Landowners along the Wemmershoek River are considering legal action against the City of Cape Town (CoCT) over widespread damage incurred to farms and businesses in the area following last year’s floods.
Also read: Steps taken to avoid flooding in Cape Town as winter approaches
Heavy rainfall during June and September last year led to an unprecedented opening of the sluice gates at Wemmershoek Dam in response to levels six and seven weather warnings – something that hasn’t happened in nearly 40 years.
This move released a large volume of water into already flooded Wemmershoek and Berg Rivers, resulting in extensive damage estimated at more than R100 million.
Jonathan Schrire, a Wemmershoek farmer, was one of the farmers who sustained large-scale flooding damage.
He told Netwerk24 that the flood was worsened by the dam operating policy which is implemented by CoCT (also the operating authority for Wemmershoek Dam). The Berg River Dam is operated by the National Department of Water Affairs.
The operating policy is to never release any water until the dam is 100% full – a policy which has been in effect since the construction of the dam nearly 70 years ago.
However, this policy creates a critical situation during maximum precipitation. ‘As a result, the water rises, forcing the sluice gates to be opened more and more, releasing bigger quantities of water on our properties downstream,’ says Schrire.
The dam release affects both rivers because the Wemmershoek River empties into the Berg River.
According to Schrire, the solution for this problem is to pre-release days before the dam gets full. He says this should create a ‘buffer’ so that the sluice gates wouldn’t have to be opened so much and so quickly.
‘In spite of many meetings over the years, and endless emails, the City simply refuses to consider any pre-release,’ he adds.
‘They have only one reason: “What if we pre-release water and then there is not enough rain to fill the dam up again to 100%?”’
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Due to the back and forth and the City’s refusal to change its policy, Schrire has been forced to obtain legal advice on the matter.
‘We are aware there have been several court cases over the past 30 years over flood damage, but none succeeded,’ he says.
‘We therefore need to have solid reasons why we think we may succeed this time, instead of just wasting more money on lawyers.
‘Here are the reasons it may be different this time: All the previous tried to get the City to pay for damages caused by the flooding. But it denied negligence and said it was just applying the dam operating policy.
‘There has never been a case in which the operating rules themselves were challenged in terms of administrative or public law, which is what is proposed. This is completely different from previous claims for damages.
‘In 2000 a new law was passed called “Promotion of Administrate Justice Act 3 of 2000” or PAJA. This law says if a state department (which includes a municipality) makes a decision that is illogical, irrational or arbitrary, people can apply to the courts to overrule it.
‘There have been many examples where courts have overturned bad government decisions using PAJA. So now there’s a powerful legal tool that had not existed previously,’ says Schrire.
Rainfall can be predicted. There is historical data from which the average rainfall figures for each month are known. In addition, there are also much more accurate weather forecasts now.
‘So, to use an actual example: In the middle of June last year, when the first major release and flood took place, we knew that there were still four winter months ahead with significant rainfall, so even if they pre-released water to keep the dam at 90%, it would certainly fill up.
‘The City’s refusal to pre-release because “we may not replace that lost water; the dam may not fill up again” clearly shows they are not open to reason nor that they are applying their minds to the issue.
‘Balance of risks: Wemmershoek is just one of many dams supplying Cape Town with water. So a loss of 5% of the Wemmershoek equates to 0.35% of the total water capacity supplying Cape Town.’
Against the small risk of water loss, Schrire says the likelihood of the dam being left to reach full capacity in the winter months could result in serious damage to property downstream.
‘We will ask the court to balance these two competing risks and rule that the risk of pre-releasing and losing an insignificant amount of water is far outweighed by the risk of damage if they do not pre-release.
‘The City blindly refuses to even consider pre-releasing water for flood abatement. So we either give up and wait for the next flood, or take legal action. There is no other choice.’
Cape Town’s Mayco member for water and sanitation, councillor Zahid Badroodien, confirmed to Cape {town} Etc that the City’s Water and Sanitation Directorate has interacted with landowners along the Wemmershoek River regarding the operation of the dam.
Cape {town} Etc also asked the City to comment on the farmers’ decision to take legal action:
‘The operating rules at Wemmershoek Dam were established to ensure the discharge from the dam does not exceed the inflow into the dam, while at the same time maximising storage to ensure water security for, amongst others, residents and businesses in the Drakenstein, Stellenbosch and Cape Town municipalities,’ Badroodien said.
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Also read:
City takes action to prevent flooding in Kuils River and Khayelitsha Wetland
Picture: Screenshot of video by City of Cape Town / Facebook