Milnerton call upon the City of Cape Town to make its water quality data publicly available.

The Diep River estuary and Milnerton Lagoon have had significant pollution problems for years and residents are entitled to see the City’s progress in addressing this problem.

OUTA was approached by multiple sources, including scientists and users of Milnerton Lagoon, alleging that the City insisted that they sign non-disclosure agreements or terms of use agreements when making a request for access to water quality data. These agreements block the requestor from sharing this data with anyone else. OUTA believes that this is unnecessary and limits transparency and accountability. OUTA also believes that it is not in line with the laws that regulate access to information held by a public body.

OUTA has not itself been required to sign such an agreement by the City to obtain this data.

OUTA believes that water quality data held by the City of Cape Town is of significant public interest and should be easily available to the public, and has written to the City to request this. This is particularly so given that the City claims water quality is improving whereas tests carried out by OUTA have previously contradicted this.

OUTA calls on the City to publish its water quality data regularly.

The City is currently testing water daily to submit to the Intergovernmental Diep River and Milnerton Lagoon Coordinating Task Team (see below).

The legal right to the water quality reports

Section 32(1) of the Constitution provides that everyone has the right of access to records or information held by the state or any other person that is required for the exercise or protection of any right (like the right to human dignity).

Section 36(1) of the Constitution says that any rights may be limited only in terms of law of general application “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

More specifically, section 46 of the Promotion of Access to Information Act (PAIA) provides that access to information must be granted if the disclosure of the record would reveal evidence of a substantial contravention of, or a failure to comply, with the law (like the National Environmental Management Act), and the public interest in the disclosure of the record outweighs the harm contemplated in the ground for refusal.

“We strongly believe that the water quality data is not confidential information, nor does it contain trade secrets and therefore the disclosure of this will far outweigh any potential harm that the City might suffer. In fact, one could argue that if the City does not publicly disclose this information, the failure to disclose will result in a dereliction of duty,” says Andrea van Heerden, OUTA’s Senior Legal Project Manager.

What does the City of Cape Town say?

On 19 October 2021 OUTA wrote to the City, requesting clarity on public access to the water quality data. OUTA's letter is here. To date, no response has been received.

What OUTA is doing

OUTA will continue to monitor the quality of the water being discharged within the Diep River estuary, which includes the Milnerton Lagoon, and will continue to apply pressure on the City to make the water quality data publicly available.

OUTA has been monitoring water quality in that water system by using independent consultants to test water samples since January 2020, and has been engaging with the City of Cape Town since February 2020. OUTA’s test results point to the Potsdam Wastewater Treatment Works, managed by the City of Cape Town, as the root cause of the pollution.

The Green Scorpions directive

After lobbying by OUTA and residents’ associations, the Western Cape Department of Environmental Affairs and Development Planning (DEA&DP) issued a directive against the City of Cape Town.

The directive was issued in September 2020 by the DEA&DP enforcement unit – the Green Scorpions – and was in terms of the National Environmental Management Act, as a result of the ongoing pollution. This directive is here.

This directive was modified after an appeal by the City, with the amended directive issued in January 2021; the modified directive is here. The directive lists various deadlines for compliance on addressing the situation.

On 23 July, OUTA wrote to the provincial and national oversight authorities – Western Cape MEC for Local Government, Environmental Affairs and Planning Anton Bredell and Minister of Human Settlements, Water and Sanitation Lindiwe Sisulu – asking for confirmation of measures they have taken to ensure the City’s compliance with the directive and water-use licence.

Subsequently, the Green Scorpions conducted a compliance audit on the amended directive.

The outcome of the compliance audit will determine whether OUTA will take any action against the City.

The modified directive includes but is not limited to the following interventions:

Revised pollution incident protocols.

Updating the City’s Action Plan to upgrade the Potsdam WWTW by August 2025,  to upgrade the Montague Gardens Sewer Gravity Reticulation Network by June 2025, to expedite the Du Noon and Doornbach Sewer Gravity Reticulation Network by December 2023, and to upgrade the Koeberg Road Pump Station by June 2024. 

Implement measures to trap general waste flowing into the Diep River and Milnerton Lagoon by November 2021.

Monitoring the City

Various forums have been established to watch over the situation.

During 2021, quarterly meetings were set up between the City, the DEA&DP, OUTA and the Milnerton Central Ratepayers’ Association.

On 10 August 2021, the City told OUTA that it had submitted all the information required in terms of the 16 conditions of the modified directive, and that the DEA&DP subsequently indicated that the City was partially compliant with eight of the conditions, compliant with six conditions and non-compliant with two conditions. The City said it was addressing the further concerns raised by the DEA&DP. However, OUTA is concerned that this was largely a self-review exercise. In addition, OUTA is still awaiting information from the City (requested in July 2021) on its compliance with the conditions of its water use licence for the Potsdam WWTW.

On 12 August 2021, MEC Bredell told OUTA that his department had established quarterly meetings between the Green Scorpions and the City to assess the progress of the City’s Action Plan and the modified directive, and monitor the City’s actions relating to complaints and sewage spillages. The issue has been escalated to the Inter-Governmental Committee between the provincial government and City management, and Bredell listed various short and medium-term measures to address the pollution. In addition, an Intergovernmental Diep River and Milnerton Lagoon Coordinating Task Team involving DEA&DP and the national Department of Forestry, Fisheries and the Environmental and the national Department of Water and Sanitation was established, to coordinate investigations and monitor the situation.

On 2 September 2021, the Department of Water and Sanitation told OUTA that as part of the national oversight, the City has started taking daily sampling analysis of all discharge points from the Potsdam WWTW which are submitted to the Task Team.

Protest today

At 5pm today (Thursday 4 November), the Milnerton community intends to hold a protest in Milnerton over the ongoing pollution of the lagoon and river system.

Further information

A soundclip with comment by OUTA’s Andrea van Heerden is here.

OUTA’s letter to the City of Cape Town on 19 October 2021 is here.

Picture: Johnnie Miller