Case Note: The High Court hands down a supervisory order against a non-compliant municipality
21 June 2016 at 11:25 pm
On 15 June 2016, in the matter of Kenton on Sea Ratepayers’ Association and others v Ndlambe Local Municipality and others, the Grahamstown High Court handed down a supervisory order against the Ndlambe Local Municipality, in terms of which the municipality must provide the Court with a report detailing the steps it intends to take to maintain and ensure the proper functioning of a waste disposal site and a pump station at a conservancy tank (sewage works) in the municipality’s jurisdiction. The Court will make a final order regarding the maintenance and proper functioning of the pump and the waste disposal site based on the report and input from the applicants in the matter, the Kenton on Sea Ratepayers’ Association, Bushman’s Kariega Estuary Care Management Forum and Natures Landing Homeowners Association.
Supervisory orders are ordinarily only given in exceptional circumstances. In this matter, the factor that most heavily influenced the Court’s decision to hand down a supervisory order was the fact that the applicants’ case was founded on a fundamental right in the Bill of Rights, in this case, section 24 of the Constitution.
In 2009, the Grahamstown High Court ordered the municipality to take steps to ensure that raw sewage does not enter the estuary and to provide it with a report on steps taken and future steps to be taken in order to ensure that the court order is complied with. The municipality submitted a report to the Court, which recommended that a pump house be constructed to pump the sewage to the Bushman’s ponds for treatment. The municipality constructed a pump house in 2013, which pump house became operational in December 2014, after the application in this matter was launched. Between 2009 and 2014 untreated sewage continued to spill into the Bushman’s River estuary and treated sewage was purposefully discharged directly into that estuary by the municipality, an activity which the applicants argued could only be commenced with required environmental authorisation in terms of the National Environmental Management Act, 1998 (NEMA), read with the National Environmental Management: Integrated Coastal Management Act, 2008.
The Court found that the municipal manager was in contempt of court for not complying timeously with the 2009 court order “… with the sanction of a warning only and a duty to report to the court as to what steps have been taken, will be taken and are in place or will be put in place to ensure the continued maintenance and operation of the pump station.” The municipal manager and the municipality were ordered to pay the applicants’ costs occasioned by the contempt of court charge de bonis propriis. The Court however held that the applicants had no standing to raise the matter of non-compliance with NEMA, as they had not exhausted their internal remedies in NEMA before approaching Court.
Waste disposal site
The applicants raised a multitude of issues regarding the waste disposal site, including that it was overfull and had no more capacity; that there was no time limit established to decommission the waste disposal site; that there was an excessive volume of waste; that the waste disposal site was prone to catching fire causing extensive pollution by smoke across nearby areas and a fire hazard to local residents; that the failure of the municipality to manage, supervise and control the waste disposal site caused, amongst other things, waste and plastic packets to spread and be blown over a large area; that the municipality had failed to identify any alternative sites for the deposit of waste at a newly created waste disposal site.
The municipality failed to provide the court with an satisfactory explanation for its failure to properly manage and decommission the relevant waste disposal site. It therefore found that the municipality had failed to fulfill its Constitutional obligations and its obligations under the National Environmental Management: Waste Act, 2008 (Waste Act) in respect of refuse removal, refuse dumps and solid waste disposal at the waste disposal site in question. It also found that its failure to take timeous steps to decommission that waste disposal site and to find a suitable and appropriate site to establish a new waste disposal site was also unlawful.
The municipality was consequently ordered to submit a report to the Court within a month of the court order detailing the steps it intends on taking to ensure the proper maintenance and continued functioning of the waste disposal site pending the decommissioning thereof as well as the steps it intends to take to decommission that waste disposal site and to identify and establish a replacement waste disposal site in accordance the Waste Act. The final court order will be based on the report so submitted and input from the applicants, if any.