/ 16 September 2023

City lawyer says rates boycotters want to cripple Durban

Westville Ratespayers
Members of the Westville Ratepayers Association were addressed by eThekwini Municipality mayor, Mxolisi Kaunda. (eThekwini Municipality)

The Westville Ratepayers’ Association’s property rates and utility bill boycott aims to “bring the municipality to its knees” rendering it “inoperable”, the Durban high court heard this week during an application for an urgent interdict to reconnect protesting residents’ electricity supply. 

These were the remarks of advocate Glen Goddard, representing the eThekwini metro, before Judge Jabu Thobela-Mkholosi. 

The city has opposed the association’s two-part application for an interdict to prevent the metro from cutting off the supply of electricity to households, and for an urgent interdict to reconnect five residents whose supply was cut last week after they joined its rates and utility payment boycott.

Instead of paying their municipal accounts the protestors have paid some of their bills into a trust account, until the dispute between the city and the association has been resolved, to secure payment of the bills in future. 

But the ratepayers’ association argued in court that its members are being “unfairly targeted” for electricity supply disconnections after it handed a list of its members to the city when it filed its application for the interdict last week.

This comes after the ratepayers’ association declared what it described in court papers as a “lawful dispute” in terms of section 102 of the Municipal Systems Act (MSA), raising a raft of grievances against the city, including the approval of its 2022-24 budget without proper public participation; the more than R350 million in irregular expenditure recorded in 2022-23 and R50 billion in fruitless and wasteful expenditure identified by the auditor general over the past five years.

Goddard argued that there was no prima facie right for the court to grant an interim order as association did not have the locus standi to declare the MSA section 102 dispute with the municipality.

He said the association itself did not owe the city any money and therefore could not declare a dispute, while the residents know they are in default because they are paying money into an elected trust account. 

He said there had been no mention of specific amounts that are in dispute in the court papers, which had included an annexed list of members of the eThekwini Ratepayers Movement (the name adopted by the WRA to identify the city rates boycott initiative) without stipulating disputed sums.

“The main application can be dismissed but … the application for urgent interim relief should be dismissed with costs. It is about the application of a [MSA] Section 102 dispute. We submit it is completely untenable because there is no specific amount [municipal charge] and there is no specific person,” he said.

“What the Westville Ratepayers’ Association wants to do is to bring the city to its knees. How can the balance of convenience ever favour a rates boycott if what the rates boycott is trying to do is to make the city inoperable? The effect of [granting] this order is that any voluntary association formed overnight could declare any dispute against a municipality and say it is a dispute under section 102 and say they can withhold payment,” Goddard said.

“The Westville Ratepayers’ Association has acted “coercively, unlawfully, unconstitutionally and undemocratically,” he argued.

He said the application failed to meet the legal requirements for the dispute and urged Thobela-Mkholosi to award a punitive costs order against the association.

He said a supreme court of appeal ruling in the matter between the City of Pretoria and Walter and Rademan the court had ruled that it was unlawful for Rademan to withhold even the rates portion of her bill — she had been paying for electricity — during a dispute about service delivery.

Advocate Muhammad Zakaria Suleman argued for the ratepayers’ association that it is “an individual” in terms of the law and can therefore declare a MSA section 102 dispute with the municipality about its “higher than normal” electricity tariff increases. He said the association was also concerned that its members were being unfairly targeted for disconnections after eThekwini. Mayor Mxolisi Kaunda was quoted in the media as saying he had identified those involved in the boycott and their electricity would be cut first.

“The issue comes in that there is selective enforcement. The applicants submit that because of the negotiations we have been having with the municipality, the municipality mentioned in a newspaper article that ‘we know our first targets, they gave us the names in court’. There is a case of selective enforcement,” he said.

He said the association had only realised “the irrationality of the conduct” of the municipality in disconnecting its members on 8 September when a newspaper article was published highlighting Kaunda’s remarks that it would start with Westville residents.

Arguing against a punitive costs order he said this would only serve to have “a chilling effect” on associations bringing matters before the court in future.

Thobela-Mkholosi reiterated that the SCA judgment had made it clear that a dispute must relate to a specific amount claimed by a municipality.

“This court is not interested in any tensions that may exist between the association and municipality, this court is interested in whether a case has been made out by the applicants,” she said.

She said she could not understand how people could demand services and not pay for them.

“I can’t get my head around how in the law any person can consume services and not pay for those services,” she said.

Thobela-Mkholosi said she would need to take some time to consider the matter before delivering her judgment.