<\/p>\n
You can also listen to this podcast on iono.fm here.<\/p>\n
JEREMY MAGGS: I think you\u2019ll 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\u2019t necessarily mean escaping municipal charges.<\/p>\n
In Mbombela, the controversy centres around sewage charges for households using borehole water, rather than a charge for extracting the water itself.<\/p>\n
So when you\u2019ve paid for your own water infrastructure, what can a municipality legitimately charge you for and where do your rights begin and end?<\/p>\n
Chantelle Gladwin-Wood is head of public law at HBGSchindlers Attorneys, and I\u2019m going to explore this in a little more detail. Chantelle, welcome.<\/p>\n
If I\u2019ve paid, then for my own borehole, because municipal water is unreliable, as I\u2019ve just suggested, why should the municipality still be entitled to charge me? Explain that.<\/p>\n
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.<\/p>\n
One of the charges is where the municipality is providing you with water, and that\u2019s a separate, distinct charge to when they charge you for sewer services.<\/p>\n
In terms of our law, if you are extracting water out of a borehole, a municipality doesn\u2019t have a right in law to charge you for the water that you\u2019re drawing out of the borehole.<\/p>\n
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.<\/p>\n
So what\u2019s happening in Mbombela, and they\u2019ve 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\u2019s used the same way that water drawn from a municipal system would be, and it\u2019s put back into the municipal sewer, therefore causing a burden on the municipal infrastructure.<\/p>\n
So they are allowed to charge you for that.<\/p>\n
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JEREMY MAGGS: So how does a municipality then calculate those charges when the borehole water isn\u2019t passing through a municipal water meter?<\/p>\n
CHANTELLE GLADWIN-WOOD: That\u2019s 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.<\/p>\n
In most instances, however, they don\u2019t install a meter. So their bylaws will reserve the right to install a meter but not require it immediately.<\/p>\n
If you have a look at the way that sewer charges are calculated by most municipalities across the country, it\u2019s actually not based on how much water you put into the sewer. It\u2019s typically based on a flat rate.<\/p>\n
Read\/listen:<\/p>\n
SA tightens grip on borehole use
\nBoreholes are booming in a drying South Africa<\/p>\n
What this means is that every residential customer will be charged the same amount of money, let\u2019s 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.<\/p>\n
There\u2019s a lot of controversy about this in South Africa, a lot of people feel that it\u2019s very unfair because it\u2019s 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.<\/p>\n
There are a lot of fights legally about this actually all over the place, and it\u2019s a very controversial issue.<\/p>\n
JEREMY MAGGS: Could homeowners then end up paying more than they should be, because the municipality is simply estimating the consumption of their water?<\/p>\n
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.<\/p>\n
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\u2019s a big bun fight for many years.<\/p>\n
It\u2019s uncommon for people to be able to get the resources together to be able to fight this.<\/p>\n
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To be honest, that\u2019s why in most cases, it just passes under the radar because people aren\u2019t able to do anything about it.<\/p>\n
There are a few communities who have challenged this, though.<\/p>\n
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\u2019s a fixed amount of money every month, regardless of how much I put into the sewer.<\/p>\n
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.<\/p>\n
So there are more and more people standing up but by and large, it\u2019s not something that is well known about in South Africa.<\/p>\n
We also don\u2019t have a hugely litigious society in South Africa. We tend to trust our governments a lot, actually, and so it just goes unchallenged.<\/p>\n
JEREMY MAGGS: Does the position, Chantelle, change if a property has its own septic tank and doesn\u2019t use municipal sewage services at all?<\/p>\n
CHANTELLE GLADWIN-WOOD: That\u2019s 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\u2019re using your own septic system, you\u2019re 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.<\/p>\n
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.<\/p>\n
Now, there is logic to this because if everyone were allowed to suddenly say, I don\u2019t 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\u2019m good, I\u2019ll put in my own septic tank, you may find a problem where entire suburbs start collapsing, and the municipality doesn\u2019t have enough money to provide the services that it\u2019s been providing forever to people in the street.<\/p>\n
So it is a very, again, controversial legal issue.<\/p>\n
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.<\/p>\n
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It depends from one municipality to the next, how they frame the charges that they are approving in their tariffs.<\/p>\n
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?<\/p>\n
CHANTELLE GLADWIN-WOOD: Our law is clear that if a municipality does not provide a service, you don\u2019t have to pay for it. That went all the way to the Constitutional Court and Mrs Rademan\u2019s case, that\u2019s very well established.<\/p>\n
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\u2019t characterise them any other way.<\/p>\n
A customer has the choice whether they want to use those services from the municipality. They\u2019re not forced into it. So it\u2019s not a mandatory charge.<\/p>\n
It\u2019s not a tax. When you get the service, you pay for it.<\/p>\n
That\u2019s 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.<\/p>\n
Can you imagine if all of our rubbish wasn\u2019t collected? We\u2019d have a plague. We\u2019ve actually literally had a plague in Midrand \u2013 I\u2019m not sure if you\u2019re aware of that \u2013 because the rubbish wasn\u2019t collected.<\/p>\n
Read\/listen:<\/p>\n
The legal steps for drilling a borehole
\nCoJ: Illegal borehole drilling can lead to jail time<\/p>\n
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.<\/p>\n
Our courts have upheld that to this current day. They have upheld that characterisation, where it\u2019s been argued by the municipalities that this is an essential service they have to provide to keep the community healthy.<\/p>\n
That\u2019s why you have to pay and you don\u2019t have a choice.<\/p>\n
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.<\/p>\n
#borehole #water #pay #municipal #charges<\/p>\n","protected":false},"excerpt":{"rendered":"
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