IN THE HIGH COURT OF SOUTH AFRICA
KWA ULU-NATAL DIVISION, PIETERMARITZBURG
Case No: DI 1938/2022
In the matter b tween:
ACTIONSA APPLICANT
and
THE MINIS ER OF TOURISM OF THE
REPUBLIC F SOUTH AFRICA FIRST RESPONDENT
ER OF FORESTRY,
ND ENVIRONMENT OF
THE REP LIC OF SOUTH AFRICA SECOND RESPONDENT
ER OF WATER AND
SANITATI OF THE REPUBLIC
THIRD RESPONDENT
F CO-OPERATIVE
GOVERNA CE AND TRADITIONAL
AFFAIRS 0 THE REPUBLIC OF
FOURTH RESPONDENT
KWAZULU NATAL MEMBER OF THE
CO-OPERAT VE GOVERNANCE
T AL MEMBER OF THE
OUNCILFOR
ECONOMIC EVELOPMENT:
TOURISM
THEEXECU
NTAL AFFAIRS
UNICIP ALITY
eTHEKWINI MUNICIPALITY
ORDER
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGHTH RESPONDENT
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I .The applica ·on is dismissed with costs as against the first to sixth respondents.
2.The applica ion is dismissed against the eighth respondent with each party to
3. It is de lared that the seventh respondent has defaulted in the performance
of its Consti tional mandate and obligations by failing properly to maintain and
/or repair an or replace and/or to install the necessary infrastructure to prevent
the release a d/or flow and/or resettling of sewerage and/or untreated effluent
into the envir nment in the seventh respondent 's waterways and/or rivers and/or
estuaries and or ocean and/or beaches.
4. The se enth respondent is directed to implement the following measures:
4. 1 he publication weekly of E.Coli readings taken during the week
receding publication at the seventh respondents ' beaches on its
ebsite, social media pages and public notice boards at all public
wimming beaches within the seventh respondent 's jurisdiction.
4.2
4.3
3
adoption of a communication protocol to the affected
lie/communities /industries regarding E.Coli readings with
icular emphasis on reasonable measures to ensure effective and
ediate notice of any water-related hazards and pollution
cting the swimming beaches and members of the public who live
work alongside beaches and rivers within the seventh
e widest and most reasonably effective notification to members
o the public of how to access the information available in
c sequence of the implementation of the measures required by
p ragraphs 4.1 and 4.2 of this order.
5. The sev nth respondent is directed , within two months from 18 December
2025, this bei g a date upon which a similar order was made against the seventh
respondent un er case no.3036/2023, to prepare and file an amended Action Plan
and any asso iated reports and substantiating documents under oath, with the
person design ted to issue notices by the sixth respondent , setting measurable
periodic dead ines for progress for the repair of all the wastewater treatment
work and rel ted infrastructure.
6. ordered to pay the costs of ActionSA 's
application s ve for such costs as were incurred by reason of the ActionSA s
claim for sub tantive relief against any of the first to sixth respondents.
JUDGMENT
Delivered on: 9 February 2026
Poyo Dlwati JP (Olsen and Mathenjwa JJ concurring)
[l] This atter concerns the high levels of Escherichia Coli commonly known
4
as E.Coli at the beaches within eThekwini Metropolitan Municipality
( eThekwini) ci ed herein as the seventh respondent , resulting in their closures
from time to ti e. This is one of the two applications heard together , as they raise
largely similar ssues but sought different orders. A separate judgment has been
handed down i respect of the other application , which had been brought by the
Democratic Al • ance. 1
[2] The app icant ActionSA is a political party duly registered as such in
terms of s 15 o the Electoral Commission Act 51 of 1996 and has its provincial
offices in Dur an. It is also represented in the eThekwini Municipal Council. It
launched this pplication in its interest as well as in the public interest seeking
an order larg ly relating to water and sanitation infrastructure services m
eThekwini. Th orders w re sought against all eight respondents.
[3] The firs respondent is the Minister of Tourism of the Republic of South
Africa. She s the member of the National Executive , charged with the
responsibility of promoting and developing tourism within the Republic. The
second respo .ent is the Minister of Forestry , Fisherie and En ironment of the
Republic of S uth Africa. He is the member responsible for giving effect to the
rights of citiz ns to an environment which is not harmful to their health or well
being, and to nsure that the environment is protected for th benefit of present
and future ge
[4] The th rd respondent is the Minister of Water and Sanitation of the
Republic of outh Africa. She is the member responsible for ensuring that the
country s wa er resources are protected , managed , used, developed , conserved
and controlle by regulating and supporting the delivery of effectiv e water supply
1 This judg ment is \ ai I able on Satli i as Democratic A /liance " Ethekwini Metropolitan /\,/unicipa/ity and Others
[2025] ZA KZPH 142.
5
and sanitation. he third respondent is also said to be responsible for ensuring the
expedited deliv ry of services to the public , which have been mercilessly ravaged
by years of ismanagement in the municipality the riots and looting that
occurred durin 2021 and the floods in April 2022.The fourth respondent is the
Minister of Co Operative Governance and Traditional Affairs of the Republic of
South Africa. e is said to be the person responsible in law for all acts or
omissions ofp rsons in the employ of the National Department of Co-Operative
Governance Traditional Affairs in the Republic of South Africa.
[5] The fift respondent is the Member of the Executive Council for Co
Operative Gov mance and Traditional Affairs in the Province of KwaZulu-Natal
(KZN COGT ). He is cited as a nominal respondent for the purposes of this
application an is responsible in law for all acts or omissions of people in the
employment f KZN COGTA. The sixth respondent is the Member of the
Executive Co ncil for Economic Development , Tourism and Environmental
Affairs in the rovince of KwaZulu-Natal. He is also sued in his nominal capacity
for all acts an omissions of persons in the employ of his department. The eighth
respondent is the mayor of eThekwini , in his representative capacity as the
nominal resp ndent respon ible for all acts and omissions in law of eThekwini .
[6] An ext nsive background was given about the water and sanitation issues
being experi need by residents of eThekwini. This according to ActionSA
demonstrate that the resources and infrastructure in the eThekwini were poor.
This was exa erbated by the devastating floods that ravaged eThekwini in April
2022 . The d adly floods resulted in the closure of everal beaches for a few
latter part of 2022. The deteriorating infrastructure has affected the
health of eT ekwini residents the livelihood of small businesses the tourism
industry and he environment at large in eThekwini region. All this would , in the
industry and he environment at large in eThekwini region. All this would , in the
end, cause economic downturn which would affect the poorest communities
6
in eThekwini.
[7] In partic lar it was averred that economic hardships in the tourism sector
were caused b the closure of beaches , as some holiday makers cancelled their
holiday booki gs with eThekwini hotels. It was also stated that the fishing
industry had een adversely affected , and this impacted heavily on small
businesses . Ev n though the President of the Republic declared the floods as a
national disast r ActionSA did not know what happened to the funds that were
allocated towa ds disaster management. This was so as some of the wastewater
treatment stat ons and pumpstations were not operational in areas like the
Ohlanga Rive .
[8] It was s ated that this has caused untreated and raw sewage to flow into the
rivers and eve tually into the sea. According to ActionSA the respondents have
done nothing bout this, and as a result, eThekwini lost its Blue Flag status. It
was contend d that the respondents have failed to enforce the applicable
legislation t address their tourism , environmental , water and sanitation
obligations . he respondents ' approach was described as lackadaisical , leading
to the cance lation of events because of the beach closures which affected
employment nd small businesses especially in the tourism industry .
[9] In an o line public participation run by Action SA about the impact of the
conditions o the rivers and ocean on the residents it was tated that the effects
were dire an alarming. Even lifesavers and cleaners in the coastal areas were
said to be co cemed about the threat of contracting illnesses. All recreational and
sporting acti ities involving the beaches and rivers were apparently stopped due
to health iss es arising from the contaminated water.
[IO] It was further stated that E.Coli levels on the beaches were in excess of
7
thousands , wh ch was totally unacceptable and dangerous in terms of
environmental standards. ActionSA sought that an indep ndent body be
the water daily at the rivers ocean and beaches to enable visitors
d decisions before entering the beaches and rivers. It did not trust
the testing don by eThekwini. ActionSA wrote to eThekwini raising concerns
about the effe ts of high E.Coli levels and how much that was affecting the
in the province. It also sought that eThekwini give a detailed
intervention pl n on how the municipality intended to ensure the reduction and
ultimately the radication of high E.Coli levels in the rivers and on the beaches.
No response s forthcoming to this letter.
[1 I] Instead , it was announced in the media that various beaches in eThekwini
on 5 November 2022. This was also on eThekwini 's social media
platfom1s. It as contended that eThekwini had done very little at least since the
re the appropriat remedial measures to remedy the dire situation
of non-opera ional wastewater treatment plants and pump stations. All the
respondent ere accused of having failed to comply with various laws by failing
to maintain o repair or replace or install the necessary infrastructur e to prevent
the release r flow or resettling of sewage or untreated effluent into the
waterways , e tuaries and ocean in eThekwini.
(12] The re pondents were said to have contravened ss 10,2 24,3 and 152(1 )(b)
2 ection l O pro i es as follows:
·Human dignity. Everyone has inherent dignity and the right to ha e their dignity respected and protected.'
3 Section 24 provi e as follows:
·Environment. - veryone has the right-
(a) to an cnv ronment that is not harm ful to their health or well-being; and
(b) to have t c envi ronment protected, for the benefit of present and future generations, through reasonable
leg is la ti and other m easures that-
(i) revem polluti on and ecological degradation;
(ii) romote conservation· and
(i) revem polluti on and ecological degradation;
(ii) romote conservation· and
(iii) ecure ecological ly sustainable development and use or natural resources whil e promoting
uslifi able economic and social developm ent.'
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and (c)4 of the onstitution the National Water Act 36 of 1998 (the Water Act),
ironmental Management: Waste Act 59 of2008 (the Waste Act)
and the provisi ns of by-laws i.e. s l 4(2)(a) and (i) of the eThekwini Beaches
By-law 2015 , and the provisions of s 3{d) and 6 of the eThekwini Sewage
Disposal By-la , 2015.
[13] sought that a proper and independent investigation be conducted
to determine t e actual state of the water and sanitation crisis in eThekwini. A
report would h veto be made available to ActionSA and the court and only then
would the pro r cause of action be determined. ActionSA reiterated that the state
of disrepair o the infrastructure had long been apparent. This was caused by
mismanageme t of funds and lack of proper procurement processes. Various
orders coup le with a costs order, were sought against all the respondents.
[14] All the respondents opposed the application. I will deal with the sixth
respondent 's asis of opposition first. This is so as the sixth respondent had issued
various direc ives against eThekwini in accordance with its responsibility to
oversee issue pertaining to the environment. The sixth respond ent s an wering
affidavit was deposed to by Mr Bonginkosi Dlamini a designated grade 1
environment management inspector in terms of s 31 C5 of the National
Environment l Management Act 107 of 1998 (N MA) . In the sixth respondent's
4 ection 152( I )~ and (c) pro ides as follows:
·Objects of local g vernment. -{ I) The objects of local government arc-
(b) to ensure he provision of ser ice to communit ies in a sustainable manner;
(c) to promo social and economic development. .. '
5 ection 3 1 C pro ide as follows:
·31 Designatio of environmental management inspectors by M EC.-
(1) An MEC may-
(a) designal as an environ mental management inspector. any taff member of-
(i) he department responsible for environmental management in the province;
( ii) ny other provincial organ of state that executes a regulatory function; and
( ii) ny other provincial organ of state that executes a regulatory function; and
(ii i) ny municipal ity in the pro ince; and
(b) at any ti e , ithdraw a designation made in terms of paragraph (a).
(2) A design tion in terms of subsection ( I ) (a) (ii ) or (ii i) may only be made by agreement between the
relevant M Can the relevant provincial organ or state or municipality.'
9
view Actions did not make out a case to prove that it had breached any
constitutional o legislative provisions as mentioned in ActionSA 's application.
[15] Accordi g to the sixth respondent, it had taken the reasonably required
measures requi ed of it under the applicable legislation to prevent eThekwini 's
pollution ofth rivers, estuaries and the ocean . It contended that ActionSA could
not prove, as r quired by s 24 of the Constitution , that the harm if any to the
health or well- eing of eThekwini residents was caused by the sixth respondent 's
violation of it obligations prescribed by the environmental laws. Furthermore,
ActionSA als did not prove that the sixth respondent failed to enforce any
legislation against eThekwini relating to the prevention of the
degradation o the environment.
(16] Accord' g to the sixth respondent , ActionSA failed to establish any
scientific fin ings by any suitably qualified experts that any alleged non
compliance b the sixth respondent with the Constitution and legislation has
caused the ha alleged . According to the sixth respondent ActionSA failed to
allege the fac ual and legal basis upon which it averred that the sixth respondent
had breached he provisions of ss 10 and 24 of the Constitution. It was contended
that had Acti nSA made any inquiries from the sixth respondent about the issues
raised in this pplication the sixth respondent would have advised ActionSA that
it had addres ed eThekwini's non-compliance with the legislation and imposed
sanctions for uch noncompliance.
[17] Accor ing to the sixth respondent , s 152(l)(b) of the Constitution could
only be cont avened by eThekwini as it is the municipality responsible for the
eThekwini r gion. If the sixth respondent were to interfere it would offend the
separation o powers principle , as it is eThekwini as the local sphere of
government , that has the right to administer local government matters as the
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executive auth ity. Even with regard to the alJeged contravention of by-Jaws
only eThekwin· can administer them and not the provincial or national sphere of
go emment. T e sixth respondent could, therefore, not have failed to enforce or
contravene any by-laws. Water and sanitation services , beaches and solid wa te
disposal fell un er the domain and authority of eThekwini.
respondent further averred that compliance with the Water Act
feJ l under the ational sphere of government , represented in this application by
the third respo dent, as well as eThekwini's Water and Sanitation Services Unit.
The structural elief sought by ActionSA was the obligation of eThekwini and its
mayor. Contra to s 4l(l)(h) of the Constitution which enjoins all spheres of
government t co-operate with one another in mutual trust and good faith by
enforcing frie dly relations assisting and supporting one another and avoiding
conflict , the joint relief sought would cause conflict and unnecessary
national and provincial spheres in respect of the functions of
eThekwini.
[19] The th respondent had exhausted attempts to ensure good faith
engagement ith eThekwini in terms of the Intergovernmental Relations
Framework ct 13 of 2005 (the Intergovernmental Act). As a result the sixth
respondent h to resort to issuing various notices and instituted criminal charges
regarding no -compliance against eThekwini. Accordingly, the sixth respondent
had complie with its constitutional obligations as defined in s 24 of the
Constitution nd as mandated by the legislation. The sixth re pondent detailed all
the pre-notic directives and directives it issued against eThekwini dating back to
2020.
[20] Accor ing to the sixth respondent eThekwini failed to discharge iLs duty
of care in te s of NEMA. It was on this basis that the sixth respondent had acted
11
against eThekw ni. eThekwini had also contravened s 16 of the Waste Act which
imposes an ov rail duty on eThekwini in respect of its waste management.
According to t e Act, eThekwini is required to ensure, inter alia, that waste is
treated and dis osed of in an environmentally sound manner. It is also required
to manage was e in such a manner that it does not endanger the health of the
environment or cause nuisance through noise, odour or visual impact.
(21] In insta es of breaches of NEMA's provisions, the sixth re pondent, in
terms of s 31 L f NEMA, has powers through its inspectors to issue compliance
notices. eThek ini, in terms of s 31 L( 4) of NEMA, has an obligation to comply
with the notice , within the period stipulated therein. eThekwini failed to comply
with the vario s notices. However after the flash floods that occurred in April
2022 there h been constant good faith engagements with eThekwini and its
Water and Sa tation Services Unit even though this did not last long as the sixth
respondent ha to issue further notices.
respondent had to issue further compliance notices and directives
Hance with NEMA and the duty of care re ting upon eThekwini.
Various site i spections and meetings were held as there was continuous pollution
of the enviro ment due to the disposal of sewerage and the non-functioning of
eThekwini s astewater treatment works (WWTW) and pumpstations. Even
though there as improvement before the flash floods of 2022, the situation got
worse after he floods. Some of eThekwini's compliance was inadequate,
unsatisfacto and in some instances, there was no compliance at all.
[23] One o the major concerns, and largely at the core of this application was
the general d gradation along the rivers, beaches and estuaries. A pre-directive in
terms of s 28 4) ofNEMA was issued on 8 June 2022 as the sixth respondent was
of the vi w t at eThekwini and its Water Authority had failed to adhere to the
12
provisions oft e law in respect of causing sewage to enter several rivers in the
eThekwini reg· n. Raw sewage was being di charged directly into the already
polluted water ources due to malfunctioning WWTW and pump stations . The
pre-directive d' ected eThekwini:
(a) To imm diately stop the pollution at the source to prevent pollution to the
receiving envir nment;
(b) To inforn all the users that the rivers are polluted and that water should
not be used·
(c) close the beaches in close proximity to the following
estuaries: Um eni Tongaat Lamercy and Umhlanga ;
(d) To plac notices on the beaches to inform the public of the beach closures;
(e) To pro ide the sixth respondent with the assessment report of damages
caused to the WTW pump stations and collapsed sewer lines and a plan of
action how eT ekwini intended to deal with the repairs;
(f) it an assessment on the impact of sewage on the rivers and the
(g) That th beach closures remain in place until the department approved their
reopening w ich must be based on the comments received from eThekwini
Environment I Health Quality Control and Water and anitation Services Units.
[24] On 9 J ne 2022, and in response to the pre-directive , eThekwini issued a
public notice with a health alert announcing the closure of all beaches. It also
responded to he pre-directive on 13 June 2022 and advised that an assessment of
the damages nd an Action Plan would be made available to the sixth respondent.
It was also re orded that the repairs to the damaged infrastructure would only be
undertaken i the medium to long term.
[25] Amee ing was also held on 8 July 2022 to address the lack of a substantive
response to t e pre-directive. Even though eThekwini further responded to the
13
pre-directive o 13 July 2022 the respon e was not satisfactory to the sixth
respondent. In tead eThekwini re-opened the beaches without consulting the
sixth responde t. According to the sixth r spondent , there was no compelling or
substantial rea on why as 28( 4) directive could not be issued. The directive was
accordingly iss ed on 25 August 2022.
[26] It was nly on 21 September 2022 that eThekwini responded to the
directive. Ho ever it failed to comply with the directive. Instead , it contended
that the depa . ent did not have the authority to close the beaches but that its
Park, Recreati · n and Culture Unit has such authority. Meetings held thereafter
only culminat din eThekwini undertaking and promising to remedy the situation
but to no avail
[27] Anothe pre-directive was issued by the sixth respondent on 17 October
2022 regard in the pollution of the Ohlanga river due to damaged infrastructure
at the Ohlang Pump station. eThekwini responded to this directive on 19 October
2022 indicati g that the pump station would be repaired within five weeks from
18 October 2 22. In a meeting held between eThekwini and the sixth respondent
to discuss the e directives it became evident that the Northern WWTW had not
been repaired nd that the pollution into Umgeni River continued. No assessment
of the impact fthe sewage on the rivers and aquatic organisms was provided and
no extension o providing same had been requested. No water test results were
received by t e sixth re pondent in order to determine whether it was safe to open
the beaches.
[28] After r ceiving a request from eThekwini for opening of the Mdloti Main,
Mdloti Tidal nd Casuarina beaches, the sixth respondent acceded to the request
for the openi g of the Casuarina beach. It was not satisfied with the water results
for Umdloti eaches as they indicated high levels ofE.Coli. The sixth respondent
14
requested eThe wini to investigate the results further and provide feedback. On
9 December 20 2, eThekwini provided sampling results of the beach from three
different sourc s. All the results showed a reduction in E.Coli levels and the
department ap roved the opening of the two Umdloti beaches on condition of
continuous mo itoring. After further representation, the sixth respondent agreed
f Westbrook beach on 22 December 2022.
[29] The six respondent also laid criminal charges against eThekwini as
provided for i NEMA and the Waste Act. These were becau e of various
contraventions of N MA and non-compliance with the directives issued to
eThekwini. Th charges related to the sewerage pollution at the Elderwood Close,
discharging o sewage to Isipingo Lagoon· overflowing sewage into the
Winkelspruit agoon; and discharge of untreated sewage into Umhlanga Lagoon.
All this, accor ing to the sixth respondent was an indication that it had not been
lackadaisical i ensuring compliance with applicable legislation by eThekwini.
(30] The six h respondent denied that it had any obligations in terms of the
Disaster Man gement Act 57 of 2002. It denied that it received any funding from
the National o Provincial Treasury departments in order to address infrastructure
damage after he floods. It stated that it was not involved in administering any
to the disaster caused by the floods. After exhausting the
mechanisms f exercising co-operative governance and the principles of good
inter-gover ental relations, the sixth respondent resorted to laying criminal
charges again t eThekwini. For these reasons, the sixth respondent contended that
the relief sou ht against it by ActionSA was incompetent and inappropriate. The
application a ainst it ought to be dismissed with costs.
[3 I] These ond respondent also filed an answering affidavit. It made common
cause and su ported the affidavit filed by the third respondent. Perhaps it is best
L5
to deal with the third respondent's answering affidavit at this stage. The affidavit
was deposed to by Ms Ashley Starkey on behalf of the first, second third fourth
and fifth respo dents. These respondents raised various points in limine. They
further believe that the matter ought to be referred to mediation in order for the
parties to agre on an expeditious and cost-effective manner of resolving the
issues.
[32] The first point in limine raised was that ActionSA made no reference to the
co-operative g vemance measures that were underway in eThekwini , yet it was
aware of these as it was part of the eThekwini Municipal Council where reports
of these me ures were tabled. These measures were undertaken to assist
eThekwini to esolve the challenges that are the subject of this application. The
co-operative g vernance measures were undertaken by the second , third fourth ,
fifth and sixth espondents.
[33] The sec nd point in limine was that Action A was seeking extra ordinary
relief, which f granted, would be in violation of the Constitution as it would
contravene an offend the separation of powers framework. This was so as it did
not take into ccount the distinct allocation of powers amongst the three spheres
of govemme t as stipulated in the Constitution , those being the national ,
provincial an local spheres of government and their specific allocated powers
and functions For instance , it v as stated that it was incorrect for ActionSA to
contend that II the respondents had breached the objects of local government as
set out in s 152 of the Constitution. Section 4 I (l )(g) of the Constitution also
requires the v rious spheres of government to exercise their powers and perform
their function in a manner that does not encroach on the geographical functional
or institution l integrity of government in another sphere.
[34 J The th rd point in limin e was that Action SA failed to follow the rule 53
16
ite it stating that it intended to rely on the provisions of the
Promotion of dministrative Justice Act 3 of 2000 (PAJA). It ought therefore ,
to have folio d the rule 53 procedure for judicial review. As a result, the
respondents h d to furnish proof of their monitoring, enforcement and
compliance ac ions undertaken against eThekwini. Furthermore, the failure by
ActionSA to fi How PAJA has resulted in it not identifying with any measur of
precision each f the administrative decisions it was challenging. Action A had
not even ide ified which specific respondent had breached what specific
constitutional r statutory obligation.
[35] The re pondents contended that it was impermissib.le in motion
proceedings D r ActionSA to simply refer generally to various pieces of
legislation wit out identifying the specific sections v hich are said to have been
breached by w ich respondent or respondents. The notice of motion had also left
out some of the relevant legislation like NEMA, National Environmental
Management: ntegrated Coastal Management Act 24 of 2008, the Water Services
Act 108 of 19 7 (the Water Services Act) and the Intergovernmental Act. It was
submitted that the notice of motion and the founding affidavit were defective as
none of the re pondents knew what case they had to meet.
[36) The res ondents further stated that the founding affidavit was replete with
inadmissible vidence and that various issues and facts had changed since the
application w s launched in ovember 2022. The media reports, allegations
supposedly fl m Councillor Allan Beesley , and sampling water r suits from
Talbot were s me of the averments made without any supporting affidavit from
the relevant s urces. Regarding the video supposedly taken by Mr Peter Graham
and his com ents on sanitation, it was submitted that there was no evid nee to
show that he as qualified to make such observations.
17
ndents contended that after the April 2022 flash floods, they
acted immediat ly, within their constitutional and statutory powers , to ensure that
emergency me sures were taken by eThekwini to stop the pollution. They
thereafter wor ed with the municipality to ensure that short-term actions were
taken and that medium and long-term plans were fomrnlated to remediate the
pollution and i frastructure damage and to prevent such pollution events from
future . Some of the monitoring , compliance and enforcement
measures wer undertaken even prior to the April 2022 floods a they were
required to do o in terms of the legislative framework.
[38] The thi d respondent dealt specifically with measures it undertook to
ensure compli nee with the Water Act, and the Wat r Services Act. On 13 May
2022 the thir respondent issued a directive in terms ofss 19(3) and 20(4) of the
Water Act. T e directive was issued in order to compel eThekwini to deal with
various em erg ncy incidents arising as a result of the flood . They were pollution
of water and he environment emanating from various WWTW and associated
sewerage infi astructure due to malfunctioning after the flood. eThekwini
responded to this directive by providing an a ses ment of the sewerage
infrastructure including pipelines WWTW and pump tations which had been
detrimentally ffected by the floods
[39] Despit arious engagements between the third respondent and eThekwini ,
no positive nd satisfactory re ponse was forthcoming. Instead , eThekwini
sought exten ions in order to comply with the directives. Meanwhile , further
complaints re noted and received. One complaint related to sewage overflow
from a main runk sewer line in Umlazi near the Mega City Shopping Complex
into the Mlaz River. The complaint was received on 27 July 2022. On 17 October
2022 the thi respondent also notified the municipality of a complaint regarding
sewage enter g the Ohlanga River system from the sewer manhole in Blackbum
18
Estate area as ell as the Blackbum Village pump station. All that eThekwini
said was that these matters were receiving attention , and that some were
submitted to th Bid Adjudication Committee .
ndents, however, continued to engage and assist eThekwini as
Room established by the fourth respondent in order to recover
from the deva tating effects of the floods. The War Room was established to
ensure a coord nated response to the flood damage and to allow monitoring of
eThekwini 's p ogress by both the national and provincial governments. The third
respondent als directed eThekwini to deal with various pollution incidents and
complaints rec ived from members of the public on a day-to-day basis.
[ 41] Accordi g to the respondents , al I these actions showed that the respondents
were not lacka aisical in their approach. The respondents chose to provide all this
information d spite ActionSA not making any reference to a particular provision
of the legisla ion that was breached. Despite all this, the re pondents acted
immediately d within their constitutional and statutory powers to stop, reverse
and remediate the pollution when they became awar of it. Accordingly , so went
the contentio the application as against all these respondents ought to be
[ 42] The fi st respondent confirmed the contents and supported the third
respondent s answering affidavit. She reiterated the co-operative governance
measures th t were being coordinated by the fourth respondent with the
participation f the other respondents. The first respondent further stated that it
ought not to have been cited or joined in these proceedings as the legislation
r ferred to in he notice of motion did not fall within her mandate or jurisdiction.
There was a so no case made out about a breach of any of those legislative
prov1s1ons. ere was also no averment in the founding affidavit that the first
19
respondent bre ched the Tourism Act 3 of2014 in any way.
[ 43] The first respondent contended that the founding affidavit did not present
her mandate co ectly, as she executes her constitutional and statutory obligations
within a speci 1c constitutional framework. According to her, eThekwini had
executive and legislative powers over local tourism. National and provincial
governments ay assist eThekwini only to the extent provided for in subsections
155(6)(a) and ( ) of the Constitution. She, therefore , denied that she was in breach
of any legislati e instrument or the Constitution. She sought that the application
be dismissed ith costs.
[ 44] Likewis , the fourth and fifth respondents also filed their answering
affidavits in s pport of the third respondent s affida it. The fifth respondent
confirmed the ooperative governance efforts undertaken by the respondents. He
confirmed that these efforts were made in line with Chapter 3 of the Constitution.
He confirmed hat subsequent to the floods, a State of Di aster in the KwaZulu
Natal Provine was declared on 18 April 2022. He combined efforts with the fifth
respondent in rder to implement the Disaster Management Act which led to the
creation ofth War Room. They were able to obtain financial assistance from the
ational and rovincial Treasuries to assist with the repair to the infrastructural
damage.
[ 45] These espondents contended that they continued to provide expert,
technical and human resource assistance to eThekwini to repair the damaged
infrastructure This contention was supported by minutes of the War Room
meetings he! between the respondents and attached as an annexure to his
affidavit. Fin ncial support was also provided to eThekwini initially with an
amount of Rl 5 000 000 and later followed by RI 534 785 000. All these efforts
were ongom until such time that the challenges faced by eThekwini were
20
resolved. Fort se reasons she also sought that the application be dismissed with
costs.
[46] eThekwi i and the eighth respondent al o filed their answering affidavit.
They simultan usly filed an application to have certain averments in ActionSA 's
founding affid vit struck out as they deemed them to be hearsay , and/or
objectionable s they were opinions of persons not qualified to express such
opinions. They also objected to the filing of annexures ZM13 and ZM14 as they
were copies rel ed upon by ActionSA without specific reference to the provisions
upon which re iance was placed . Some averments were deemed to be vexatious
and scandalou whilst some were regarded as irrelevant.
[ 4 7] eThekw ni also raised various points in limine . The first was that Action A
but failed to follov the procedure prescribed by rule 53 of the
Uniform Rule . It al o raised th failure by ActionSA to ad ise of the co-operative
governance easures that were currently underway invol ing anous
government d partments. This included the creation of the War Room. The
minutes of the War Room were provided to the eThekwini Municipal Council of
which Action A was part but it chose not to divulge such important information.
ini also, like other departments objected to the wide-ranging relief
against it and he other respondent . It accepted that in tenns of sub paragraph l ,
Part B of Sc edule 4 to the Constitution , it had as a municipality , executive
authority in r pect of, and the right to administer the following local government
(a) stonn ater management system in built up areas;
(b) water d sanitation services limited to potable water supply systems ; and
(c) c wastewater and sewage disposal systems.
21
[ 49] Part B o Schedule 5 of the Constitution vests eThekwini with executive
authority in re pect of the right to administer the following local government
matters: beach , cleansing and public spaces. According to eThekwini , both the
national and p ovincial governments are obliged to assist the municipality in
terms of s 15 (6)(a) and (7) of the Constitution in fulfilling its obligations.
Therefore , the relief sought by ActionSA ignored the different roles and
obligations oft e different spheres of government thereby transgressing upon the
municipality 's ower and autonomy as a Local Government Authority.
[50] eThekw"ni further reiterated the points about reliance upon inadmissible
and objectiona le material by ActionSA as raised by the first to sixth respondents.
eThekwini als provided a comprehensive background about the functioning and
operations of i s water and sanitation services. Prior to April 2022, a decision was
taken to upgr de the water and sanitation infrastructur in the Berea area. The
decision was ased on the aging network but was constrained by availability of
funding . Prog ess was made to implement the decision but then the floods
occurred.
[51] The fl od had devastating consequence s for the infrastructure. The
damage was c mpounded by the fact that a significant proportion of the network
low-lying areas and adjacent to rivers which were all flooded.
Eighty-two o 263 wastewater pump stations (WWP) were damaged. Nine of the
27 WWTW ~ ere extremely damaged. As a result , a national state of disaster was
declared and hereafter a War Room was established. Funding became an issue
in addressing he assessments and thereafter repairs to the infrastructure. Funding
had to be div rted from other programs of eThekwini to deal with the water and
sanitation in astructure. Initially an amount of R74 million was made available.
[52] A furt er amount of R49 million was made available for the water and
22
sanitation and nother Rl 36 million was for repairs to the water infrastructure.
This funding , a cording to eThekwini was inadequate to address the demand for
repairs and rep acement. With time the full length of the pipes was progressively
restored to fun tionality, starting from the lower-level pipes and progre sing to
the larger pipe . The eighth respondent had to issue directives prioritising the
effects of the d saster which included having contracts amended for this intent.
[53] As of31 March 2023, eThekwini confirmed that the relevant infrastructure
had been resto ed to a level of functionality. No raw sewage was discharging from
11 effluent was treated and in the damaged WWTW the effluent
g at the required discharge levels. This however was limited to
Umbilo and N rthem WWTW . Some pump stations were not functional due to
vandalism an /or normal maintenance and equipm nt breakdown. However
the e were be ng dealt with even though delays were being experienced due to
supply chain anagement processes.
[54] The det ils of the work done were summarised in a pre entation made to
the War Roo on 23 February 2023 annexed to eThekwini s affidavit as D 1 to
D48. Additio al funding was also made available in the sum of R228 million.
According to eThekwini, even though this funding will go a long way towards
expediting th necessary reconstruction and rehabilitation of the water and
sanitation infi structure , it was still significantly below the total amount required.
[55] eThek ini contended that no evidence was advanced by ActionSA that
eThekwini re idents had been mercilessly ravaged by years of mismanagement
in the munic pality. It was also stated that most beaches were open but that
closures do t e place from time to time, as and when circumstances necessitate
it. A list of a fected beaches gets published on a regular basi for the benefit of
the members of the public. eThekwini explained that the grant funding of Rl
23
billion was not nly for the repair of th wastewater and sanitation infrastructure
but was also int nded to cover all consequences arising from the floods including
basic water se ices.
i denied that 80% of the wastewater and sanitation infrastructure
was or is dys ctional. It contended that the Ohlanga river's WWP, which had
by the floods resulting in damage to all mechanical and electrical
fully operational as of December 2022. The beaches were closed
in the interest f public safety. However the situation had been regularised to the
extent that wa er and sea related sporting activities were taking place. Regular
testing of E. li levels was being undertaken by the Water and anitation
Department th ough an accredited laboratory of eThekwini to ensure safety of all
beaches.
[57] eThekw ni therefore , disputed that it had done very little since the floods
to render the astewater and sanitation infrastructure operational. It deem d the
allegations as gross distortion of the truth. eThekwini also decried ActionSA 's
references to various pieces of legi lation without identifying the specific
provisions on hich reliance was placed. It disputed that a case was made out for
the relief sou ht and that the application be dismissed with costs
[58] ln its r ly, Action SA accepted that the sixth respondent had disclosed all
teps it had ta en in its attempts to address the sewage crisis in eThekwini and to
ameliorate th situation in which the tourism industry the nvironment and the
residents of e hekwini found themselves in. lt believed that the other respondents
he 'proverbial blame game' , blaming other spheres of government
for the crisis. ith regard to the points in limine about non-compliance with rule
41A, Action A believed that the matter was not capable of mediation . This v as
so as eThekw ni failed to respond to its letter of demand and this was an indication
24
that it was not repared to engage. This was also evident a eThekwini and the
other responde ts filed their answering affidavits late.
[59] Actions contended that it could not hold the matter in abeyance as the
Action Plan on how to deal with the crisis was not forthcoming from eThekwini.
According to ctionSA, rule 41A would not work in this matter as eThekwini
was still insis ent that there was no crisis and that its water and sanitation
infrastructure as operational. Regarding the failure to follow rule 53 and PAJA,
ActionSA con nded that it never sought to review any decision taken by any of
the responden . Instead the nature of the relief it sought was declaratory and
mandatory in ature. Therefore , PAJA would not have assisted it and neither did
it require the r cord as provided in rule 53.
[60] With re ards to the co-operative governance measure , ActionSA claimed
that it was no aware of them until it received the answering affidavit. This was
despite the fa that ActionSA has two councillors in the eThekwini Municipality
Council. Hov ever ActionSA , believed that those co-operative governance
mea ures we a concession that there was se ere infrastructural damage in
eThekwini. ccording to ActionSA , the other respondents undertook co
operative me sures as they were required to do so in terms of their constitutional
obligations a national and provincial spheres of government. It however, still
maintained a d reiterated that the sewage crisis must be remedied by all the
respondents c llectively.
[61] About he misjoinder of the first respondent , Action A believed that the
sewage crisis had a devastating impact on tourism in the region and it believed
that the first spondent ought to have an interest. Regarding inadmissible and
objectionabl material , ActionSA stated that Mr Graham was going to attest to an
affidavit , wh • h he did, but whether he is an expe11 in sanitation matters remains
25
an issue. It als believed that no sufficient explanation was provided by any of
the respondent as to why funds were only received in March 2023 and not prior
to that.
was still not satisfied with the regular beach water testing as it
believed that n details were provided as to who tests the water and how often the
cted and where the results are published. It believed that its
suggested met od of testing ought to be accepted. After eThekwini and the eighth
respondent ha filed the Action Plan, ActionSA filed a supplementary affidavit
to deal with th issues raised in the action plan. It stated that some of the deadlines
imposed on th Action Plan had com and gone but nothing was done to provide
th services. I was for this reason that it believed that th court's intervention
was required s that there wa compliance with what was promised in the Action
Plan.
[63] Action also stated that it became aware that an amount ofRl billion had
been ailable to eThekwini to attend to the sewage reticulation and
infrastructure epairs and restoration but it did not know who was in possession
of the funds. ActionSA stated that after it issued a Rule 36 (6) notice on
eThekwini a d other respondents, the sixth respondent also attended the
inspection thr ugh its legal repr sentatives. The inspection was conducted on 1
September 20 3. The following sites were visited , Ohlanga pump station along
the Ohlanga r ver, as well as Umhlanga , Phoenix and Hambanathi WWTW.
[64] Accord ng to ActionSA , what was witnessed in those sites was diabolical.
Most of the i frastructure in those sites was broken and in a state of disrepair.
They were c ered in stagnant sewerage. Even though few staff members were
present at th se sites, they were not working as the infrastructure was not
operational. hen another inspection was held on 8 September 2023 , nothing
26
much was diffi rent. It was evident that eThekwini had failed to restore repair,
and maintain itical infrastructure notwithstanding what was contained in the
Action Plan. It therefore, disputed what was averred in eThekwini's answering
affidavit that 9 % of its infrastructure was operational. It gave an example of the
Umhlanga W TW which was offline and as a result effluent was bypassing
Phoenix leadin to the raw sewage pumping into the Ohlanga River.
[65] Accordi g to ActionSA when it attempted to conduct another inspection
in May 2024 , it was denied access by members of the South African Police
Services and e hekwini officials. lt, therefore , inferred that the Action Plan had
not be n impl mented. E.Coli levels also remained largely high which was not
acceptable. Fo all these reasons , ActionSA persisted with the relief sought in the
draft order h ded up during the argument of this matter.
[66] In Acti nSA 's practice note, it is submitted that the issues to be determined
in this applica ion are whether the respondents have breached their legislative and
constitutional obligations by allowing the eThekwini crisis to persist and what
the appropriat relief to be granted ought to be now that the sixth respondent has
caused that e hekwini and the eighth respondent be placed in funds to remedy
the crisis.
[67] The he ds of argument and practice note filed by ActionSA were not of
assistance to the court. They fell short of what one would expect in heads of
argurnent. 6 hey failed to engage fairly with the evidence and advance
submissions n relation to thereto. They were a mere regurgitation of what is in
the founding and replying affidavits. It quoted a lot from the media articles and
various other communiqu like the Government Gazelle and National Treasury
° Caterham Car /es & Coachworks Ltd, . Birkin Cars (P1y) Ltd and Another 1998 (3) SA 938 ( CA) para 36-
38; S \' , 111/i 2003 4) A 258 (W) para 16.
27
memoranda w thout any supporting affidavit from the authors . Save for
eThekwini th e was a generalisation of what was expected from the other
respondents. It was submitted, on behalf of ActionSA, that not one of the
demonstrated the will to enforce the applicable legislation or to
attend to their onstitutional obligations.
[68] Regardi g almost all the pieces of legislation quoted by ActionSA in its
papers, there s no mention of a specific provision that was br ached by any of
the respondent , nor was it stated in what way or manner any alleged breach
occurred. It w s merely stated that reference would be made to the arious
sections of th Constitution as well as to various laws without mention of
applicable sec ions. This was to be done in order for the court to declare the
conduct of th respondents, in failing to maintain and/or repair and/or replace
and/or install he necessary infrastructure to prevent the release and/or flow
and/or resertli g of sewage and/or untreated effluent into the environment in the
nicipality 's waterways and/or ri ers and/or estuaries and/or
beaches , to b in contravention of their obligations and duties owed to the
residents and embers of the public.
[69] Action A also submitted that independent reports were required in order
to determine t e actual situation in eThekwini. Such report ought to be obtained
within a limit d time frame. It also required eThekwini to account for the funds
received subs quent to the declaration of the State of Disaster. It sought that an
accredited an independent water sanitation expert be appointed to test and report
the daily read ngs of E.Coli levels in ocean water at all eThekwini beaches. Such
daily reading ought to be made available on visible signage at all beaches and
published dai on a suitable social media platform for the public interest.
[70] Action A also sought that all the respondents be directed within 30 days
28
of this order b ing granted to prepare and make available to ActionSA and the
court, a list of 11 current WWP and WWT and other water reticulation systems
that were not perational and/or vandalized and/or in a state of despair in the
eThekwini are so that an appropriate time frame could be order d to fix them.
The court oug to find that there was a constitutional breach and therefore a just
and equitable rder ought to be made. Reference in this regard was mad to Ex
parte Minister if Home Affairs and Another.7
[7 I] Perhaps it is apposite to state what relief was sought in the original notice
the draft order suggested by ActionSA. ActionSA sought the
• J. Declaring the conduct of the first to ighth respondent , in failing to maintain and/or repair
and/or replace an /or install the necessary infrastructure to prevent the release and/or flow and
age and/or untreated effluent into the environment in the eThekwini
Municipality' terways and/or rivers and/or estuaries and/or oceans and/or beaches, to be in
contravention of he following legislation:
(a) ections 0 and 24 of Constitution of the Republic of South Africa Act 98 of 1993 (the
Act8):
(b) Section 152( I )(b) and (c) of the Act, read with Part B of Schedule 4;
(c) The Nati nal Water Act No. 36 of 1998;
(d) The Nati nal Environmental Management Waste Act o. 59 of 2008;
(e) The pro isions of Sections I 4(2)(a) and (i) of the eThekwini By Law for beaches·
(f) The pro i ions of sections 3(d) and 6 of the eThekwini By La" s for ewage Dispo al
2015.'
[72] There ere no factual averments or explanation about the accusations
t to sixth respondents as well as the eighth respondent. It was not
explained ho these respondents contravened these particular statutes. It is
therefore dif cult to discern what the actual issues are against these respondents.
7 Ex parte Ministe, of Home Affairs and Another [2023] ZACC 34; 2024 (2) A 58 (C ) para 39.
8 The Constitution fthe Republic of outh Africa, 1996.
29
As a re ult at t e end of the arguments during the hearing of the application , we
requested Acti nSA to submit a draft order. I will, therefore, address the orders
sought in the d ft order submitted.
[73] The first rder sought is:
'(a) The first t eighth respondents are declared to be in contravention of s IO and 24 of the
Constitution of th Republic of South Africa Act No. 98 of 19939' .
Section IO oft e Constitution states that 'Everyone has inherent dignity and the
right to have t eir own dignity respected and protected . There were no factual
allegations int e affidavits supporting this relief. I am therefore unable to discern
how the fir t t the eight respondents have contravened the section and against
who.
[74] ection 4 of the Constitution states that:
'Everyone has th right-
(a) to an env onment that is not harmful to their health or well-being; and
(b) to have t e environment protected, for the benefit of pre ent and future generations,
through reasona le legi lative and other mea ure that-
(i) pr vent pollution and ecological degradation;
(ii) mote conservation; and
(iii) s ure ecologically ustainable development and use of natural resources while
motingju tifiable economic and social development.'
9 ee fn IO above
30
[75] One oft e prominent laws enacted to realise and enforce and protect the
rights enshrin d in s 24 of the Constitution is NEMA. ActionSA merely
mentioned this Act in its notice of motion and never mentioned or dealt with it
again in its pa ers. There was also no factual allegation explaining how s 24 of
the Constitutio was contravened. As correctly argued on behalf of the first to
fifth responde ts, the national and provincial governments must support and
strengthen the apacity of municipalities to manage their own affairs, to exercise
their powers nd perform their functions as provided for in s 154 of the
Constitution.
[76] Howeve , these government departments cannot be expected to usurp the
authority of th municipalities , like eThekwini in performing their functions 1°.
Section 156 of the Constitution states that
'(1) A municipal" y ha executive authority in respect of, and ha the right to administer-
(a) the local overnment matter listed in Part B of Schedule 4 and Part B of Schedule 5;
and
(b) any other matter assigned to it by national or provincial legislation.
[77] The ma ters stated in those schedules include air pollution , local tourism,
storm water anagement system s in built-up areas and water and sanitation
services limit d to potable water supply systems and domestic wastewater and
l systems. Under Part B of Schedule 5, the matters include beaches
and amuseme t facilities. It cannot , therefore be aid that the fir t to sixth
respondents h ve breached any of these provisions nor was there a contravention
of same. It ca only be eThekwini that is in breach of these provisions. I will deal
with this aspe t later. Where there have been contraventions of any legislation by
eThekwini , t e second , third and sixth respondents have issued the necessary
compliance n tices and directives. In some instances , criminal charges were even
10 ee: Doctors for ife International i- Speak.er of !he ational Assembly and Others 2006 (6) A 416 CC.
31
laid against eT ekwini. An application to force compliance was also launched in
the KwaZulu-N tal Local Divi ion Durban against eThekwini. There is therefore
no basis for t e allegation that the first to sixth respondents have acted
unconstitutiona Jy.
[78] The seco d order sought against the third, sixth and seventh respondents is
that these resp ndents be directed, within 60 days from the date of this order, to
communicate t ActionSA a written timeline indicating what interim measures
will be implem nted to render the WWPS and WWTW operational in eThekwini ,
as identified in eThekwini s Action Plan dated 3 September 2024. Again , what
is sought in t is order is within the purview or scope of performance and
responsibility f eThekwini and not the third and sixth respondents. There is also
no factual basi established why these orders ought to b sought against the third
and sixth respo dents. There is also, therefore, no justification for the costs order
against the firs to sixth respondents as well as the eighth respondent.
[79] For com leteness it is important to mention that even in the initial notice
orders sought were against all the respondents. The key order
sought was
'to declare the c nduct of the first to eighth respondents, in failing to maintain and/or repair
and/or replace d/or install the nece sary infra tructure to prevent the release and/or flow
and/or resettling f sewerage and/or untreated effluent into the environment in the eThekwini
municipality 's w terways and/or rivers and/or estuaries and/or oceans and/or beaches, to be in
contravention of he following legislation:
(a) ections 10 and 24 of the Constitution of the Republic of outh Africa Act o. 98 of
1993 (the Act)
(b) Section 152(1)(b) and (c) of the Act read with Part B of Schedule 4;
(c) The Nati nal Water Act no.36 of 1998
(d) The NaLi nal En ironmcntal Managem en t Waste Act N o . 59 of2008;
(e) The prov sions of section (14)(2) (a) and (i) of the eThekwini By Laws for Beaches;
32
(t) The provis ons of sections 3(d) and 6 of the eThekwini By Laws for Sewage Disposal
2015.
[80] On a car ful pemsal of the founding affidavit there is a general a em1ent
that none of the respondents have demonstrated the will to enforce the applicable
legislation or t attend to their constitutional obligations. This is a reference to
the order sough . In my view the ixth respondent in particular , being the relevant
provincial exec tive as referred to ins 139 (1) of the Constitution 11 did intervene
through issuin the various pre- directives, directives and notices relating to the
non- complian es with the relevant legislation. There is therefore no case made
out against an of these respondents even on the original order sought in the
notice of motio , which these respondents have sufficiently addressed.
[81] I tum no to the order sought against the seventh respondent , eThekwini .
Even though t e evidence is sketchy , a case has been made out with regard to the
failure to mai tain and/or repair and/or replace and/or to install the necessary
infrastructure o prevent the release and/or flow and/or re ettling of sewerage
and/or untreat d effluent into the environment in eThekwini 's waterways and/or
rivers and/or tuaries and/or ocean and/or beaches. This was evident from the
various comp iance notices and directives issued by the third and sixth
respondents a well as criminal charges laid against eThekwini. All this has
E.Coli levels in the beach water within eThekwini. Accordingly ,
I find that eT ekwini has failed in performing its Constitutional mandate and
obligations .
11 139 ( I ) of the onstituti on provides that when a municipali ty cannot and does not fulfil an executive
obligation in terms f the Constituti on or legislation, the rele ant provi ncial excculi c may intervene by taking
appropriate steps to ensure fu lfi lment of that obli gation. including-
(a) is uing a d rcctive to the Muni cipal Council. describing the extent of the failure to fulfil its obli gations
and statin any steps required to meet its obligations.
33
[82] With reg rds to the state of the WWTW and WWP, this has been covered
by the Action Ian submitted by eThekwini. However, this needs further action
as there has be n non-compliance with the Action Plan in some instances. Some
dates have com and gone and there is no update on what has happened to what
was supposed t be achieved. An order, partly, in line with the order granted in
the Democratic Alliance v Ethekwini Municipality' 2 matter will be issued in this
matter. This in my view, is what is just an equitable as required by s 1 72 of the
Constitution. 13
[83] I tum n w briefly to the issue of costs concerning the first to sixth
respondents . It is trite that unsuccessful litigants ought not to be mulcted with
costs in constit tional litigation 14 . However as stated in Affordable Medicines,
this is not an i flexible rule. There may be circumstances that justify departure
from this rule s ch a where the litigation i frivolous or vexatious. There may be
conduct on the part of the litigant that deserves censure by the Court which may
influence the ourt to order an unsuccessful litigant to pay costs. The ultimate
11 ee In I above.
u ection 172 or the onstitution pro ides for the court ·s powers in constitutional matters. and reads:
'(I) When deciding· constitutional matter within its power, a court-
(a) must declar that any la\, or conduct that is inconsistent with the Constitution is in val id to the extent of
its inconsistency· an
(b) may make n) order that i ju t and equitable. including-
(i) an rdcr limiting the retrospective effect or the declaration of invalidity ; and
(ii) an rder suspending the declaration of invalidity for any period and on any conditions, to
all w the competent authorit} to correct the defect.
(2){a) The upre c Court of Appeal. the I ligh Court of outh Africa or a court or similar status may make an
order concerning th constitutional validity of an Act of Parliament, a pro incial Act or any conduct of the
President. but an or er of constitutional invalidity has no force unless it i confirmed by the Con titutional
Court.
{b) A court wh ch makes an order of constitutional invalidity may grant a temporary interdict or other
temporary relief to part). or may adjourn the proceedings. pending a decision of the Constitutional ourt on
the validity of that ct or conduct.
(c) ational le islation must provide for the referral of an order of constitutional invalidity to the
Constitutional ou .
(d) Any perso or organ of state with a sufficient interest may appeal. or apply, directly to the
Constitutional Cour to confirm or vary an order of constitutional invalidity b) a court in terms of this
subsection.'
14 Sec: Affordable edicines Trust and Others 1• Minister of Health and Others 2006 (3) S/\ 24 7 CC at para
138; Biowatch Trus v Registrar, Gene1ic Resources, and Others 2009 (6) A 232 CC.
34
goal is to do th which is just having regard to the facts and circumstances of the
case.
[84] In Biowa ch15the Constitutional Court, quoting with approval from Wildlife
and Environm ntal Society of South Africa v MEC for Economic Affairs
Environment d Tourism, Eastern Cape, and Others 16 stated that if an
application is frivolous or vexatious or in any other way manifestl y
inappropriate , t e applicant should not expect that the worthiness of cause will
inst an adverse costs award. In Endangered Wildlife Trust and
Another v Dir tor-General (Acting) Department of Water and Sanitation and
Another 17 the ourt provided the description of a vexatious proceeding as
formulated by Lord Bingham CJ as follows 18 : 'The hallmark of a vexatious
proceeding is i my judgment that it has little or no basis in law ( or at least no
discernible bass) ; that whatever the intention of the proceeding may be its effect
is to subject th defendant to inconvenience harassment and expense out of all
proportion to y gain likely to accrue to the claimant ; and that it involves an
abuse of the pr cess of the court , meaning by that a u e of the court proces s for a
purpo se or in a way which is significantly different from the ordinary and proper
use of the cou process '.
[85] In my vi w ActionSA s litigation against the first to sixth respondent s falls
under the exce tion envisaged above. Firstly no letter of demand wa addressed
to the first to ixth respondents prior to the commencement of the proceedings.
This lack of recision by ActionSA spiralled through the application papers
before us. A si pie perusal of the Constitution would have enabled Action A to
15 eefn 14
16 Wildlife and Envi1 onmenta/ Society of 0 111h Africa ,, MECfor Economic Affair· , Em•ironmenl and Tourism,
/:,'astern Cape, and thers 200j (6) SA 123 (£) at l././8-C.
17 Endangered Wild! fe Trust and Ano ther, Directo r-Ge nera l (Ac ting) Department o f Water and anitation and
Ano ther 2025 (5) 343 CA at para 117
Ano ther 2025 (5) 343 CA at para 117
18 Sec: Allorney- Ge eral v Barker
, l
35
see to whom to irect its complaints. There was clearly no cause of action against
these responde ts· even when this was brought to the attention of ActionSA , it
just persisted ith the orders sought. It is for these reasons that ActionSA must
bear the costs o the first to sixth respondents.
[86] Therefor , the following order shall issue:
I .The applicati n is dismissed with costs as against the first to sixth respondents.
2.The applicati n is dismissed against the eighth respondent with each party to
pay its own cos s.
3. It is decl red that the seventh respondent has defaulted in the performance
of its Con tituti nal mandate and obligations by failing prop rly to maintain and
/or repair and/ r replace and/or to install the necessary infrastructure to prevent
the release an or flow and/or resettling of sewerage and/or untr ated effluent
into the enviro ment in the seventh respondent 's waterways and/or rivers and/or
estuaries and/o ocean and/or beaches.
4. th respondent is directed to implement the following mea ures:
4. 1 T e publication weekly of E.Coli readings taken during the week
pr ceding publication at the seventh r spondents b aches on its
w bsite, social media pages and public notice boards at all public
s imming beaches within the sev nth respondent's jurisdiction.
4. 2 T e adoption of a communication protocol to the affected
pt blic/communities /industries regarding E. oli readings with
p rticular emphasis on reasonable measures to ensure effective and
mediate notice of any water-related hazards and pollution
a ·ecting the swimming beaches and members of the public who live
work alongside beaches and rivers within the seventh
jurisdiction.
I' I I
36
4. 3 T e widest and mo t reasonably effective notification to members
the public of how to access the information available in
sequ nee of the implementation of th measures required by
pa agraphs 4.1 and 4.2 of thi order.
5. The seve th respondent is directed, within two months from 19 Dec mb r
2025, this bein a date upon which a imi1ar order wa made against these enth
respond nt un er case o. 3036/2023 to pr par and file an am nd d Action
Plan and any a sociated reports and ubstantiating documents under oath, with
the person desi nated to issue notices by the sixth respondent setting m asurabl
periodic deadli e for progres for th repair of all the wast wat r treatment
work
6. The sev nth respond nt is ordered to pay the costs of ActionSA s
application sa for uch co t as were incurred by reason of AclionSA ' s claim
for sub tanti e relief against any of the first to sixth re pond nts ..
OLSEN J
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f I J ~
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APPEARANCES
Date of Hearin
Date of J udgm nt
Counsel for Ap licant
Instructed by
Counsel for 1st 5th Respondent
Instructed by
Counsel for 6th espondent
Instructed by
Counsel for 7th 8th Respondents
Instructed by
: 24 & 25 July 2025
: 09 February 2026
: Ms G Y Benson
: MVMT Attorneys
c/o Tomlison Mnguni James Attorneys
: Ms A Gabriel SC
: State Attorney Durban
: Ms E Roberts
HSG Attorneys
: Mr V Gajoo SC with Mr I Veersamy and
Ms M Mtati
: Legator McKenna Inc.