Residents win case

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Court orders Ndlambe to fix dump and maintain sewage pump station

JON HOUZET

NDLAMBE municipal manager Rolly Dumezweni has been found guilty of contempt of court for failing to heed a high court order from 2009 compelling the municipality to rectify an overflowing sewage conservancy tank in Marselle to prevent raw sewage from polluting the Bushman’s River.

In a judgment handed down by Judge Murray Lowe last week, the Grahamstown High Court also found the municipality had “breached its constitutional and statutory obligations in respect of refuse removal, refuse dumps and solid waste disposal” at the Marselle/Bushman’s River dumpsite, and failed to take timeous steps to decommission the site and find an alternative appropriate site.

Dumezweni escaped with a warning, but the court placed a more severe burden on the municipality to attend to the dumpsite.

Lowe described the case as “a sad tale of frustration and anxiety on the part of the residents of Kenton on Sea and Busman’s River Mouth.”

“It raises issues relevant to the local residents’ entitlement to basic essential municipal services and the maintenance thereof to a reasonable standard, particularly relating to sewage reticulation, sewage works and an adequate and functioning refuse removal system and waste dumpsite, properly maintained in accordance with regulatory standards,” Lowe said.

The case was brought by the Kenton-on-Sea Ratepayers’ Association (Kosra), Nature’s Landing Homeowners’ Association and Bushman’s Kariega Estuary Care in October 2014 and only heard last month after several postponements.

By the time Kosra and its co-applicants brought the suit, the municipality had installed a pump station at the conservancy tank, but the pump was not operational as there was no electricity connection. During this time sewage had been observed overflowing the conservancy tank and into the Bushman’s River estuary on numerous occasions.

In answering affidavits, Dumezweni denied any contempt of court, said he had no direct knowledge of the circumstances of the giving of the order in 2009,  that he was appointed municipal manager in September 2009 in an acting capacity and later permanently.

The municipality conceded there may have been sewage spills, but that it done its best to empty the conservancy tank with vacuum tankers and had not acted mala fide (in bad faith).

Lowe, however, said his “distinct impression” was that Dumezweni and other municipal officials were “less than diligent in seeking to comply with the order”.

He found Dumezweni’s explanations inadequate and said the municipality’s failure to come up with a permanent solution “has been demonstrated beyond reasonable doubt to have been, in the context of these papers, wilfull and mala fide.”

Lowe accepted that the municipality had eventually remedied the conservancy tank and pump station, but said the municipality and Dumezweni “were in contempt of court for a considerable period”.

He said Dumezweni escaped with a warning due only to the passing of time.

In their arguments about the dump, Kosra and its co-applicants stepped back from the suggestion that the municipality was deliberately burning rubbish, rather conceding that this was a “spontaneous combustion problem” due to overloading at the site and improper waste management, including the failure to cover refuse with sand from time to time.

A decommissioning license for the dumpsite was granted in March last year. Kosra argued that pending its closure and rehabilitation, the dumpsite should not be utilised at all.

Lowe granted a structural/supervisory interdict ordering the municipality and Dumezweni to report to the court no later than July 14, what steps would be taken relevant to the further maintenance and continued functioning of the Rivers Bend pump station and the Marselle/Bushman’s River dumpsite; and compelling the municipality to take all reasonable steps to prevent the burning of rubbish and extinguish such at the dumpsite, to ensure waste is confined within the dump and collect windblown refuse in a 1.5km radius.

The reports, together with Kosra’s response, will become an order of court. Then Dumezweni and the municipality have to report to the court, by affidavit, at intervals of 90 days, as to the continued progress in respect of the action to be undertaken.

Although Kosra wanted Dumzweni and other officials to pay costs out of their own pockets, the judge made the municipality and Dumezweni jointly and severally liable only for the contempt application. The municipality was ordered to pay the other costs.

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