ActionSA's court case over eThekwini sewage crisis to go ahead

ActionSA’s legal bid to compel the eThekwini municipality and relevant government departments to sort out the sewage crisis in the metro is going ahead.

This after a mediation process — proposed by the government respondents — failed.

The city has now filed an opposing affidavit.

ActionSA councillor Alan Beesley told TimesLIVE all papers, including heads of argument, had to be filed by mid-June after which ActionSA could apply for a preferred date for hearing in the Durban high court.

Beesley said during the mediation proceedings, the head of water and sanitation advised that the municipality had received R1.5bn in relief from the national government after the April 2022 floods.

The official confirmed there was no action plan and the city needed time to develop one.

“We advised that only R220m was allocated to water and sanitation. The city’s legal department did not know about the R1.5bn,” Beesley said.

“The mediation ended on the basis that this was problematic and it was agreed that the municipality must file its answering affidavit.

“Prior to receiving funds from national government, the municipality argued they had an action plan but no money. Their tune has now changed to they have the money but no action plan.”

In its court challenge, the political party is asking for a declaration that the government respondents' failure to deal with the post-flood sewage crisis — which has resulted in raw sewage flowing into rivers and the ocean and beaches having to be closed — is unconstitutional and contrary to environmental laws and bylaws.

It seeks orders compelling the respondents to deal with the situation and appoint independent sanitation experts, engineers and environmental specialists who must report back to the court on progress.

ActionSA provincial chairperson Zwakele Mncwango, in his affidavit, said the situation was dire and being “ignored” by those in authority.

When the application was launched, most of the beaches were closed because of high levels of E coli and other bacteria in the sea.

He said it was estimated 700-million litres of untreated sewage was entering rivers, waterways and the ocean daily.

Beesley, in his supporting affidavit, said it had been communicated to him at a chamber of commerce meeting, that even before the floods, eThekwini had 8,000km of wastewater pipes and half of these needed replacing.

Of the 530 pump stations, 228 were not operational and of the 29 wastewater treatment plants, 24 were not compliant with regulatory standards.

Several of the government respondents agree that the municipality is not doing its job.

Bonginkosi Dlamini, from the provincial department of economic affairs, tourism and environmental affairs, said in an affidavit the department had served many warning notices on the municipality, even before the floods, but the city had failed to comply.

He said the city had consistently and blatantly failed to halt the pollution of rivers and the ocean and his department had now laid criminal charges aimed at prosecuting the city manager, Musa Mbhele, and others for their inaction in controlling pollution levels.

A senior official in the national department of water and sanitation, Ashley Starkey, also confirmed he had interacted with Mbhele in July 2022, expressing concern that the city was not dealing swiftly with the crisis.

In his replying affidavit, which was filed on Monday when the matter came before judge Mahendra Chetty, Ednick Msweli, head of water and sanitation in the city, said after the floods, a state of disaster was declared and a “war room” was established by the minister of water and sanitation to co-ordinate a state response to the repair of damaged infrastructure.

He said floods had “wreaked devastating consequences”, compounded by the fact that a significant proportion of the sewage network was in low-lying areas or adjacent to what became flooded rivers.

More than 80 waste water pump stations, out of a total of 263, were extensively damaged, as were nine out of 27 waste water treatment works. One of the most significant problems was funding.

R185m was made available by the department of co-operative governance and traditional affairs but this was “totally inadequate”, Msweli said.

However, he claimed, there was currently no raw sewage discharging from any waste water treatment works and all the flood-damaged pump stations had been repaired. “However some are not functional due to vandalism and normal maintenance and equipment breakdown.”

He said shortly after March 14 this year, the municipality “became aware” of additional funding from Cogta to the tune of R1.5bn for the construction and rehabilitation of infrastructure damage due to the floods.

“Of this amount, R228m has been earmarked for repairs to the eThekwini Water Services (EWS) infrastructure ... still significantly below the total amount required.”

Msweli said the infrastructure was now “substantially operational” and most beaches were open. 

However, it would take up to 10 years, and R3.5bn, to properly replace all sewer pipe infrastructure.

“The suggestion that the municipality has done very little since the floods is a gross distortion of the truth. The appointment of service providers is subject to the availability of funds and compliance with procurement legislation,” he said.

Water quality at swimming beaches was tested on a weekly basis by an accredited laboratory.

Msweli said at the mediation, the municipality had indicated it would provide the parties with an action plan within a month setting out the steps that would be taken to undertake the outstanding repairs to EWS infrastructure, though some of these had already been discussed by the war room.

While ActionSA is yet to file its final affidavit, responding to Msweli, Beesley told TimesLIVE it was “bizarre that they say the system is operational when quite clearly it is not and some of the [respondents] answering affidavits confirm that it is not operational”.

TimesLIVE

Support independent journalism by subscribing to the Sunday Times. Just R20 for the first month.