A residents association in the farming town of Bethal in Mpumalanga has dragged the local Govan Mbeki Municipality (GMM) and Eskom to court, claiming that power cuts of up to 20 hours a day are threatening the livelihoods and health of residents.
This is not the first time residents have taken a local municipality to court for service delivery failure, but what is unique about this case is that the applicant – the Bethal & eMzinoni Community for Services Association – is asking the court for a “structural interdict” that would force the municipality to settle its roughly R1.18 billion debt to Eskom and subject itself to court supervision to prevent or limit further power cuts.
The other respondents in the case are the Gert Sibande Municipality (under which GMM falls), the municipal managers at GMM and Gert Sibande Municipality, and the provincial and national ministers for Co-operative Governance and Traditional Affairs.
The case was heard earlier this month in the Mpumalanga High Court.
Extent of collapse
Deposing for the residents’ association, Bethal businessman and resident Yusuf Carrim lays out the extent of the municipality’s financial and operational collapse: power outages of between four and 20 hours a day commenced in December 2019, and have increased in frequency and duration since March 2020.
The affected areas are the towns of Bethal, eMzinoni and Milan Park, all of which fall under GMM.
The association is asking the court to force the municipal respondents and Eskom to come to a repayment agreement for the roughly R1.18 billion owed to the electricity utility, and “to comply with their respective constitutional and statutory duties and to forthwith render the uninterrupted basic service of electricity to all those living and working within the Greater Bethal area who are willing and able to pay for it”.
The residents association was formed in June 2020 to address residents’ concerns over lack of service delivery by the municipality. It has more than 100 members and some 7 000 supporters drawn from all segments of the local communities.
After exhausting all possible remedies with the local municipality, the association raised more than R300 000 to take the matter to court.
Power supply isn’t the only issue
It’s not just daily power cuts that have outraged local residents. GMM has a long history of service delivery dereliction, from water cuts to unrepaired roads and broken garbage trucks.
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Local entrepreneurs have stepped in to provide the services the municipality is supposed to, from collection of rubbish to water supply.
The situation became so dire that the province was forced to step in with a recovery plan in 2019, though it is clear, says Carrim, that this had little material impact on the provision of basic services in GMM.
In 2019, the municipality and Eskom had agreed on what is known as a Notified Maximum Demand (NMD) system, whereby Eskom would implement “partial rotational load shedding” in the areas of Bethal, eMzinoni, Kinross and Evander.
Eskom is entitled to reduce or terminate the supply of electricity where a municipality contravenes payment conditions previously agreed, or fails to honour or to enter into an agreement for the supply of electricity under the Electricity Regulation Act.
The daily power outages are imposed on local businesses and residents without warning, and are unpredictable in timing and duration.
This is quite separate from national load shedding by Eskom which takes place at prescribed times.
Residents who can afford it have purchased generators to ensure they have sufficient power supply for the preparation of food, bathing and, for businesses, essential services such as wifi and power for computers.
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Carrim’s affidavit spells out how the power outages impact life for local residents:
- The local high school is unable to function properly and cannot afford a generator to keep its computers running during power outages;
- There are 68 residents in a frail care home that need uninterrupted power for lights, heating and electronic medical equipment;
- A local grocery store had to shut down for a period due to damage to equipment caused by power outages; and
- Other businesses likewise report damage to equipment caused by sudden power cuts, which in one case cost R75 000 to repair.
“Our argument is that the residents are dutifully paying their electricity bills to the municipality, but the municipality is not paying Eskom, so the power cuts that are imposed by Eskom prejudice law-abiding residents,” says Waseem Gani, attorney with MacRobert Attorneys, who is representing the association.
“This cannot be allowed to continue and we want to court to issue a structural interdict which will force the municipality to reach a settlement with Eskom over the arrears owed, and supervise the adherence to that settlement.
Acting municipal manager disputes residents’ claims
In response, Elizabeth Tshabalala, acting municipal manager at GMM, denies the residents association’s reasons for the power cuts, and says the municipality disputes the amount allegedly owed to Eskom, and that the matter was referred to arbitration.
She also denies the power interruptions at Bethal are as a result of the historic debt to Eskom, and argues that the decision to implement load shedding is a temporary measure until such time as the arbitration with Eskom is complete.
Some of Tshabalala’s affidavit is unintelligible – for example: “The First Respondent (GMM) hold meetings quality with the member of the communities)” – so one wonders how the judge will make sense of this.
The response from the Gert Sibande Municipality also appears to contain some basic errors, such as getting the name of the municipal manager wrong.
Its affidavit is signed by a CA Habini, described as an adult male, when the municipal manager’s name is CA Habile.
“It is of serious concern that the deponent would sign, and … the respondents deliver, an affidavit in which the apparent municipal manager has his surname given completely incorrectly, and his position within [the municipality] has not been described,” deposes Carrim.
Judgment in the case has been reserved.
A case to watch
Residents of other municipalities subject to similar power outages will be watching this case with interest with a view to potentially launching cases of their own.
“The allegations of [Bethal] residents, if true, represent a shocking case of indifference by GMM officials to the plight of residents who dutifully continue to pay their municipal dues,” says Tim Tyrrell, project manager at the Organisation Undoing Tax Abuse (Outa).
“It is appalling that there appear to be no consequences for officials who have clearly failed in their duty to deliver basic and constitutionally-mandated services.”