A civil case was lodged in the Durban High Court last week (16 November) against eThekwini, four Cabinet ministers and several government departments by ActionSA, which is calling for an independent investigation — and an urgent rehabilitation plan — following the lengthy delay in repairing the city’s wastewater treatment infrastructure after the April/May floods and alleged city mismanagement that predates the flood damage.

The Democratic Alliance has indicated that it plans to launch similar legal action if the city fails to respond to a recent letter of demand, with DA provincial chair Dean Macpherson suggesting the party could subpoena eThekwini Mayor Mxolisi Kaunda and two national government ministers to account for the failure to enforce water and environmental conservation laws.

Now it has emerged that at least three criminal charges have also been laid against senior eThekwini officials by the KwaZulu-Natal provincial Department of Environment Affairs for the city’s alleged contravention of environmental pollution laws.

Sewage flows into a river in the Pinetown area. (Photo: EDTEA)

The charges came to light during the ninth Environmental Compliance and Enforcement Lekgotla (meeting) of the Green Scorpions in Muldersdrift, Gauteng, last week.

Dr BR “Zakhele” Dlamini, senior director (environmental management) of the KwaZulu-Natal Department of Economic Development, Tourism and Environmental Affairs, told the lekgotla that his department had served more than 30 administrative action directives on the city between 18 May and 30 August.

The directives were intended to remedy sewage flows into rivers and the sea and the subsequent closure of several beaches that had left the tourism industry “in turmoil”.

Dlamini said his department had taken water quality samples and handed over three criminal investigation dockets to the National Prosecuting Authority for pollution of the environment:

• CAS 150/04/2022 (relating to sewage pollution in the Eiderwood Close residential area in Phoenix);
• CAS 83/08/2022 (pollution and major fish kill in the Isipingo River); and
• CAS 203/09/2022 (sewage leaks into a stream adjoining Winkelspruit beach).

The three criminal charges against the Ethekwini municipality. (Image: Supplied)

In a separate presentation to the provincial legislature’s portfolio committee on environmental affairs on 1 November, Dlamini outlined the lengthy process his department had followed before taking the final step of laying charges against a fellow government department.

He suggested that in terms of Chapter 3 of the Constitution and the Intergovernmental Relations Framework Act, there was a duty to avoid legal proceedings against fellow organs of state and a need to “foster friendly relations, assist and support one another as organs of state”.

However, he said, legal proceedings did not preclude administrative enforcement measures by his department.

“While there is, therefore, no prohibition against issuing an administrative notice against an organ of state, acting in the spirit of co-operative governance dictates a less confrontational approach in dealing with non-compliant organs of state.”

But, he stated, in red text: “It is key to note that the Constitution does not prohibit legal proceedings between organs of state, but places a duty on organs of state to avoid such proceedings against each other.”

The Department of Water and Sanitation seems to have been following a similar procedure in trying to compel the city to remediate the sewage spills into rivers.

In its presentation to the portfolio committee, the department confirmed that it had issued a series of non-compliance notices to eThekwini Municipality in terms of the National Water Act over recent months. In response, representations from eThekwini were received on 13 July. The department reviewed these and indicated to the city that its action plan was “unsatisfactory” and that repair timelines had not been adhered to.

Noting that sewage flows into “most” city wastewater treatment works were still low (as of 1 November), the national Department of Water and Sanitation said that “work done to date on the sewerage infrastructure is not satisfactory” and that several rivers were still polluted with high levels of E. coli bacteria.

Now ActionSA has lodged a legal application in the Durban High Court in which the party’s provincial chair, Zwakele Mncwango, slams the city’s “lackadaisical approach” to resolving the pollution crisis.

“Whilst it is tragic that the public must approach the courts to [compel] the executive to act upon their obligations, which are clearly legislated, the public has no alternative remedy at this stage.”

Mncwango said the negative publicity surrounding the city’s polluted beaches had been “devastating” for the local tourism industry. It had also led to the cancellation of several ocean sports events, and some lifeguards and other municipal staff had expressed fears for their health following the recent reopening of several beaches.

ActionSA affidavit. (Image: Supplied)

ActionSA affidavit. (Image: Supplied)

Apart from the eThekwini Municipality and Mayor Kaunda, the party has cited six other respondents in the court action: Tourism Minister Lindiwe Sisulu, Water and Sanitation Minister Senzo Mchunu, Environment Minister Barbara Creecy, Co-operative Governance and Traditional Affairs (Cogta) Minister Nkosazana Dlamini Zuma, Cogta MEC Sihle Zikalala and Environment MEC Siboniso Duma.

All have 15 days to indicate whether they wish to oppose the application and a further 15 days thereafter to file responding papers if they choose to oppose the suit.

However, it appears that a court hearing is unlikely until 27 February at the earliest, depending on whether the city and other respondents oppose the court action.

Mncwango says his party seeks an order declaring the conduct of the eight government respondents to be in contravention of the National Environmental Management: Waste Act 59 of 2008 which aims to “protect health and the environment by providing reasonable measures for the prevention of pollution and ecological degradation”.

Sewage pours from a sewer line near Westbrook beach, north of Durban, on 22 September. (Photo: Supplied)

The party says it also seeks to enforce provisions of the Constitution guaranteeing people’s right to dignity and to an environment which is not harmful to their health or wellbeing.

Referring to a 31-page “storm recovery” plan prepared by the city in October, Mncwango says it is clear that the municipality “has done very little since the floods (at the very latest) to secure the appropriate remedial measures to remedy the dire situation”.

Difficulties in appointing service providers to remedy the problems had become a “repetitive excuse”. Budget availability had become another such “excuse”, he suggested, even though the government had announced measures in April to make R1-billion available immediately to alleviate the flood disaster.

Several months down the line, there was no clear breakdown of where all this emergency funding had gone.

“It is accordingly the view of [ActionSA] that a proper and independent investigation into the actual state of the crisis facing eThekwini must now be carried out … in order that this devastating crisis can be remedied and prevented.”

Should the high court grant its application, Mncwango says his party would also seek an order directing the eight government bodies/officials to appoint an independent water or sanitation expert to conduct more regular tests of seawater at Durban beaches.

Recent sewage spills in the Pinetown area. (Photo: EDTEA)

Within 30 days of a successful order, the eight respondents should be directed to provide a list of all wastewater treatment works and infrastructure still not operating and to implement interim repair plans.

Within 60 days, they should be directed to produce a status of infrastructure report prepared by an independent expert, with detailed time frames to ensure permanent repairs.

This report should also include advice from a team of environmental experts to assess the extent of environmental impacts on rivers, estuaries, beaches and seashores in eThekwini.

Mncwango concludes by alleging that “not one of the respondents has demonstrated the will to enforce the applicable legislation or attend to their constitutional obligations”.

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Our Burning Planet tried to contact the eight respondents for their response to the court action, but not all responded.

Cogta spokesperson Lungi Mtshali confirmed that the court papers had been received and were being studied to ascertain the reason the minister and department had been cited and whether or not they would oppose the application.

The Department of Water and Sanitation spokesman, Sputnik Ratau, said: “The minister and department can only make an opinion once the papers are received and the necessary legal opinion sought and received.”

eThekwini has yet to respond formally, though city spokesman Msawakhe Mayisela issued a brief response on 18 November, stating: “The city has not been served with any court papers. As a result, we shall chart our next course of action once we have been served.”

Dead fish in the polluted Isipingo River south of Durban. (Photo: EDTEA)

However, seemingly oblivious to several of the concerns around the sewage crisis, the city issued a media statement the day after the court papers were lodged, declaring that eThekwini had adopted an “all systems go” approach to the coming festive season. It has hired an extra 160 lifeguards and is hoping for a spate of last-minute holiday bookings and 75% occupancy rates in local hotels.

“The municipality’s Festive Season Management Committee (Fesmac) is hard at work to ensure the city’s readiness to welcome the anticipated 312,000 visitors … to ensure that the holiday season is safe, that the city is clean and welcoming, that traffic is well managed, maintain public order and to work jointly with the law enforcement agencies.”

It had recruited another 160 festive season lifeguards, 135 litter pickers, 20 small plant operators, 67 “beach buddies”, 48 child-minders to care for separated children, 85 pool attendants and four pool cashiers.

“The direct spend by visitors to eThekwini during the festive season is expected to be around R48-million with a GDP contribution of R1.2-billion. Around 2,500 temporary jobs will be created as well as other business opportunities.

“The occupancy rate is expected to be around 75% across accommodation establishments. Currently, there is a 40% occupancy rate around the beachfront and 50% to 55% occupancy rates in Umhlanga. Last-minute bookings are expected at the end of November and the beginning of December.

“With the progress of the repair work to sanitation infrastructure, the city is optimistic that even more beaches will be open for everyone’s enjoyment. Work is at an advanced stage at the Ohlange Sewage Pump Station which is the station that impacted northern beaches. Work is also under way at the Northern Wastewater Treatment Works, which is the facility that was impacting central beaches. Contractors are also hard at work repairing sanitation infrastructure in other parts of the city.

The Northern Wastewater Treatment Works in 2021 showing maturation ponds clogged with sediment, algae and vegetation. (Image: Supplied)

“Residents and visitors can cool off at the following beaches which are open for swimming: Point, uShaka, Addington, South, Wedge, North, Bay of Plenty, Battery, Country Club, Brighton, Reunion, Pipeline, Toti Main, Warner, and uMgababa beaches. In addition, the following swimming pools are open: Rainham, Durban North, Pipeline, Tiger Rocks, Anstey’s, Westville, and Kings Park complex both indoor and outdoor.” DM/OBP

Tomorrow, Part Two: Billions of rand go down the drain during Durban sewage crisis.