The eThekwini Municipality has failed in its constitutional duty by neglecting to properly maintain, repair, or replace infrastructure. This neglect has resulted in the spillage of sewage and untreated effluent into beaches and waterways. The Pietermaritzburg High Court found the Municipality negligent in a recent ruling. The judgment follows a notice of motion filed by ActionSA in 2022 against eight respondents, including the Municipality, the mayor, and various national and ministers provincial 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. 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.
The responsibility for taking care of and protecting the immediate environment of the eThekwini region falls squarely on the municipality’s authority. The responsibility for holding the municipal council accountable for that duty lies with the local voters. The provincial government cannot assume responsibility for negligence shown by a local authority within its jurisdiction if that authority is solely responsible for actions in its own area of administration.
The High Court cannot bring charges against other respondents, such as the provincial and national government departments, simply because Action SA has provided evidence or reason for pursuing a case. Nonetheless, the eThekwini Municipality was the primary respondent tasked with conserving and protecting the environment under its charge. Power is clearly delegated to the representatives of the municipality elected by the people, and it falls to the local community to vote them out of office if they fail in their responsibilities.
Action SA must explain its reasoning and present evidence to justify why the other respondents should face charges of negligence. The municipality is allowed a certain degree of autonomy to act within its own jurisdiction.
How Action SA, the Pietermaritzburg High Court, the eThekwini Municipality, and the other named parties respond will determine the future and health of the eThekwini region.
Article written by:
Yacoob Cassim
Journalist at Radio Al Ansaar
