Court hears that eThekwini illegally reopened beaches

eThekwini municipality allegedly failed to provide the provincial and national government with an action plan to fix its flood-damaged sewage and water works infrastructure and illegally reopened several beaches.

This is the argument the Democratic Alliance (DA) has presented in the Durban high court in an application for a declaratory order stating the municipality’s decisions to deal with the April 2022 flood damage emergency “unlawful” and for these to be set aside. 

The DA also highlights, from the city’s own court papers, that it is allegedly operating six wastewater treatment works and water treatment works “unlawfully” without proper licences.

The respondents in the matter include eThekwini metro, the department of economic development, tourism and environmental affairs and the department of water and sanitation.

DA caucus leader Thabani Mthethwa argues in court papers that the municipality had only produced and filed its “incomplete and irrational” action plan, after it was taken to court by ActionSAand the DA in a previous application merely to satisfy the court. 

He said the plan was not produced by an independent environmental expert but appeared to have been written as an “aspirational document or a wish list” because it had no budget for the repairs and announced only months later that it needed an additional R2 billion for the projects.

“The delivery of the action plan at this juncture is a remarkable admission of failure on the part of the [eThekwini metro] — recognising what it has known all along it ought to have done, but which it failed to do until it had been taken to court by the applicant and ActionSA,” Mthethwa said.

He argues that the municipality had not complied with a raft of enforcement notices issued to it by the two departments in terms of the National Environmental Management Act (Nema).

The economic development department issued a pre-directive against eThekwini in respect of “general environmental degradation” caused by the damage to numerous wastewater treatment works, in terms of section 8 of Nema on 8 June 2022.

In this directive, eThekwini was informed that enforcement action that would be taken against it and that it would be required to “provide the department with an assessment report of damages caused to WWTWs, pump stations and collapsed trunk sewer lines and a plan of action on how the municipality intends on dealing with the repairs to the high and moderately impacted WWTs and pump stations”. 

eThekwini submitted representations to the economic development department, which included documents in support of an action plan, but no actual plan was provided. 

This led to the economic development and the water and sanitation departments issuing further enforcement notices against eThekwini in the months that followed, calling for an action plan and for an independent environmental assessment practitioner to assess the extent of the environmental damage caused by sewage overflow from burst pipes, broken manholes and overflowing pump stations, but still, the municipality did not produce a plan.

It was also directed to within 30 days “implement intervention measures to stop all pollution emanating from burst pipes, broken manholes, malfunctioning pump stations and/or related damaged sewage infrastructure that is discharging or has the potential to discharge untreated sewage into water resources within the eThekwini metropolitan municipality”.

Instead, the municipality wrote back to the water and sanitation department requesting an extension to its deadline in order to “fully comply” with the directive, to which the department replied that it was “of the opinion that eThekwini metropolitan municipality is not engaging with the DWS in good faith”. It further noted that the action plan had not been submitted nor had adequate remedial measures been taken to prevent pollution.

Mthethwa argued that considering the directives, eThekwini’s failure to file an action plan was “unlawful” and subject to review under the Promotion of Administrative Justice Act because it did not comply with mandatory procedures contained in Nema.

According to the court papers, eThekwini also allegedly unlawfully reopened several beaches without authorisation from the provincial department of economic development (Edtea).

“Immediately on receipt of the August 25 directive, eThekwini was directed to close the beaches in close proximity to the Umgeni Estuary, Tongaat Estuary, La Mercy Estuary and oHlanga Estuary. 

“I am advised that these beaches included Blue Lagoon Beach; Westbrook Beach; Casuarina Beach; La Mercy Beach; Umdloti Beach (including main, south, and tidal); Umhlanga Rocks Beach (Main, Bronze, Granny’s Pool, and Lighthouse beach areas),” Mthethwa said.

According to the economic development department’s directive, the beaches were to remain closed until the department approved the reopening.

“The evidence … suggests that authorisation was only granted for the reopening of the Casuarina and Westbrook beaches. There is no evidence that shows the reopening of any of the beaches, located in close proximity to the above estuaries, was duly authorised or even lawful,” he said.

Mthethwa said eThekwini’s decision to reopen beaches without authorisation should be declared unlawful. He also called for the municipality to provide the public with up-to-date beach water quality information online so that people can make informed decisions whether the beaches are safe to use.

In addition, according to court documents filed by eThekwini, Mthethwa said it appeared the city is running the Umdloti, Isipingo, Hillcrest, Mpumalanga, Kingsburgh, Magabeni and Umkomaas wastewater treatment works and the Kloof and Umdloti water treatment works without “existing authorisations”. He called for eThekwini to “make a full disclosure” of the licences if it does have them, in its responding papers.

“Against the above findings it is evident that the term ‘action plan’ is a misnomer and entirely misplaced and cannot be used to describe what the first respondent presents … It is deficient, contradictory, and irrational on its own showing. It offers no measurable deadlines for progress or even reasonable prospects of rehabilitation,” he said.

Mthethwa called for the court to provide declaratory relief including additional directives against the municipality for its conduct, for its decisions not to declare an emergency in terms of Nema to be reviewed and set aside and for a “structural interdict” that would enable to court to oversee its remedying of the breach of environmental laws and to produce a “proper, responsive plan” subject to input from interested parties.

eThekwini metro spokesperson Gugu Sisilane declined to comment on the matter or to advise when the city would submit its responding papers.

eThekwini has until 19 August to file its responding papers.