In a recent judgment out of the Middleburg High Court, the Msukaligwa Local Municipality (“Municipality”) has been found to be in contravention of the National Water Act, 38 of 1998, as amended, (“Water Act”) for failing to adhere to multiple directives issued by the Department of Water and Sanitation (“Department“).
Since 2016, the Department’s investigations into ongoing water pollution revealed that the Ermelo Waste Water Treatment Works lacked the necessary authorisation for water usage and was not functioning correctly. As a result, sewage was found to be circumventing the processing units and was being discharged directly into water resources. Exacerbating this problem was a general lack of sufficient operations and maintenance of the facility, and poor oversight from the Treatment Works management.
Upon consideration of the matter, Judge Bruce Langa ordered the Municipality to:
- immediately cease unlawful water use at the Ermelo Waste Water Treatment Plant;
- apply for registration of the water uses, as set out in section 21 (f) and (g) of the Water Act;
- immediately take corrective measures to stop the discharge of poor quality effluent to prevent further pollution of water resources; and
- appoint a suitably qualified environmental consultant to compile a rehabilitation plan, which must include the nature and impact that pollution has had or may have on water resources and the measures that will be implemented to remediate the impact (with clear timeframes).
The rehabilitation plan was ordered to be compiled within 30 days from the date of the order and submitted to the Department for approval, whereafter the Municipality would have 30 days to implement all remedial action contained in the plan.
In reaching his decision, Judge Langa reiterated that the National Government has overall responsibility for water resource management, including the equitable distribution and beneficial use of water in the public interest. The judgment recognised that the Departmenthad acted in good faith and made many reasonable efforts to make the Municipality account for its actions or non-actions, including the issuing of notices and directives. Importantly, the judgment held that –
“The [Department], in my judgement, was entitled to approach the court for relief once it became clear that the [Municipality] was not responding to the various notices, in terms of which it was directed to take certain measures to correct the issues identified repeatedly in various reports dating as far back as 2016… In this case, the [Municipality] clearly remained supine, despite the critical problem that was raised many times by the applicant.”
It is anticipated that this judgment will serve as a deterrent to other transgressors and will motivate them to ensure compliance with the Water Act.
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