Is withholding rates from KwaDukuza municipality even legal?

Growing dissatisfaction with poor service delivery has resulted in a number of communities across South Africa withholding municipal rates. 

Ballito’s business community threatened the same last week (‘Rates boycott threat’, November 20) unless their demands for better by-law enforcement were met.

KwaDukuza municipality has come under fire for failure to enforce its by-laws in relation to public nuisance and drinking in public open spaces and on beaches. 

But, are these boycotts legal?

Former ward councillor, ex-Sandton mayor and Docrra committee member, Don Forbes says:

“In section 102(2) of the Municipal Systems Act, if a service delivery failure is identified and ratepayers seek to resolve the problem by engaging with the municipality but fail in their efforts, they can declare a dispute with the municipality. These efforts must be well documented in order to ensure a proper ‘paper trail’ of the dispute and the attempts made to resolve it. 

“If the declaration of a dispute does not remedy the problem, ratepayers can withhold the payments of rates, depositing the money into a private interest-bearing account.” 

However, former iLembe municipality legal adviser and practicing attorney, Andrew Horton, pointed out that the Municipal Systems Act and the Municipal Rates Act made provision for municipalities to consolidate municipal accounts and suspend any service by a municipality as a means of enforcing the payment of any unsettled account.

“If ratepayers unilaterally decide not to pay rates and implement a rates boycott, municipalities are entitled to take measures to enforce payment and are legally constrained to proceed with the relevant legal action for recovery of the outstanding rates.”

Asked if it were not grossly unfair to expect ratepayers to pay for services that are not being provided and where local service infrastructure has collapsed, Horton said ratepayers did have recourse through the courts.

“If a municipality has properly budgeted for services to be rendered to ratepayers and fails to do so then a community, would, I believe, be entitled to apply to an appropriate court for a declatory order forcing the municipality to comply with its constitutional obligations towards its citizens,” said Horton. 

In a landmark case in January, the Makhanda High Court ordered the Makana municipality (previously Grahamstown) to be dissolved and placed under administration for violating its constitutional mandate by failing to provide basic services to the community – a first in South Africa.

The application was brought by civil society organisations which accused the municipality of numerous service delivery failures.

These included corruption, serious neglect of municipal infrastructure, inability to maintain road infrastructure leaving roads filled with potholes, failure to provide proper waste removal services and ongoing air pollution caused by the incineration of waste at the municipal landfill. 

Closer to home the Tugela Mouth Ratepayers Association (TMRA) turned to the judiciary at the end of last year to force the Mandeni municipality to police by-laws. 

“The Tugela Mouth Ratepayers Association has to date appeared in court four times about the lawless behaviour that included public drinking and driving, assault, the firing of weapons in public, urinating in public and the vandalising of public property,” said attorney representing the ratepayers, Ben Vorster.

The matter is ongoing.

Civic organisation OUTA’s operations manager for KZN, Tim Tyrrell, said the Makhanda judgment would set in motion many more similar court challenges across the country. 

“It is time for the provincial governments to exercise their mandates with proper oversight and rigorous action against those who fail to serve the people,” he said.