The legal fraternity has dismissed as “unlawful and illegal” a controversial decision by the cash-strapped Johannesburg metro to enforce revenue collection at roadblocks to recover billions of rand in rates and taxes owed to the city.
This is after finance political head Dada Morero said the city’s group finance officials will join certain roadblocks conducted by the Johannesburg Metropolitan Police Department (JMPD) “to engage with residents on outstanding fees” on their municipal accounts.
Finance officials “will have the capability to help residents with queries, enter into automated acknowledgment of debt (AoD); [they] will be able to help with automated reconnection of services for disconnected residents who pay their bills or enter into an AoD. Finance officials will be performing the above tasks and not JMPD officers as alleged,” Morero said.
Ratepayers owe Joburg about R48bn for electricity, water and rates, among other services.
Morero emphasised that revenue collection “is a collective effort from all units and departments within the City of Johannesburg”. The participation of JMPD officers is “not out of the ordinary” and will help curb acts of lawlessness such as illegal connections and reconnections by residents and businesses.
“In light of the increasing challenges faced by staff when collecting revenue, either from residents’ places of employment or residences, the multidisciplinary credit control teams, comprising the revenue department, City Power and Joburg Water, will be bolstered by the presence of JMPD officers to ensure their safety while executing revenue collection duties,” he said.
However, Mashudu Kutama, an advocate at Kutama Attorneys and president of the Black Lawyers Association, told Business Day: “My prima facie view is that process is unlawful and illegal. Even the acknowledgment of debt is invalid because it might be entered with fear and misunderstanding. And if ratepayers refused to sign or engage with COJ [City of Joburg] debt collectors, there is no remedy. COJ must just put in place an effective and efficient system for debt collection.”
Legal expert advocate Mike Hellens said the decision is “absolutely unlawful [and it’s an] abuse of roadblock powers” of the metro, which are effectively meant for checking vehicle roadworthiness, drivers’ licences, outstanding fines, and vehicle licence discs.
“Assuming the metro police exercise their right to stop someone’s freedom of movement, [then they have to] do that for the limited purposes of checking the roadworthiness of the vehicle and licence. They cannot misuse that power for another purposes,” Hellens said.
Signing the acknowledgment of debt would be construed as having been made under duress and would therefore be unenforceable.
Legal and ethical concerns
DA public safety shadow MMC Michael Sun and his economic development counterpart, Andrew Marais, expressed “deep dismay at this approach by the ANC government”.
“The city’s proposed tactic of employing JMPD as debt collectors for utility bills raises serious legal and ethical concerns. As far back as 1995, the Constitutional Court ruled that it was unreasonable to commit to detention or to imprison debtors who do not pay their debts and declared provisions in the Magistrates Courts Act which allowed for such committal or imprisonment to be inconsistent with the constitution and thus invalid,” they said in a joint statement.
They said such claims can only be pursued through a lawful civil process, necessitating the initiation of legal action by the city, adhering to court rules and relevant laws. “Enforcement can only take place upon the granting of a court judgment in favour of the city, executed by the court-appointed sheriff.”
The JMPD lacks the “legal mandate to detain or inconvenience motorists at roadblocks for unpaid utility charges ... unless there are valid court papers ordering such action”.
The Joburg metro needs to explore “innovative approaches to bolster its revenue collection while ensuring the delivery of essential services to its residents. The DA remains steadfast in its commitment to prevent the city and JMPD from resorting to illicit means to secure payments from residents”.
In August, the metro announced it had collected R13.2m from city councillors and permanent employees who were behind on their municipal accounts. It said out of a total of 13,323 employees who owe the metro, about 140 are councillors and 13,183 are staff members.
The controversial decision comes after GCR Ratings, an affiliate of Moody’s, informed bondholders in August it had downgraded Joburg’s credit rating and revised its outlook from stable to negative, highlighting the cash flow challenges plaguing the city.
Morero has blamed slow economic growth, load-shedding and an increasing population for the metro’s credit rating downgrade, saying these factors resulted in residents and property owners struggling to pay for municipal services.
The downgrade meant the city’s ability to repay its loans has been weakened, and the elevated risk will contribute to the higher cost of borrowing.
Morero previously said the city’s budget of R80.9bn for 2023/24 alone is insufficient to fund its operations and roll out services to its residents.
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