It’s your job to act against Cape Town, OUTA tells Western Cape Green Scorpions

 The Organisation Undoing Tax Abuse (OUTA) has written to the oversight authorities responsible for the monitoring of the pollution in the Diep River estuary and the Milnerton Lagoon, calling on them to exercise their powers and hold the City of Cape Town accountable for its ongoing failure to comply with the anti-pollution directive against it.  

Andrea van Heerden, OUTA’s Senior Legal Project Manager, says it has become apparent that the Western Cape’s Department of Environmental Affairs and Development Planning (DEA), whose enforcement division is known as the Green Scorpions, has not been able to protect the Diep River and Milnerton Lagoon from ongoing, catastrophic non-compliant discharges from the Potsdam Wastewater Treatment Works (WWTW). “This is despite the issuing of the DEA’s modified directive in January 2021 and a pre-directive issued by the national Department of Water and Sanitation in November 2021. The discharges are very likely causing irreversible damage to the Diep River ecosystem,” says Van Heerden.

OUTA is especially disappointed with slow response by the Department of Water and Sanitation (DWS) to the City of Cape Town’s failure to comply with its water use licence for the Potsdam WWTW.

“It is our opinion that the City has not been effective with the implementation of the action steps stipulated in the modified directive. To make matters worse, the DEA has not levied any penalties for the non-compliance,” says Van Heerden.

In OUTA’s letter, dated 25 March 2022, the DEA was reminded that it’s only constitutional mandate, apart from development planning, is to protect the environment. “It is the department’s core business. In the event of an abdication of this responsibility, there is no longer any reason for the department’s existence,” says Van Heerden.

The directive which the City is failure to comply with was issued by the DEA in September 2020 and amended in January 2021. In August 2021, the DEA conducted an audit to assess compliance with the directive, which indicated the DEA’s intention to give effect to its mandate. However, we are not aware of any enforcement action by the department. “OUTA believes that the DEA and DWS as the regulatory authorities are constitutionally mandated to enforce compliance with these instruments but have failed to do so effectively,” says Van Heerden.

“In our view, it is time for these departments to do their duty and take proper and effective action to hold the City to account by instituting criminal and/or civil legal proceedings. There has been a lot of talking, engaging, inter-governmental collaborating and investigating, none of which has had a positive impact. On the contrary, the river system continues to be decimated by unlawful discharges and alleged ‘other sources of pollution’.” 

Van Heerden adds that OUTA is dismayed by the suggestion of the DEA and DWS that cooperative government constitutes a valid and lawful reason for inaction from an enforcement perspective. “We reject this with the contempt it deserves. The National Environmental Management Act (NEMA) affords these departments the power to take reasonable measures to remedy the situation and/or apply to a competent court for appropriate relief. It is almost unimaginable that the oversight authorities would hold back on acting despite proven ongoing harm to the environment. The DEA owns the constitutional mandate to protect citizens of the Western Cape against anyone, including local authorities, when their actions and omissions cause harm  ̶  especially protracted and ongoing harm  ̶  to the environment. Failing to take action is unconstitutional and unlawful.”

OUTA has warned that it will not hold back indefinitely on taking legal action to resolve the issue. “We considered it fair to afford the City’s new administration an opportunity to clean up the mess and deal with the previous administration’s legacy of dysfunction. We also believe that the primary responsibility for acting against the City is vested in the DEA and the DWS as the regulatory authorities. Unless the DEA and DWS take concrete action to turn the situation around, hold the City to account and provide sufficient information to demonstrate that their actions are having the required impact from both an enforcement and environmental protection perspective, OUTA will not hesitate to take legal action,” Van Heerden says.

Further to the above interventions, WaterCAN, OUTA’s new initiative that seeks to ensure clean and safe water resources and hold authorities accountable when standards and expected corrective actions are not being achieved, will use an activist citizen science approach and assist in raising the level of civil society participation and action. OUTA’s Project Manager for Water and Environment, Dr Ferrial Adam, says WaterCAN aims to address the lack of accurate and meaningful information, poor monitoring, and mismanagement of South Africa’s water resources. 

“The ultimate intention of the WaterCAN initiative is to enable people to drive the process rather than relying on the state to do so, thus ultimately empowering and motivating citizens to understand their rights and to hold authorities to account,” Adam says.

Further information

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

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

More information on OUTA's campaign to get the City of Cape Town to clean up Milnerton Lagoon and the Diep River Estuary is here.

More on OUTA's WaterCAN project is here.