Scorpions sting Vaal sewage leaks – but why not do something elsewhere?

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

This conviction – the third such prosecution in Mpumalanga – was hailed as another “strong message” to communities across the country that they will be held to account. It is understood further legal action is pending against three other municipalities in Mpumalanga.

Still, there is little evidence that the national Department of Water and Sanitation (DWS) is pursuing similar tough measures in other provinces (see examples below).

Nonetheless, the prosecution of Govan Mbeki will bring relief to scores of residents who are regularly exposed to foul odors, increased risk of illness and deterioration of scarce water sources.

“For 13 years, the residents of Emzinoni, Embalenhle, Leandra, Kinross, Trichardt, Bethal and Secunda have been suffering from inhumane living conditions due to constant sewage pollution throughout the city,” said a formal plea and penalty agreement signed in the Bethal Regional Court on April 9 .

A field drenched in sewage overflow near the R38 in Bethal, Mpumalanga. (Photo: Supplied)

The council, represented by city manager Elliot Maseko, pleaded guilty to six charges relating to the mismanagement of the Govan Mbeki wastewater treatment plant.

This included the discharge of untreated sewage into the River Vaal (Gauteng's main water supply), as well as overflowing sewage pits and substations in residential areas and fields once used to grow crops and livestock.

The municipality acknowledged that the wastewater substations have not been functional for several years and that state bodies such as municipalities are obliged to comply with environmental laws.

“Municipalities, like all other businesses, are subject to the said laws, their activities are licensed and they are not above the law,” the court agreement says.

To address these deficiencies, the municipality must now set aside R150 million over the next three years to carry out urgent repairs to the dysfunctional infrastructure.

It must also submit receipts of expenditures and repairs to the Ministry of Water and Sanitation and appoint an external auditor to monitor the renovation and submit a report every six months.

Sean Phillips, director general of the Ministry of Water and Sanitation, praised the enforcement team and said this case validated the ministry's role as a regulator of the water and sanitation sector.

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

“It was our determination to confront all violators of the National Water Act and send a strong message that we will not hesitate to act when people and institutions do not comply, without fear or favor,” Phillips said in a statement.

Similar harsh statements from officials at the Ministry of Water and Sanitation were also made in other provinces.

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

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

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

“Failures and non-compliance with the guidelines issued are considered very serious. The various water supply authorities that have failed to respond following the announcement of non-compliance with the directive will be referred for legal review. . . it will become criminal,” Govender said at the summit.

However, so far only one case appears to have ended up in court.

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

Ethekwini has previously tried to attribute most of the leaks to damage from the April 2022 floods, despite at least two ministry directives being issued before the floods.

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

According to Starkey's instructions, government inspectors traced the source of this black sewage to the Ethekwini Northern Wastewater Works. The inspector found that the sludge management processes at this facility were not working and that other problems were evident in the wastewater maturation ponds and other critical units.

The ongoing sewage pollution of Durban's Umgeni River inspired local activists to put up their own sign and give the river a new name. (Photo: Tony Carnie)

Two years after this directive was issued, the uMgeni River remains highly polluted – recent independent testing by Talbot Laboratories has found levels of E. coli (wastewater bacteria) to be more than 2,000 times higher than the legal discharge limit next to this sewage treatment plant in Ethekwini .

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

Excerpt from the August 2022 instructions to the Msunduzi municipality. (Source: DWS)

In August 2022, Starkey's department sent a directive to Msunduzi Municipality to address a number of sewage leaks in the city. But 20 months later, little appears to have changed.

“Ten times worse”

Dave Still, chairman of the Msunduzi River Crisis Committee, says independent river sampling records show the mean level of sewage pollution in Pietermaritzburg's streams and rivers in the last two years has been 10 times worse than a decade ago.

There had also been a significant reduction in the amount of wastewater reaching Darvill's wastewater treatment plant – suggesting that up to 25 million liters of wastewater were entering streams and rivers from Pietermaritzburg's wastewater network every day.

Sewage flows from a manhole in Ashdown, Pietermaritzburg, near the River Duzi. Residents and business associations have launched a public petition to put an end to the pollution. (Photo: Msundusi River Crisis Committee)

In a recent letter of complaint to Starkey and Director General Phillips, the Crisis Committee stated: “Given that mean E. coli levels in our rivers and streams are currently mostly above 50,000 counts per 100 ml, we do not believe that.” It is exaggerating to speak of a crisis.

“The Department of Water and Sanitation has a statutory responsibility to ensure that all water agencies operate and maintain their water and sanitation infrastructure in a manner that does not endanger public health.”

Legal steps “very selective”

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

While the public expected council officials to be held to account, it was not always possible to pin criminal blame on individual officials, particularly in smaller communities with limited taxpayer funding.

“But how can DWS instruct a community to do certain things to remedy the situation, but then everything remains silent? It really is a mockery of the law. They also wonder on what basis some municipalities go to court – but others do not.”

In response to several questions from Daily MaverickEthekwini Municipality said it had “no comment”.

The Department of Water and Sanitation has also been asked to explain that it appears to have failed to take legal action in KwaZulu-Natal after issuing 16 directives to municipalities in the past 28 months.

In response, the ministry explained that the guidelines were regulatory enforcement actions aimed at remediating and eliminating environmental pollution.

“The policies issued are currently in active status, corrective action plans have been submitted to the department and the department is monitoring the progress. Some problems would be fixed, persist for a short period of time, and then recur.

“DWS is working on case files to strengthen the evidence required to register case files for these qualifying cases.”

On the long delays in enforcing the directions issued to the Ethekwini Municipality in 2022, the department said: “The DWS filed the application for an interdict against eThekwini (pending DWS case D12738/2022) and during the process the DWS became one Notice served in relation to… Rule 41A of the Uniform Rules of Court, which proposes the use of mediation as part of the judicial process. DWS participated in the proposed mediation.”

The Ministry of Water and Sanitation also said “actions are underway” to ensure compliance in KZN, including guidelines issued to municipalities as firm administrative measures. DM