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[2024] ZAECELLC 34
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Ngceke v Chief Financial Officer, Buffalo City Metropolitan Municipality and Another (EL1246/2023) [2024] ZAECELLC 34 (18 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
MUNICIPALITY
– Billing –
Dispute
–
Exhausting internal remedies –
Consumption
of water – Cracked pipe causing leak – Applicant
disputes liability for excessive charges and requires
recalculation – No decision taken by CFO of municipality –
No obligation on applicant to have exhausted an internal
remedy –
Municipality abysmally failed to meet its constitutional and legal
mandate to applicant – Failure to
comply with enquiries and
appeals procedures unlawful –
Local Government: Municipal
Systems Act 32 of 2000
,
s 62.
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO. EL 1246/2023
In
the matter between:
LADY
OCTAVIA NDILEKA NGCEKE
Applicant
and
THE
CHIEF FINANCIAL OFFICER,
BUFFALO
CITY METROPOLITAN
MUNICIPALITY
First Respondent
THE
MUNICIPALITY MANAGER,
BUFFALO
CITY METROPOLITAN
MUNICIPALITY
Second Respondent
JUDGMENT
HARTLE
J
[1]
In an
application for judicial review
[1]
launched on 16 August 2023 the applicant seeks an order directing the
respondents to comply with its enquiries and appeal procedure
set
forth in its credit control policy (“
the
Policy”
)
pursuant to her having lodged a dispute with it regarding the
calculation of outstanding balances purportedly due by her on her
consumer account. The charges in contention relate to billing for the
consumption of water.
[2]
[2]
Although
the formal dispute was lodged with the respondents
(“the
Municipality”)
on
8 May 2023 it remains unresolved with the Municipality not even
having acknowledged receipt thereof, let alone having
administratively
dealt with the substance of it.
[3]
[3]
The Municipality does not deny that it had been
tardy in dealing with the applicant’s complaint but lays the
blame for this
squarely at her door and on the basis that she failed
to follow certain processes prescribed in clause 4 (6)(h) of the
Policy regarding
what to do when a consumer of municipal services is
beleaguered by a water leak that might be contributing to excessive
water consumption
charges.
[4]
It moreover contends that the applicant failed to
exhaust internal remedies prescribed by section 62 of the Local
Government: Municipal
Systems Act, No. 32 of 2000 (“
the
Systems Act”
) before her resort
to the present litigation. For the latter reason it contends that the
applicant failed to comply with the provisions
of
section 7
(2) of
the
Promotion of Administrative Justice Act, No. 3 of 2000
(“
PAJA
”
),
rendering the application premature.
[5]
Interestingly it offers no solution to the formal
complaint but its counsel has sought to justify its opposition of the
application
on the basis “
that
the
Municipality is well within its rights to resist applications lodged
pre-maturely and without exhausting internal remedies available
thereby preventing opportunistic litigation and sav
(ing)
municipal resources which remain
scarce.
”
Factual background:
[6]
The applicant owns property in West Bank, East
London.
[7]
She is a consumer of municipal services such as
water, refuse removal and sewerage in respect of the property for
which she is billed
on a month to month basis.
[8]
In June 2021 she received a shocking monthly
statement comprising of a hefty debit in the sum of R29 101.70
purportedly
in respect of water consumed by her at the property over
the period 10 October 2020 to 10 May 2021.
[9]
She doubted that the amount could be correct or
consistent with her consumption of water during the relevant period
and decided
that the Municipality must have made a mistake in its
calculations. She was, for example, concerned that two
different water
meter numbers were reflected on the statement of
account over the relevant period, the one reflecting a reading of 109
kiloliters
and the other 159 kiloliters. In the three months
preceding the June statement, an interim meter reading of 15
kiloliters per month
had been invoiced.
[10]
A reconnection fee of R461.00 had also been
charged to her account on 25 December 2021 consequent to a
disconnection which she also
objected to on the basis that this
should never have been effected in the first place. Penalties and
arrear interest were also
invoiced to the account.
[11]
Upon the advice of the Municipality, she took the
step of appointing a plumber, Mr. Mahe, in November 2021 to assess
the property
for any leakages. He found that there was no water leak
in the house or within the applicant’s erf but opined that one
existed
between the municipal water meter and the fencing of the
applicant’s property. Evidently the 20ml PVC pipe had cracked
due
to age. The broken pipe was replaced at the applicant’s own
cost even though the leakage, according to Mr. Mahe, had emanated
from municipal property.
[12]
At the
time, she filed Mr. Mahe’s report (and trade certificate) with
the Municipality. It explains what he found and how
he fixed the
problem. (His letter addressed for the attention of the
Municipal Manager, Water & Sanitation properly reflects
both the
erf number of the applicant’s property as well as her consumer
account number that should have been sufficient to
have registered
with the Municipality that its own infrastructure had been found
wanting in relation to the leak established by
him and that this
could have been the reason for the excessive water charges passed on
to her.)
[4]
[13]
On 8 May 2023 the applicant’s attorneys
addressed a formal dispute to the Municipality on her behalf, marked
for the attention
of both the Chief Financial Officer and the
Municipal Manager challenging her supposed liability for the
excessive charges (“
the dispute”
).
In it they exhort, primarily, that
the
calculation of the outstanding balance purportedly payable by her is
not correct and must be re calculated. Also mentioned
in the
dispute framed is the fact that she had engaged the services of Mr.
Mahe, but nowhere is it asserted that she is necessarily
entitled to
a rebate as a result thereof.
[14]
The dispute was delivered by hand to the municipal
manager’s office on 8 May 2023.
[15]
It is unnecessary to repeat the full contents
thereof. It is common cause however that the Municipality has not
replied to its substance
or followed the applicant’s attorney’s
suggestions regarding a common sense resolve of the matter. It
is abundantly
clear though that the applicant disputes liability for
the excessive charges and requires that the account be recalculated.
That
is the applicant’s primary concern.
[16]
In response to the accusation by the Municipality
that she had supposedly not complied with the provisions of
section 4
(6) (h) of its Policy applicable at the time that dictates
to a consumer what to do when water leaks are found on properties,
the
applicant in her replying affidavit clarified that not only did
she declare the dispute formally in May 2023 as set out above, but
that during 2002 she had brought the fact of the leak (vouched for by
a plumber as required) to the Municipality’s attention.
She adverted to an affidavit made by her on 10 April 2022 in which
she explains that she had called in the services of Mr. Mahe
at the
time and in which she emphasizes what the problem was concerning the
leak, and how he had resolved it. She claims
that she had
provided the affidavit to the Municipality’s officials at the
time at their prompting.
[17]
Nobody had suggested to her that the procedure
adopted by her in this respect had been at all wrong (or not in
accordance with the
Policy) but in any event it occurs to me that
this is a side issue. The applicant’s complaint relates
primarily to inaccurate
billing and it is that concern that forms the
subject matter of the dispute.
The Policy:
[18]
The parties made available to this court the
policies that applied at the time the applicant both reported the
leak as well as when
she lodged the formal dispute.
[19]
I am less concerned at this juncture with the
applicant’s supposed non-compliance with the exacting steps
that were required
to be taken in respect of her discovery of a leak
on the premises or whether she complied with the letter of the
applicable policy
in this respect. This may become relevant at
the point the Municipality decides in respect of the dispute and how
to resolve
it. In my opinion though she has substantively
complied and it concerns me that the Municipality resorts to point
taking
in this respect as if this somehow absolves it from the
primary problem that it is required to address. If it does not
accept
the fact that there was a leak, it must say so and invite the
applicant to substantiate the information provided in this regard
if
it considers it to be lacking in any way.
[20]
But first and foremost, the Municipality must
“
respond
”
to
the applicant’s dispute which on its own merit complies with
the provisions of
section 7
(1) and (2) of the applicable Policy
regarding how to address a grievance or query to the Chief Financial
Officer concerning charges
for municipal rates and services.
[21]
I am satisfied in this respect that the applicant
has adequately stated
the basis of her
dissatisfaction and the desired resolution of her dispute. Moreover
the dispute relates to “
specific
charges raised on the account
”
which
the Policy behoves her to highlight. This she has done and in
my view there is more than enough information that has
been placed
before the respondents to cut right to the problem and to be
constitutionally accountable to the applicant as per the
guiding
principles under their Policy.
[22]
The
Policy mandates the Municipality under
section 7
(4) to respond to
all inquiries from customers in writing “
within
sixty days from the lodging of the enquiry.”
[5]
[23]
By the
respondents’ own admission, the Policy has the force of law.
[6]
The applicant’s
alleged failure to have exhausted internal remedies:
[24]
It is so that section 62 of the Systems Act
provides in terms for an internal appeal. The section reads as
follows:
“
62. Appeals.
—(1) A
person whose rights are affected by a decision taken by a political
structure, political office bearer,
councillor or staff member of a
municipality in terms of a power or duty delegated or sub-delegated
by a delegating authority to
the political structure, political
office bearer, councillor or staff member, may appeal against that
decision by giving written
notice of the appeal and reasons to the
municipal manager within 21 days of the date of the notification of
the decision.
(2) The
municipal manager must promptly submit the appeal to the appropriate
appeal authority mentioned in
subsection
(4)
.
(3) The
appeal authority must consider the appeal, and confirm, vary or
revoke the decision, but no such variation or
revocation of a
decision may detract from any rights that may have accrued as a
result of the decision.
(4) When
the appeal is against a decision taken by—
(
a
)
a staff member other than the municipal manager, the municipal
manager is the appeal authority;
(b)
the municipal manager, the executive committee or executive mayor is
the appeal authority, or, if the municipality does
not have an
executive committee or executive mayor, the council of the
municipality is the appeal authority; or
(
c
)
a political structure or political office bearer, or a councillor—
(i)
the municipal council is the appeal authority where the council
comprises less than 15 councillors; or
(ii)
a committee of councillors who were not involved in the decision and
appointed by the municipal council for this purpose is
the appeal
authority where the council comprises more than 14 councillors.
(5) An
appeal authority must commence with an appeal within six weeks and
decide the appeal within a reasonable period.
(6) The
provisions of this section do not detract from any appropriate appeal
procedure provided for in any other applicable
law.”
[25]
Despite an acceptance by the applicant latterly
that the responsibility for the effective implementation of the
Policy has been
delegated to the Chief Financial Officer, she still
takes issue (and fairly so in my view) with the absence of the
jurisdictional
basis for such appeal, being that she is a
person
whose rights are affected by a decision
taken
by the delegated official. By the respondents’ own admission no
decision has been taken as yet.
[26]
“
Decision
”
is
not defined in the Systems Act and must be understood in its ordinary
meaning. In other words, not as referenced or understood
in PAJA and certainly not as suggested by the respondents by reading
in the word “
deemed”
before it because its delegated official has thus
far failed to make a decision.
Further,
since subsection (3) authorises the appeal authority to
consider the appeal and to confirm, vary or revoke
the
decision,
and adds the proviso that
no such variation or revocation of a decision may detract from
any rights that may have accrued
as a result of the decision,
contextually this implies that the decision must be one actually
taken and existing. A failure
to take a decision concerning a
billing enquiry can hardly vest any rights in a consumer.
[27]
The Policy that the respondents rely upon also
says nothing about a deemed decision and frankly does not provide for
a situation
where the tardiness or neglect comes from the
Municipality. This in effect means that a consumer invoking the
dispute procedure
is up a creek without a paddle as it were if the
Chief Financial Officer does not respond to the enquiry within the
more than ample
sixty days provided for in section 7 (4) of the
Policy. Admittedly the complaining consumer enjoys the benefit
of some form
of immunity during this waiting period, but this does
not translate to a default expungement from liability when the period
runs
out.
[28]
In the result, since no decision has been taken by
the Chief Financial Officer
in casu
to
date, there is no decision that falls to be considered on appeal by
the relevant authority in terms of section 62 of the Systems
Act.
[29]
That means, in turn, that there was no obligation
on the applicant to have exhausted an internal remedy before she
turned to this
court to intervene.
[30]
The further suggestion by the respondents that the
application was premature and that the applicant effectively
obstructed the enquiry
from being dealt with by her failure to have
followed the procedure that applies (for a consumer’s benefit)
in the case of
a reputed leak (in circumstances where the decision
maker has failed to engage with the facts that she has put forward
that might
provide an answer for the excessive debits to her consumer
account) is so unmeritorious as to be rejected out of hand and
visited with an appropriate cost order. This supposed lack on
her part was in any event only revealed after the issue of
the
present application. Indeed, this matter is so far removed from the
category of opportunistic litigation contended for by the
Municipality.
Conclusion:
[31]
The applicant has clearly been traumatized by the
excessive billing that has been in play for almost three years now.
If a consumer
cannot under the constraints of the Policy approach a
municipal official at a counter and have his/her queries summarily
dealt
with or concerns allayed, they must at least be entitled to
legitimately expect fair administrative procedures by accountable
local
government in accordance with the applicable policy in force at
the time.
[32]
The Municipality has abysmally failed to meet its
constitutional and legal mandate to the applicant in this instance.
[33]
In the result, I make the following order:
1.
The first respondent’s failure to comply
with the enquiries and appeals procedures detailed in the Credit
Control Policy of
the Buffalo City Metropolitan Municipality (“
the
Policy
”
), more specifically
in respect of the enquiry lodged by the applicant on 8 May 2023 with
regards to the calculation and correctness
of the municipal charges
levied relative to her property described as Erf […](Account
No. 104154486) (“
the dispute
”
),
is declared unlawful.
2.
The first respondent is directed, within 10 days
of this Order, to respond appropriately to the applicant’s
dispute in writing.
3.
The first and/or second respondents are directed
to pay the costs of the application jointly and severally, the one
paying the other
to be absolved.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
16 May 2024
DATE
OF JUDGMENT:
18 June 2024
Appearances:
For
the applicant : Mr. B C Tarr instructed by Niewoudt – Du
Plessis Inc., East London (ref. ND15/0001/MTHUNZI)
For
the respondents: Mr. C Novukela instructed by Bangani Attorneys, East
London ref. Mr Bangani).
[1]
The applicant relies on the provisions of the Promotion of
Administrative Justice Act, No. 3 of 2000 (“
PAJA
)”
more specifically section 6 (3)(b) thereof, contending that whereas
in terms of the Policy the Municipality was obliged
to take a
decision within 60 days, the respondents, in their capacities as
administrator and despite that obligation, have failed
to make a
decision. The remedy sought in the peculiar circumstances is one in
terms of section 8 (2) of PAJA enjoining them in
the making of the
required decision.
[2]
The primary concern is the billing. The tangent is that the charges
have attracted penalties and interest as well as a reconnection
fee
in circumstances where a disconnection should not have been effected
in the first place.
[3]
In
its answering affidavit it simply records that it is aware of the
dispute and is investigating the matter.
[4]
The
letter is undated but the applicant alleged (in her formal dispute)
that she had filed it with the municipal manager “
at
that period
”
.
The respondents have not denied receipt.
[5]
The
period expired on 8 July 2023.
[6]
Ntaniso
v Buffalo City Metropolitan Municipality
(EL869/2023;
EL895/2023) [2023] ZAECELLC 22 (1 August 2023);
Hlazi
v Buffalo City Metropolitan Municipality
(EL2070/2023;
EL2065/2023) [2023] ZAECELLC 19
2023 (6) SA 464
(ECEL) (25 July
2023).