Residents of Bethal and eMzinoni win case against municipalities, MEC

Not long after judgement was received on Friday, January 14, in favour to the residents of Bethal, Millan Park and eMzinoni, residents complained that Govan Mbeki Municipality was implementing load-shedding.

The residents voiced their anger on social media and community groups when the town was again without electricity for two hours on Monday, January 17.

The Bethal and eMzinoni Community for Services Association (Becs) won their legal battle against respondents GMM, the municipal manager of GMM, Gert Sibande District Municipality (GSDM), the municipal manager of GSDM, Eskom Holdings, the Mpumalanga MEC for Co-Operative Governance and Traditional Affairs and the Minister of Co-operative Governance and Traditional Affairs.

The case was heard on August 31, 2021.

Court proceedings were made possible through crowd funding.

“We are delighted by the long awaited judgment handed down in favour of the community. We are confident that this will be the beginning of a process to resolve the electricity crisis that affects a wide diversity of people,” said Mr Waseem Gani, attorney at MacRoberts Inc and representative of Becs.

He said that the judgment places the municipalities under a court order, compelling them to provide continues reports to the court regarding the electricity crisis and the progress made in resolving their issues with Eskom.

“Should they fail to do so, the community will be entitled to apply to hold executive members of the municipality in contempt of court,” said Mr Gani.

According to him, the High Court will play a supervisory roll to ensure that the municipalities are carrying out their constitutional mandate to the community as they were not doing so on their own.

The court has also granted the community leave to approach the court again for relief on the same set of papers should it be found that the municipalities and Eskom are failing to make the necessary progress in resolving the electricity crisis.

Judge LD Vukeya, Judge of the High Court: Mpumalanga Division of the High Court, Middelburg, ruled judgement as follows:

In his finding the purpose of the application according to the applicants (Becs), is to safeguard their constitutional rights to dignity, practice of a trade, occupation or profession, to an environment which is not harmful to their health and to health care services, education and shelter.

It is alleged by the applicant (Becs) that despite GMM having approached Eskom in 2020 for an increase in the NMD, Eskom apparently refused to assent to the increase because of the absence of a payment plan for the arrear debt and a prepayment agreement for the estimated current consumption being entered into between it and GMM. As at September 2, 2020 there has been no progress made towards resolving the electricity supply crisis within GMM.

In short, the applicant (Becs) is concerned that GMM is indebted to Eskom in an extremely large unserviceable amount; the electricity problems within Bethal and eMzinoni have been ongoing for years without being resolved; the electrical infrastructure in the greater Bethal area is ancient and requires refurbishment and upgrading and there is no budget available for these issues to be resolved.

It is the applicants’ submission that it has never been informed of any attempts made in accordance with the Framework Act and what has been done to give effect to the various constitutional and legislative duties the municipal respondents have, and therefore judicial oversight is required in the matter.

It is common cause that the GMM has a historical debt owing to Eskom even though the amount owing is in dispute between the two.

It is also common cause that as a result of the debt owing to Eskom, there has been an agreement to provide electricity to the residents as per the agreed NMD.

It was not disputed that the GMM resorted to self-load-shedding when Eskom refused to increase the NMD, however, GMM and the municipal manager of GMM disputed that the residents would go for long hours without electricity under these circumstances.

Local government, which includes the local and district municipalities, have an obligation to provide basic municipal services to the communities they serve and that a municipality must structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community.

There is no doubt, and it has been conceded by the first and second respondents (GMM and the municipal manager of GMM), that the applicant’s (Becs) constitutional rights have been affected and in fact, as a defence GMM and municipal manager of GMM state that these limitations are a necessity as they are to the benefit of the applicants.

In judgements respectful view, if it is not reasonable, it cannot be justifiable.

What is of great concern to the applicant (Becs) is also the fact that there has been no accountability on the part of the first to fourth respondents (being GMM, the municipal manager of GMM, GSDM and the municipal manager of GSDM). And these respondents have also failed to provide any details of any plan they may have to resolve the GMM’s indebtedness to Eskom, the electricity supply challenges that exist and the electrical infrastructure that requires refurbishment.

The following order was granted:
44.1. That the GMM and the municipal manager of GMM are hereby required to report back to Becs and to this court in writing within 30 days from date of this order as to:

44.1.1. the progress and outcome of the arbitration proceedings between them serving before retired Judge Joffe and scheduled to take place in September 2021;

44.1.2. terms of the order, if any or any settlement reached by those parties in the arbitration proceedings.

44.2. GMM and the municipal manager of GMM are to report to this court in writing bi-annually as to the parties’ respective compliance with the terms of any arbitration order made by a retired judge Joffe in the arbitration proceedings referred to in paragraph

44.1. alternatively, in respect of any agreement reached by them, such first report becoming due six (6) months after this court’s order and such second report being due twelve (12) months after this court’s order.

44.3. The written reports referred to, are to be provided to this court at the following times:
44.3.1. Six (6) months after this court order;
44.3.2. Twelve (12) months after this court order;
44.3.3. Eighteen (18) months after this court order;
44.3.4. Twenty-four (24) months after this court order;
44.3.5. Thirty (30) months after this court order; and
44.3.6. Thirty-six (36) months after this court order.
44.4. The applicant be granted leave, after receipt and consideration of any of the aforesaid reports, to approach this court on the same papers, duly supplemented as necessarily, to seek such further relief as may be advised.
44.5. Costs of this application are to be paid by the first to the fourth respondents (GMM, the municipal manager of GMM, GSDM and the municipal manager of GSDM) on a party to party scale, jointly and severally, the one paying, the other to be absolved.