ENVIRONMENTAL AFFAIRS v WATER AFFAIRS
SEWAGE SPILLS: WHOSE RESPONSIBILITY IS IT?
On the 10th February 2022, the Minister for Foresty, Fisheries and the Environment, Barbara Creecy responded to the following question in the National Assembly:
Whether her department has determined the environmental impact of sewage spills that are experienced by communities in many municipalities across the Republic; if not, why not; if so, what are the relevant details?
Her response was that she has not determined the environmental impact of sewage spills “on rivers” across municipalities in the country since the administration of the Water Act fell under the responsibility of the Ministry of Water and Sanitation.
This response from the Minister is characteristic of the manner in which government departments generally deal with any calamity facing our citizens – Passing the Buck !
But before getting carried away, let us look at what the law says.
The environmental principles laid down in the National Environmental Management Act 107 of 1998 (NEMA) are binding on all environmental legislation and all Organs of State.
One of these principles is that:
There must be intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment.
In fact, the main purpose of NEMA is to ensure “co-operative environmental governance”.
The parliamentary question made no reference to “rivers”, but was instead quite broadly framed. The Minister chose to interpret the question in the narrowest possible manner, by referring to sewage spills and their impact on rivers.
Section 28 of NEMA places a legal obligation on anyone who has caused significant pollution of the environment to take measures to prevent such pollution or to minimise the pollution and rectify the damage caused.
In terms of s28(4) the National Department of Environment or the Provincial Environmental Department may direct such person to inter alia, cease the polluting activity and investigate and assess the impact of the pollution.
These provisions apply to any environmental resource, including land, rivers and the ocean.
The equivalent of s28 is to be found in s19 of the National Water Act 36 of 1998, which concerns pollution to a water resource, which is the responsibility of the Water and Sanitation Department.
Section 30 of NEMA deals with the control of incidents which result in the sudden and uncontrolled release of a hazardous substance. Raw sewage in this instance is considered a hazardous substance.
The relevant authority for such incidents includes the local municipality, the provincial environmental department, the national environmental department or any other national department.
The equivalent of s30 is to be found in s20 of the NWA which is the responsibility of the Water and Sanitation Department, and which regulates incidents which pollute or have the potential to pollute a water resource.
The answer to the question -whose responsibility is it to deal with sewage spill incidents – is not a clean-cut answer.
Because not all sewer spill incidents can be said to impact or affect a water resource or rivers.
But what is clear is that Creecy’s department and her provincial counterparts have overall responsibility for environmental matters, while the Water and Sanitation Department has specific responsibility over pollution to water resources.
Notwithstanding, it is incumbent on both departments to work co-operatively in solving South Africa’s environmental problems, particularly pollution to our rivers and coastal areas.
But sadly, the Minister’s approach to the parliamentary question further confirms that the ideal of co-operative environmental governance in South Africa is but a dream.
It is even more depressing to know that the environment minister has not attempted (either on her own or in partnership with Water and Sanitation) to assess the national impact of sewage spills across the country, which are growing in number and intensity.
We deserve better…