ConCourt questions withholding of rates
2013-02-05 14:35
Johannesburg - The Constitutional Court on Tuesday
questioned how municipalities were supposed to provide services if residents
withheld payment whenever they had a gripe.
"How could we pick and choose and municipalities still
remain viable?" asked Deputy Chief Justice Dikgang Moseneke.
Fed up with the Moqjaka Municipality in the Free State's
services, Kroonstad resident Olga Rademan stopped paying the rates portion of
her bill, but kept up payment on the electricity, sewerage, and water portion.
Cut off
The municipality cut off her electricity even though she was
fully paid up for this aspect of her bill.
Rademan argued that the municipality had no right to do
this.
In terms of the Electricity Regulation Act, municipalities
were not allowed to cut the electricity supply unless a client had not paid.
"If you paid your electricity, you must receive
electricity," her lawyer Dennie Du Preez argued on her behalf at the
Constitutional Court.
For residents concerned about municipal financial
mismanagement, there was no other course of action.
There was no law that allowed for withholding money from
municipalities, but it was also wrong to cut her power off when she was paid
up.
The only other option, if residents were disgruntled, was
the ballot box, which was "not such a strong weapon", or intervention
by national government.
In 2011, Treasury intervened in Limpopo to help rectify the
province's finances.
Du Preez said if the municipality wanted its money for
rates, it should sue under the common law, but it could not cut off her
electricity if it was paid up.
The municipality cited the Municipal Services Act (MSA) to
justify its actions.
It contended it could consolidate all amounts a resident or
property owner owed into one bill, and if any aspect was outstanding, it could
cut the power - regardless of what was paid up and what not.
The bylaws that the municipality used were promulgated in
terms of the MSA, the court heard.
Contractual obligation
Jimmy Claasen, SC, for the municipality, said the bylaws
gave the municipality the right to cut power if any aspect of the bill was
unpaid.
This was part of the agreement the resident entered into
with the municipality to receive services.
Disgruntled residents could get a declaration from a court,
exercise their options at the ballot box, or protest.
"But they can't withhold money," he said.
Moseneke asked how a municipality's customer could be held
so strictly in terms of a contract to pay for, for example, water, if they had
not received it for six months.
What happened to a municipality that was in breach of its
own contractual obligation to actually provide the water, he asked.
Claasen said ratepayers should make an application to the
courts against the municipality, and not withhold their money.
Chief Justice Mogoeng Mogoeng commented that the court's
decision would have a profound effect on the approach to service provision in
the country, the failure to pay for services, and protests related to service
delivery.
The matter continues.
- SAPA
