In the latest pollution case investigated by Mpumalanga-based Green Scorpions inspector Maanda Alidzulwi, the court ordered that the fine money be used to rehabilitate collapsed wastewater infrastructure in the Govan Mbeki Local Municipality over the next three years.

Untreated sewage floods a field close to residential areas in Embalenhle, Secunda, Mpumalanga. (Photo: Supplied)

This conviction – the third such prosecution in Mpumalanga – has been lauded as another “strong message” to municipalities across the country that they will be held accountable. It is understood that further legal action is pending against another three Mpumalanga municipalities.

Yet, little evidence has emerged that similar tough action is being pursued in other provinces by the national Department of Water and Sanitation (DWS) (see examples further below).

Nevertheless, the Govan Mbeki prosecution is set to bring relief for numerous residents exposed to the regular foul smells, increased disease risks and degradation of scarce water sources.

“For 13 years the residents of Emzinoni, Embalenhle, Leandra, Kinross, Trichardt, Bethal and Secunda have endured inhumane living conditions due to the constant sewer spills in the entire municipal area,” according to a formal plea and sentence agreement signed in the Bethal Regional Court on 9 April.

A field soaked by overflowing sewage near the R38 in Bethal, Mpumalanga. (Photo: Supplied)

The council, represented by municipal manager Elliot Maseko, pleaded guilty to six charges relating to the poor management of the Govan Mbeki wastewater treatment works.

This included discharging untreated sewage into Vaal River (Gauteng’s main water supply) as well as overflows from manholes and substations in residential areas and fields once used to raise crops and livestock.

The municipality acknowledged that sewage substations had not been functional for several years and that State organs such as municipalities were required to comply with environmental laws.

“Municipalities, like any other businesses, (are) governed by the said legislation, their activities are licensed and they are not above the law,” the court agreement states.

To remedy these failures, the municipality will now have to set aside R150-million over the next three years to implement urgent repairs to dysfunctional infrastructure.

It will also have to submit proof of expenditure and repairs to the Department of Water and Sanitation and appoint an external auditor to monitor the rehabilitation and submit a report every six months. 

Commending the enforcement team, Department of Water and Sanitation Director-General Sean Phillips said this case had asserted the department’s role as a regulator of the water and sanitation sector.

Mpumalanga environmental management inspectors and legal team members celebrate another successful sewage pollution conviction outside the Bethal Magistrates’ Court on 9 April. They are (from left) Fana Sibanyoni, Musa Luhlanga, advocate Beauty Cibangu, Nkululeko Madam, Tshilidzi Ndwamato, Xolile Mthethwa, advocate Saneliso Siwele, Philmon Shibambo and Maanda Alidzulwi. (Photo: Supplied)

“It has been our resolve to take all transgressors of the National Water Act to task and send a strong message that if people and institutions do not comply, we will not hesitate to act, without fear or favour,” Phillips said in a statement.

Similar tough talk from Department of Water and Sanitation officials has also been voiced in other provinces.

Last month, for example, department official Strini Govender told a wastewater summit in Durban that his department had issued at least 16 directives to several municipalities in KZN during 2022 and 2023 to remedy water pollution and sewage overflows.

The municipalities he listed included Ethekwini (Durban), Ilembe, Umhlathuze, King Cetshwayo, Ugu, Umzinyathi, Umgungundlovu, Zululand and Umkhanyakude.

Sewage and industrial effluent pours down a hillside in the Peacevale area outside Pietermaritzburg in KwaZulu-Natal. According to residents, this leak has remained unrepaired for five years. The Msundusi River Crisis Committee is urging the public to sign a petition to bring this to an end. (Photo: Supplied)

“Failure and non-compliance to the Directives issued are viewed in a very serious light. The various water service authorities that have not responded after issuance of non-compliance to the Directive will be submitted for legal review . . . it will go criminal,” Govender told the summit.

So far, however, only one case appears to be heading toward court.

This is an interdict application (case number D12738/2022) against the Ethekwini Municipality for alleged non-compliance with a Department of Water and Sanitation directive.

Ethekwini has previously sought to blame most of the leaks on damage from the April 2022 floods, even though at least two department directives predate the floods.

One of the directives, issued on 26 January 2022 by Department of Water and Sanitation provincial head Ashley Starkey, relates to the closure of several Durban beaches due to “murky discharges” in the Umgeni River over the Christmas holiday season.

According to Starkey’s directive, government inspectors traced the source of this black effluent to Ethekwini’s Northern Waste Water Works. The inspector found that sludge management processes at this plant were not working, with other problems evident in the sewage maturation ponds and other critical units.

Persistent sewage pollution of Durban’s Umgeni River inspired local activists to erect their own sign, giving the river a new name. (Photo: Tony Carnie)

Two years after this directive was issued, the uMgeni River remains heavily polluted – with recent independent tests by Talbot Laboratories showing E. coli (sewage bacteria) levels more than 2,000 times higher than the regulated discharge limit next to this Ethekwini sewage treatment plant.

Similar problems are also evident in the Msunduzi River and other areas around Pietermaritzburg.

Extract of August 2022 directive to the Msunduzi Local Municipality. (Source: DWS)

In August 2022, Starkey’s department served a directive on Msunduzi Local municipality to remedy a series of sewage leaks around the city. But 20 months later, little seems to have changed.

‘Ten times worse’

According to Dave Still, convenor of the Msunduzi River Crisis Committee, independent river sampling records show that the median levels of sewage pollution in Pietermaritzburg’s streams and rivers has for the past two years been 10 times worse than it was a decade ago.

The volume of sewage reaching the Darvill sewage treatment works had also declined considerably – indicating that up to 25 million litres of sewage spilled into streams and rivers from Pietermaritzburg’s sewer network every day.

Effluent pours from a manhole in Ashdown, Pietermaritzburg, close to the ‘Duzi’ River. Residents and business organisations have started a public petition to bring the pollution to an end. (Photo: Msundusi River Crisis Committee)

In a recent letter of complaint to Starkey and Director-General Phillips, the crisis committee said: “With the median E. coli levels in our rivers and streams now most of the time being more than 50,000 counts per 100mL, we do not believe we are overstating matters to call this a crisis.

“The Department of Water and Sanitation is legally responsible for ensuring that all Water Service Authorities operate and maintain their water and sanitation infrastructure in such a way that public health is not endangered.” 

Legal actions ‘highly selective’

Prof Michael Kidd, an expert in environmental and water law at the University of KwaZulu-Natal has welcomed the recent legal actions taken in Mpumalanga to curb sewage pollution, but commented that such cases seemed to be “highly selective”.

While the public expected council officials to be held accountable, it was not always possible to attribute criminal blame to individual office bearers, especially in smaller municipalities with limited ratepayer funding. 

“But how can you have a situation where the DWS directs a municipality to do certain things to remedy a situation, but then it all goes quiet? It really is a mockery of the law. You also wonder on what basis some municipalities are taken to court – but not others.”

In response to several questions raised by Daily Maverick, the Ethekwini municipality said it had “no comment”.

The Department of Water and Sanitation was also asked to explain its apparent failure to institute legal action in KwaZulu-Natal after issuing 16 directives to local municipalities over the past 28 months.

In response, the department said directives were administrative enforcement actions which aimed to rectify and remediate pollution. 

“The Directives issued are currently in active status, where there have been action plans to rectify, submitted to the department and the department is monitoring progress. Some issues would be corrected, sustained for a short period and then recur.

“DWS is working on case files to strengthen the evidence required for registration of case dockets for those qualifying cases.”

Commenting on lengthy delays to enforce directives issued to Ethekwini municipality during 2022, the department said: “The DWS brought the interdict application against eThekwini (pending DWS Case D12738/2022) and while in process, the DWS was served with a Notice in terms of the Rule 41A of the Uniform Rules of Court proposing a recourse to mediation which is part of the litigation process. DWS engaged in the proposed mediation.”

The Department of Water and Sanitation also said that “actions are in process” to ensure compliance in KZN, including the directives issued to municipalities as firm administrative actions. DM