Johannesburg - Does the Electricity Regulation Act (ERA) take precedence over the Municipal Systems Act (MSA)?
This is what the Constitutional Court has to rule on in the matter between a Free State ratepayer who has paid for electricity and not property rates, and the Moqhaka municipality, which cut off her power supply.
The ERA states that if electricity is paid for, the supply cannot be terminated, and the MSA states that electricity can be disconnected if a ratepayer fails to pay for any service, even if the electricity portion has been paid for.
Eighty-six-year-old Olga Rademan, a member of the Moqhaka Ratepayers’ and Residents’ Association, declared a dispute with the Moqhaka municipality in June 2008.
She, and other members of the association, withheld payment of property rates in protest against poor delivery by the municipality.
However, she continued paying for electricity, waste removal and other municipal services accounts.
In August 2009, the municipality disconnected her electricity because she had not paid her rates.
She brought an application in the Kroonstad Magistrate’s Court, which she won when it decided that the municipality was not entitled to cut off her electricity if she had paid for it.
The council argued that in terms of the MSA, it was entitled to disconnect electricity where other services are not paid for, even if electricity, in particular, was paid for.
“The council also said residents had no right to select which services they wanted to pay for.
Rademan argued that in terms of the ERA, the municipality was not entitled to terminate her electricity supply.
The High Court overturned the decision of the Magistrate’s Court and held that the council was entitled to disconnect electricity. She then appealed to the Supreme Court of Appeal (SCA), which also dismissed her appeal.
SCA judges found that: “One of the primary obligations and responsibilities a municipality bears is to ensure that there is provision of municipal services to communities in a sustainable manner.
“A municipality can only provide essential municipal services like water and electricity if it has sufficient revenue to do so, particularly because it has to purchase some of these services from other suppliers, like Eskom and the water board. It is, therefore, imperative that ratepayers understand this interrelationship and their obligations to pay for their services.”
The judges added that ratepayers failed to “appreciate that for a municipality to supply municipal services, they must pay their levies, taxes and duties as responsible residents”.
This, they said, often sparked service delivery protests, with communities complaining of failure by municipalities to provide municipal services.
The court also found that a municipality has the option, in terms of the MSA, of consolidating accounts for various services. This was intended to prevent residents from electing which municipal accounts to pay.
The SCA, however, did not consider the issue relating to an alleged conflict between the MSA and the ERA.
The matter was then referred to the Constitutional Court, where Rademan’s main argument is that the ERA does not allow the municipality to cut off her services. The municipality’s main contention is that, in terms of the MSA and the by-laws, it is allowed to cut off her supply because she did not pay her rates and other taxes.
Rademan is arguing that if there is a conflict between the ERA and the MSA, the ERA should prevail, while the municipality contends that there is no such conflict, but if there is, the MSA should prevail.
The Constitutional Court on Tuesday deferred the matter until further notice because the judges requested other documents.
Rademan was not in court, but Jaap Kelder of the National Taxpayers Union, which is the umbrella body of 320 ratepayers’ associations countrywide, said this was a important case for all municipalities because of poor service delivery in most areas.
“The absolute lack of service in the Kroonstad area prompted this case. The municipality’s water and sewerage system is completely dysfunctional.
“Water is pumped from a polluted river and is not cleansed or purified. There is sewage being pumped into the False River and there are many reported cases of diarrhoea as a result of this. All Free State towns are at risk,” Kelder said.
The union has spent R250 000 in legal fees so far, but “if we don’t continue, we will all pay the price in the long term”, he added.