eThekwini mayor, Mxolisi Kaunda. File photo by Darren Stewart/Gallo Images via Getty Images
The Westville Ratepayers Association has approached the Durban High Court for an urgent interdict to prevent the eThekwini Municipality from disconnecting residents who are boycotting payment of their property rates and utility bills.
The matter is set down to be heard in court on Thursday 14 September after the association approached the court on Friday to expedite its earlier application for an interdict that was filed on 24 August.
eThekwini Municipality started disconnecting ratepayers who have joined a citywide utility bill and rates payment boycott after the association filed a lawful dispute against the municipality’s 2022/23 budget.
Residents across the city and the municipality have been locked in the dispute since 1 July after the ratepayers association initiated the boycott and called for city officials to account for fruitless and wasteful expenditure amounting to more than R350 million and losses of R50 billion, as highlighted in several Auditor General reports over the past five years.
Chairperson of the association, Asad Gafar told the Mail & Guardian on Monday that the municipality had started disconnecting residents in Westville on Thursday, which prompted it to approach the city’s lawyers before taking further legal action. He said the residents had agreed to pay their municipal bills into a trust account pending the resolution of the dispute, so they were not avoiding payment.
“On Thursday morning they started to disconnect across Westville in two or three streets, including people who are not part of the protest but who are in arrears,” he said.
He said when the city’s attorneys did not respond to the association’s request to stop the disconnections and instead continued to receive calls from protest members who were being disconnected on Thursday afternoon, he instructed the association’s attorneys to take “urgent” legal action.
Gafar said he instructed the lawyers to expedite the main interdict application as urgent and to file an urgent application to force the city to reconnect the water and electricity of five protesting residents who had been disconnected. A further 10 households, which are not a part of the protest, were also disconnect last week, he said
Gafar said the court had not ruled on the matter to reconnect the residents on Friday since the disconnections are linked to the original interdict application, but it had brought the date of the hearing forward from 1 November to 14 September.
“We asked the five members what they wanted us to do. We could have paid the money over to the municipality and they would be reconnected or they could wait until Thursday’s outcome. They asked what would be in the best interest of our case and decided to wait until then,” Gafar said.
He said the association had submitted a list of 350 boycotting residents to the city.
Gafar said in court papers that the purpose of the main application was to “interdict the eThekwini Municipality from implementing any of its debt collection and credit control measures, specifically disconnecting the electricity and water supply for the parties listed”.
“This application does not seek to ask this court to determine the outcome or merits of the dispute as it is still on-going between the municipality and the members of the Westville Ratepayers Association,” Gafar said.
The association was founded on 15 January 2022 as “a watchdog” to perform an oversight role to ensure that municipal finances were managed in accordance with the laws of the land including the Constitution, the Municipal Finance Management Act and the Municipal Property Rates Act, and that services were delivered in an “economic, effective, efficient, transparent and accountable manner”.
Gafar said the association had objected to the city’s 2023/3 Draft Budget and tariff increases published in April, but the city had steamrolled ahead with it regardless of concerns raised. This led to the association raising a “lawful dispute” in terms of Section 102 of the Municipal Systems Act of 2000, effective 1 July 2023.
The essence of the dispute was that there had been little to no public participation in the passing of the budget, which was “unconstitutional”.
The “historical inadequacies” highlighted by the Auditor General over the past five years had also not been considered, while the proposed electricity tariff hike was higher than the National Energy Regulator’s (Nersa) approved increases (the city has subsequently reduced the tariff to comply with the regulator).
There were also a raft of concerns regarding finances, including R427 million in fruitless and wasteful expenditure in 2021/22, R2 billion in water losses, and electricity losses of 1.15 billion KWH, amounting to R1,36 billion.
“The losses of R50 billion by [the municipality] in the last five years equates to one entire year’s financial budget,” he said.
Gafar said eThekwini Municipality had responded to the association’s notice of a lawful dispute in terms of the MSA by saying it would proceed with “credit control measures against all who proceed the Section 102 dispute”.
The association then wrote to President Cyril Ramaphosa as well as Minister of Cooperative Governance and Traditional Affairs Thembi Nkadimeng, and KwaZulu-Natal Cogta MEC Bongi Sithole-Moloi, who urged residents to continue paying their bills while engaging the municipality about the dispute.
Gafar said on Monday that residents wanted everyone to be treated equally under the law, but that according to the city’s own document, 35 councillors and 3013 municipal staff owed just over R50.4 million in utility debt arrears. The sum owed is highlighted in a 286-page Finance Committee Agenda municipal document from a meeting held on 31 August 2023.
“This is one of the issues we have – they are not even paying and we are still paying, but not to the municipality. The law must apply in the the same way to everyone,” he said.
eThekwini Municipality spokesperson Gugu Sisilana declined to respond to specific questions from the M&G, saying “the matter is now sub judice”.
“We do however wish to clarify that there is no court interdict in place preventing the Municipality from disconnecting services to anyone for non-payment. The facts are that an application for an interdict has been made by the Westville Ratepayers Association and this application has been heard and adjourned to Thursday this week. The Municipality’s legal department is attending to this matter, and we are not able to discuss the merits of the case any further since it is subject to court processes,” Sisilana said.
She said that the mayor was engaging in a series of meetings with ratepayers across the city “to assure them of our commitment to provide quality services.”
She said the city held “a very positive meeting” with ratepayers representing Overport, Musgrave, Sydenham and Asherville on Friday.
“We encourage all residents to continue paying their accounts as non-payment will attract interest. The municipality will continue implementing credit control measures in line with the relevant policies and municipal by-laws where accounts are in arrears.”
Sisilana said this includes disconnections, which attract a reconnection fee, provided there is no tampering with the meter.
“If there are illegal connections, the meter will be removed, and the new application process will have to be followed by the customer to get a new meter,” she said.
Sisilana added that staff members are not allowed to be in arrears for more than 90-days, according to schedule 10 of the municipal staff code of conduct.
“For those employees who fail to bring their accounts up to date, the municipality deducts the amounts owed directly from their salaries. The process is the same with councillors. However, over and above applying credit control measures (deducting from salaries), a disciplinary action must be instituted by the Speaker of Council,” she said.
“We want to emphasise that councillors and staff members are also customers of the municipality, and they are subject to all credit control measures except that there is an additional process that applies to them because of the code of conduct.”