DA legal opinions on rates boycotts

The DA has done extensive research to be able to advise the DA local municipal councillors. The various opinions are as follows:

Willem Doman, DA Shadow Minister for Local Government
• Does not recommend this as an option because the Systems Act Section 119 prohibits councillors to partake in such actions;
• According to the act the term “dispute” does not exist, especially in a group action;
• Only an individual may object to a municipal rates account, but has to pay and once the battle has been won, may they claim a refund plus 1% interest;
• Doman further advises that the MEC and the province must first be approached and then summoned as they are responsible when a municipality fails and if there is no result, the National Minister has to be charged.

Adv SP Rosenberg SC advised the DA
• That rates cannot be legally withheld;
• Only individuals may withhold rates where a specific amount is charged to an owners account for services e.g. “refuse removal” not delivered or an “error on a municipal account” which cannot be resolved. This is the essence of Section 102 - 20 of the Systems Act).

Attorney Leon Van Rensburg, DA Federal Council Member, advises that mass rates boycotts for the lack of service delivery has to still be tested in court.

Piet Botha Attorney & DA Councillor in Welkom
• Agrees with Rosenberg that the ratepayers will not have protection in court;
• Botha’s own constituency tabled a motion at the Free State Provincial Congress for permission to test this issue in court and resolve the confusion and various opinions for once and for all;
• the DA Free State is now going to table this matter at the DA Federal Congress this weekend, July 23-25, 2010.

Attorney Fritz de Klerk, DA employee at the DA Federal (Head-) Office advised DA Leader Helen Zille as follows:
• One fundamental mistake is to ignore the affordability principle. If a municipality cannot afford to provide certain services, there is little one can do to force it to render a service. The constitution for example provides that everyone has a right to adequate housing, yet many people do not have access to housing, simply because government cannot afford to build millions of homes at once. The same applies to municipalities and municipal services.
• One can argue that should financial mismanagement be the cause of a municipality’s failure to provide services, one should be entitled to withhold payment. This argument does not hold water as legislation provides for non-performing municipalities to be placed under administration of the Province. The ratepayer will then have to pay the provinces, but payment will ultimately have to be made.
• Municipalities must ensure that municipal services are provided to the local community in an equitable and financially and environmentally sustainable manner.
• A lot of weight is attached to Section 102 which provides that a municipality may implement any of the debt collection and credit control measures provided for in the Municipal Systems Act in relation to any arrears on accounts. The act specifically says MAY. You cannot get blood from a rock, so in certain circumstances, especially in the case of informal settlements, a municipality may elect not to collect debts. It is the prerogative of the municipality to collect debts. It must, as stated before, however be done in a financially sustainable manner.
• In terms of section 76(b)(iv) of the Municipal Systems Act, a municipality decides who will provide a service, not an individual or group of individuals. According to Willem Doman, the community cannot unilaterally decide who will render the service and then appoint such service provider. This is completely wrong. They can form a “community based organisation” and apply to deliver a service, but ultimately, the council will decide who must render the service in terms of section 77.


Published by the Democratic Alliance - Humansdorp

See also
http://da-jbayregion.blogspot.com/2010_06_01_archive.html