Resilient judgment resulting in more victories for communities
31 January 2022
Sakeliga has taken note of a judgment in the Supreme Court of Appeal last week where communities of Parys and Vredefort (Ngwathe Local Municipality) and Standerton, Sakhile and Meyerville (Lekwa Local Municipality) succeeded in preventing Eskom from further curtailing electricity reticulation to these towns owing to defaulting and maladministration at municipal level. The case was brought by Lekwa Ratepayers Association and Vaal River Development Association. The resultant judgment (Eskom v Lekwa Ratepayers Association and Others) comprehensively relies on the Resilient judgment of 2020 (also in the Supreme Court of Appeal) -- a case in which Sakeliga was intimately involved, and where it was found that end users may not be prejudiced by the inability or unwillingness of organs of state to duly resolve their disputes.
This means that Eskom may not hold end users hostage where municipalities fail to settle their debts to Eskom timeously.
It is a positive development that the Resilient legal precedent is increasingly finding application in other cases and that newfound intergovernmental dispute resolution resulting from Resilient is limiting prejudice to end users.
Sakeliga is however concerned about a tendency, that is also apparent in the case of Eskom v Lekwa Ratepayers Association, that money paid by communities for prepaid electricity simply does not reach Eskom. This means that end users’ prepaid money for electricity is unnecessarily squandered or stolen by municipalities. The result is a debt crisis at Eskom, and eventually it also contributes to national rolling blackouts, with the entire economy suffering. Water boards cannot stay afloat either. Defaulting by municipalities has resulted in the decision this week to have Sedibeng Water Board in North West liquidated. For many years communities, especially in North West and the Free State, have been left without water for days on end.
This very tendency of municipal misspending of communities’ money for service delivery has compelled Sakeliga to launch a proactive municipal paymaster court case in North West. This case, which has been built up over years based on emerging evidence of corruption and state decay, is due to be heard soon by the High Court in Mahikeng, North West. Sakeliga is seeking an order for:
Compulsory intervention in terms of section 139 of the Constitution by the provincial and national governments in the Ditsobotla and Naledi municipalities in North West. This includes the drafting and implementation of a financial recovery plan.
Pending the proper implementation of the financial recovery plan, that a municipal paymaster be designated by the court to collect money for service delivery, which must be deposited in a ring-fenced municipal bank account and paid over directly to service providers such as Eskom and which must be used for the upgrading of critical infrastructure.
The electricity crisis in Standerton, Parys, Vredefort, Sakhile and Meyerville, which is almost entirely the result of municipal misspending of collected service delivery money, underlines the importance of a paymaster intervention (as is being sought in North-West). More importantly, however, it shows that alternative service delivery mechanisms untouchable by municipal decay, are indispensable.
As far as municipal self-reliance is concerned, Sakeliga is mainly focusing on the latter aspect. Therefore, Sakeliga is now preparing court papers to be joined as amicus curiae in a case before the Constitutional Court where the South African Local Government Association (SALGA) is asking for a declaratory order that municipalities have a statutory and constitutional monopoly on electricity reticulation, with the implication that end users may not purchase electricity directly from Eskom and private suppliers (read more here). Sakeliga will strongly oppose this attempt to monopolise service delivery, especially when in the hands of decayed municipalities. This, with a view to legally keeping communities’ direct access to alternative solutions intact.
Issued by Tian Alberts, Legal and Liaison officer, Sakeliga, 31 January 2022
