African Wildlife & Environment Issue 82

CONSERVATION

biological characteristics of the water; the character and condition of the instream and riparian habitat; and the characteristics, condition and distribution of the aquatic biota. • “extent of the watercourse (regulated area)” means “within the outer edge of the 1:100 year flood line, or delineated riparian area as measured from the middle of the watercourse, or within a 500m radius from the boundary of any wetland”. • “boundary of a wetland” is defined as the “outer edge of the seasonal or temporary zone as delineated for the wetland”. • “diverting the flow” means a temporary or permanent structure causing the flow of water to be rerouted within the extent of the watercourse (as defined above) for any purpose. • “impeding the flow” means the temporary or permanent obstruction or hindrance to the flow of water within the extent of a watercourse by a structure built either partially or fully in or across a watercourse. In addition to this, Paragraph 7.3(b) states that structures used to divert or alter flow may not be unstable in their design. Paragraph 7.4(c) states that scouring, erosion and sedimentation is not permitted, while in terms of (d) there may be no

decline in the diversity of communities and the composition of natural vegetation. Paragraph 7.5 expressly forbids any activity that alters the velocity, pattern of flow and water level. Paragraph 7.7 expressly forbids any activity that will result in a measurable detrimental change to (a) breeding and feeding patterns of biota; (b) create a change in the diversity of biotopes and communities including microorganisms; and (c) change in the condition of the aquatic biota. Paragraph 10.1 states that any water use contemplated in terms of this GN, must be registered. This framework was central to the ensuing litigation, first attempted through the Water Tribunal, and then later in the Durban High Court by virtue of the fact that the Tribunal was dysfunctional at the time. The outcome of the litigation was that the Applicant (Adeel Sands) was not allowed to operate because their activities contravened Section 21 (c) and (i) of the NWA. After this ruling, illegal miners have moved onto the mining right still owned by Adeel Sands, who have now been rendered powerless to defend their legal mining right. The implications of this Section 53 shutdown are profound. For example, no improvement has occurred in terms of environmental management of the Umvoti River, because the legal mining rights holder has merely been replaced by an illegal miner,

who apparently operates with impunity. More importantly, major companies purchasing the sand for use in concrete products, often listed on the Johannesburg Stock Exchange (JSE), are supporting unlawful mining that results in the destruction of aquatic ecosystems in direct contravention of the stated intention of the NWA. This places those companies at risk of JSE regulatory intervention for benefitting from the proceeds of crime. However, the Umvoti River case is in direct contrast to the uMzimkhulu River, where industrial scale mining operations continue with apparent impunity. The operations on the uMzimkhulu contravene every aspect of the 2015 GN cited above. There is a clear trail of forensic evidence of these contraventions that has been presented to DWS, yet they fail to act in the same way as they did in the case of Adeel Sands. This means one of two things. Either Adeel Sands was unfairly dealt with when their operation was subjected to a Section 53 shut down – without first

An excavator removing sand from the bottom of the Umvoti River

12 | African Wildlife & Environment | Issue 82 (2022)