UPDATE ON LEGAL CASE: SAVE V EMFULENI MUNICIPALITY, PREMIER GAUTENG,
MEC COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS, MEC FINANCE
(GAUTENG) MINSTER OF ENVIRONMENT FORESTRY AND FISHERIES, MINISTER OF
HUMAN SETTLEMENTS, WATER AND SANITATION, MINISTER OF FINANCE
Save has a court order against Emfuleni Local Municipality (“Emfuleni”), obtained in
February 2018, interdicting it from allowing sewage to flow into the Vaal River, and to come
up with and implement a plan to repair the failed sewage treatment works under its control.
It has not complied with the court order. Emfuleni was placed under partial administration
in mid-2018. Most of its financial controls were taken over by the Premier and the Gauteng
Provincial Government with financial assistance from National Government.
Not even with provincial assistance, was Emfuleni able to get its sewage treatment works
fully operation or the sewage pollution under control.
SAVE then brought an application to the High Court to join the Provincial and National
Governments to the court application and was successful, obtaining an order on 17th May
2019. It is SAVE’s case that it is the responsibility of Provincial and National Government
to ensure that the sewage treatment works of failed municipalities like Emfuleni operate
In response, only the former Minister of Water Affairs and Sanitation and the Minister of
Finance opposed having the court order that SAVE already has, applied to them. This
means that the court interdict and order to repair the sewage treatment system can be
enforced against the Premier, the two MECs and the Minister of Environment, Forestry and
Fisheries because, in the case of the Premier and the MECs, they are responsible for the
functioning of municipalities, and in the case of the Minister of Environment, Forestry and
Fisheries, she is responsible for the protection of the environment generally.
The former Minister of Human Settlements, Water and Sanitation, contended first that he
was not responsible for the management of sewage in Emfuleni, and second, that he had
provided all the support that was required of him as minister, to Emfuleni. The new minister
Lindiwe Sisulu has taken an entirely different position and became actively involved in
attempts to repair the failed sewage treatment works.
The Minister of Finance has denied all responsibility for the situation, despite having stated
in Parliament that he was making finance available, and that the SANDF would be deployed
to clear all the blocked sewer lines and pump stations, and get the system functional, with
funding he would allocate from the National Treasury.
Minister Sisulu, the Gauteng Premier and the MEC COGTA indicated a willingness to
engage with SAVE to work together to find solutions to the many obstacles, financial,
practical and even political, to solve the sewage problems.
The SANDF were duly deployed, and later ERWAT employed to repair the failed system.
Both had relatively short periods of operation, made some progress, but on their departure,
the situation has reverted back almost to where we were two years ago.
At a meeting with the Gauteng team, SAVE agreed to suspend litigation for six months to
allow ERWAT to show progress. Many meetings followed both in person and on Zoom with
representatives of the Minister Sisulu’s office, the so-called “Vaal Intervention Team”,
ERWAT and the Provincial Government. These were productive on the face of it, many
promises were made and at times it appeared that government collectively had a workable
plan – and importantly, even had enough finance to implement it but no party was prepared
to commit to any timelines.
Minister Sisulu inspired great confidence that she would succeed where others have failed.
In a recent Zoom meeting with her newly appointed Acting Director General things looked
promising and a solution seemed be in sight. That was not to be. Of great concern is that
all the finance that had been made available to the project (apart from what has been spent
thus far, which is a small percentage of what was promised) seems to have disappeared.
The Acting Director General told SAVE that funding would come from loans his department
was trying to negotiate with banks. With the parlous financial state of his department, no
bank in its right mind would lend it money, so the source of funds remains a mystery.
SAVE has now explored all the options – negotiation, cooperation, assistance and all the
other “soft” methods available. They have not worked.
Now SAVE has given notice that it is heading back to court. The parties who have not
opposed the court action were placed on terms to do so. SAVE thought that the new
Ministers appointed since the court order was granted, may take a different approach to
their predecessors. They have not responded. SAVE will ask for orders against them by
default when the matter comes back to court.
SAVE is busy preparing its replies to the papers submitted by the former Minister of Water
and Sanitation (Minister Sisulu has not elected to file papers of her own) and the Minister
of Finance. The matter will be enrolled for hearing as soon as the court process allows.
It has become very clear through this process that until government is held to account by a
court, we will not have a solution to the pollution of the Vaal River. That is the route SAVE
will pursue. There is no room for any further talk or negotiation.
As everyone is aware, the sewage problems on the Vaal do not come only from the Gauteng
side of the river. SAVE has sent out letters of demand to the District and Local Municipalities
on the Free State side of the River, the Free State Government and the National
Government to get their houses in order, failing which, they too will face court action.
Typically, they have not responded, so SAVE is in the process of preparing court action
against them too.
On another front, the investigation by the Human Rights Commission of the abuses of
human rights associated with the chronic sewage pollution in the region, seems to have
ground to a halt. SAVE has instructed its lawyers to take this up with the Commission to
establish why they have not taken action, having found as a fact, that human rights abuses
had occurred and are ongoing. The SAHRC enquiry clearly demonstrated the extent of
human rights abuses, which are ongoing. SAVE’s court action is therefore not only in the
environmental interest but also the public interest and especially the people of Sebokeng,
Bophelong, Evaton that are surrounded by sewage pollution and its attendant health risks.
This is a gross abuse of the residents’ constitutional right to a clean environment, especially
an environment that is not harmful to their health or well-being.
Finally, SAVE is about to be joined in its court action against the various government entities
by the River Properties Security Association, who share SAVE’s frustration with
government’s failure to stem the flow of raw sewage into the River.