Both legal and illegal sand mining, and heavy machinery, is contravening the National Water Act, degrading aquatic systems in KwaZulu-Natal.
When the National Water Act (NWA) was promulgated as the first piece of new legislation after our historic transition to democracy in 1994, it became a milestone in environmental management.
For the first time in our history, aquatic ecosystems were given rights to its own water, protected at the same level as basic human needs under the technical term of “the reserve.”
The ecological sciences came of age when the notion of sustainability entered the mainstream lexicon. The NWA was lauded globally, and others began to adopt some of the key concepts from it.
The core objective of the NWA was the desire to balance consumptive use with ecological sustainability. This is a golden thread through the entire Act. It mandates the classification of rivers, making it unlawful to degrade aquatic ecosystems. One key objective was the need to prevent our “workhorse rivers” from becoming open sewers. Catchment management strategies are mandated, with the objective of improving the ecological status of all rivers, but notably rehabilitating Class “D” rivers to at least one class better (Class “C”).
Most rivers now lagoons choked by sand
In the KwaZulu-Natal province, most of the once free-flowing rivers have been over-abstracted, so the flood pulse is too feeble to function as breeding estuaries. Most have now become lagoons, choked by sand, only flowing into the ocean episodically after major flood events. Most rivers in the province are now nothing more than linear wetlands, with feeble baseflow and sub-surface streamflow along alluvial surface aquifers. This is not ecologically sustainable and is contrary to the intention of the NWA.
A component of the NWA is related to streamflow alteration. This is defined in Section 21 as any activity which alters the bed, bank and flow of any watercourse. All forms of streamflow alteration require a water use license (WUL), which defines the parameters by which the use is regulated. This brings sand mining into stark focus. Most rivers in KwaZulu-Natal are now sources of sand, and mining within riverbeds and floodplains is pervasive.
For example, the Umzimkulu River has had the bed, bank and flow so altered by mechanized dredges that the normal tidal pulse is pushing upstream to Helens Rock pump station. This is the source of potable water for the Ugu Municipality. In most rivers sand mining occurs. We see commercial mining in the large rivers, and artisanal mining in the smaller rivers, all of which is in direct contravention of Section 21 of the NWA.
Beds and banks altered by heavy machinery
The following cases illustrate the problem:
- In the Umzimkulu, industrial scale mining has altered the profile of the bed and bank, while berms needed to move heavy machinery into wetlands on the opposite bank of the river have also altered the flow. Evidence of this is available forensically from Google Earth images, which show the extent of alteration.
- In the Umtentweni River, heavy earth moving equipment is driven onto the floodplain in a hit-and-run operation. This is unlicensed, and the large excavators destroy everything from the banks to the bed of the river, as they hastily grab sand to be loaded into articulated trucks that are driven off site. This illegal operation is monitored by residents, who are intimidated by the criminal operators. In both cases, Section 21 is applicable, yet never applied.
- In the third case involving the Umvoti River, the Green Scorpions initiated Case Numbers 14236/14 and 14621/14, shutting down a legal mining operation, citing Section 21 infringements as the cause. The matter went to court in 2015 and this mining operation has never resumed. It has been replaced by artisanal miners operating outside the law. The sand is sold to listed companies, who sell bulk concrete into the construction industry. In all cases the buyers of illegal sand are dealing in stolen goods.
Uneven application of the Law
In all three cases, we have empirical evidence of the uneven application of the law. In the Umvoti case, we have an extreme example of a zero-tolerance approach by the regulator (Department of Water and Sanitation – DWS). In the Umzimkulu case we have empirical evidence of the unwillingness of DWS to intervene in a legal mining operation that apparently has no WUL for streamflow alteration activities, even after the national spokesperson went on record saying that intervention would be forthcoming. In the Umtentweni case, the hit-and-run tactics of an illegal miner simply outmaneuver the regulator.
This poses the question – is Section 21 of the NWA being applied uniformly to all sand miners in rivers? If not, then why?
Is there a corrupt relationship between both legal and illegal miners with someone in the DWS that “sells protection”? The sheer persistence of this practice suggests that this might be a case where the Special Investigation Unit (SIU) will find justiciable evidence of corruption.
When the law is not applied evenly it erodes the legitimacy of the regulator.
Where does this sand end up?
The sand is sold to listed companies, who sell bulk concrete into the construction industry. In all cases the buyers of illegal sand are dealing in stolen goods.
By Dr Anthony Turton, Professor at the Centre for Environmental Management, University of Free State