EThekwini municipality in legal battle over free water

RESIDENTS from across Durban are in a legal battle with the eThekwini Municipality over hefty backdated water bills they received, which they claim are “unlawful” and emerged due to the entity bungling its service delivery administration procedures.

A group of 350 residents, all affiliated with the eThekwini Ratepayers Protest Movement (ERPM), blamed the City’s failure to consistently read water meters at homes – and lax handling of its “free six kilolitres” of water policy – as some of the factors that resulted in the backdated bills they’ve been slapped with.

The ERPM lodged an application with the Durban High Court in June, claiming that the bills, which first emerged near the end of last year, were unlawful. The municipality filed their response last month.

The ERPM’s response to the municipality’s replying document is expected by Tuesday.

Members of the ERPM are from more than 10 ratepayers associations across Durban.

Two of their members, Sivalingum Pillay and Belinda Botha, were listed as co-applicants in the matter, with the municipality and city manager Musa Mbhele listed as the respondents.

In his affidavit, Pillay highlighted that the municipality applied a free water policy for people classed “indigent” and who owned properties previously valued at less than R250 000, by distributing 6kl at no charge to those who qualified.

Pillay noted that over time, the said properties naturally increased in value, but the municipality did not update its policy and continued to supply free water regardless.

“The municipality has now taken steps to impose backdated charges on people like myself and Botha, on the basis that we no longer qualify for free water.

“Therefore, we are obliged to pay for what we used historically, even though the municipality failed to read water meters anywhere near regularly, or appreciate that we remain financially distressed, even if the property values have increased through time.”

Pillay said they couldn’t afford to pay the additional water charges that were imposed and the municipality took steps to disconnect the water supply to compel affected residents to commit to payment plans to pay the amounts that were imposed unilaterally.

He said they required an order that forced the municipality to comply with their own Municipal Systems Act, and credit control and debt collection policy, by restoring water supply to his and Botha’s property, pending the finalisation of the matter.

The applicants also sought an order that prevented the city from interfering with water, sanitation and electricity services, no reconnection fee charges, and not compelling the 350 ERPM members from concluding payment arrangements with the municipality until their matter was resolved.

The municipality consented to an interim order, without admission of liability and prejudice to its rights, to restore utility services of members of the ERPM who had been disconnected, and not disconnect their services or add additional charges until the matter in lieu of the disputed backdated amounts was concluded.

With regards to the City’s stance to the backdated water bill matter that will come under scrutiny during the trial stage, once all the preliminary processes were completed, Pillay said the process violated the City’s own credit control and debt collection policy in two ways.

“A portion of the amounts prescribed and the bills stemmed from the municipality’s administrative errors.”

He said affected ratepayers lodged disputes with the municipality 21 days from the date of invoice they received, which contained the backdated amount for the first time, via a letter of dispute from ERPM on behalf of the affected members.

Pillay said the municipality responded that there was no “dispute” lodged with them regarding the matter, but a “mere enquiry” in accordance with its policies and summarily declared the matter “closed”.

There was an exchange of correspondence between the applicants and the municipality until the interim order was agreed to.

The applicants also maintained that all ratepayers will “suffer irreparable” if the court did not find in favour of residents on this matter.

Mxolisi Nkosi, the municipality’s deputy head: arrears management, filed a responding affidavit on behalf of the city questioning whether the ERPM was suited to a matter such as this because, according to legislation, a “person” is liable for payments to the municipality.

Nkosi said the applicants' entire application was misconceived because they failed to properly understand the legal framework that governs the functioning of the municipality, and that it was required to do all things necessary to conduct itself in a “financially sustainable manner, which included fees for services provided”.

He said after extensive research at a national level, it was established that a household required the minimum of 6kl of water to survive, and it was left to municipalities to decide the threshold for distribution.

Accordingly, eThekwini, for a long period of time, held that families with properties valued at R250 000 qualified for the “indigent relief” (free water).

The municipality shifted the threshold, from June this year, to R350 000-R600 000 for indigent relief.

Nkosi said households needed to make applications to qualify for the relief.

Regarding the 2023 backdated billing, he said the Auditor General directed the municipality to collect the outstanding levies from households with properties that exceeded the R250 000 threshold with time.

And they duly complied with instruction and billed implicated households.

He acknowledged that the municipality had committed some administrative errors and challenges, but these were resolved before this court application.

He said the municipality usually handed advance notices regarding account charges, but was under “severe pressure from the Auditor General to rectify the position without delay”.

Nkosi said they had instituted a “settlement mechanism” for affected persons, which permitted them to pay the arrears at R180 monthly over 36 instalments, with no interest charges.

He noticed that many ERPM members had since settled the outstanding dues and many had also committed to the settlement plan.

Nkosi was adamant that they had received no “dispute" from any of the ERPM's members any time before the end of March 2024, which was the deadline for the acceptance of payment plans and then extended to the end of July.

He said the norm for disputes was 21 days from the day an account was submitted, but no disputes for accounts with arrears charges reflecting in December were challenged accordingly.

Nkosi said the applicants did not exhaust all available domestic remedies, instead, they rushed to court.

“The door is not closed on any person.”