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Possible legal action against the City of Cape Town can follow, after last years devastating floods which caused widespread damage to farms and businesses along the Berg River in Wemmershoek and Paarl.
In June and September last year, in response to heavy rainfall, the Wemmershoek Dam authorities opened the sluice gates to a level not seen for nearly 40 years – stages 6 and 7. That released a massive amount of water into the already flooding Wemmershoek and Berg Rivers, causing serious damage, which has now been estimated at well over R100 million.
Wemmershoek farmer Jonathan Schrire is just one of the farmers that sustained large-scale flooding damage is now spearheading this action to prevent similar floods in the future.
Schrire said this flood was made much worse by the dam operating policy implemented by the City of Cape Town, the operating authority for Wemmershoek Dam, unlike the Berg River Dam, which falls under the National Department of Water Affairs.
He said ever since the dam was built, nearly 70 years ago, the operating policy has been: never release any water until the dam is 100% full.
Inevitably this becomes critical at a time of maximum precipitation, both from rainfall and the rivers that feed the dam, said Schrire.
“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.”
The Wemmershoek River empties into the Berg River, so the dam release affects both rivers.
Schrire says the solution to this problem is blindingly obvious: pre-release; start releasing water days before the dam gets full, so there is a buffer and they don’t have to open the sluice gates so much and so quickly later on.
“In spite of many meetings over the years, and endless emails, the City simply refuses to consider any pre-release.
“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%?’”
Schrire said the City of Cape Town’s refusal to change its policy on the management of the dam has forced him now to obtain legal advice on this issue.
He said he and many others affected by last year’s devastation believe, and are advised, that there is a good chance a court will overturn this policy.
“We are aware there have been several court cases over the past 30 years over flood damage, but none succeeded. 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.
“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 CT with water. So a loss of 5% of the Wemmershoek equates to 0.35% of the total water capacity supplying Cape Town.
“Against this small risk of water loss, is the overwhelming likelihood that if the dam is left to get to 100% in the winter months, there will be 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.”
Schrire is appealing to fellow farmers and businesses who have suffered losses due to flooding to get in touch with him to discuss this, as well as financial assistance for the legal fees:
Jonathan Schrire, The River Farm, Wemmershoek River. 083 253 0351; ajax@iafrica.com
