Holy crap! Council invokes ‘sovereign immunity’ in bid to dodge criminal sewage pollution charges

Municipalities across South Africa cannot and should not be prosecuted for dumping human sewage into rivers or land across the country because … well, because they are part of the State and therefore enjoy “sovereign immunity” from criminal prosecution.

That seems to be the essence of a “novel” legal argument that the Lephalale Local Municipality in Limpopo would like the high court to resolve as it tries to fight off the threat of criminal charges related to repeated municipal sewage pollution offences in this northern coal-mining town next to the Medupi and Matimba power stations.

Motlalekgomo Mmope — who recently resigned as municipal manager of the Lephalale council — claims in a founding affidavit filed in the Gauteng division of the High Court in Pretoria that the Constitution has endowed municipalities with a “circumscribed constitutional status and autonomy” and therefore they cannot be prosecuted, convicted or punished by the State.

“In short, the question is whether a municipality as part and parcel of the Government of South Africa … can be prosecuted on behalf of the State or a private prosecutor: Can the State or a private prosecutor prosecute the State?” she ponders.

“I am advised that this particular issue is a novel one and has never been decided by a South African court before,” Mmope states in an affidavit prepared with legal advice from the Lephalale council’s attorneys, Mohale Incorporated.

The 17 respondents (including the director of public prosecutions, DPP, in Limpopo, four national government ministers and nine provincial government officials) agree that the case is certainly novel, but the DPP argues that Lephalale’s case is contrived, fallacious and so “ridiculous” that it should be dismissed as having no merit.

Lephalale said it was seeking a declaratory order from the court as it believed this was a “much more expeditious and less expensive way” to address the matter before engaging with the factual issues of its alleged criminal behaviour.

Though the council does not deny that there are long-standing cases of sewage pollution in Lephalale from municipal infrastructure, it wishes to resolve this legal question first.

A new home in Lephalale’s Mopani Estate flooded by another sewage spill (Photo: DA media statement)

The council argues that a municipality is “not a State within a State but part of that single State and therefore also vested with its share in the sovereignty of the Republic of South Africa.

“When a municipality is conducting itself in its governmental capacity, that conduct is part of the State Government and therefore the municipality shares in the State’s sovereign immunity against a criminal prosecution,” its argument goes.

Further, it argues, prosecuting a municipality for alleged offences under the country’s water, environmental and waste pollution laws could “potentially bankrupt a municipality” or impede its ability and right to “exercise its powers” and manage its affairs.

‘Duty of support’

Instead, the national and provincial governments had “a duty of support and assistance” to municipalities struggling to provide democratic and accountable government, while also trying to promote a safe and healthy environment.

In a responding court affidavit, the Limpopo DPP, advocate Mukhali Ivy Thenga, said Lephalale seemed to believe it was above the law by seeking complete immunity — not just for itself, but for all other municipalities in South Africa.

Advocate Mukhali Ivy Thenga. (Photo: NPA)

Thenga stated that state power could only be exercised if it was authorised by law, and “felonious municipalities” were not authorised by any law to commit criminal offences or be exempted from “the most pervasive environmental pollution on a daily and continual basis”.

Any attempt to grant immunity to municipalities “screams against everything that our Constitution and Bill of Rights stands for”, she said, adding that Lephalale’s decision to take so many government departments to court could also be construed as wasteful expenditure.

“Notably, while complaining about financial constraints, and instead of utilising the limited resources available to comply with its authorised constitutional duties and statutory obligations to manage and maintain its sewage works, [Lephalale] elected to rather spend the public funds under its control on legal costs to seek extensive declaratory relief that may grant it — and every other municipality in South Africa — complete immunity from prosecution for admitted criminal conduct.

“The effect of such declaratory relief will enable these felonious municipalities to continue, without consequence and under blessing of this court, with their relentless violation of the fundamental constitutional rights of the relevant communities and public at large.”

Lephalale mayor Aaron Mokgetle (left) and former municipal manager Motlalekgomo Mmope (straw hat) inspect repair work to a blocked sewer line in Lephalale in December 2024. (Photo: Lephalale Municpality facebook page)

Exempting municipal offenders would also go against the foundational legal principle that everyone is equal before the law.

Financial support

Thenga further noted that Lephalale (and several other municipalities) had already been provided with substantial, additional financial support from the national government to remedy the mess at their sewage treatment works, while also being “spoon-fed” and prompted to comply with their duties before being prosecuted.

Quite apart from harming natural ecosystems, the torrent of untreated municipal sewage posed a serious public health risk to vulnerable communities, including the spread of cholera.

Tracing a long history of violations, Thenga said it was notable that Lephalale had not disputed that it had committed “and is relentlessly committing” several offences, some of which dated back to 2007.

In one such case, nearly 120 hectares of farmland had been damaged permanently, while children at the Fort Asjas Pre-Primary School were exposed continuously to health risks from nearby sewage spills.

“Neither [Lephalale] or any other municipality may hide behind the constitutional status of municipalities to escape criminal liability for statutory and other offences they have committed,” she said, further noting that “the notion of ‘crown immunity’ is outdated and archaic“ in the context of State liability.

The main entrance to the Lephalale local municipality. (Photo: Google maps)

No date has been scheduled yet for further legal argument in court, but there is also no indication that Lephalale has changed its stance following the resignation of Mmope as municipal manager in February.

In response to Daily Maverick queries on whether it was considering dropping the case following Mmope’s resignation, acting municipal manager Feziwe Nogilana-Raphela said on April 22 that “that matter is sub judice. Therefore, the municipality as a party to the proceedings is not in a position to comment.” DM

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