Sewage is ‘not a public friend’

A broken sewerage pipe in the capital of Malawi has led to a successful claim for damages under the country’s consumer protection legislation. The pipe broke but when it was not initially fixed by the authorities, sewage found its way into the pipe that supplied clean water for drinking and other household use. Consumers then formed a neighbourhood action group to monitor the quality of the drinking water, and to bring legal action for compensation.

Read judgment

To the best of my memory it has not happened before that I have had to apologise in advance for the content of a story about a court decision. This, however, is the exception proving the rule.

No one will find the content of the judgment pleasant, while the detailed complaint of the applicants is not for sensitive stomachs.

You have been warned!

Consumer

The case was brought by Leonard Phiri and others who live near him. Their legal action was against the Lilongwe city council and water board, as well as the Malawi housing corporation.

Phiri and the others – how many there are is not clear from the judgment – launched the action in September 2017. They claim that their ‘statutory consumer rights’ were breached by the Lilongwe council and water board as well as the housing corporation. Because their consumer rights were violated, they wanted ‘full, timely, adequate and prompt compensation’ for the damage they had suffered.

The litigation targeted the council and water board because, between them, they had responsibility to prevent ‘any pollution dangerous’ to the health of consumers through the water they drink or used for other domestic purposes.

Manhole

During July 2017, a sewage manhole became blocked and started spilling into an open drain. In the drain was a water pipe that supplied water to all the applicants in this case.

The Lilongwe water board heard about the problem and closed off the water supply to the area so as to work on the sewerage pipe. But, in error, another pipe was repaired instead. Because of problems caused to the pressure of the water pipe, the sewage in the drain infiltrated the water pipe. Next morning, after assurances were given that the problem with the sewerage pipe had been fixed and that the water supply had been restored to the area, the litigants began using water from the pipe for drinking, cooking and other domestic chores.

It was soon clear that there was a serious problem: the water smelled very bad and was obviously contaminated with sewage. When they asked for the advice the water board and the council said they should stop using the contaminated water. Given this background, Phiri and his neighbours say that they are owed damages by the authorities whose job it was to ensure that they were protected from using water contaminated with fecal matter.

Absent

But all three of the defendants questioned the action against them. They denied responsibility and said they had not breached any statutory duties.

When the trial finally began in August 2020, only the water board was represented in court. The two others were neither personally represented nor was their legal team present.

According to the court rules, if a defending party does not attend the trial the court ‘may strike out his defence’, which is what happened in this matter. That left Phiri and his neighbours to proceed against the two absent defendants, since counsel took the strategic step of not continuing against the only defendant that arrived in court, namely the water board.

Hospital

Phiri’s witness statement was extensively quoted by the court including the gruesome details of his discovery that he was washing in sewage after he had gone for a run. He told how he started ‘experiencing abdominal pains’ a day or so later and had to go to hospital for treatment. He added that people in the area affected by the contamination of the water ‘are still in shock and cannot trust tap water anymore.’

‘People have suffered mentally, physically and of course socially. It is embarrassing nowadays, because whenever people visit our homes, they must always be sure that the water they [are] drinking is safe and not from the taps and it’s now rare that people will accept to eat food that is cooked from our homes.’

The other witnesses spoke of similar horrid experiences and of having already used the contaminated water before they were notified not to do so.

Potable

This being a decision of Judge Kenyatta Nyirenda, one would expect to find that the judgment includes expansive extracts from the submissions of the parties. And one would not be disappointed.

When it came to giving his own views on the dispute, the judge said it ‘goes without saying’ that it was ‘reasonable’ for the claimants to expect to be supplied with ‘clean potable water, free from contamination’.

‘It therefore comes as surprising that the defendants ‘allowed sewage to spill around for such a long time.’

Then he quoted further from the claimants’ submissions: ‘(Sewage) and faeces are not a public friend. (Sewage) is disgusting to say the least. (Sewage) is a public health risk. Neglecting (sewage) and allowing it to be in the open is very unreasonable behaviour even inexcusable …. The defendants utterly failed to conduct themselves in a reasonable manner.’

Agree

‘I cannot agree more,’ said the judge.

He found that the defendants breached their duty of care. Moreover, the defendants’ breach of duty caused the damage.

Judge Nyirenda said the claimants had succeeded in their claim against the council and the Malawi housing corporation. They were due both damages and legal costs and he ordered that the assessment of damages be dealt with by the registrar.