HSL DU PLESSIS/hb. Attorneys / Prokureurs RE: MOQHAKA MUNICIPALITY (KROONSTAD)/ VARIOUS CONCERNS

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1 Kerkstraat 16B B Church Street 9499 Privaatsak X HSL DU PLESSIS Private Bag X Tel Faks Faks E-Pos Our ref/ Ons verw Your ref/u verw Attorneys / Prokureurs HSL DU PLESSIS/hb THE MANAGER Tel Fax Fax hennie@ajw.co.za helena@ajw.co.za The Municipal- Manager Moqhaka Municipality Hill Street MAY 2011 By Hand Dear Sir RE MOQHAKA MUNICIPALITY (KROONSTAD)/ VARIOUS CONCERNS 1. We are acting on behalf of the persons and entities recorded in the petition annexed hereto* ( our clients ), who instructed us to address this letter to you. 2. At the outset is must be emphasized that our clients are seeking an amicable solution to these problematic issues, which are not only harming our clients interests but also the integrity of the Council and this letter should thus not be regarded as a threat but as an earnest plea for effective governance. 1

2 3. A meeting was attended to between various spokespersons acting respectively on behalf of municipality and our clients on the 3 rd instant at your offices during which our clients aired various concerns and more particularly the state of the municipal road infrastructure and the quality of the water. 4. During the meeting the spokespersons acting on behalf of the municipality admitted inter alia that 4.1. the road infrastructure was in a dilapidated state; 4.2. the regular supply of potable water was undesirable; 4.3. or clients are by law entitled to participate, object and to receive answers relating to municipal issues; 4.4. it is in the process of reviving its workshops and laboratories with the view to address the road surface and water issues. 5. At the same meeting it was furthermore agreed between the parties that 5.1. our clients shall, by not later than 6 May 2011, favor the municipality with a list of, according to our clients discretion, issues to be addressed by the municipality as a priority; 5.2. the municipality shall by not later than 7 days after receiving the said list respond in writing by submitting a specified schedule to our clients recording the respective issues to be addressed by it and the respective dates upon which each and every separate issue will be attended to; 5.3. regular follow up meetings will be attended to by the parties respective spokespersons. 6. A list as referred to in paragraph 5.1 is enclosed herewith.* 7. We have advised our clients of certain of their basic rights, namely 2

3 7.1. Environment the right to an environment that is not harmful to their health or wellbeing and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that, inter alia, prevent pollution and ecological degradation i ; 7.2. Water the right to access to water ii ; 7.3. Services the right to sustainable services iii ; 7.4 Basic needs the right that priority be given to the community s basic needs iv ; 7.5 Consultation regarding provision of municipal services the right to be consulted regarding the rendering of services v ; 7.6 Provision of a safe environment the right to be provided with a safe and healthy environment see endnote v; 7.7. Complaints the right to submit written or oral recommendations, representations and complaints vi ; 3

4 7.8. Response the right that the municipality be responsive to the needs of the public vii ; 7.9. Basic needs the right that the basic needs of the local community be prioritized viii ; Improvements of services the right that the standard of services be improved over a period of time see endnote viii; Tariff Policy the right that the amount that individual users pay for services should generally be in proportion to their use of that service ix ; 7. Suffice it to say, as stated by the Constitutional Court in JOSEPH AND OTHERS v CITY OF JOHANNESBURG AND OTHERS 2010 (4) SA 55 (CC) x p55, the cardinal duty of a municipality is to render services which is sadly lacking in. 8. We reiterate again that this letter should not be regarded as a threat, but by the same token wish to state that, should our clients pleas remain falling onto deaf ears, our instructions are to forthwith take such legal action as may be required to protect their rights. 9. Your proposals regarding a schedule with the view of setting dates and venues for follow up meetings to be held in order to verify progress is accordingly awaited. 4

5 10. All our clients rights remain reserved. Yours Faithfully Per HSL DU PLESSIS ATTORNEYS Original hereof received on this day of Signature Eien. / Prop. HSL Du Plessis B Iuris LLB i CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, Environment Everyone has the right- (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that- (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. ii [a108y1996s27]27 Health care, food, water and social security (1) Everyone has the right to have access to- (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependents, appropriate social assistance. iii 152 Objects of local government (1) The objects of local government are- (a) to provide democratic and accountable government for local communities; (b) to ensure the provision of services to communities in a sustainable manner; (c) to promote social and economic development; (d) to promote a safe and healthy environment; and 5

6 (e) to encourage the involvement of communities and community organisations in the matters of local government. (2) A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1). [a108y1996s153] iv 153 Developmental duties of municipalities A municipality must- (a) structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community; and (b) participate in national and provincial development programmes. [a108y1996s154] v LOCAL GOVERNMENT MUNICIPAL SYSTEMS ACT 32 OF Rights and duties of municipal councils (1) The council of a municipality has the right to- (a) govern on its own initiative the local government affairs of the local community; (b) exercise the municipality's executive and legislative authority, and to do so without improper interference; and (c) finance the affairs of the municipality by- (i) charging fees for services; and (ii) imposing surcharges on fees, rates on property and, to the extent authorised by national legislation, other taxes, levies and duties. (2) The council of a municipality, within the municipality's financial and administrative capacity and having regard to practical considerations, has the duty to- (a) exercise the municipality's executive and legislative authority and use the resources of the municipality in the best interests of the local community; (b) provide, without favour or prejudice, democratic and accountable government; (c) encourage the involvement of the local community; (d) strive to ensure that municipal services are provided to the local community in a financially and environmentally sustainable manner; (e) consult the local community about- (i) the level, quality, range and impact of municipal services provided by the municipality, either directly or through another service provider; and (ii) the available options for service delivery; (f) give members of the local community equitable access to the municipal services to which they are entitled; (g) promote and undertake development in the municipality; (h) promote gender equity in the exercise of the municipality's executive and legislative authority; (i) promote a safe and healthy environment in the municipality; and (j) contribute, together with other organs of state, to the progressive realisation of the fundamental rights contained in sections 24, 25, 26, 27 and 29 of the Constitution. (3) A municipality must in the exercise of its executive and legislative authority respect the rights of citizens and those of other persons protected by the Bill of Rights. vi [a32y2000s5]5 Rights and duties of members of local community (1) Members of the local community have the right- (a) through mechanisms and in accordance with processes and procedures provided for in terms of this Act or other applicable legislation to- (i) contribute to the decision-making processes of the municipality; and (ii) submit written or oral recommendations, representations and complaints to the municipal council or to another political structure or a political office bearer or the administration of the municipality; (b) to prompt responses to their written or oral communications, including complaints, to the municipal council or to another political structure or a political office bearer or the administration of the municipality; (c) to be informed of decisions of the municipal council, or another political structure or any political office bearer of the municipality, affecting their rights, property and reasonable expectations; 6

7 (d) finances; (e) committees must be- (f) (g) to regular disclosure of the state of affairs of the municipality, including its to demand that the proceedings of the municipal council and those of its (i) open to the public, subject to section 20; (ii) conducted impartially and without prejudice; and (iii) untainted by personal self-interest; to the use and enjoyment of public facilities; and to have access to municipal services which the municipality provides, provided the duties set out in subsection (2) (b) are complied with. vii 6 Duties of municipal administrations (1) A municipality's administration is governed by the democratic values and principles embodied in section 195 (1) of the Constitution. (2) The administration of a municipality must- (a) be responsive to the needs of the local community; (b) facilitate a culture of public service and accountability amongst staff; (c) take measures to prevent corruption; (d) establish clear relationships, and facilitate co-operation and communication, between it and the local community; (e) give members of the local community full and accurate information about the level and standard of municipal services they are entitled to receive; and (f) inform the local community how the municipality is managed, of the costs involved and the persons in charge. [a32y2000s7]7 Exercise of rights and performance of duties The rights and duties of municipal councils and of the members of the local community, and the duties of the administrations of municipalities, as set out in sections 4, 5 and 6, are subject to the Constitution, the other provisions of this Act and other applicable legislation. viii CHAPTER 8 MUNICIPAL SERVICES (ss 73-86A) [a32y2000s73]73 General duty (1) A municipality must give effect to the provisions of the Constitution and- (a) give priority to the basic needs of the local community (b) promote the development of the local community; and (c) ensure that all members of the local community have access to at least the minimum level of basic municipal services. (2) Municipal services must- (a) be equitable and accessible; (b) be provided in a manner that is conducive to- (i) the prudent, economic, efficient and effective use of available resources; and (ii) the improvement of standards of quality over time; (c) be financially sustainable; (d) (e) be environmentally sustainable; and be regularly reviewed with a view to upgrading, extension and improvement. ix 74 Tariff policy (1) A municipal council must adopt and implement a tariff policy on the levying of fees for municipal services provided by the municipality itself or by way of service delivery agreements, and which complies with the provisions of this Act, the Municipal Finance Management Act and any other applicable legislation. [Sub-s. (1) substituted by s. 10 of Act 44 of 2003.] (2) A tariff policy must reflect at least the following principles, namely that- (a) users of municipal services should be treated equitably in the application of tariffs (b) the amount individual users pay for services should generally be in proportion to their use of that service; (c) poor households must have access to at least basic services through- (i) tariffs that cover only operating and maintenance costs, (ii) special tariffs or life line tariffs for low levels of use or consumption of services or for basic levels of service; or 7

8 (iii) any other direct or indirect method of subsidisation of tariffs for poor households; (d) tariffs must reflect the costs reasonably associated with rendering the service, including capital, operating, maintenance, administration and replacement costs, and interest charges; (e) tariffs must be set at levels that facilitate the financial sustainability of the service, taking into account subsidisation from sources other than the service concerned; (f) provision may be made in appropriate circumstances for a surcharge on the tariff for a service; (g) provision may be made for the promotion of local economic development through special tariffs for categories of commercial and industrial users; (h) the economical, efficient and effective use of resources, the recycling of waste, and other appropriate environmental objectives must be encouraged; (i) the extent of subsidisation of tariffs for poor households and other categories of users should be fully disclosed. (3) A tariff policy may differentiate between different categories of users, debtors, service providers, services, service standards, geographical areas and other matters as long as the differentiation does not amount to unfair discrimination. [a32y2000s75] x JOSEPH AND OTHERS v CITY OF JOHANNESBURG AND OTHERS 2010 (4) SA 55 (CC) 2010 (4) SA p55 Citation 2010 (4) SA 55 (CC) Case No CCT 43/09 Court Constitutional Court Judge Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Van Der Westhuizen J Heard August 18, 2009 Judgment October 9, 2009 Counsel S Budlender (with A Friedman) for the applicants. R Sutherland SC (with NM Maentje and Z Khan) for the first and second respondents. Annotations Link to Case Annotations B [zfnz]flynote Sleutelwoorde Local authority - Electricity - Disconnection of electricity supply - Rights of consumers materially and adversely affected by disconnection - Matter governed by administrative law - Local authority/service provider may not C terminate electricity supply without giving all those affected by disconnection 14 days' notice - Fact that no direct contractual relationship existing between local authority/service provider and consumers irrelevant. Local authority - Powers and duties - To provide basic municipal services - Such the cardinal duty of every municipality - Conferring corresponding D administrative-law right on citizens - Local authority to observe procedural fairness when terminating such services - Promotion of Administrative Justice Act 3 of 2000, s 3(1). 8