What Counts as a “Dispute” with a Municipality?

2022, Articles, Municipal Law, News, Property Law

Article by Chantelle Gladwin-Wood (Partner) and Maike Gohl (Partner)
08 December 2022

INTRODUCTION

This is part 1 of an “idiots guide” to logging queries, disputes and complaints with the City of Johannesburg Metropolitan Municipality (“COJ”).  Although one might question why it is necessary to write an article explaining what appears to be such a simple concept, we regularly receive reports of customers not being able to take their matters forward as a result of not having been able to log a dispute, logging the wrong type of dispute, or not having proof of the dispute logged.  What will become clear from the contents hereof is that logging a dispute is much more complicated than you might imagine at first blush.

WHY SHOULD I CARE ABOUT THIS QUESTION?

Section 102 of the Local Government:  Municipal Systems Act 32 of 2000 (“the Systems Act”) provides as follows:

Amounts
102. (l) A municipality may-—
(a) consolidate any separate accounts of persons liable for payments to the municipality;
(b) credit a payment by such a person against any account of that person; and
(c) implement any of the debt collection and credit control measures provided for in this Chapter in relation to any arrears on any of the accounts of such a person.

(2) Subsection (1) does not apply where there is a dispute between the municipality and a person referred to in that subsection concerning any specific amount claimed by the municipality from that person.

A customer that raises a ‘dispute’ that ‘concerns any specific amount claimed by the municipality from that person’ is thus insulated from “credit control action” (which could include the termination of services, or the issuing of summons) for so long as that ‘dispute’ exists. In the absence of such a ‘dispute’ however the municipality is free to take whatever lawful form of credit control action it might see fit against the consumer.

WHAT IS A ‘DISPUTE’ FOR SECTION 102?

This is a complicated question.  There is no definition of ‘dispute’ in the Systems Act which governs the relationship between municipalities and customers.  Section 102(2) however indicates that such a ‘dispute’ must be “concerning any specific amount claimed”. 

Importantly, this means that the customer needs to point to the amount claimed in a specific invoice in order for the query to be “valid” for the purposes of section 102.  It does not mean (as some municipalities incorrectly contend) that the customer needs to advise the municipality how much of the total bill the customer thinks he does not owe in rands and cents terms – as this would be impossible for the great majority of customers who do not know how to calculate municipal charges or where the customer does not have the information necessary to do those complex calculations.  It is sufficient for a customer to point to the “total amount” owed in any particular invoice and dispute that amount, or to point to the amount owed for a specific section of the invoice (such as rates, electricity, sewerage, etc) – provided that the amount in the invoice is identified. 

A “TRUE” OR “BONA FIDE” QUERY

If one looks to the decisions of courts made in the context of what a ‘dispute’ is for the purpose of sectional title management, we find that a pure refusal or failure to pay levies does not count as a dispute.[1] Applying this reasoning in the municipal context makes sense, because it would be unjust if a customer were able to avoid payment of a “disputed” amount or credit control action being taken against him in relation to a “disputed” amount purely because the consumer raises a “query” or “dispute” that is not connected to the amount owing – such as the incorrect billing address, not receiving invoices or an incorrect property description or size.

Furthermore a query logged to the extent that the charges are “too high” would not qualify as a bona fide query unless the reason for them being too high was disclosed. To simply say that you “dispute” a charge without disclosing a reason therefore, is not a bona fide dispute.

In Herbst and Another v City of Tshwane[2] the Court held that the customer had not raised a ‘dispute’ because it’s ‘problem’ was that the municipality was charging it for rates based on a categorisation of non-permitted use when the permitted use did, at the time, prevent that particular use. The defence raised was that the customer had applied for a rezoning, which had not yet been granted. The court found that there was no ‘dispute’ as the application for rezoning had not yet been granted and the customer admitted that it was actually using the property in contravention of its permitted use.

Moreover, a “general dissatisfaction” with the municipality’s service delivery or response rate, does not qualify in law as a ‘dispute’ that will entitle a person to withhold the payment of rates/service charges[3], nor will a “civil protest” (as confirmed by our Constitutional Court in Rademan.[4] )

COJ’s OWN BY-LAWS AND POLICIES

If life were simple and COJ operated based on clear and logical documents, we would probably not be writing this article. Sadly COJ’s various documents use various terms such as ‘compliant’, ‘query’ and ‘dispute’ seemingly interchangeably in a number of instances and do not contain definitions. This makes their interpretation rather complex. It must be understood, however, that COJ is only lawfully empowered to create its own rules/laws insofar as they comply with national laws (such as the Systems Act). To the extent that there is a conflict, the municipality’s rules/laws would be unenforceable in law.

In terms of the COJ’s Credit Control By-laws (“by-laws”) a dispute is couched as a ‘query’ or ‘complaint’ in relation to the accuracy of any amount due and payable in terms of any invoice rendered. This is a very narrow concept of query, which doesn’t include reference to faulty infrastructure (such as meters, street lights or pot holes), amounts not billed to an invoice, not receiving invoices or invoices not being available, incorrect addressee or contact information or anything relating to a property’s size, description, valuation or categorisation. There are no actual definitions of ‘query’ or ‘dispute’ in this document that might guide us further. It might be argued by the municipality that the words ‘query’ and ‘complaint’ were specially utilized in order to refer to ‘problems’ that are not ‘disputes’ within the true meaning of the term. If this is the case, then it would mean that ‘problems’ that are not ‘disputes’ must be raised and dealt with in terms of these by-laws, whereas ‘disputes’ must be dealt with in terms of the policy referred to below. It is more likely, however, that the drafters of the by-laws simply used loose language and that queries and complaints are meant to count as disputes.

In COJ’s 2022 Credit Control and Debt Collection Policy (“policy”) COJ seems to distinguish between a ‘query’, which is logged initially through the Call Centre, and a ‘dispute’, which is logged in writing with the City if the ‘query’ is not resolved in 30 days. The words query/dispute are mostly used interchangeably to refer ‘the correctness of an account or any entry thereon’. Again, this is a very limited concept and excludes several crucial issues that a consumer might want to take issue with.

It is likely that COJ only refers to disputes/queries/complaints which relate to the amount owed in terms of a specific invoice because section 102(2) which provides that liability for payment of an amount is only deferred if a “dispute” in relation to “any specific amount” owing has been raised. This is rather short sighted, however, because the purpose of allowing consumers to raise a dispute is not simply to protect them from credit control taken for non-payment until the dispute is determined. The purpose is to give the municipality notice of something that is incorrect such that it can be corrected. If a municipality only deals with or recognises queries that relate to amounts owed, and does not address or recognise others such as those dealing with incorrect billing data, addresses, property descriptions, etc, this is going to result in a situation where the municipality’s billing data has little integrity, invoices might not be delivered to the right place or at all, and customers become dissatisfied with the municipality’s ability to render them a proper invoice. This may lead to a reduction in 4 collections for the municipality because the correlation between the diminution in a trust relationship and the diminution of the regularity and extent of payments made in terms of that relationship is well documented.

It is further interesting to note that in practice, neither the City, nor its debt collectors, will accept any form of proof of dispute, other than the query reference number provided by the walk-in-centre or call-centre in order to ensure that services to a property are reconnected, or to stop debt collection attempts. As such, it is clear that the City and its appointed representatives do not know or understand what is contained in its own policies and by-laws.

THE FORM OF THE DISPUTE

Note further that the form in which the law allows the dispute to be raised is just as critical as its content. If the law provides that the dispute must be raised in writing, then raising it telephonically will not assist the customer in arguing that it is entitled to withhold payment in terms of section 102. In this regard it is worth noting that COJ allows a customer to ‘log a query’ on its website – but that its by-laws and credit control policy do not provide for this, and the policy requires “disputes” to be lodged in writing, meaning that it is possible that COJ could argue that a “query” or “dispute” lodged through the website or over the phone does not defer payment of the disputed amount. Recently, mainly due to the effects of Covid-19, the City has started allowing consumers to log queries by means of an e-mail. Logging a query in this manner would probably comply with the requirement of being in writing, however, it is again not provided for in its by-laws and policy.

PAYMENT OF THE UNDISPUTED CHARGES

Note lastly that in terms of COJ’s by-laws a “query” or “complaint” must be accompanied by payment of certain amounts (i.e. the undisputed charges for services not in issue, and the undisputed average over a particular period for the service in issue). However, one must question whether this is lawful because this requires payment of an average amount towards the service disputed each month, where section 102 does not provide for same. A full discussion of this issue, however, is beyond the scope of this article. It is recommended that a customer disputing any particular charge should make payment of a reasonable amount for that charge – if appropriate calculated based on an average of prior periods – because not doing so could land the customer with a very large bill at the end of the day which he is liable to settle and might have difficulty doing so for cash flow purposes. This however is just a practical recommendation and not an endorsement by the authors that the amounts set out in section 11 of the by-laws are lawfully due and payable when a query or complaint (which actually constitutes a dispute) is logged. Please take legal advice from your attorney in this regard on the facts of each case.

CONCLUSION

In order to qualify as a dispute for the purposes of delaying payment, the customer must:

  • raise his/her/its ‘problem’ with the municipality
  • in the prescribed form
  • by specifying which amount in which invoice is disputed,
  • and for what bona fide reason.
  • That reason must explain why the amount charged is wrong.
  • Civil protest or general dissatisfaction or a claim that the charges are “too high” are inadequate.
  • Payment of the ‘average’ in terms of section 11 of the COJ’s by-laws might be payable in order to ‘preserve’ the effect of the dispute/query/complaint.
  • A query logged telephonically with the COJ in terms of section 16 of its policy does not appear to suspend payment, because it is not a dispute. Only when a dispute is lodged, will the protection contained in section 102 of the Systems Act kick in.
  • For safety’s sake and to avoid the chance that COJ might argue that you have lodged a query or complaint rather than a dispute, specifically refer to a “dispute” in terms of the policy when raising same.

[1] Body Corporate of Via Quinta v Van der Westhuizen N.O. and Another (A196/2017) [2017] ZAFSHC 215 (16 November 2017) paras 16 and 17.

[2] (32443.2015) [2016] ZAGPPHC 497 (27 May 2016.

[3] Annette May, The Witholding of Rates in Five Municipalities, published at http://www.ggln.org.za/media/k2/attachments/SoLG.2011-Community-Law-Centre.pdf, accessed 2 November 2018.

[4] Rademan v Moqhaka Local Municipality and Others (CCT 41/12) [2013] ZACC 11; 2013 (4) SA 225 (CC); 2013 (7) BCLR 791 (CC) (26 April 2013).