Using borehole water? Why you could still pay municipal charges

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JEREMY MAGGS: I think you’ll agree that more South African homeowners are spending their own money on boreholes to escape unreliable municipal water supplies, but now some are discovering that going off the municipal water grid doesn’t necessarily mean escaping municipal charges.

In Mbombela, the controversy centres around sewage charges for households using borehole water, rather than a charge for extracting the water itself.

So when you’ve paid for your own water infrastructure, what can a municipality legitimately charge you for and where do your rights begin and end?

Chantelle Gladwin-Wood is head of public law at HBGSchindlers Attorneys, and I’m going to explore this in a little more detail. Chantelle, welcome.

If I’ve paid, then for my own borehole, because municipal water is unreliable, as I’ve just suggested, why should the municipality still be entitled to charge me? Explain that.

CHANTELLE GLADWIN-WOOD: I think the first thing we need to do is just distinguish between the different kinds of charges that can come from a municipality in relation to water and sewer.

One of the charges is where the municipality is providing you with water, and that’s a separate, distinct charge to when they charge you for sewer services.

In terms of our law, if you are extracting water out of a borehole, a municipality doesn’t have a right in law to charge you for the water that you’re drawing out of the borehole.

But if you are putting water that you draw out the borehole back into the sewer system, which is the municipality sewer system, you are utilising their services and you are burdening their infrastructure, and they are allowed to charge you for that element of the usage of the infrastructure.

So what’s happening in Mbombela, and they’ve done it in one or two other places, is that the charges that homeowners are receiving are not actually to draw the water out the borehole, but rather for the use of the municipal sewer system, because once that water comes out of the tap it, hypothetically, could be used to water your garden, but in most instances it’s used the same way that water drawn from a municipal system would be, and it’s put back into the municipal sewer, therefore causing a burden on the municipal infrastructure.

So they are allowed to charge you for that.

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JEREMY MAGGS: So how does a municipality then calculate those charges when the borehole water isn’t passing through a municipal water meter?

CHANTELLE GLADWIN-WOOD: That’s a fantastic question. The short answer is in some municipalities when you put a borehole down, the municipality requires you to actually put a meter on. They then read the meter and so they have accurate records of how much water is going into the sewer.

In most instances, however, they don’t install a meter. So their bylaws will reserve the right to install a meter but not require it immediately.

If you have a look at the way that sewer charges are calculated by most municipalities across the country, it’s actually not based on how much water you put into the sewer. It’s typically based on a flat rate.

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What this means is that every residential customer will be charged the same amount of money, let’s say R500 or R800, depending on where you live, even if you put one kilolitre down into the sewer or if you put 200 kilolitres down.

There’s a lot of controversy about this in South Africa, a lot of people feel that it’s very unfair because it’s not in accordance with the standard tariff setting policies which apply in South Africa, which says that the more you use, the more you pay.

There are a lot of fights legally about this actually all over the place, and it’s a very controversial issue.

JEREMY MAGGS: Could homeowners then end up paying more than they should be, because the municipality is simply estimating the consumption of their water?

CHANTELLE GLADWIN-WOOD: Hypothetically, yes. The problem is that once a municipality has followed the processes of law to set its budgets and to create its tariffs, which is essentially its list of prices for what you pay for the different things the municipality does, that comes into operation of law.

In order to challenge that, it requires a high court application, and it requires a huge amount of coordination by communities or organisations and a lot of money in legal fees, and then it’s a big bun fight for many years.

It’s uncommon for people to be able to get the resources together to be able to fight this.

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To be honest, that’s why in most cases, it just passes under the radar because people aren’t able to do anything about it.

There are a few communities who have challenged this, though.

There was a judgment about two months ago in Cape Town where precisely this issue was challenged and the community said, Cape Town municipality, you need to stop charging us a fixed rate based on it’s a fixed amount of money every month, regardless of how much I put into the sewer.

This is not in accordance with the principle of the more you use, the more you pay. In that case, the court upheld it and said, Cape Town, go back and fix this.

So there are more and more people standing up but by and large, it’s not something that is well known about in South Africa.

We also don’t have a hugely litigious society in South Africa. We tend to trust our governments a lot, actually, and so it just goes unchallenged.

JEREMY MAGGS: Does the position, Chantelle, change if a property has its own septic tank and doesn’t use municipal sewage services at all?

CHANTELLE GLADWIN-WOOD: That’s an interesting question. In certain cases, the answer should be yes, it would change because if you follow the principles of tariff setting, which I mentioned, which is the more you use, the more you pay, what that means is if you’re using your own septic system, you’re not burdening the municipal infrastructure, which then, if you follow that to its logical conclusion, would tell you that you must pay less or even pay nothing.

However, in South Africa from about the 1970s, there are some cases which regard charges for sewer as being a tax and not being a charge for a voluntary service that you select to utilise with the municipality.

Now, there is logic to this because if everyone were allowed to suddenly say, I don’t feel like having your sewer when the municipality has spent 20 years and millions of rands installing the sewer in a certain suburb, if everybody just turned around at the last minute and said, actually, I’m good, I’ll put in my own septic tank, you may find a problem where entire suburbs start collapsing, and the municipality doesn’t have enough money to provide the services that it’s been providing forever to people in the street.

So it is a very, again, controversial legal issue.

But there are arguments both for and against the charges for sewer, for sanitation being regarded not as a voluntary charge, which you can elect to pay if you utilise the service, but rather as a tax that you have to pay whether you utilise it or not.

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It depends from one municipality to the next, how they frame the charges that they are approving in their tariffs.

JEREMY MAGGS: And all predicated, of course, on whether the service works or not. So what happens when a municipality charges for that service that could be unreliable, inadequate, or not delivered at all?

CHANTELLE GLADWIN-WOOD: Our law is clear that if a municipality does not provide a service, you don’t have to pay for it. That went all the way to the Constitutional Court and Mrs Rademan’s case, that’s very well established.

But the difficulty, as I say, is that there are charges by a municipality which are not service charges. We receive electricity and water, and most certainly those are service charges. You can’t characterise them any other way.

A customer has the choice whether they want to use those services from the municipality. They’re not forced into it. So it’s not a mandatory charge.

It’s not a tax. When you get the service, you pay for it.

That’s very different to sewer and also refuse collection, to rubbish collection. These two types of charges are framed by most municipalities as being essential functions that a municipality provides to a community within the realm of the Constitution, and they do it because they have to do it for public health.

Can you imagine if all of our rubbish wasn’t collected? We’d have a plague. We’ve actually literally had a plague in Midrand – I’m not sure if you’re aware of that – because the rubbish wasn’t collected.

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So you have this funny situation in our law where these two types of charges, rubbish and sewer, are regarded by most municipalities as being non-negotiable. You pay it whether you receive it or not.

Our courts have upheld that to this current day. They have upheld that characterisation, where it’s been argued by the municipalities that this is an essential service they have to provide to keep the community healthy.

That’s why you have to pay and you don’t have a choice.

JEREMY MAGGS: And thank you so much for that very important and detailed explanation. Chantelle Gladwin-Wood, head of public law at HBGSchindlers Attorneys. Appreciate your time. Thank you.

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