Hiding behind a finger: Water contamination by Msukwaligwa Local Municipality

Cholera is an acute disease that can be contracted when drinking water contaminated with human faecal matter. Whilst many institutions, including mines, are often blamed for water pollution, it seems that local authorities are now increasingly being named as the culprits.

From the Minister of Water and Sanitation v Msukwaligwa Local Municipality and Others (Unreported Judgement, Case no: 4860/2022) one can argue that Msukaligwa Local Municipality is an example of such a municipality. Even before 2016, this municipality had been operating the Ermelo Wastewater Treatment Works (WWTW) without the required license, as determined in section 22(1) of the National Water Act of 1998. At this time, the WWTW was also operating in a dilapidated state, which was proven to be a direct cause of surface water contamination with Escherichia coli bacteria (E.coli) and human faeces. To make matters worse, one of the Municipality’s abstraction points is located directly below the stream where the pollution is taking place, which means that the drinking water abstracted, was contaminated. The water pollution led to serious environmental consequences, including the loss of aquatic life and severe consequences to the health of residents.

This Municipality has a complicated and long history with the Department of Water and Sanitation (DWS) and its residents. Over seven years (2016 – present), the DWS has conducted at least five investigations and issued as many directives to the Municipality. The investigations proved each time that the effluent being discharged had exceedingly high levels of E.coli and human faecal contamination. Each directive issued required the Municipality to apply for a license to operate the WWTW and repair it, to meet the prescribed standards.

After many fruitless investigations and directives issued the Minister of Water and Sanitation approached the Mpumalanga High Court in Middelburg for an interdict against the Municipality as a last resort. The Municipality did not contest the fact that it was responsible for the water pollution caused by the WWTW, or that it had operated it without a license. Furthermore, it was also not contested that the Municipality had constitutional obligations not to contaminate natural water bodies to the extent that it caused an environment that is dangerous for residents to live in. However, the Municipality opposed the application because the Minister did not formally declare an intergovernmental dispute and participate in meetings to settle the dispute as envisaged in Chapter 4 of the Intergovernmental Relations Framework Act of 2005 (IRFA). The Municipality continued, pointing out that the IRFA prohibits any litigation against two organs of state unless the intergovernmental dispute is formally declared and all reasonable efforts to resolve the dispute have failed. Furthermore, as a general defence, the Municipality cited its financial woes as a defence for not complying with the National Water Act and water services standards.

In his Judgement, Judge Langa showed that during the past several years, the DWS has explored many channels to address the non-compliance of the Municipality, but that nothing had been achieved. Judge Langa argued that because a constitutional obligation was not being fulfilled and constitutionally protected rights were infringed, the dispute between the Municipality and DWS was not a dispute or litigation as envisaged in the IRFA. Furthermore, because section 53 of the National Water Act gives the Minister the authority to approach the court for appropriate relief when its directives are not adhered to, the procedures as set out in the IRFA need not be followed. The Minister was therefore entitled to approach the court and the argument of the Municipality was rejected.

On the second argument, the judgement showed that the Municipality did not provide any detailed information on why it was not financially able to provide basic water and sanitation services, despite having funding allocation and provision in its budget to provide these services. Moreover, a municipality has the corresponding financial and institutional independence to fulfil its constitutional obligation to plan and budget for basic services. It is also commonly known that municipalities must structure and manage their administrative and budgeting processes to prioritise the fulfilment of the basic needs of the community while promoting social and economic development. The judgement emphasises that municipalities must therefore plan proactively and even make provision for emergencies. Consequently, the Court found that it is not sufficient for municipalities to “throw hands up in the air and say it does not have funding.” Another point was that this situation did not occur overnight, but that it was slow onset and caused by many years of mismanagement. This made the argument that insufficient funding was the sole cause for not rectifying the water pollution-related problems even more improbable.

The Court granted an interdict to the Minister of Water and Sanitation. However, the Court did not retain a supervisory role but instead gave this role to the Minister. The interdict requires the Municipality to cease the unlawful water use at the WWTW: it must apply for the required license, take measures to stop the discharge of poor-quality effluent and to prevent future pollution, and develop and implement a rehabilitation plan to mitigate the damage already caused by the WWTW’s water pollution. The Minister must review and approve this rehabilitation plan and monitor its implementation.

 This judgement is significant in many ways. First, this matter is an example of how the exemption created by section 39(1)(a) of the IRFA may be applied. This section determines that where specific legislation, such as the National Water Act, provides for processes to settle intergovernmental disputes, it should follow the specific legislation, instead of Chapter 4 of the IRFA. In other words, the Minister may approach the court in terms of section 53 of the National Water Act. Second, courts may provide an enforcement mechanism where the oversight function of the national government may be ignored by the local government. Third, the dispute resolution processes as set out in the IRFA may not be applicable where one organ of state institutes litigation against another for not fulfilling their obligations to realise constitutionally protected rights, such as the right to a healthy environment and access to water. Fourth, municipalities can no longer hide behind “lack of funding” as a general excuse for not fulfilling their obligations.

Johandri Wright, Postdoctoral Research Fellow