The City of Joburg’s plans to use the Joburg Metro Police Department (JMPD) to go after defaulting ratepayers at roadblocks would probably be illegal.
This is according to Stephen Tuson, a practising lawyer and a senior lecturer at the Wits School of Law, who commented on reports that City Manager, Floyd Brink had plans to bolster the JMPD for utility bill debt collection.
Tuson said that by law, the debt collection process is a civil process, which requires due process.
“In other words, the issuing of an account, and if that's not paid, a letter of demand.
“The next step is to issue a summons which is served and thereafter one can apply for a default judgment,” Tuson said.
He added if one gets a judgment, you issue a writ of attachment and you execute movable property or other items, for an example against a house.
“So what I find interesting here is that the police are only authorised to conduct roadblocks for criminal purposes. So, if they are pursuing bank robbers, and they throw up a cordon around the city and they search vehicles for stolen money or guns or for criminal purposes, that is permitted in terms of our law.
“But it would be grossly wrong and illegal to set up a police roadblock for debt collection purposes. It's illegal because roadblocks are for lawful, criminal investigation and are meant to respond quickly to people who break the criminal law,” Tuson said.
He said the JMPD would have no power against errant ratepayers at a roadblock.
“How can they threaten to arrest you because you owe money? That's outrageous, nor can they initiate court proceedings which is a function which is reserved for the sheriff. The sheriff is the guy who serves the summons ... You see, roadblocks are for criminal investigation and for prosecuting crime. It would be unlawful to set up a roadblock for debt collection purposes.
“Setting up roadblocks for unlawful purposes could be challenged and the City can be sued for any damages caused by the delays. So if I'm harassed by police for an unlawful purpose, there's potential damages. For example, I'm late and I miss my flight ... At a roadblock, what are they going to do? Take you into custody? That will be a wrongful arrest,” Tuscon said.
Julius Kleynhans, the executive manager for social innovation at the Organisation Undoing Tax Abuse (Outa) said the move by the City shows its desperation after years of mismanagement.
“We know that they are cash-strapped, but we are also aware that their financial systems haven't been properly administered and maintained over time. I think they probably don't have any choice but to start taking drastic measures to squeeze more money out of people to remain afloat,” he said.
Kleynhans said people had a civil duty to pay their utility bills and taxes, but the City of Joburg was “completely out of tune with economic realities”.
“People are struggling, there are some people that cannot afford the rates bills anymore because of the exorbitant increases by the City. And the draconian style approach in collecting debt is only going to chase people out of the city, it's not really going to create a conducive environment,” he added.
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