Court judgment on eThekwini sewage crisis leaves ActionSA disheartened as DA triumphs

ActionSA president Herman Mashaba expressed his displeasure on Wednesday upon discovering that the Pietermaritzburg High Court judgment he had hurried from Durban to attend was not related to his party's case, but rather to an application filed by the DA.

In 2022 and 2023, respectively, ActionSA and DA launched two separate applications against the eThekwini Municipality for failing to address sewer spillages that had polluted local rivers and beaches, thereby placing the health of tourists and residents at risk from consuming water contaminated with E. coli. 

The Pietermaritzburg High Court favoured the DA’s application on Wednesday by finding that the city’s failure to manage the situation, which had led to repeated closure of the beaches, was unconstitutional and unlawful.

The court found that the city was in breach of various Environmental Management Acts, the National Water Act, and the Waste Act. 

The court also declared that the city’s operation of its wastewater treatment works in nine parts of the municipality was unlawful and without valid water use licences. 

The court, therefore, gave the city one month to weekly publicise E. coli readings on its website, social media, and public notice boards placed on beaches. 

It also ordered that the city should, within two months of the order’s release date, file an under-oath report and documents on how it intends to address all its non-compliances with the law.

“Explain the steps that it (city) will take to comply with the aforesaid notices, and set measurable period deadlines for progress.

“In preparing the Action Plan, the first respondent (council) is directed to pay due regard to the need to give legal effect to the public’s right to a safe and healthy environment, enhance monitoring of coastal emissions within the jurisdiction of the first respondent,” read the judgment. 

It also called for the municipality to come up with short, medium, and long-term plans for infrastructure repairs, upgrades, and maintenance. 

Although ActionSA was happy with the judgment, its KwaZulu-Natal chairperson, Zwakele Mncwango, who invited Mashaba to attend the case, also expressed disappointment that the judgment did not list ActionSA as an applicant. 

ActionSA was the first party to approach the Durban High Court in November 2022, and the DA later launched a separate application at the Pietermaritzburg High Court in July 2023 against the municipality on the same matter. 

The parties’ applications were later heard in Pietermaritzburg in July as conjoined. 

But instead of focusing on the court proceeding, Mncwango and DA provincial chairperson Dean Macpherson quarrelled outside the court during a picket against the municipality’s failure to manage the sewer system. 

On Wednesday morning, ActionSA invited the media to attend the handing down of the judgment in Pietermaritzburg on the application, which they believed was brought to court by them. 

Mashaba and Mncwango arrived in court after the judgment had been issued in writing, only to find that the judgment was for the DA’s application. 

“Regrettably, although the High Court heard ActionSA’s application alongside the DA’s latecomer application in July, the court has now separated the judgments.

“ActionSA’s judgment is not yet ready, even though the relief granted in the DA’s application mirrors the precise relief originally sought by ActionSA as the first party to have initiated the legal action,” said Mncwango in a statement.

Mashaba said ActionSA’s lawyers were informed on Tuesday that the judgment on its application would be delivered on Wednesday in Pietermaritzburg.

He said coming to Pietermaritzburg for the judgment that was not for ActionSA's application wasted his time. 

“I don’t live in Pietermaritzburg, and I happened to be in Durban when Zwakele told me last night (about the judgment), and I said I am available to join you (on a trip to Pietermaritzburg) because it is a very important matter,” said Mashaba.

He said it was unfortunate that while ActionSA was the first to launch the case against the municipality, the ruling on its application was not yet released. 

He said it was confusing why the judgments of the conjoined matters were released separately. 

“Unfortunately, our system is questionable; there is something that does not make sense when you have an individual or party laying a complaint a few months earlier, and someone comes in later, and you are forced to join forces with them, and the matter is moved from Durban to Pietermaritzburg. 

“Our lawyers presented first (in July), but when the judgment comes, it is on the DA (application),”  he said. 

DA mayoral candidate in eThekwini, Haniff Hoosen, welcomed the judgment, which he said his party was forced to lodge “after the municipality showed no willingness or ability to end the sewage disaster which has repeatedly closed beaches, degraded the quality of life for residents across the city and inflicted financial harm on businesses”. 

“For far too long, the political leadership of eThekwini has taken the public for granted and has been ignoring the scores of complaints regarding sewer overflows into our rivers and oceans.

“Every attempt to secure reasonable and urgent mitigating measures from the municipality has been ignored, and this left us with no other option but to force the municipality to do what it is legally obligated to do,” said Hoosen. 

Mncwango said ActionSA was forced to turn to court after beaches were constantly being closed. 

“Remember that in November 2022, we were going towards holidays, which meant that the economy was collapsing.

“We were coming from floods, but the municipality was lacking in fixing the infrastructure, as it became clear that most damages were not really a result of the floods; it was an ongoing issue,”  he said.

In a statement released on Thursday night, the eThekwini Municipality said its legal advisers were studying the details of the ruling. 

The statement said the court had found that the city was facing financial constraints.

“However, took steps such as reprioritising the budget to accommodate the flood disaster. The court also acknowledged the Action Plan, and that it was revised twice after engagements with the Department of Water and Sanitation, as well as the Department of Economic Development, Tourism and Environmental Affairs.

“Due to the recognition of the above, the court refused to make an order directing the city to act under the court’s supervision,” read the statement.

The statement said the city has already started implementing some of the measures that the court ordered. 

“These include regular testing of water quality at both bathing and non-bathing beaches, with results shared through modern communication platforms such as the municipal website (www.durban.gov.za), social media, and email.

“Beaches with high contamination levels are closed without delay, with decisions promptly communicated to the public via the media and on notice boards.

“A dedicated communication platform has been established to keep the business community informed on water-related matters.” 

The city also said it has reprioritised its resources to safeguard public health and that refurbishments are currently in progress at the wastewater treatment works affected by storm damage, and in addition, emergency repairs are being undertaken immediately on wastewater pump stations experiencing breakdowns and overflowing.

“The municipality has committed over R1.16 billion in capital investment to strengthen infrastructure. This funding supports mechanical screening upgrades, pumpstation refurbishments, sludge management systems, major rehabilitations at key sites, including KwaMashu, Amanzimtoti, and uMhlanga.” 

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