Hundreds of eThekwini ratepayers have secured a court victory stopping, for now, the municipality from disconnecting services while they dispute the retrospective billing for what had been six kilolitres of free water.
In granting the interdict in favour of members of the eThekwini Ratepayers Protest Movement (ERPM) Durban high court judge Carol Sibiya said the ratepayers were “sitting ducks at the mercy of the municipality”.
She said the city had refused to deal with any of the disputes its members had lodged, instead saying that no dispute existed.
“The applicants are effectively stuck until there is a determination of the disputes. They have a right to be heard,” she said.
The city claimed it would lose R300m if the ratepayers did not pay the backdated bills and it had been instructed by the auditor-general to recover the money. Because of legal prescription, it capped the backdating to three years. The 50,000 affected ratepayers were billed about R6,000 each. It had offered ratepayers a deal to pay off this amount in tranches of R180 a month, interest-free.
It seems that rather than responding to the disputes, the municipality chose to ignore them
— Carol Sibiya, Durban high court judge
The issue came about after the city unilaterally imposed retrospective charges on ratepayers who had previously qualified for free water of up to 6kl a month.
The policy was intended to assist poor households. Following extensive research, it was established that the minimum volume for any household survival was 6kl a month, which was adopted nationwide.
The means test to be applied was left up to individual municipalities. In eThekwini it was based on the value of the property, which could not be more than R250,000. This applied across the board.
Another programme, called “indigent relief”, applied to households with properties valued between R250,000 and R650,000. This was only applicable on application.
In her ruling on Wednesday, Sibiya said the city had discovered in 2023 there were households whose property value had increased over about 10 years and no longer met the R250,000 threshold, but had continued to receive the free water. It then sent the retrospective bills to those households.
Some refused to pay. Two members of the ERPM, Sivalingam Pillay and Belinda Botha, refused and their water and electricity was disconnected.
The ERPM then turned to the court for an urgent interdict in 2024. However, it was only finally heard in February this year, the city giving an undertaking that in the interim it would not disconnect services until the matter had been finalised.
Sibiya said evidence was that even though their property values had increased, both Pillay and Botha could not afford to pay the backdated charges.
“It was the applicant’s case that retrospective charges were incurred because of the municipality’s failure to update the policy by increasing the [R250,000] threshold for qualifying households and its failure to timely inform them that they were no longer entitled to free basic water supply. It was their case that this constitutes an administration error.”
Because of this, it was not recoverable.
However, the city said they were misinterpreting the policy ― and the non-recovery clause only applied if the debt was incurred by a previous owner but was being enforced on the new owner.
The city was barred from disconnecting electricity and water supplies to the members and debiting their accounts for disconnection and reconnection charges and to reverse any charges already levied.
Sibiya said the municipality had subsequently increased the property value threshold to R350,000 but had not made it retrospective. The applicants had a right that required the court’s protection, she said. Additionally, some had not paid their bills and remained at risk of disconnection because the municipality contended that there were no pending disputes.
“It seems that rather than responding to the disputes, the municipality chose to ignore them.”
The fact that the affected ratepayers used to qualify for the free water meant, on the face of it, they were economically disadvantaged, she said.
In granting the interim interdict, Sibiya said it would remain in place pending the finalisation of all disputes lodged by ERPM members and any subsequent review application launched by it.
The city was barred from disconnecting electricity and water supplies to the members and debiting their accounts for disconnection and reconnection charges and to reverse any charges already levied.
The city was also ordered to pay the costs.
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