In an affidavit to the Durban High Court, a senior official in the national Department of Water and Sanitation recalled how he sent a directive to eThekwini city manager Musa Mbhele on 4 July last year, expressing concern that city officials were “not engaging in good faith” to resolve the sewage pollution crisis swiftly.

This was at a time when an estimated 66% of the city’s sewage and industrial effluent was flowing untreated into local rivers and the sea after storm-related damage during the April 2022 floods.

Effluent pours from a sewer line near Westbrook beach. (Photo: Supplied)

Ashley Starkey, provincial head of the national Water and Sanitation Department, states in his affidavit that he issued a directive on 13 May (about a month after the floods) ordering the city to submit a time-bound action plan within 20 days on what they intended to do to halt the pollution of local water resources.

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The city was also directed to start repairing broken pipes, malfunctioning pump stations and other damaged sewage-to-sewage infrastructure within 30 days.

However, the city pleaded for more time and said it could not meet the stipulated time frames due to resource and budget constraints – adding that it had already embarked on minor repairs and had also applied to the National Disaster Management Centre for extra funds to deal with the crisis.

‘Not engaging in good faith’

Ashely Starkey, the provincial director of the Department of Water and Sanitation complains that, ten weeks after the floods, there was still no obvious progress to curb sewage pollution around Durban.

However, after considering eThekwini’s request, Starkey wrote back to Mbhele, stating: “(My) department is of the opinion that the eThekwni Metropolitan Municipality is not engaging with the Department of Water and Sanitation in good faith.”

Noting that the department had issued the first clean-up directive a month after the main floods, Starkey further noted that certain information requested from the city was either “inadequate, delayed or not forthcoming” – despite urgent intergovernmental “war room” meetings to address the flood impacts.

Starkey’s affidavit follows a civil claim by ActionSA in which the party maintains that eThekwini and several government departments had adopted a “lackadaisical” approach towards resolving the crisis.

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Criminal charges laid against Durban municipality as pressure mounts for probe and action on polluted waters

Starkey has rejected this suggestion on behalf of his department as well as the national departments of the environment; cooperative governance; tourism and two provincial government departments.

All these departments acknowledged that the sewage pollution following the April floods was “unacceptable” and posed a danger to public health, the environment and water resources.

“However, each of the respondents acted immediately, within their constitutional and statutory powers, to ensure that emergency measures were taken by (eThekwini) to stop such pollution.”

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He further argues that the three tiers of government (national, provincial and local) all have clearly defined areas of responsibility and that ActionSA had failed to take sufficient account of cooperative governance strictures that discourage government departments from taking legal action against each other.

Read more in Daily Maverick: “Criminal charges laid against Durban municipality as pressure mounts for probe and action on polluted waters”

Nevertheless, says Starkey, his department had initiated regulatory action against eThekwini for sewage pollution offences – even before the floods.

Durban Mayor Mxolisi Kaunda takes a dip in the sea on 1 December 2022 in a desperate bid to woo tourists back to the city’s beaches. (Photo: Tony Carnie)

Durban deputy city manager and head of the parks and recreation department, Dr Musa Gumede, takes a dip at Umhlanga beach. (Photo: Tony Carnie)

In a separate affidavit on behalf of national Environment Minister Barbara Creecy, one of her senior officials states that the sewage “challenges” in eThekwini had been evident “for a number of years” (before the April 2022 floods).

Vanessa Bendeman, a director-general in Creecy’s department, says one example of this was the frequent pollution from the Mahatma Gandhi (Point Road) sewage pump station. This station, the largest in the city, had a throughput of tens of millions of litres per hour.

Due to persistent and unresolved sewage overflows from this station, Bendeman’s department had laid a criminal charge against the city in November 2021 (before the floods).

Senior Environment department director Vanessa Bendeman suggests that Ethekwini has been using the floods as an excuse for failing infrastructure.

“During many of (my) department’s subsequent engagements with the municipality, the failing infrastructure has been blamed on the severe floods… 

“However, it appears that, at least with respect to the Mahatma Gandhi pump station, the reason for failing infrastructure and associated pollution is because of the poor maintenance of such infrastructure over a number of years.”

Bendeman goes on to describe how, since about 2017, nearby shopping centres and restaurants had “been severely affected by the unbearable stench, unhygienic conditions and unsightliness” of sewage in the harbour.

“This has crippled trade and patrons have chosen to stay away. As a direct result of this, some of these retail establishments have had to close and this has resulted in losses and unemployment.”

Environment department director Vanessa Bendeman details some of the consequences of recurrent sewage overflows in Durban.

Impact on Transnet, ship repair industry

Transnet, the ship repair industry and diving companies had also been affected by the regular sewage overflows from the Mahatma Gandhi pump station because commercial diving operations had been banned due to the potential health threat to divers.

“This has had a severe and prejudicial impact on the ship repair industry… Because of this pollution, vessel owners now prefer to utilise ports outside South Africa for these repair services.”

Quite apart from affecting business, Bendeman says the unlawful discharge of untreated sewage into Durban harbour had also caused “considerable damage” to the environment and marine life because the level of oxygen in the water dropped when large volumes of sewage began to decompose.

Bendeman further complains that, despite eThekwini’s previous promises to repair the pump station properly, the undertakings had still not been met.

A final warning notice issued to the Ethekwini municipality by Green Scorpions director Frances Craigie.

ActionSA is seeking a civil court ruling from the Durban High Court directing eThekwini, six other government respondents and Durban mayor Mxolisi Kaunda to address the pollution, via recommendations by an independent group of experts.

So far, neither eThekwini, Kaunda or the national minister of tourism have lodged responding papers.

An application was due to be heard on 27 March, but has now been postponed to 3 April – eThekwini is required to file responding papers by 31 March. 

However, it appears unlikely that the case will be heard before June at the earliest, when all the respondents have to file their final heads of argument. DM/OBP