Anonymous writes:
After reading the article in the Witbank News dated October 30 “Pay or we cut” and after having had to sort out a municipal account on behalf of an owner of a property in Witbank that stays in Pretoria I was seriously concerned about the whole issue of procedural fairness and unfair discrimination surrounding the disconnection of consumers’ electricity without prior warning.
I have read the Emalahleni Municipalities’ by-laws with regards electricity and credit control and debt collection, the Electricity Regulation Act 4 of 2006 and the Municipal Systems Act and although I have found evidence that a municipality must give 14 days’ notice prior to disconnecting a consumers electricity connection when any account or a combination thereof are in arrears even if you have prepaid electricity, I was not satisfied that I can challenge your statements as quoted in the aforesaid Witbank News article.
Luckily I contacted Jaap Kelder of the NBU (Nasionale Belastingbetalers Unie) and he sent me a Constitutional Court judgment Case CCT43/09 dated October 9, 2009 which I have attached for your perusal. Now I am not a qualified lawyer but the contents of this judgment is quite clear and understandable to the average person. Allow me to summarise the most important points from this judgment:
– The municipalities by-laws(in this case City Power) regulating the supply of electricity and the Credit Control and Debt Collection can be read consistently with PAJA (Promotion of Administrative Justice Act 3 of 2000) so that procedural fairness is afforded not only to customers of City Power (therefore all municipalities) but to any person whose rights would be materially and adversely affected by the termination of electricity supply.
– The judgment holds that to the extent that the electricity by-laws permit the termination of electricity supply “without notice” it is inconsistent with PAJA and section 33 of the Constitution. This invalidity is cured by severing the words “without notice” from by-law 14(1) (City Power’s) which must be read in the light of PAJA to require pre-termination notice. [This is exactly what is contained in Emalahleni’s electricity and credit control and debt collection by-laws and what you had been quoted on in the WITBANK NEWS article: the municipality will cut electricity supply without prior notice.]
– Skweyiya J held that, on facts of this case, procedural fairness required that applicants were entitled to 14 days’ pre-termination notice in the form of a physical notice. Implicit in affording pre-termination notice is that users of the municipal service may approach the city, within the notice period, to challenge the proposed termination or to tender arrangements to pay off arrears.
– When the applicants received electricity, they did so by virtue of their corresponding public law right to receive this basic municipal service. Accordingly, in depriving them of a service which they were already receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would materially and adversely affect that right.
-The termination of electricity supply to Ennerdale Mansions was declared to be unlawful, and the City was ordered to reconnect the electricity supply to the building forthwith.
According to the above one can conclude the following:
– Emalahleni Municipality is clearly violating PAJA and section 33 of the Constitution by not giving 14 days’ prior notice before disconnecting a consumer’s electricity supply.
– Emalahleni Municipality is acting unfairly towards consumers by not affording them an opportunity to challenge a proposed termination or to tender arrangements to pay off arrears with unfair monetary consequences for consumers (reconnection fees) and not to mention the inconvenience they must endure until supply is restored.
– In my view, according to this judgment, Emalahleni Municipality has acted unlawfully until now and that all reconnections fees charged and paid must be reimbursed to consumers.
– That Emalahleni Municipality must immediately institute the correct and fair procedures with regards the disconnecting of electricity supply to a consumer as per this judgment in that they must issue consumers whose municipal accounts that are in arrears with a 14 days’ notice prior to taking action.
– That Emalahleni Municipality reconnect all consumers’ electricity with immediate effect as they have violated PAJA and section 33 of the Constitution.
– That Emalahleni Municipality’s Electricity and Credit Control and Debt Collection by-laws are subordinate to the attached Constitutional Court judgment and must be amended as such as a matter of urgency.
Lastly, I trust that the Emalahleni Municipality will respond positively to this communication and should they not I shall be compelled to:
– Engage Afriforum on the issue
– Lodge a complaint with NERSA to review the licensing conditions of Emalahleni Municipality with regards their operational conduct versus the attached Constitutional Court judgment
– Lodge a complaint with the honourable Minister of Cooperative Governance and Traditional Affairs Mr. Pravin Gordhan
Mr Theo van Vuuren, Municipal Manager responds to the above letter.
Response:
The municipality responded directly to a follow-up letter, with some additional cases, to the writer.
In short, for purposes of transparency the following points were raised:
Municipalities are empowered by statute in execution of its obligation to levy rates and levies (including consumption charges) as a local sphere of government, a municipality has wide ranging duties and obligations.
Service Delivery is the primary function of every Municipality in line with its objects as set out in Section 152 of the Constitution. A municipality must strive within its financial and administrative capacity to achieve the objects as set out in the Constitution.
It follows that for a municipality to be able to properly and efficiently execute its constitutional and statutory obligations to deliver municipal services to its residents it requires sufficient resources and revenue.
In order to put the Municipality in a position to render the required municipal services, the residents must make regular payments of taxes and levies and consumption charges.
There is in fact a duty of residents that, in as much as they are entitled to demand that the Municipality should deliver Municipal services to them, they must also make corresponding payment for such municipal services. Section 5(1)(g) and 5(2)(b) of the Systems Act obliges them to do so.
Furthermore, S229 of the Constitution obliges municipalities to levy rates and taxes from their residents. A municipal Credit Control policy is in place to govern actions in relationship with payments or non payments.
These policies have been established through a public participation process where all community numbers could have provided inputs. It is also engaged with during the budget imbizo process.
Consumers are at this stage informed of their obligations by post. It’s well known that various factors also impact on the actual delivery of these invoices, and many people argue that they do not receive it.
In addition to this a SMS system is operational which allows anyone to see the amounts outstanding. We also introduced an email system where more than 10 000 customers already view their accounts electronically.
As all systems are subject to failures, my office answers per email hundreds of inquiries on accounts monthly whilst anybody can obtain a duplicate copy of an account at the rates hall.
These monthly accounts reflect arrears outstanding amounts due and payable as well as the payment date. As iterated above, the onus of paying for services consumed rests on the resident. The municipality also notify those where their numbers are up to date registered with the municipality per SMS when they are in arrears.
It is commonly known that Emalahleni Local Municipality has entered into a payment agreement with Eskom to pay all outstanding debt owed to the latter to avoid the town from being shut off.
This as well as a continuous request as well as public warnings to customers in the media, in the press, social media and through direct communication via the 68 councillors, are constantly provided to the community.
The current municipal operational procedures on how to deal with people has been urging my office to act in a harsher manner to ensue that everyone contributes to the revenue needed for services consumed. At this stage outstanding debt by businesses and individuals are approaching R2 billion despite all efforts leaving the cut off of electricity as perhaps the best method to encourage people to take up their community responsibility.
The argument that people should be informed in a different way based on case studies is heard and I have already requested the responsible departments to reconsider our procedures.
The comments made by the writer will be considered and we appreciate the inputs made. However, we must not loose sight of the common goal of ensuring that everyone pays for what they consume to ensure that services can improve and be delivered without interruption.
I note that some consumers may feel that they are not informed or given the opportunity to correct their affairs in time before being cut off. However, in 99% of the cases people are habitual late payers and people avoiding payments. At this stage there are more that 20 000 account in arrears to prove this point.
The municipality will continue to improve their systems and my request is that we encourage everyone to do their part as well by paying their accounts and not to look for more ways to avoid payments.
