Legal action on City?

2019-05-20 16:59
Overgrown verges at the corner of Cloete and Pine street.PHOTOS: IAN CARBUTT

Overgrown verges at the corner of Cloete and Pine street.PHOTOS: IAN CARBUTT

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Residents or ratepayers’ associations can bring a “class action” to compel the municipality to perform its duties.

For instance, to take care of overgrown verges, maintain its own eyesore properties, clean drains and fix potholes.

This is the view of a prominent Pietermaritzburg attorney, who asked not to be named for professional reasons.

He said that landowners pay rates in respect of the properties they own. Implicit in such payment to the municipality is a duty by it to maintain the city. This payment is to be used by the munici­­pality for the maintenance and upkeep of the city.

“Quite clearly the municipality is not utilising this money prudently or at all insofar as the upkeep of the city is concerned. The municipality owes a duty of care to the citizens of Pietermaritzburg,” he said.

While there is no municipal by-law that obliges the municipality to take care of overgrown verges, it should fall under the purview of the Department of Health to ensure that the overgrown verges do not create a health hazard.

Nevertheless, a class action could be brought for the municipality to provide reasons why it should not perform the obligation.

“In this application they should show the prejudice that is being suffered such as health, unsightliness etc. If anything, it will fall on the municipality to account for,” he said.

In terms of eyesore properties, a similar application can be brought. It can be demonstrated that the municipality, as the landowner or property owner, is neglecting its duty in maintaining or up-keeping the property.

“Such neglect or omission is infringing on the rights of others, is causing prejudice to others in terms of it being a health hazard, eyesore and other similar considerations,” he said.

“This would make an interesting case for the municipality to show cause why they should not maintain their own property,” added the attorney.

As for taxis stopping wherever they choose, causing traffic disruptions, he said that citizens have a right to take similar action against the municipality to show cause why they shouldn’t enforce the law as they are obliged to.

When it comes to noise levels after a particular time, he said that there have been successful applications brought to interdict the property owner for playing loud music at “unearthly hours of the night”.

“If noise emanates from municipal buildings or operators of municipal property, similar considerations apply,” he said.

When it comes to potholes and infrastructure such as missing manhole covers, here too legal action has previously been taken against the municipality.

He said there is a string of reported cases that deal with these matters.

“... Notice to the municipality is of fundamental importance. Also, consideration must be given to where the pothole is, its size, the glaring danger (if indeed it is) and the danger to road users and pedestrians,” he said.

Of clogged drains, he said that similar considerations are applicable here because not only do they cause health hazards, they become serious problems during times of flooding.

Chairperson of the Scottsville Ratepayers’ Association Dr Peter Green, said that as much as they would like to take the municipality to court to get it to enforce its by-laws, they can’t afford to.

“We don’t have strong financial backing. We are not able to take high level legal action,” he said.

Chairperson of the Hilton Ratepayers’ Association, Trystan Banger, said they are in the process of taking the municipality to court over illegal electricity disconnections. This is because engaging with the municipality over various concerns has proved useless, he said.

Banger added that while the association has not yet discussed taking the municipality to court to do its duties, it is pinpointing something it knows it can get right.

“We have to be careful. We can’t get the municipality to enforce something it is incapable of doing. You might come right with the courts but what is the actual improvement if there is no capacity,” he said.

Banger added that if they win their case over the disconnections, then the municipality will have to pull up its socks.

However, more legal action can be expected in the immediate future, he said.

Read more on:    pietermaritzburg  |  msunduzi municipality

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