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 but not property rates, and Moqhaka Municipality which cut off her power.
The ERA states that if electricity is paid for, the supply cannot |be terminated.
But 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.
Olga Rademan, 86, a member of the Moqhaka Ratepayers’ and Residents’ Association declared a dispute with Moqhaka Municipality |in June 2008.
She, along with other members of the association, withheld payment of property rates in protest against poor service delivery by the municipality.
However, she continued paying for electricity, waste removal and other municipal services.
In August 2009, the municipality disconnected her electricity because she had not paid her rates.
She brought an application to the Kroonstad Magistrate’s Court which she then 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 were not paid for, even if electricity was paid up. The council said residents did not have the right to choose 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.
Rademan then appealed to the Supreme Court of Appeal (SCA) which, again, dismissed her appeal.
SCA judges found: “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, such as Eskom.
“It is, therefore, imperative that ratepayers understand they have an obligation to pay for their municipal 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, the judges said, often sparked service delivery protests, with communities complaining of failure by municipalities to provide municipal services.
“Local government is as important a tier of public administration as any. It has to continue functioning for the common good. It, however, cannot do so efficiently and effectively if every person who has a grievance about the conduct of a public official or a governmental structure were to take the law into his or her own hands or resort to self-help by withholding payment for services rendered.
“That conduct carries with it the potential for chaos and anarchy and cannot be appropriate.”
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 Supreme Court, 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 was that the ERA did not allow the municipality to cut off her services. The municipality’s main contention was that, in terms of the MSA and the by-laws, it was allowed to cut off her supply because she did not pay her rates and other taxes.
Rademan is now 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 Concourt yesterday deferred the matter until further notice because the judges requested further documentation. 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 vitally important case for all municipalities because of poor service delivery in most councils.
“The absolute lack of service in the Kroonstad area prompted this case. The municipality’s water and sewage system is completely dysfunctional. Water is pumped from a polluted river and is not purified. There is sewage being pumped into the False River and there are many reported cases of diarrhoea as a result. All Free State towns are at risk,” Kelder said.
The union has already spent R250 000 in legal fees so far, but, Kelder said: “If we don’t continue, we will all pay the price in the |long term.”