eThekwini Municipality found guilty of constitutional failure over sewage spills

THE Pietermaritzburg High Court has ruled that eThekwini Municipality violated its constitutional mandate by failing to maintain, replace or repair infrastructure, resulting in sewage pollution of beaches and waterways.

While other government respondents were cleared, the court ordered the municipality to publish weekly E. coli readings and develop a comprehensive repair plan.

This judgment follows a notice of motion filed by ActionSA in 2022 against eight respondents, including the eThekwini Municipality, the mayor, and various national and provincial ministers and Members of the Executive Council (MECs) responsible for Tourism, Environment, Water and Sanitation, and Co-operative Governance and Traditional Affairs (CoGTA).

ActionSA argued that, following the deadly April 2022 floods, the respondents failed to address the ongoing problem of raw sewage spills, which resulted in eThekwini losing its Blue Flag status, IOL reported.

It contended that the respondents had not enforced applicable legislation to meet their tourism, environmental, water, and sanitation obligations, seeking a declaration that the failure to maintain infrastructure violated Sections 10 and 24 of the Constitution.

However, KZN Judge President Thoba Poyo-Dlwati, Judge Peter Olsen, and Judge Mbuzeni Mathenjwa dismissed the case against all respondents except the municipality, with costs. 

The judges reasoned that other government departments could not overstep the authority of eThekwini to perform its functions under Section 156 of the Constitution. This states that a municipality has executive authority and has the right to administer local government matters and any other matter assigned to it by national and provincial legislation. 

They also criticised ActionSA for failing to adequately explain how the respondents contravened Section 24, which guarantees everyone the right to an environment not harmful to their health or well-being.

Despite finding the evidence sketchy, the court established a case against the municipality for its failure to repair or maintain infrastructure. 

“This was evident from the various compliance notices, directives issued by the Minister of Water and Sanitation and the KZN member of the executive council for CoGTA, as well as criminal charges laid against eThekwini,” JP Poyo-Dlwati stated. 

She concluded that this neglect caused high E. coli levels on eThekwini's beaches, stating: “Accordingly, I find that eThekwini has failed in performing its constitutional mandate and obligations.”

Consequently, the court ordered the city to publish weekly E.coli readings from its beaches on its website, social media pages, and public notice boards.

It must also publish reasonable measures to ensure effective and immediate public notice of any water-related hazards and pollution affecting swimming beaches.

The city was also ordered to prepare and file an amended Action Plan and supporting documents under oath within two months of December 18, 2025 (a date referenced from a similar prior order). This plan must set measurable periodic deadlines for progress on repairing all wastewater treatment works and related infrastructure.

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