eThekwini sewage management crisis: DA challenges city's excuses in court

The civil court case over eThekwini’s sewage management crisis, to be heard over two days in the Durban High Court from 24 to 25 July, is the culmination of separate legal actions brought by the DA and ActionSA more than two years ago.

The two party actions have now been joined into a single case to determine whether the City has responded reasonably to resolve the crisis and to also consider new measures, including the appointment of an independent administrator to supervise the City’s wastewater management and remediation plans.

While the City has largely blamed the crisis on the devastating flood events of April and May 2022 and limited budgets to repair the damage, the DA argues that the crisis is the direct result of years of failure and neglect in maintaining and upgrading infrastructure to cope with sewage flows generated by nearly four million city residents.

Read more: Urgent repairs ordered as Durban’s sewage crisis threatens Blue Lagoon and Umgeni River health

In heads of argument prepared by legal counsel Max du Plessis SC, Toni Palmer and Ruchir Naidoo, the DA alleges that the city leadership is “playing possum” and resorted to “opportunistic” excuses by denying culpability for the crisis.

Noting that the city’s Water and Sanitation department had been presented with United Nations awards in 2007 and 2011 for “world-class” sanitation and service delivery, the DA counsel recalled that problems were evident before the floods. For example, the City tried to blame water hyacinth for beach closures in December 2021, when the true reason was high levels of E. coli sewage bacteria being pumped into the Umgeni River from dysfunctional sewage treatment works.

“The question eThekwini studiously avoids in explaining its position in these proceedings is what happened between 2007 and now, to take this award-winning system to its present state? Plainly the infrastructure did not age or break overnight.

“Had eThekwini intended seriously to dispute the averment that it had underprioritised its wastewater infrastructure in the past decade, it would have done so by disclosing the amounts, its plans and confirming the adequacy of its budgetary allocations during this time. eThekwini’s answering affidavit is entirely mum on this.”

But the City’s counsel charge that the DA case is big on complaints but short on practical solutions. They say the party has deliberately downplayed relevant factors such as the unprecedented floods and major financial constraints facing the city.

“The impact of the floods has been so significant that the eThekwini Municipality will now have to effectively rebuild damaged and destroyed infrastructure.”

The City further argues that it is being asked to “achieve the impossible”, also indicating that full rehabilitation of sewage infrastructure could extend over 25 years.

Hastening the rehabilitation timeline would require diverting funds from other priorities such as housing, health or electricity.     

“How much money and manpower can legitimately be moved away from housing to the (sewage) repair infrastructure? Does a new clinic get placed on hold until the repair work is undertaken. These are questions that the Democratic Alliance simply ignores…”

Read more: From Blue Flag to brown water: Durban’s coastal dilemma amidst sewage management failures

But the DA denies this, stating: “This case is about finding practical ways to end the sewerage crisis, while respecting that eThekwini, while floundering and excuse-prone, is nonetheless the local executive authority.”

In the absence of political will and the City’s failure to develop “meaningful plans” to resolve the problems, court intervention was needed to craft a legal solution.

“This is relief which is forward-looking, meaningful and within this Court’s powers to grant in order to resolve the true dispute between the parties: that is, securing compliance with environmental legislation in the interests of eThekwini residents and visitors and putting an end to continuing violation of human rights in contravention of the Constitution. 

“The DA has not approached the Court to tell eThekwini that it knows better how to resolve the problem. It has not sought to dictate to eThekwini how it should prioritise spending of public money. It has not sought to dictate to eThekwini how to comply with the law. It has not sought to force a plan upon eThekwini, or bind its hands in developing such a plan.”

Rather, it was seeking to ensure that eThekwini produced a “proper” action plan rather than elastic wish-lists.

“The (current eThekwini action plan) is not a plan at all, but an aspirational wish-list, the timelines for which are not deadlines, but mere suggestions, which will be revised and pushed back in order to accommodate them being ongoingly missed by eThekwini.”

The party further says that eThekwini strongly opposed any court supervision.

“Instead, it remains stuck in history, blaming its ageing infrastructure and limited budget as reasons to excuse it from complying with its constitutional and legal obligations… The law has been violated by the sewerage crisis for which eThekwini is responsible, and this must be recognised and declared by the Court.”

Read more: ‘Beach bolletjies’ and new sewage leaks lead to Durban swimming, fishing ban

Speaking ahead of the court case, DA provincial spokesperson Dean Macpherson said his party had offered to drop the case and reach an out-of-court settlement, but this had been refused.

Therefore, his party had no alternative but to approach the courts because neither the provincial or national government had demonstrated a willingness to compel eThekwini to rectify the problems.

“We get no victory from dragging eThekwini and government departments to court to do their jobs and it should not be up to a political party to do this.”

In heads of argument prepared by advocates Vinay Naidoo SC, Immanuel Veerasamy and Minikazi Mtati, the City estimates that it will cost R4.5-billion to rehabilitate wastewater treatment infrastructure and a further R1.6-billion to maintain this network thereafter.

City officials argue that it is also unaffordable to protect all sewage pump stations from vandals and copper wire thieves as it would cost R900-million per year to provide on-site security guards at all 273 pump stations in the city.

As a result, on-site security was only provided at certain “higher risk” stations.

“The Democratic Alliance would have the court focus on water and sanitation obligations imposed on the municipality to the exclusion of all other obligations… A full reading of the eThekwini Municipality’s answering affidavit and the DA’s complaints demonstrates that the problems are being attended to, just not with the expediency which the DA would want the municipality to do.” DM