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Presentation to the Portfolio Committee of Water and Environmental Affairs

2. Enforcement against Organs of State. Criminal Prosecution: Where the WSI has willfully failed to co-operate, or without a valid reason, failed to implement the agreed solution then the DWA will look to criminal liability;Legislation including criminal liability of the stateSection 156 of the N

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Presentation to the Portfolio Committee of Water and Environmental Affairs

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    1. 1 Presentation to the Portfolio Committee of Water and Environmental Affairs Waste Water Services – Legal Action Presentation Presented by: The Department of Water Affairs 11 May 2010

    2. 2 Enforcement against Organs of State Criminal Prosecution: Where the WSI has willfully failed to co-operate, or without a valid reason, failed to implement the agreed solution then the DWA will look to criminal liability; Legislation including criminal liability of the state Section 156 of the NWA: “This Act binds all organs of state” The said section does not provide any exclusions in discharging this mandate and therefore all the State Organs, like any other user of the water resources, are subject to the all the provisions of the NWA.

    3. 3 Legal Action must takes place within the context of the Constitution: Background Bill of Rights (Chapter 2) of the Constitution of RSA: Section 24 “Everyone has the right 1. to an environment that is not harmful to their health or well-being, 2. to have an environment protected for the benefit of present and future generations,..” Section 27 “Everyone has the right to have access to sufficient food and water” Minister as the public trustee of all water must ensure that water is protected, used developed, conserved, managed and controlled in a sustainable manner for the benefits of SA; However, Co-Operative Government (Chapter 3): Section 41 of the Constitution of RSA: “Section 41(1) All spheres of government and all organs of state within each sphere must – (vi) avoiding legal proceedings against one another. Section 41(3) An organ of state …must exhaust all remedies before it approaches a court to resolve the dispute. Section 41(4) If a court is not satisfied that the requirements of ss (3) have been met, it may refer a dispute back to the organs of state involved.”

    4. 4 Legal Action cont… The principles of co-operative government, entrenched in Chapter 3 of the Constitution, govern the relationship between national, provincial and local spheres of government. Chapter 3 of the Constitution aims to shape the attitudes of the levels of government to fit the co-operative model of federalism. The principles are concerned with the way power is exercised, not with whether or not a power exists. The constitutional provisions contained in Chapter 2 pertaining to socio-economic rights require the State to “take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of [these rights]”. Constitutional Court Judge Yacoob stressed in the Grootboom case “that despite all these qualifications, these are rights (i.e. s24 & s27), and the Constitution obliges the State to give effect to them. This is an obligation that Courts can, and in appropriate circumstances, must enforce.”

    5. 5 DWA’s policy on enforcement against Organs of State Therefore the DWA developed an Enforcement Protocol which essentially combines the requirements of Chapter 2 and 3 of the Bill of Rights in an effort to meet the Department’s Constitutional mandate; I.O.W. the Enforcement Protocol is a combination of implementing the NWA, WSA and the requirements of the Constitution, i.e. Chapter 2 (Bill of Rights – Section 24) and Chapter 3 (Co-Operative Governance – Section 41); Therefore, Section 63 of Water Service Act (WSA) maybe used by the DWA to intervene to rectify the non-compliance.

    6. 6 Waste / Water Services Regulation Enforcement Protocol

    7. 7 Enforcement against Organs of State Legal action can take the following form: Criminal prosecution, Court orders (interdicts & private prosecutions), Directives, Fines, Provincial Intervention, and others depending on the transgression and/or the non-compliance: Name and Shame; Financial Pressure; Provincial or National Government Intervention.

    8. 8 Methods of Legal Action to Rectify Subject to a directives being issued to an UNLAWFUL water use to rectify the non compliance- Carry out the necessary measures to rectify the non compliance (e.g break a dam, seal water pipes); Suspend any entitlement to use water; Withdraw such an entitlement. Lay criminal charges (does not always yield rectification but may serve as a deterrent) Approach the Court for appropriate relief

    9. 9 Directives issued against WSI/A’s for non-compliance with regard to the operations of Waste Water Treatment Works (WWTW’S). A total of 56 pre-directives and directives (49 pre-directives and 7 directives) have been issued by DWA regional heads to municipalities Seven (7) criminal prosecution cases have resulted from failures to act in spite of continuous engagement.

    10. 10

    11. 11 6 steps towards Effective Prosecution (cont) 4. Expansion of The Prosecution of Environmental Crime: A Guide for Prosecutors to include a comprehensive discussion of the prosecution of water related offences & pro forma charge sheets on all relevant offences; 5. Presenting advanced courses to prosecutors on the prosecution of water related offences (in collaboration with Justice College); 6. Lastly, but most importantly Establishing Environmental Courts

    12. 12 The Environmental Courts Task team composed of the Dept. of Water and Dept Environmental Affairs and Dept. of Justice After pre meeting around the Courts, Task Team and all three DG’s met with the Minister of Justice on 11 February 2010 at Parliament on the principle agreement around the establishment Environmental Court. Minister of Justice agreed on the following points: - Dedicated vs Specialised Courts (Initially we will establish dedicated court); - Establishment of 4 pilot Environmental Courts: - Johannesburg Regional Court (south); - Durban Regional Court; - Nelspruit Regional Court (jurisdiction covers the whole of Mpumalanga); - Hermanus District Court.

    13. 13 Environmental Courts - Appointment of dedicated prosecutors and judiciary (two per court) to handle environmental crimes to be supported by DEA and DWA; Utilisation of existing court structures; Evaluation of pilot phase after one year to determine sustainability; Minister Sonjica’s deadline for role out of the Environmental Courts is within the first two financial quarters of 2010. Launch date to be announced soon.

    14. 14 THANK YOU

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