Street Law or Court Justice?

Private Property South Africa
Lea Jacobs

There's an interesting case being heard in the Constitutional Court at the moment and the outcome is set to have a huge impact on disgruntled ratepayers around the country. Kroonstad resident Olga Rademan, a member of the Moqhaka Ratepayers’ and Residents' Association, declared a dispute with the Moqhaka Municipality in June 2008 over the lack of service and stopped property paying rates and taxes to the municipality.

She did however, continue to pay for electricity, waste removal and other municipal services. In August 2009, the Moqhaka Municipality disconnected the electricity supply to Rademan's property because her rates and taxes were in arrears.

Rademan then turned to the courts. Initially things went her way and the Kroonstad Magistrate’s Court ruled that the municipality was not entitled to cut off the electricity. However, the municipality appealed the ruling in the Free State High Court in Bloemfontein, and won. The judgement was overturned. Rademan has now turned to the Constitutional Court to test whether the legislation that allows a municipality to terminate services that have been paid for in consequence of non-payment for other services, is constitutional.

It remains to be seen whether the Constitutional Court regards withholding of payments pending performance by a municipality (as opposed to defaulting on payments) as a legitimate means of protesting against a lack of service delivery.

According to a number of news reports, the advocate representing the Moqhaka Municipality told the Constitutional Court judges that those unhappy with service delivery should take to the streets and not withhold rate payments.

From their response to the lack of payment, it would seem that municipalities would prefer protest in the form of taking to the streets as opposed to people placing the money in a trust fund until the service delivery concerns have been addressed. Is it easier for municipalities to ignore those who take to the streets over those who hit them where it really hurts, their pockets? It was recently stated that as things stand, there is a protest about service delivery every second day in this country, and the numbers are expected to escalate this year.

The municipality’s litigious response begs the question: would it not be easier to simply provide the services in dispute and collect the payments being held in trust than to take the arduous legal route? On the other hand, could it be said that ratepayers are expecting too much from their local authorities and are too quick to lodge a dispute?

Perhaps the time has come for clear guidelines to be put in place as to what constitutes proper or improper service delivery. Obviously, there are degrees of non-performance: for instance, not supplying any water as opposed to supplying a constant trickle of water or supplying water, for say, only four days a month. Expecting payment for no water is ridiculous. Expecting payment for some or an intermittent supply of water may or may not be reasonable, depending on the circumstances.

What about potholes or uncut verges? An impassable road is different to an uncomfortable road. Clearly, it must be established whether a dispute is about absolute non-delivery versus partial, imperfect delivery. Each dispute will have to be judged on its own merits which will be a tedious and time-consuming process if this has to be done in court. Someone needs to spell out the standards so that frivolous or needless protest action can be avoided.

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