Looming String of Civil Action Against the Municipality Amid the Human Rights Commission’s Report on Vaal River?

The South African Human Rights Commission (“SAHRC”) has released its final report regarding the inquiry into the sewage problem of the Vaal River. The report, released on 17 February 2021, suggests a very distasteful and unpalatable state of the Vaal River – despite this being a crucial water source in Gauteng. To this extent, according to the report, the National Treasury advised that approximately 19 million people depend on the Vaal for water (drinking, domestic and commercial use). This explains the gravity of having the Vaal River in good state. The inquiry emanated from several media reports of ill-maintained and unrepaired faulty systems at certain sites within the Emfuleni Municipality. Upon receiving these reports, the SAHRC instigated an inquiry into the alleged problems and conducted thorough enquiries, inspections of various sites and compiled its report. The report extensively sets out the purpose of the inquiry; the findings and thereafter the Commission’s recommendations. The Commission’s findings of several violations to human rights invites a discussion of what legal remedies may be available to the affected persons. In this regard, it is important to note that notwithstanding the Commission’s recommendations (most of which are aimed at ceasing the ongoing violations and guarding against the future recurrence), the affected communities may have well established legal remedies. Also, our primary purpose herein is to look at the findings relating to the violations of human rights and the legal recourse available. The Commission’s report explicates in detail other constitutional violations such as irregular/fruitless expenditure; corruption allegations; failure to honour and enforce contracts, etc. These are not part of the focus herein as the main focus is more on the vulnerable human beings whose rights have been found to have been violated and to navigate possible legal recourse, consequently.

The SAHRC found that the Vaal is currently polluted beyond acceptable standard due to, inter alia, kilolitres of untreated sewage entering the Vaal as a result of inoperative and dilapidated wastewater treatment plants which have been unable to properly access the sewage. This has had devastating impact on natural ecosystems; the nature – with some species in risk of extinction. The raw sewage flows on public streets, paths, and into homes. This poses serious health risk to people and violates several human rights. In terms of the Commission’s report, the pertinent human rights that have been violated include: right to dignity; freedom and security of person; a safe and healthy environment that is not harmful to health and well-being; not to be deprived of property, health care, food, water, social security, just administrative action and rights of children to be protected from maltreatment and degradation. In addition to the constitutional rights, the report goes on to state that the Municipality failed to fulfil its statutory obligation to provide water supply services and sanitation services to its customers living in formal and formal settlements. This responsibility is imposed on the Municipality by the Water Services Act. These are but some of the many other findings by the Commission.

With respect to the recommendations, the Commission recommended a number of corrective measures purported to prevent future recurrence of failure to deliver. Significantly, the report does state that the pollution (and its associated risks) could result in a string of legitimate civil claims against the Department of Water and Sanitisation. The remedy for these violations may be founded on our common law – the affected parties may sue for damages under various applicable heads of damages inclusive of constitutional damages. To this effect, the Life Esidimeni matter is a good reference point. In addition, the National Water Act of 1998, under Chapter 16, provides various offences and remedies for the offended parties. The Act criminalises certain conduct (positive or omission) and provides for damages to the affected parties. Examples of criminal and punishable conduct include: (a) the intentional refusal to perform a duty, or obstructing any other person in the

exercise of any power or performance of any of that person’s duties in terms of the Act; (b) unlawfully and intentionally or negligently committing any act or omission which pollutes or is likely to pollute a water resource; (c) unlawfully and intentionally or negligently committing any act or omission which detrimentally affects or is likely to pollute a water resource; etc. According to the Act, any person found guilty of any of these acts (in addition to other various prohibited conducts) may be imprisoned for a period not exceeding 5 years or may be ordered to pay a fine or both. Where any person has suffered harm or loss as a result of these prohibited acts, the court may allow an inquiry into the harm, loss or damage and thereafter rule on the damages due.

In light of the aforesaid, the relevant authorities and Municipality may be held criminally and civilly responsible for any harm, damage and loss suffered. Therefore, those who have been affected by violation of their human rights may hold the authorities responsible. The likelihood of string of civil claims is realistic and the affected parties should make the necessary enquiries with legal experts in pursuit of justice. Also, beyond compensation for the victims, legal action may send out a stern warning to other authorities, municipalities and other organs of state to do what is legally required of them.

Mthokozisi Maphumulo
Mtho Maphumulo
Associate | Litigation Attorney
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