Sewerage tussle spills over
09 August 2019 | Justice
The parties attended a High Court ordered mediation on 31 July and this week informed Judge Hannelie Prinsloo that they had agreed to continue settlement negotiations in September.
In March, NBL sued the municipality for N$3 933 426.07 in damages, based on penalty charges imposed by the municipality in 2017 for sewerage services at the NBL brewery in Windhoek's northern industrial area.
NBL informed the court that it had received a municipal bill for effluent services in March 2017, and then became aware that the municipality had, in addition to the normal monthly charge for sewerage, levied a penalty charge.
NBL further claims that although it objected to the multimillion-dollar charges levied against them for September and December 2016, and January and February 2017, it ultimately had to pay the charges, as the municipality refused to budge.
The NBL claims that the municipality, as the service provider, had a duty of care to exercise the skill and care of a reasonable supplier of the sewerage services, but was negligent in that regard, which led to the charges imposed on the NBL.
The negligence is related to the penalty charges based on samples taken of wastewater at the NBL plant.
The NBL argues the samples were “faulty and inaccurate”, and, moreover, that the municipality failed to take further samples to correct the mistake or inaccuracy of the original samples.
The NBL concludes that the municipality analysed these faulty and inaccurate samples and on that basis charged penalties that were “in excess of what the defendant was entitled to charge in terms of the sewerage regulations”.
They claim the sampling was not done in accordance with relevant regulations, and that moreover NBL was denied its rights to obtain half of the sample taken by the municipal engineer, and was not informed accordingly.
In its plea filed at court, the municipality denied wrongdoing, underlining that the samples were taken correctly and the analysis was accurate.
It further stated that the additional charges were a service charge for “dealing with the treatment of the excess industrial effluent and to address the environmental damage caused by the plaintiff's industrial effluent discharged into the defendant's sewerage system.”
NBL in a responding plea denied that the effluent discharged from its premises had caused any environmental damage.
The municipality further informed the court that the municipality charges a monthly service fee for authorised industrial effluent and any excess effluent.
It claims NBL was issued a sewage service permit, which sets out allowable thresholds of industrial effluent discharged into the sewerage system.
“It was a condition of the permit that the [NBL] is obliged to pay for excess.”
The municipality further denied that the sampling methods were faulty, stating it had used “prescribed methods of testing samples in determining the level of pollutants that the plaintiff dumps into the municipal sewerage system”.
It said in the case of testing samples at NBL, a composite or grab sample was taken to determine the pollutant levels, as per regulations.
Based on these samples, the municipality says it “then made a determination of the applicable charge, which is correct, fair and reasonable”.
A report submitted to court, based on an investigation launched by the municipality following NBL's inquiry into its effluent charges, states that the sampling found unusually high chemical oxygen demand (COD) levels in its industrial effluent in September 2016 and February 2017.
The investigation report indicates that the NBL at the time wrote to the municipality that the “possibility of such high COD is nearly impossible”.
Mark Kutzner of Engling, Stritter & Partners is representing NBL while the municipality has brought on board Orben Sibeya of Sibeya & Partners Legal Practitioners as their representative.
The case was postponed to 19 September for a status hearing.