Dams’ safety and status of tailings dam across the country: DWS briefing; with Minister and Deputy Minister

Meeting report

The Chairperson said the Committee had conducted oversight in Giyani and surrounding areas in Limpopo. Progress has been made by the Department of Water and Sanitation (DWS) on some projects dating back to 1988. However, complaints had been made by community members. One was about the dam project that started in 1988 and continued in 2005, yet it was still not completed. The promised date for the project completion was September 2022. The Minister had made a request for the project to be finished in March 2023.

Nonetheless, there was much progress made on the dam. The progress report presented by the DWS supported the view that there was significant progress. Pipes were seen on the ground, along with other construction materials, showing work was being done. However, the Chairperson asked the DWS to ensure that it met the March 2023 target, otherwise it would not have made enough progress.

Minister' opening remarks

Mr Senzo Mchunu, Minister of Water and Sanitation, said that from the Ministry's point of view, dams in the country were sources of economic growth. Dams were crucial not only for potable water, but also for agriculture and economic industries, such as mining. The DWS was doing whatever possible to preserve water in South Africa, which was a water-scarce country. More dams must be built, especially in the eastern part of the country. These areas were receiving high rainfalls each year. There must be a collaboration with the academics to ensure that the run-off to the sea is stopped. Dam safety was paramount, not only to save lives, but also for infrastructural stability and certainty. The DWS took huge pride in ensuring dams operated at the highest levels of safety. Dams were also important for economic growth through tourism or leisure for locals.

The DWS was not at a satisfactory level in meeting its objectives. Some dams were operating under management with insufficient staff. The Department planned to explore the potential economic growth that could come from dams. In addition, it would ensure that the dams were structurally safe. Several dams did not belong to the state and therefore were privately owned. These dams received oversight from the DWS to ensure they complied with its regulations. They had to ensure that their existence was declared to the DWS, and their use of water was within the legal framework. The DWS employed advanced technology as means to ensure dam safety.

The DWS had received complaints from the communities about farmers who used more water than required, or did not comply with regulations. Some even established dams illegally. This had an impact downstream. The impacts would be covered in the presentation, including the environmental issues around the dams. For instance, alien trees were proving to be problematic. The Kouga dam was one of the dams that was troubled by the vulnerability of its retainment capacity. The DWS was collaborating with other departments to develop projects that could assist in dealing with alien trees, as it lacked the funding to deal with this challenge independently.

Dam safety and status of tailings dams

Dr Sean Phillips, Director-General (DG), DWS, introduced the presentation.

The Department was responsible for two dam safety functions. The dam safety office (DSO) independently monitored compliance with legislative requirements as part of the regulation function. The independence of the DSO’s functioning within the DWS was necessary to ensure that the internal infrastructure unit was subjected to the same requirements as all other dam owners. The Department’s dam surveillance office, as the owner of 323 state dams, took responsibility for the operations and management of dams.

What was dam safety?

• Dams in South Africa were regulated based on Chapter 12 in the National Water Act, Act 36 of 1998 (s117 – s123).
• The DWS regulated the safety of dams classified under the above-named Act as “dams with a safety risk”
• A “dam with a safety risk” was defined as a dam capable of storing more than 50 000 m3 and having a minimum vertical wall height of 5 m.
• The Minister may also declare a dam/group of dams to be classified as “dams with a safety risk,” even if they did not meet the above-mentioned criteria.
• The regulations regarding the safety of dams were also published in Government Notice R139 in 2012. These 2012 regulations replaced the 1986 regulations published in GN-R1560.
• A specialist unit residing within the Regulation, Compliance and Enforcement (RCE) branch was responsible for executing the roles and functions under Chapter 12 of the Act.

DWS responsibilities in terms of the National Water Act

• Registration and classification of all dams in South Africa (i.e. dams with a safety risk).
• Ensuring that all dams with a safety risk were designed, constructed and altered in accordance with appropriate standards and best engineering practices by issuing the following various dam safety licences.
• Assessment of dam safety evaluation (DSE) reports by an approved professional person for Category II & III dams.
• Approval of professional persons, and custodians of their register.
• Dam safety compliance monitoring inspections (DSCMIs)

Classification and Licensing

Before a dam was registered as a dam with a safety risk, it must be classified to determine its size and hazard rating potential. Dam size classifications according to size class and maximum wall height in metres were:

• Small – 5 m and not exceeding 12 m
• Medium – 12 m and not exceeding 30 m
• Large – 30 m and higher

Hazard potential rating:

The hazard potential rating of a dam looks at the impact the dam would cause in the event of a catastrophic failure, such as the potential loss of life, economic loss, or adverse impact on resource quality. This was a risk-based assessment. Based on the size classification and hazard rating, the DWS would classify a dam as either a category I, II or III dam.

The presentation revealed the number of dams registered with a safety risk as of October 2022. It was mentioned that the dam safety evaluations had fallen behind, and the number of evaluation reports had declined significantly.

(See attached document for details)

Discussion

Ms M Mohlala (EFF) asked what management techniques were used by the Department to address the sedimentation which affected dams. What challenges were encountered by the Department when it came to issuing directives on non-compliance by the dam owners? How many directives had been issued in the previous two years, and what had been the outcome? The Jagersfontein spillage had affected the Riet River that flowed into the Kalkfontein Dam, the Proses Spruit, which supplied the Wolwas Dam, and the Krommellenboogspruit, which was a tributary of the Riet River. The Kalkfontein Dam was the water supply source for several towns in the area, and was also mainly used for agriculture. What was the cost of the remediation of water sources polluted by the spillage from the Jagersfontein dam?

Mr L Basson (DA) asked about the Clanwilliam dam. Around 2016, a presentation was made to the Committee about the Clanwilliam dam, at which Members were informed about the structural problems of its foundations. Further to that, they raised the dam wall by 13 meters to strengthen its foundations. Had the risk been mitigated, as the Members were still waiting for the completion of the dam? Did the Department have a team dedicated to investigating illegal dams built in South Africa? If so, how many illegal dams existed?

Mr A Tseki (ANC) said the Portfolio Committee’s oversight could be questionable. The DWS presented the report on dam safety after the Jagersfontein incident. The Committee had existed for three years without getting a detailed report on the safety of dams. Why had the DWS waited for the Jagersfontein’ s incident before providing a report to the Committee? Perhaps it was the weakness of the Portfolio Committee’s oversight? The Committee must ensure that it scrutinises other matters that may be slacking and not being reported on.

Were there any claims that could be made arising from the Jagersfontein’ s matter? What was the status of the claims? Were there any claims the Department could make against the company in support of the affected community? What were the requirements of the Department in their oversight of the dam? The presenter mentioned that there had been an extension because the Jagersfontein company had presented a measure to correct what the Department had disqualified them for. Was there anything the Department could do to assist the community in claiming, based on the legal grounds that the Department had at its disposal?

The Chairperson said that the Department had indicated in its report that the Jagersfontein dam had not necessarily been identified as one of the risky dams. The question should be rephrased, to ask if the Department could provide the status of the dam to show that it had been identified as non-risky. If Mr Tseki could rephrase the question, perhaps the Committee would find out that no follow-up had been done, as the Jagersfontein dam had been declared non-risky. Was the Committee not supposed to know more about the status of the dam?

Ms N Sihlwayi (ANC) said the report was alarming. It spoke about the functions of the Department concerning regulation and construction. Where there was no legal compliance, there was a high risk for the community-dwelling in the area. The protection of the people was put at risk by non-compliant dams. This was also true for the privately-owned dams. This was a transformation matter. Human rights issues must be upheld. She asked if the DWS was winning in protecting human rights. The DWS had involved the National Prosecuting Authority (NPA), yet the Human Rights Commission (HRC) had not been involved, even though it was an institution that addressed matters of transformation.

She asked if it would be legal to audit all those dams that did not comply and publicise their names. The people of South Africa needed to know about the dams considered high risk. South Africa had a democratic government, and every person had to abide by the regulations of the Department. The presentation had not provided any details on the Butterworth dam that was expected to be constructed a few years ago. The dam had not been constructed.

The Chairperson asked if a dam owner was not compliant with the safety requirements of the DWS, was the Department empowered to revoke the dam’s rights and take over ownership of the dam? If so, did the Department automatically assume the status of being capable of rehabilitating and keeping to the norms and standards required of the dam? In the Jagersfontein matter, the DWS had stated that the Bloemfontein Court had given a judgment that in the old mines, the DWS was not involved and therefore had not been involved in the formation of the rules and the regulations that the old mines had to abide by. Jagersfontein was one of the old mines, so how was the DWS involved in the spillage matter? According to the court judgment, the Department of Mineral Resources and Energy (DMRE) should be involved. What did that imply when it came to the mines established in the 1880s, as the DWS had not been involved with those mines?

The Chairperson asked the Minister to respond.

The Committee Secretary said the Minister had left for another meeting, but the Deputy Minister, Ms Dikeledi Magadzi, would answer the questions.

DWS's response

Deputy Minister Magadzi said that although she had been present throughout the meeting, she wanted to give the Director-General an opportunity to respond to the questions. The DWS should collaborate with its sister department, the DMRE, to resolve matters such as that of the Jagersfontein disaster. The dam had fallen apart, and it was a matter of the DMRE. There was also a matter of the agricultural dam in Sekororo, which had posed a challenge to the DWS. It had sought legal assistance because the Department of Agriculture was not compliant. It was important for the DWS to form collaborations with other departments to resolve matters of dam safety. The Skeroro dam would affect many communities downstream, should it cave in.

Mr Leonardo Manus, Chief Director: Infrastructure Operations and Maintenance, DWS, said that to deal with the sedimentation of dams, the DWS had a unit within its water resource planning component. The unit was responsible for the sedimentation surveys, which were done regularly. The survey team would visit all the dams to ensure that the sedimentation was at a satisfactory level. These sedimentation surveys would be done at a certain frequency, and the higher rate of sedimentation, the higher the frequency of the survey. The DWS used the information to engage with the Water Research Commission (WRC) and to develop a scientific means of influencing decision-making regarding dealing with sediment. This took into consideration the capital expenditure associated with dealing with sedimentation. The engagement would also see to it that there were economic benefits for the communities where dredging took place. The results of this engagement would be felt within a space of a year. The Welbedacht Dam in the Free State had the worst case of sedimentation, and the DWS was sorting this out. The matter of high sedimentation had been predicted by Department’s engineers, which led to the decision to build a dam off-channel to prevent sedimentation.

The Clanwilliam Dam’s safety levels had been rated low by dam safety office. There had even been an official notification sent to the DWS about the dam. That influenced how the DWS looked at the dam, as it was busy raising the dam’s wall. The initial design had stated that the DWS should raise the wall by extending its downstream foundations, as the effect of gravity meant that the construction would bring stability to the structure. However, the Regulator's Office had given a report requiring the DWS to do more intensive geotechnical studies on the rock formations downstream of the dam. This had to be done before the excavations could commence. There had been onsite discussions with the professionals and the design team, and the geotechnical exploration was being done. The DWS had marked January/February 2023 down for the commencement of the actual Clanwilliam dam project. The high-risk part had been mitigated through the Department's emergency preparedness plan (EPP). There was a team looking at the completion of the EPP. The plan required everyone downstream to be aware and be in contact with the DWS authorities, and should there be a need for an alarm to be raised, the plan would kick in. The nearby communities would be informed to prepare evacuation plans to prevent loss of life and detriment to the economy that may be caused by infrastructural damage.

The dam surveillance team had been looking at all dams and had alarm systems in place. Should the alarm get raised, the EPP would kick in, and there would be a response to the alarm. Deflection surveys were also conducted by the survey unit. In addition, the DWS also had real time three-dimensional (3D) crack monitors, and other monitors that monitored displacement, to ensure a certain response to what was being monitored. That was the responsibility of the DWS dam surveillance team, which was also responsible for the dam safety rehabilitation programme (DSRP).

Butterworth had the Gcuwa Dam and Xilinxa Dam which were severely affected by drought in 2019. Decisions were taken that led to these dams being at 100% levels. Gcuwa Dam had high sedimentation levels. A cost benefit analysis was done and the results showed that it would be best to raise the Gcuwa wall and add additional capacity. During the exploration process, it was discovered that there was a weak spot in an earth-fill embankment. This forced the DWS to change and undertake different designs. Once the design work had been completed, the DWS would go into the construction stage.

Mr Xolani Zwane, DDG: Regulation, Compliance and Enforcement, DWS, said the DWS dealt with non-compliance by issuing directives to the dam owners. There were no challenges in doing that. Each province had an enforcement unit that assisted with issuing the directives. The DWS had some wins in that regard. There was a dam in the Western Cape that had been constructed unlawfully. The DWS had taken civil action, and the court had fined the owner R3.5 million for unlawfully constructing the dam, and had directed the owner to submit a dam safety report which the DWS had received. The report showed that the dam was not in good condition and the dam owner had received a directive from the DWS to comply with the implementation of it.

Although there were some wins, the struggle was with the dams owned by state organs, particularly municipalities. There were several municipalities which had received letters from the DWS which spoke about the matter of non-compliance. Ga-Sekororo was one of the dams that had received such a letter. The Limpopo Department of Agriculture owned the dam. The DWS had resorted to the harsher stage of opening a criminal enforcement case with the SAPS. Those were challenges. In essence, privately-owned dams were much easier to manage.

The Human Rights Commission had not been engaged on the challenges the DWS faced. It was constructive advice that the DWS would soon implement.

The audit of non-compliant dams was done and referred to the enforcement unit to act. In the 2021/22 financial year, the DWS intended to publish an annual Dam Safety Report to make the communities more aware of the dams near them. The DWS had not conducted a dry simulation of the emergency preparedness plans in the event of a dam failure. This would be done by contacting the disaster management agencies. A dry simulation would assist in seeing how effective the EPP was against a dam failure. Other countries had been doing that, and the DWS would be doing the same, especially around the high-risk dams with a high hazard potential rating. The DWS would install early warning systems into dams, as there were different types of dams. Some types were easy to have an automated early warning system installed. The challenge may be with the embankment dams. The DWS may even enforce early warning systems to be mandatory.

Was the DWS empowered to take over a dam? Mr Zwane made an example of the Nqweba Dam in Graaff-Reinet. The dam had been owned by a municipality, but years ago its operations and control had been handed over to the DWS. The municipality had indicated that it did not have enough funds to maintain the dam. The dam was included in the Department's programme to make it safe, and was handed back to the municipality. There was another dam in Limpopo which the DWS had now taken over. Through the asset management process, it could take over the dams that served the community with potable water supplies. Where there was a dam that was owned by a private entity that was on the brink of failure and may cause loss of life, the Act empowered the Minister in terms of Section 118 to do the necessary work to ensure that the dam was safe to prevent loss of life, and thereafter to recoup the costs of making the dam safe from the owner of the dam. To answer the question, the Minister was indeed empowered to take over a dam.

The Jagersfontein dam’s level of storage capacity and its height were brought to the dam safety office’s attention in December 2021. At the time, the dam was not registered as a dam that was a safety risk. After looking at the storage and height level, the Department became aware of the dam not being registered and meeting the requirements to be classified as a dam with a safety risk. It immediately engaged the engineers representing the mine to inform them of the requirements. The dam was consequently registered and classified in April 2022. Unfortunately, before more work could be done on the dam, classified as Category 3, the unfortunate incident of September 9-11 2022 happened.

Mr Zwane said there were 14 illegal dams known so far. More than 95% were in the Western Cape. Directives had been issued to the owners. Almost all owners had approved the DWS’s request to legalise the dams. Those that had been found to be not compliant with the best engineering practice would have to be demolished, because they posed a danger to the downstream communities. It was also unfortunate that most of the dams were properly designed by an approved professional person (APP), who was registered as an APP by the DWS. The owners indicated that they had been ill-advised during the process. The DWS was doing extensive investigation on the already constructed dams to assess whether the dams had been constructed according to the best engineering processes. Those that did not meet the requirements would be demolished, but some may be condoned to receive Chapter 4 Water Use licences.

The owners of dams with high sedimentation loads consult the DWS on whether dredging could be considered. The dredging exercise requires a licence to be issued by the DWS. The DWS would therefore evaluate the practices employed to remove excessive sedimentation. Those who did not wish to use the dredging option could raise the dam wall to restore the dam's original storage capacity.

Following the Jagersfontein incident, the DWS appointed an independent panel of experts to conduct a forensic investigation into the cause of the Jagersfontein dam’s failure. The report would form part of the prosecution processes. The DWS would like to treat the report as an independent report, without the involvement of either the DWS or the mine.

The Chairperson reminded the DWS that there was a question about the legal options that the DWS could pursue to sue the mine in Jagersfontein.

Mr Zwane said that the DWS may have a claim. The claim would be contingent on the damage caused downstream, the infrastructure lost, and whether the mine had been compliant. The investigation would unveil a lot of things. The investigation was being done by MVD Kalahari Consulting, which was a private company, to see whether the Jagersfontein met the requirements. That might initiate a class action case. The DWS knew little about the MVD Kalahari Consulting company.

Dr Phillips thanked Mr Zwane for his responses, and reminded him that there was one question about the Riet River which had not been answered.

Mr Zwane said that the Kalkfontein River had risen to 102% after the dam failure, showing that there was sludge from the Riet River.

Dr Tseliso Ntili, Head: Free State Department of Water and Sanitation, added that rehabilitation of the affected rivers and dams had started. The affected zones have been categorised. Many organisations had united behind the rehabilitation plan, such as other departments of government and the University of the Free State. All the institutions had united in assessing whether the water quality was still good for human consumption or farming purposes such as irrigation.

There was an intergovernmental relations (IGR) structure comprising different government entities and the University of the Free State. The different structures assisted with facilitating the rehabilitation plan to ensure water quality was up to par for human consumption. Bloem Water presented a report showing that the Kalkfontein Dam had water quality levels acceptable for human consumption. There were a lot of specialists that were working towards this rehabilitation. SRK Consulting led these specialists, and the mine was paying for the rehabilitation.

The Bloemfontein High Court's ruling was not saying that the DWS should not be involved, but was asking the DMRE not to be involved. The old tailings dams did not require new mining rights, so the DMRE was not supposed to be involved. The DWS was involved as water use activities were involved in processing the minerals. Another licence had to be obtained during the transportation to the mine’s storage facility. The licence was according to the National Water Act Section 21 (g).

Dr Phillips thanked the delegates for their contributions to the responses. The DWS was available to report any time on information concerning water and sanitation. Furthermore, the DWS might need to consult with the Portfolio Committee on how it could report periodically on the dams. There were approximately 6 000 registered dams in the country. That was a huge amount of information to report on.

Mr Tseki asked if the Department could give a report on a possible claim regarding the disaster in Jagersfontein.

The Chairperson said that the Department had already responded to the question.

Dr Phillips said that the DWS always benefited from its engagement with the Portfolio Committee. It provided guidance and assisted the DWS in identifying its weaknesses.

Committee Matters

Outstanding minutes

The minutes of 11 (morning and afternoon meetings), 13, 18 and 25 October were adopted, with no amendments.

The Chairperson proposed that the Committee adopt minutes first at every meeting, and then proceed with other agenda items.

The meeting was adjourned.