Courts, criminal charges not an easy fix for water crisis

The right to potable water is entrenched in section 27 of the Constitution, but like other basic rights it is increasingly revindicated through the courts.

Last year, the North West high court heard an appeal in three parts in a case where residents of the Kgetleng River municipality took the local council to court to halt the contamination of the Koster and Elands rivers, and won.

The case speaks of the desperation that drives communities to court to compel local authorities to comply with the law — and of the difficulty of taking that route. By the time the litigation ensued, residents had been reporting sewage pollution in Koster and nearby Swartruggens for years.

In December 2020, the court ordered the municipality and the municipal manager, Joseph Mogale, to cease directing raw sewage into the two rivers and to rehabilitate the polluted areas.

Significantly, it authorised Kgetleng Concerned Citizens (KCC), as the applicants called themselves, to employ experts to monitor the sewage and water works for 10 weeks, at the municipality’s cost.

Mogale was given a 90-day prison sentence, suspended on condition the spillage was cleaned up within 10 days and a report on steps to prevent a recurrence filed to court within 11 days.

Failing this, the KCC would be entitled to take control of the sewage plants at Koster and Swartruggens and to appoint qualified operators. This time, the bill would be for the MEC for the environment and the Bojanala Platinum district municipality.

A second interim order was given to compel the municipality to supply potable water to residents, on the same terms.

The municipality did not comply with the orders. KCC took control of the sewage works, appointed operators and invoiced the municipality. But it paid neither the invoices nor the court costs awarded against it.

The group of residents returned to court to demand that Mogale be jailed for contempt. Judge Andre Petersen, in hearing the set of appeals that ensued, held that the suspended prison sentence was not competent in law but said there was no doubt that the municipality and the manager were in breach of their constitutional duties.

“A sad reflection on our nascent democracy is the reality faced by the people of our country brought about by the chronic absence of service delivery,” the judge said.

Calling municipalities the “coal face” of the crisis, he said they would seemingly rather spend resources on resisting court orders than preventing the level of catastrophe the residents of the two North West farming communities faced.

“It has become commonplace that municipalities and municipal managers would rather litigate at astronomical cost to ratepayers, more often than not to defend the indefensible, when they are in clear breach of their constitutional duties,” Justice Petersen said.

“The impunity with which no service delivery occurs, coupled with the impunity of non-compliance with court orders, cannot be condoned.”

Activists are resorting to criminal charges against errant municipal officials in a bid to end the impunity. And in an extraordinary step, the department of water and sanitation last year brought charges against a total of 14 municipalities that failed to meet water-quality standards and deadlines to table plans to address the problem.

This included three municipalities in Gauteng but not the Johannesburg metro, though it was put to terms by the department in August 2022 for breach of section 19 of the National Water Act

Notice was sent to the then acting city manager of the Johannesburg metro, Bryne Maduka, to stop raw sewage overflowing from the Bushkoppies water treatment works into the Harrington Spruit tributary of the Klip River.

The department noted that this had been happening for “a prolonged time” and was affecting the water quality of the Vaal River. It ordered the metro to bring an immediate end to the pollution and table a corrective plan within seven days. If it failed to do so, the department would take corrective measures and recover the cost from Maduka.

Months later, tests showed sewage was still flowing into the Klip River.

“They have not complied, and that is criminal,” said Ferrial Adams, the CEO of NGO Watercan, which has opened cases against Maduka and his successor Floyd Brink for breach of the Water Act.

Failure to comply with the directive is punishable with up to five years in prison.

Adams said the organisation laid charges because it believed officials would only mend their ways if they realised they risked losing their jobs, or worse.

“Our view is, DWS will take the municipalities to court. If they are found guilty, the sanction will be a fine. So all municipalities will pay the fine and then carry on as normal,” she said, adding that those fines would come out of the public purse.

“So we will be paying their fines for them.”