Dispute en Besware teen Klerksdorp Munisipaliteit

06/02/2018

Does the "City of Matlosana" legally exist? (Continued)

1. “Matlosana Local Municipality” was not initially established into notice 301 of 2000 as claimed.
The “Klerksdorp Local Municipality” was initially established by notice 301 of 2000; promulgated in Provincial Gazette No 5574 of 29 September 2000.
The “City of Klerksdorp Local Municipality” was established by notice 1 of 2001; promulgated in Provincial Gazette No 5658 of March 2001.
The “City Council of Klerksdorp” was established by notice 9 of 2001; promulgated in Provincial Gazette No 5668 of 24 April 2001.
The “City of Matlosana” was established by notice 627 of 2005;
promulgated in Provincial Gazette No 6235 of 23 November 2005.
“Matlosana Local Municipality” was established by notice 377 of
2010; promulgated in Provincial Gazette No 6847 of 24 December 2010, see paragraphs 2 to 5 infra.
The establishment took effect on the 18th May 2011, and in accordance with section 2(2) of the amended notice 301 of 2000, the “City of Matlosana” was disestablished on the same date.

2. Phrasing of notice 377 of 2010 gives a clear indication of the
intention of the MEC and reference to section 16(1)(c) is in all
probability a misnomer .
“…… herby amend certain notices relating to the establishment of municipalities in the province of North West as set out in the schedule hereto. The amendments shall apply to the municipal council to be elected during the next general municipal election, the date of which is still to be announced, and shall become effective on such date.”

3. Amendments of Notice 301 of 2000 refer to subsections 2(1)(d) and 3(1); Notice 377 of 2010 at page 7:
“General notice No 301 of 2000, establishing the Matlosana Local Municipality (NW 403) and published in the Provincial Gazette Extraordinary No. 5574 dated 29 September 2000, is hereby amended by the substitution for subsections 2(1)(d) and 3(1) of the following subsections:
2(1)(d) shall be known as the Matlosana Local Municipality (NW403), is hereby established with its area of jurisdiction as described in Annexure “A” hereto, with such area being divided into 35 wards.
3(1) The local municipality referred to in section 2(1) shall have a council consisting of 70 members with 35 of those members being proportionally elected councillors and 35 ward councillors.”

4. The amended notice 301 of 2000 now reads as follows:
“Establishment of Local municipality
“2(1) The local municipality designated as NW 403 by the Demarcation Board for which elections shall be held as contemplated in the Act, which –
(a) shall be a juristic person;
(b) …….
(c) …..
(d) shall be known as the Matlosana Local Municipality (NW 403), is herby established with its area of jurisdiction as described in Annexure “A" with such area being divided into 35 wards.
(2) The establishment of the local municipality referred to in subsection (1) takes effect at the commencement of the next election of the council of that municipality whereupon any existing municipality which had its area of jurisdiction any part of the area as described in Annexure “A” hereto, shall be disestablished: ….
Constitution of Local municipality
3(1) The local municipality referred to in section 2(1)shall have a council consisting of 70 members with 35 of those members being proportionally elected councillors and 35 ward councillors.”

5. A by-election was held on the 11th of November 2015 to elect a representative for Matlosana Local Municipality in ward 13; see notice 99 of 2015 promulgated in Provincial Gazette No 7553 of 9 October 2015.

6. The redetermination of wards and the number of councillors refers to “Matlosana Local Municipality” and the “City of Matlosana” is not mentioned in any official notices; see notice 377 of 2010; promulgated in Provincial Gazette No 6847 of 24 December 2010 and notice 115 of 2016; promulgated in Provincial Gazette No 7658 of 17 June 2016.

7. A general election was held in 2017 to elect representatives for which municipality and in which official notice was the number of wards, number of councillors and number of representatives to be appointed to the district municipality of that municipality promulgated?

8. Legality refers to a broad constitutional principle of legality that governs the use of all public power. The fundamental idea it express is that the exercise of public power is only legitimate where lawful. In exercising their functions and performing their duties councilors and officials will have to show that their actions are lawful and they represent a municipality established in law; the alleged “City of Matlosana.”

21/01/2018

Does the "City of Matlosana" legally exist?

Apparently the “City of Matlosana” is not a municipality established in law; Matlosana Local Municipality seems to be the lawfully established municipality for the area and the only juristic person that could lawfully and legally exercise the powers and perform the functions conferred on it by law.

Local government is regulated by Chapter 7 of the Constitution and consists of municipalities which must be established for the whole of the territory of the Republic. A municipality is a juristic person and is established in accordance with Chapter 2 of the Municipal Structures Act and by notice in the Provincial Gazette.

Legality refers to a broad constitutional principle of legality that governs the use of all public power. The fundamental idea it expresses is that the exercise of public power is only legitimate where lawful.

In Fedsure Life Assurance Ltd v Greater Johannesburg Traditional Metropolitan Council the court identified the principle of legality and described it as an aspect of the rule of law. The principle was held to imply that a body exercising public power – in this case, a municipality making original legislation in the form of budgetary resolutions – had to act within the powers lawfully conferred on it. In President of the Republic of South Africa v South African Rugby Football Union, the principle required the holder of public power to act in good faith and not to misconstrue his or her powers. In the Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa it demanded that the exercise of public power should not be arbitrary or irrational.

Matlosana Local Municipality (NW 403) was established by notice 377 of 2010 published in the North West Provincial Gazette No 6847 and became effective on the date of the next general municipal election, the 18th of May 2011.

Councilors and officials, however, persist to act on behalf of an apparent phantom, “The City of Matlosana”, and according to my view, the lawfulness and legitimacy of their conduct could be rightfully challenged.

10/12/2017

The L&K Toffee – Council might be liable for damages?

The knotty situation of some sectional title schemes was under discussion at Council’s last meeting of the year. A number of these schemes find themselves in an arrear account predicament after payments which were administrated by L&K was allegedly not paid towards their municipal accounts.

The Klerksdorp Record of 30 November 2017 reported that although Council acknowledged the possession of incomplete information regarding the issue, the MEC for finance reiterated at the meeting that indebted schemes had two weeks to make arrangements with the municipality and that Council will now proceed with the cut of electricity. It was apparently suggested at the meeting that any action will be premature as new evidence is revealed daily.

As more facts are uncovered, Council might found itself in an inconceivable situation.

According to my understanding a number of these accounts were disputed in terms of section 102(2) of the Municipal Systems Act. Such dispute suspends the institution of debt collection measures for the recovering of the disputed amount.

It seems officials failed to discharge these disputes in accordance with the prescriptions of the municipality’s Credit Control and Debt Collection by-law and denied the aggrieved persons ‘Just Administrative Action’ as guaranteed by section 33 of the Bill of Rights.

Depending on the circumstances, a municipal council might be vicariously liable for the damages flowing from the delictual conduct of its officials. Another possible avenue for relief is section 38 of the Constitution, which gives considerable scope for remedies to vindicate rights in the Bill of Rights.

Presently there are another approximately 600 unattended disputes declared with the municipality in terms of section 102(2). These disputes are based on the principle of ‘Legality”; the municipality failed to follow and comply with the statutorily prescribed processes and procedures to entitle it to legally and lawfully levy rates, fees, charges and tariffs utilised to compile and calculate the disputed amount. Notwithstanding a municipality’s Constitutional duty to respect, protect, promote and fulfils the rights in the Bill of Rights, the City of Matlosana continues with coercive actions, like the institute of legal action, against declarers of dispute.

It is further viewed that it will be in the best interest of concerned parties to dispute claimed amounts and only make decisions of the course of action once all relevant facts are available.

For further information or assistance, contact me at [email protected] or
082 347 2923.

28/02/2017

Phokwane Plaaslike Munisipaliteit betaal AfriForum-regskoste

Die Phokwane Plaaslike Munisipaliteit het die burgerregte-organisasie AfriForum se regskoste ten bedrae van R265 000 betaal soos in 2016 deur die Noord-Kaapse hoë hof in Kimberley gelas. AfriForum het sy regspan op 8 Februarie 2017 opdrag gegee vir die uitreik en tenuitvoerlegging van ’n lasbrief vir eksekusie van die invordering van hierdie koste.

Dít volg nadat AfriForum ’n kostebevel teen die munisipaliteit in ’n hofgeding bekom het wat die munisipaliteit verplig het om onregmatige elektrisiteitstariewe reg te stel. Hoewel hierdie tariewe slegs deur die Nasionale Energiereguleerder van Suid-Afrika (Nersa) vasgestel kan word, wil dit voorkom asof munisipale amptenare hulle nie aan hierdie reël steur nie.

“Die munisipaliteit is onlangs onder nuwe bestuur geplaas. Ons het reeds ’n vergadering met me. Mogale, munisipale bestuurder, gehad en dit was positief van aard. Die feit dat sy die saak as belangrik beskou, skep ’n goeie indruk van haar,” sê Theo Joubert, voorsitter van AfriForum se Vaalharts-tak.

“Ons is dankbaar dat die saak so ver gevorder het en is positief ingestel ten opsigte van toekomstige samewerking met die munisipaliteit,” sê Linja van Wyk, AfriForum se distrikskoördineerder vir die Noord-Kaap.

28/02/2017

http://www.bizcommunity.com/Article/196/637/158104.html

An important judgment was handed down in the Gauteng High Court last week, granting relief to property owners who have received exorbitant utility bills after a number of years...

29/05/2016

RATES SHAM!

A recent decision by the Valuation Appeal Board (VAB) of the city of Matlosana ruled that property, owned by the appellant in question, was illegally categorised as “vacant”, which in turn subjected the appellant to paying rates at a harsh, high tariff. In evidence before the VAB, the appellant furthermore questioned the legality of the categories assigned to property in the valuation roll.

The Municipal Property Rates Act (MPRA) regulates the levying of rates in a municipality, hence when different rates are levied on alternating categories of property, the Rates Policy (which every municipality must adopt in accordance with the requirements of the Act) must set out the criteria for determining the category in which a specific piece of property falls.

A municipality must enact its Rates Policy in a by-law to give effect to its implementation. In preparing the valuation roll the municipal valuer determines the category of property in accordance withthe determined criteria.

In essence, the crux of the dispute deals with the by-law in terms of which the property was categorised in the valuation roll. As per the request of Mr. Van Rensburg – a local valuer on behalf of the appellant – the appointed municipal valuer was unable to produce a copy of the by-law applied during the categorisation of the appellant’s property. In a vain effort, the administration of the municipality came to his aid by providing the VAB with a Council’s decision, as well as a by-law dating back to 2012. However, the said by-law was silent with regards to the ”vacant” category employed in the appellant’s case. The municipal valuer explained that the appellant’s property was categorised as “vacant” in terms of the prescription of a “draft rates policy”. He nevertheless remains reluctant to answer Van Rensburg’s question whether all property in the valuation roll was categorised in terms of the so-called “draft rates policy”.

Van Rensburg additionally pointed out that the valuation roll contained 23 different categories, whilst the by-law made provisions for mere 14 main categories. Council, on the other hand, approved tariffs for 6 categories only. He argued that that the said by-law was defective due to Council’s failure to enact the criteria for the termination of categories.
The VAB ruled that the municipality failed to determine a “vacant” category, and amended the matter by adjusting the categories of the appellant’s properties from “vacant” to “agriculture” and “residential”. The ruling additionally involves approximately 2132 properties.

It is Van Rensburg’s view that administrators are constrained by the principle of legality and may exercise no power, and perform no function, beyond that conferred upon them by law. Hence, without a statutory framework for categorising property, the levy of a differential rate in the municipality is questionable.
According to him, all is not lost for owners of property who did not participate in the objection- and appeal process of the MPRA. Property owners may dispute the rates levied on their property in terms of section 102(2) of the Municipal Systems Act.
It is evident that in considering the abovementioned, one might wonder whether the municipal administration conducts itself whilst keeping in mind the objectives of the Constitution, fairness and transparency as would be expected – or if it is merely orchestrating a grand, far-reaching rates sham?

Interesting parties can contact Hendrik van Rensburg at 082 347 2923 or by e-mail at [email protected].

02/12/2015

Valuation Appeal Board of the City of Matlosana turns a deaf ear to the “Rule of Law” and “Just Administrative Action”.

Read more here:

http://hsvaluers.weebly.com/municipal-matters/valuation-appeal-board-of-the-city-of-matlosana-turns-a-deaf-ear-to-the-rule-of-law-and-just-administrative-action

   Appellants argued before the Valuation Appeal Board on the 28th of October 2015 that they are entitled to administrative action that is lawful, reasonable and procedurally fair ....

15/09/2015

Dit is wat die Matlosana-munisipaliteit in die Klerksdorp-omgewing byna twee jaar lank aan ’n veiligheidsmaatskappy betaal het om bates soos waterwerke op te pas.
http://www.netwerk24.com/nuus/2015-09-15-munisipaliteit-dok-glo-r24-m-op-vir-wagte-met-verfbalgewere-knuppels

R24 miljoen vir beskerming met verfbalgewere en knuppels.

21/05/2015

MUNICIPAL MATTERS – DISCONNECTION OF ELECTRICITY

The summarily disconnection of the electricity supply to a resident’s property is one of the coercive tactics used by municipalities to compel a resident to pay outstanding debts for services and rates. The question however: Are these tactics legal?

A municipality has the authority to govern on its own initiative the local government affairs of its community. To ensure effective administration a municipality may make and administer by-laws regarding the matters which it has the right to administer.

The right to govern and make by-laws is however not unlimited and is subject to the Constitution, and especially the Bill of Rights, national and provincial legislation.

The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. The state, which includes municipalities, must respect, protect, promote and fulfill the rights in the Bill of Rights.

The Bill of Rights affords everyone with the right to administrative action that is lawful, reasonable and procedurally fair, and the right to be given written reasons. To give effect to these rights the Promotion of Administrative Justice Act was enacted.

In Joseph vs The City of Johannesburg the applicants contended that the Promotion of Administrative Justice Act afford them with the right to procedural fairness before a decision is taken to disconnect the electricity supply, as the decision materially and adversely effected their rights. The Constitutional Court held that electricity is an important basic municipal service and local government had a constitutional and statutory obligation to provide it.

Receiving electricity was declared to be a public law right by virtue of Constitutional and statutory obligations; accordingly in depriving the applicants of a service which they already receive as a matter of right, they were entitled to procedural fairness before a decision is taken which would materially and adversely affect that right.

The Court held that procedural fairness in this instance required that the applicants were entitled to 14 days pre-termination notice in the form of a physical notice; implicit in affording pre-termination notice is that users of the municipal service may approach the municipality within the notice period to challenge the proposed termination or to tender arrangements to pay of the arrears.

The judgment held that By-laws permitting the termination of electricity supply “without notice”, is inconsistent with the Promotion of Administrative Justice Act and section 33 of the Constitution.

Although a municipality, if authorised to so by law, may disconnect the electricity supply to a resident’s property, it must afford the resident procedural fairness in accordance with the Promotion of Administrative Justice Act before such a decision is made.

A spoliation remedy is available to any person who is unlawfully deprived of the electricity supply to his/her property. To succeed in a application for spoliation, it must be proved:
• That at the time the applicant was allegedly despoiled, the applicant was in the peaceful and undisturbed possession of the electricity supply.
• The applicant was unlawfully deprived of such possession.

Residents requiring more information regarding the declaring of a dispute or the spoliation remedy could contact me at 082 347 2923 or [email protected].

21/12/2014

http://www.citypress.co.za/news/municipality-owing-eskom-r200m-put-administration/

Matlosana Local Municipality has been put under full administration, says the North West local government department.

10/11/2014

New court ruling for property bought at an ex*****on sale or insolvent estate:

In a recent land mark decision the North Gauteng High Court protects purchasers of real estate that were bought at an ex*****on sale or from an insolvent estate from claims by a municipality for previous owner’s municipal debts.

The Court held that the City of Tshwane Metropolitan Municipality could not hold the new owner liable for property rates and municipal charges incurred by the previous owner. The Judge said that the debt did not belong to the property, but to whoever owned the property at the time when the debts incurred.

31/10/2014

Update on disputes:

We had a meeting with the administrator, Mr Serote, at the beginning of the month, regarding the disputes.

At the meeting we were requested to compile a report on council’s neglect to comply with statutory provisions. Mr. Serote also undertakes to provide us with any required documents of council to compile such report.

We made a request for access to certain documents, and await Mr. Serote’s response.