Addressing water pollution: Why imprisoning municipal managers won't solve South Africa's crisis

10 Apr 2025

There are many potential contributors to water pollution caused by municipalities that are beyond the personal control of municipal managers.

Barely a day passes without some media coverage of the dire state of South Africa’s water resources and infrastructure. One of the major contributors to this is sewage pollution from malfunctioning water treatment infrastructure, both sewerage networks and water treatment plants.

Their malfunction can largely be attributed to municipalities’ failure to fulfil their legal and constitutional duties to provide water services.

In the absence of a solution to this long-standing problem (one of us was writing about this as far back as 2011, and it was already a noteworthy problem then), the Department of Water and Sanitation is now promoting personal liability for municipal managers as a positive intervention, as reported in Daily Maverick on 18 March 2025 (“Jail or fines coming for sewage pollution of waterways, deputy minister warns municipal officials”).

A clause in the National Water Amendment Bill provides that municipal managers (and corporate directors) may be convicted, and potentially sent to prison, for water pollution offences committed by the entities they represent. The bill was released for public comment in November 2023, and we understand that it is ready to progress. We also understand that there was little, or any, comment received on the clause in question, which we consider below in further detail.

Inappropriate

In our view, the criminalisation clause is inappropriate for (at least) four reasons. First, it is unlikely that it will be found to be constitutional if challenged. Second, it is unrealistic about the role played by municipal managers, and consequently, even if there weren’t constitutional flaws, it would operate unfairly in many instances. Third, it is unnecessary, because there are already statutory provisions that can be used to hold criminal actors operating in managerial roles criminally liable, and fourth, it doesn’t really get to grips legally with the challenges of improving the sewage crisis.

The clause in question (which would introduce section 156A into the National Water Act of 1998) provides that any person who is or was a director of a business entity at the time of the commission by the firm of an offence under section 151 (which contains several offences, including water pollution offences) or a person who is or was a municipal manager of a municipality at the time of the commission by that municipality of an offence under section 151 shall, himself or herself, be guilty of such offence and liable on conviction to the penalty specified in the relevant law.

A person guilty of polluting a water resource in terms of section 151(1)(i) is liable to a fine or imprisonment for five years for a first offence. The bill also intends to increase the penalties to a fine not exceeding R10-million or imprisonment of 10 years (or both).

Let us just focus on municipal managers for purposes of this article — private sector business entities are likely to have a fiercer response to this proposed section, particularly considering the existing difficulties of doing business in South Africa.

The way in which criminal liability operates in terms of the proposed section is that the municipal manager’s guilt flows automatically from the commission of the offence by the municipality. This is so regardless of whether the municipal manager did anything to either further or prevent the commission of the offence.

In legal terms, the state of mind of the municipal manager (for example, whether they were negligent in relation to the offence) is irrelevant, and there are no defences available to them.

In the constitutional era, there have been several provisions in laws presuming a person guilty of an offence unless they are able to prove they were not guilty. In law, we call this a reverse onus provision. This is so because the onus is usually on the State to prove someone guilty of a crime.

Declared unconstitutional

Every one of these (except a provision presuming the owner of a car to have been the person driving that car during the commission of a traffic offence) has been declared unconstitutional. The reason is that these provisions unjustifiably limit various constitutional rights of accused persons, such as the right to be presumed innocent, and the right to remain silent.

In the proposed provision in the National Water Act, there is not even a presumption that the accused municipal manager may rebut. They are guilty if the municipality is guilty.

There is no doubt, if the courts follow previous decisions (which they are required to do), that the new section 156A will be found to be unconstitutional if it is challenged.

Even if there were not constitutional protections in our law for accused persons, this provision targets every municipal manager regardless of that person’s involvement and culpability in the water pollution offence (not to mention directors of business entities).

It fails to take account of the complex decision-making processes within local government or the fact that budgetary decisions are not within the power of the municipal manager (at least not without council approval).

It fails to recognise that a municipal manager may have been at pains to improve the situation, but was hampered by lack of support from the council, inadequate finances, procurement matters beyond their control, and so on. They may not even have been in the position at the time the water pollution started!

There are many potential contributors to water pollution caused by municipalities that are beyond the municipal manager’s control.

Mischief

Although we understand the mischief the legislature seeks to address with this proposed addition to its criminal arsenal, it will, with respect, be burdened with implementation challenges that may outweigh its intended benefits.

In many cases, the main problem is ageing infrastructure that is either no longer fit for purpose (it has not been upgraded to cater for increased population, for instance) or has not been maintained, and in many cases both. Many municipalities would not have the funds currently to address these issues.

So even though fingers may be pointed at the municipality for an ongoing failure to deal with the problem (sometimes going back before 1994), why should the current municipal manager carry the can for these past failures that are not capable of resolution with current resources?

We recognise that municipal managers are often complicit or at least share some culpability for the situation in many municipalities. If it is felt necessary to charge municipal managers with criminal offences (such as for water pollution), there is already a provision in the National Environmental Management Act of 1998 (Nema) that does exactly what the new section 156A does. This is section 34(6) of Nema.

In other words, the proposed section is unnecessary and its introduction seems to lack consideration of the broader legal context for pursuing such criminal cases (and the already overburdened criminal justice system).

Finally, we need to ask how sending municipal managers to prison would really solve the problems we are facing.

First, if the municipal manager is sent to prison, how is that going to stop the pollution problem (the problem is usually ongoing pollution, not one-off events)? If the pollution is continuing, then the municipality is still committing the offence, and then which replacement municipal manager in their right mind would take the job, as they would be following the previous incumbent straight into prison?

Potential imprisonment

The point is that potential imprisonment may improve the “sense of urgency”, as the deputy minister argued, but it does nothing directly to solve the problem.

In some cases where municipalities have been found guilty of water pollution and sentenced to fines, parts of those fines have been ordered by the court to be used in fixing the problems. On paper, that appears to be a desirable outcome, but is this being monitored?

Ordering money to be spent on fixing one specific problem doesn’t help with the transactional impediments (such as procurement) and issues such as lack of expertise in municipalities (which is widespread), or the next emerging problem. It is well and good to order someone to fix something, but what if they don’t know what to fix? (The symptom is usually obvious — untreated sewage entering the environment — but often the cause would not be evident to a non-expert).

It may well be appropriate to punish a municipal manager criminally in appropriate cases. There are existing mechanisms that can be used for this. There is the provision mentioned above, but also contempt of court, which would operate in cases where a municipal manager has been ordered by a court to act and fails to do so.

Recently, in Mpumalanga, the Komatipoort Despondent Residents Association (not a misprint) asked the court to order that the municipal manager of the Nkomazi Local Municipality be convicted of contempt of court if the latter did not carry out the orders of the court that the association was asking for. The court correctly said that this was putting the cart before the horse, but did point out that it would be a competent remedy in cases where a court order had already been made and then not complied with.

Useable legislative innovations

So although criminal law is one of a set of tools to use in the fight to clean up our rivers, in our view it is more appropriate to focus on practical and useable legislative innovations such as the ring-fencing of funds and facilitation of Department of Water and Sanitation intervention in municipalities with failing water services.

Addressing the immediate and urgent pollution concerns requires clearing bureaucratic red tape. Intervention is required to remove unnecessary and unreasonable delays by municipalities granting Water Services Act approvals to private sector solutions intended to address urgent pollution problems, which municipalities are incapable of fixing themselves.

The administrative labyrinth that is the online water use licence application system also requires review. The ring-fencing of funds appears to be on the cards, but these practical solutions and interventions certainly warrant more attention than the imprisonment of municipal managers (or directors) does, particularly as the wheels of the criminal justice system turn too slowly. DM

Professor Michael Kidd is a professor of law at the University of KwaZulu-Natal in Pietermaritzburg and a member of the Wildlife and Environment Society of South Africa’s Environmental Governance Committee. He specialises in environmental law, administrative law and water law, and has been working in these fields for more than 30 years.

Dr Melissa Strydom is an attorney and an Honorary Research Fellow at the School of Law, University of KwaZulu Natal.

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South Africa

Inappropriate

Declared unconstitutional

Mischief

Potential imprisonment

Useable legislative innovations