Plan to ‘nail’ municipal managers stirs debate on solving the national sewage crisis

A fetid pool of sewage effluent on the banks of Durban's Umgeni River. (Photo: Tony Carnie)

4 Feb 2025

The Department of Water and Sanitation has laid 88 criminal charges and launched 18 civil court actions against municipalities over failures to control the nationwide sewage pollution crisis. In some of these cases, municipalities have paid stiff fines — but senior council officials have escaped personal legal sanction.

So, what is to be done to resolve the mess? Where will the money come from? And what is the point of fining municipalities if there are no punitive consequences for the officials responsible for poor sewage management?

Slowly, however, there are signs that the legal screws are beginning to tighten around errant municipalities and senior officials.

This includes a recent court judgment restricting the ability of councils to plead “poverty” to justify their inaction — and a new government proposal to amend the law to fine or possibly throw municipal managers in jail for water pollution crimes.

Municipal managers could also be forced to dip into their own pockets to fix the mess on their doorsteps.

This proposal, gazetted by former Water and Sanitation minister Senzo Mchunu, follows mounting frustration among ratepayers, residents, government regulators — and some judges.

North West Division of the High Court Judge Andre Peterson, for example, has lamented the fact that citizens across the country are obliged to go to court to force failing municipalities to their jobs.

https://www.youtube.com/watch?v=REeWvTRUpMk

“It has sadly 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…

“Court orders are simply not complied with… The time has undoubtedly come, in my view, that those who fail to honour their constitutional mandate in serving the people, must be dealt with decisively,” Petersen thundered from the bench in a judgment in March 2023.

He was deciding an appeal case in which fellow Judge Festus Gura granted a court order to jail Kgetlengrivier Municipality municipal manager Joseph Mogale for 90 days unless he acted swiftly to curb the uncontrolled flow of sewage around the North West towns of Koster and Swartruggens.

Things had reached the point where the exasperated Kgetlengrivier Concerned Citizens group took over the daily operations of the municipal sewage works and then sent a R15-million bill to the local council.

But, as things turned out, Mogale did not go to jail.

Petersen and two fellow judges took the view that the Kgetlengrivier Concerned Citizens had followed incorrect legal procedures in attempting to jail the manager, even though previous court orders had been ignored.

“I reiterate that the municipal manager breached his constitutional duties as a municipal manager. I, however, respectfully have a problem with the fact that on a mere request, an order was granted by (Judge Gura) that the municipal manager be imprisoned, in anticipation of any breach of the court order of 18 December 2020,” he said.

“The order impacts on the constitutional right to liberty of the municipal manager in circumstances where he was ‘convicted and sentenced’ without trial. To my mind, the sanctions granted by Gura J in following the relief sought in the Notice of Motion, was premature, untenable and not competent.”

Now, however, the national Department of Water and Sanitation is pushing to amend the National Water Act to hold municipal managers (and company directors) directly accountable for water pollution offences.

According to proposed amendments gazetted for public consultation in November 2023: “(Any) 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 an offence and be liable to the penalty specified in the relevant law.”

Section 151 includes failures to comply with government directives and offenders who “unlawfully and intentionally or negligently commit any act or omission which detrimentally affects or is likely to pollute a water resource”.

The proposal goes further, to allow courts to order the recovery of any money through loss or damage, including the costs of rehabilitation or prevention of pollution and the “determination of monetary value of any advantage gained as a consequence of the offence in question”.

Irate residents of Durban have tried to draw attention to the sewage crisis by renaming the Umgeni River. (Photo: Tony Carnie)

The amendments also provide for fines of up to R1-million (or five years in jail) for first offenders, or R10-million (or 10 years’ jail) for repeat offenders.

This proposal may be music to the ears of thousands of fed-up citizens, but there is likely to be strong pushback from politically influential municipal managers.

And there could also be significant legal hitches with the current phrasing of the amendments, according to Professor Michael Kidd, a senior academic and expert in water and environmental law at the University of KwaZulu-Natal.

Kidd suggests that the legal wording is problematic and potentially not constitutional as it could allow municipal managers to be convicted without the requisite mens rea (a Latin legal term to describe a “criminal” or “guilty” mind).

Kidd says that including municipal managers in the net of criminal liability is “probably a good idea”, especially where there is clear evidence of fraudulent conduct or gross negligence.

But he also suggests that a singular focus on municipal managers might not always be justified.

“While they are often involved in finances, they don’t determine budgets alone, and it could be unfair to punish them personally if they are not directly responsible for wastewater treatment failures.

“My feeling is that the plan to hold municipal managers criminally liable is more about the optics, but I don’t think it will be particularly effective.”

He is also concerned about some of the recent plea and sentence agreements in which several municipalities in Mpumalanga have agreed to pay large monetary fines, with the condition that the fines are used to repair and maintain sewage works.

Kidd questions whether the spending of this fine money will be monitored effectively, to ensure proper repairs and maintenance.

Instead, he recommends that the national Department of Water and Sanitation make use of existing legal powers to take over the operations of collapsed sewage works. He further notes that the Water Services Act also allows the national minister to use municipal water revenues to repair and maintain treatment works.

In a recent article in Daily Maverick, Department of Water and Sanitation Director-General Sean Phillips outlined plans to amend municipal and water services laws to ensure that municipal revenue from the sale of water is ring-fenced for water services.

Sewage overflows from a manhole near Pietermaritzburg, the KwaZulu-Natal provincial capital. (Photo: Msundusi River Crisis Committee)

A fetid pool of sewage effluent on the banks of Durban's Umgeni River. (Photo: Tony Carnie)

The reforms would also provide the heads of municipal water and sanitation departments with direct responsibility and authority to improve services, while being held accountable. They could also choose to retain control of these functions — or to appoint external water service providers on a concession basis.

As things stand, many municipalities argue that they lack funds and capacity to fix the problems. But this general “poverty defence” is no longer likely to fly in the courts, according to University of the Western Cape legal researcher Dr Johandri Wright.

In a case note in the latest volume of The South African Law Journal, she analysed a recent judgment by the Mpumalanga Division of the High Court in which the Department of Water and Sanitation sought relief against the Msukaligwa Local Municipality for causing water pollution from the Ermelo Sewage Works.

In short, she said, the court found that a municipality cannot simply “throw (its) hands up in the air and say it does not have funding”.

Wright says the Msukaligwa judgment is an important case that helps to provide greater legal clarity on how the courts should tackle “recalcitrant” local governments.

Wright does not advocate that courts should be given powers to make budgetary decisions on behalf of municipalities, but suggests that the allocation of their finances cannot be left unexamined.

“If courts are left without the necessary powers to address these problems, foundational constitutional values of openness and accountability are endangered… When it emerges that a municipality’s financial inability stems from corruption and wasteful expenditure, a court may be justified in evaluating its budgetary allocations.” DM

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