Letters, stonewalling, and finally a court order to wrest public information from BCM

A disturbing aspect of the now-plugged leak at the Kidds Beach sewage treatment ponds has been the illegality of Buffalo City Metro’s licence to operate the plant.

For three years, ratepayer activists have struggled to “fathom out the facts about the capacity, licensing, water test results and housing development authorisations,” Kidds Beach Ratepayers and Residents (KBRR) chair Steve Keet said.

In April, high court judge Nuzuko Mjali ruled in favour of residents when she ordered BCM and others to provide to the public information from the government in terms of  the Promotion of Access to Information Act (PAIA). This was in the form of a plethora of authorisations to discharge effluent into the Mcantsi River. 

Previous PAIA applications had been ignored by BCM.

Keet said the information released by BCM — it responded to two out of 16 orders — and the department of water & sanitation (DWS) — which responded to all the rulings affecting it — had revealed that:

• BCM’s authorisation and licence to run the plant in terms of the Water Act expired on September 30  2004. The metro failed to secure these from rights from the DWS.   
• BCM and the provincial government recognised in 2007 that the plant was not fit for purpose for the existing homes of 150 in the “old village” (now 210);
• Plant infrastructure upgrading conditions set by the then-department of economic development and environmental affairs and DEDEA — to allow the 2007 development application by Altivex/MHG to increase the  treatment inflow to 472 cubic metres per day to service 446 dwellings) were only partially complied with in 2017 and in May 2022.
• Despite a condition that the transfer of the Phase 1 development of 150 erven to new homeowners was subject to the completion of the sewage plant upgrade, development continued unabated. A recent report received from the developer, Altivex/MHG, the number of “transferred” dwellings was at 527;
• All told, the ponds were trying to treat sewage from 830 dwellings, two new 1000-pupil each schools and a shopping complex. A further 40 new homes would also be linked to the sewerage system. The plant was destined to be unfit for purpose, said Keet. “It seems to be heading to a 100% overload.”
• Subsequent town development authorisations for additional farmland were issued by the authorities, but they failed to set any conditions for the upgrading of the sewage plant or the construction of a new plant;
• On January 30 2018, DWS issued BCM a directive in terms of Section 51(3) of the National Water Act,  to ensure that the operations of the plant met legislative and standards requirements. But there was no monitoring to enforce compliance; and
• Limited work was being done to design and budget for construction and commission of a fit-for-purpose plant also able to meet future development pressures.

Keet said: “Following the KBRRA laying criminal charges against the BCM city manager (Andile Sihlahla) early in March 2022 for operating the plant illegally and the dumping of effluent directly into the Mcantsi River, and a series of correspondence (unanswered) alerting BCM and the minister of water & sanitation to relevant transgressions and possible litigation, BCM is reportedly finally preparing an application for a licence to become the legal operator.

“While progress is appreciated, questions linger about why the authorities and the developer frustrated efforts to obtain credible information about whether the plant had sufficient capacity for the current and ongoing construction of additional dwellings.

“It took mountains of unanswered correspondence, attempts at meetings and finally court action to find out that the plant was illegal, inadequate, unlicensed and a health and environmental hazard.

“KBRRA is grateful to Christo Theart of the Centre for Local Community Rights and attorneys Niehaus and McMahon for  work done to obtain a court order to compel the authorities to provide information.

“DWS responded fully, BCM unfortunately is facing further action having responded only partially.”

BCM spokesperson Sam Ngwenya did not respond to queries and to put BCM's side of the story.

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