South African municipal authorities are in a terrible state and residents, rates-payers (many of whom are residents) and businesses operating within particular municipalities have developed hostility towards paying monies which are perceived to be or are maladministered.
Ultimately the residents and ratespayers of the municipality within which Kroonstad finds itself formed an association which like many other residents and ratespayers associations embarked on a rates strike. One of the striking members, a Ms Rademan, found that the municipality had terminated her electricity supply even though she had paid her electricity bill (it seems this is a postpaid account). Subsequently Ms Rademan (presumably with the support of some form of the association) approached the magistrates court to compel the reconnection of her electricity. The case has moved through the High Court to the Supreme Court of Appeal. The Supreme Court of Appeal ruled last week Thursday (1st December) and effectively confirmed both the reasoning and the finding of the Bloemfontein High Court which set aside a decision by the magistrate for the Kroonstad district which gave Ms Rademan reprieve. An advantage of the manner in which this case has been handled is that we have two good judgments, one in English and one in Afrikaans. Unfortunately for Ms Rademan she is finding herself with costs from three courts and these costs do grow.
The judgment which bears the reference Rademan v Moqhaka Municipality & others (173/11) [2011] ZASCA 244 (01 December 2011) is a judgment which any person considering withholding monies from the municipality should consider. The reasoning of the Supreme Court of Appeal is crisp and its findings above any real criticism when regard is had to the relevant statutory provisions. Of course there is always the possibility of a Constitutional Court challenge on the basis that the legislation is unconstitutional.
I don’t believe that the Constitutional Court will find the relevant provisions of the Municipal Systems Act unconstitutional for two reasons: Firstly the Constitution does not contain any provisions requiring meaningful representation before taxation or that the government failing in critical duties may justify certain steps - in so far as this may be viewed as a flaw in the Constitution itself I align myself for fairly complex reasons with the view, in so far as certain political interests advocate the inclusion of such a provision in order to enhance “accountability” I do not. Secondly the Constitutional Court has already in Pretoria City Council v Walker 1998 (2) SA 363 (CC) placed its flag on the mask against a dissent into anarchy. A feature strongly endorsed by the Rademan decision is the fact that municipal rates are “part of the civic and contractual responsibilities” of ratespayers and that “for a municipality to be able to properly and efficiently
One area of the law which this case does not address and which is relevant to Kouga ratespayers is whether a ratespayer must pay the rates assessed by the municipality according to inflated property values of whether they may pay rates on a lower valuation of the property if the second valuation is in order – this is a major issue due to the assessment on the market value of property. I suspect that the statutory basis for rates determination will entail a pay first argue later policy and that the municipal authorities will not endorse a policy by which a ratespayer may pay on a lower assessment.
However the political considerations behind the law are still open to debate. Is it correct that residents and ratespayers have no recourse against the municipality who simply misuses their funds? The view of the courts appears to be that the law itself is the recourse and in exchange for the protection which the Rule of Law brings we surrender our right to self-help in the form of a rates strike; of course we can turn to our courts (we have a Constitutional right of access to legal recourse after all) but the record suggests that litigation by many follows debt collection, commerce and evading conviction for criminal behaviour and not the maintaining a democracy. Perhaps South African’s are not sufficiently prepared to litigate about important issues and principles, being too afraid of descending into the perceived (and possibly real) litigant society of the USA and the unfortunate cynicism that may emerge on finding that whilst poor unsatisfactory and shoddy legal services may be obtained easily, quality litigation is both costly and inconvenient - unless you happen to be a public official facing criminal charges. (Just ask the President, whose office repeatedly demonstrates the shoddiest of work while his personal criminal defence team extract massive fees paid by the fiscus.) Sadly certain government entities are more afraid of certain well connected entities than they are of the law itself – rather keep particular business or party interests happy than comply with the law, after all who is going to take you to court and even if they succeed it is public monies that are spent; and this may include Kouga. In addition to the courts we also have recourse through the municipal council’s legislative mandate, we can lobby for a municipal policy which allows the creation of a holding trust for ratespayers funds in dispute. The municipality would be well served by a policy which sees the proper declaration and resolution of individual and collective disputes instead of a general disquiet that currently exists.
Suffice it to state that unless a policy creating space for the entrustment of monies by ratespayers as a withholding rates unless specific issues are addressed is created a rates strike by ratespayers simply will not succeed and Kouga not only have a right but a legal duty to break the strike by cutting services. Of course the prospects that some ratespayers purporting to be in a rates strike are simply acting on a pretext which undermines service delivery could see an improvement for residents as the municipality will have more funds. Unfortunately the issue is one upon which measurement of the management and administrative structures are important, further as many municipalities have demonstrated the two dominant political organizations in Kouga both appear to set course on policies which are as prejudicial to the poor as they are idiotic. In the present instance the Kouga Municipality has bizarrely embarked on terminating access to tenants without complying with the prescripts of the Constitutional Court decision in Joseph & others v City of Johannesburg & others 2010 (4) SA 55 (CC) which requires that 14 days notice be given before terminating access to electricity and that the municipality must make it possible for tenants to enter into a relationship with the municipality for services. Unfortunately this is a subject on which the concept and principles of sub iudice prevent me from commenting at this time.
[Small category note: I have included a tag “legal opinion” although this is not to suggest that this piece is or should be viewed as a legal opinion, but rather that it has a bearing on an issue relating to the seeking of or reliance on legal opinions. A legal opinion can be sought from one of the many legal practitioners within the Kouga municipality]
