INTRODUCTION
This article considers the legal obligation of municipalities when it comes to sending notices, letters of demand and court documents via e-mail, “snail mail” (ordinary post) and “certified” or “registered” mail. This is important to consumers of municipalities because if the municipality in question fails to serve properly in accordance with law, the demand may not be actionable thereafter by the municipality.
For example, it is trite (accepted) law that a municipality must give reasonable notice (normally considered as being 14 days) of its intention to terminate the electricity or water supply to a property, by serving a notice by hand at the property itself. This is in terms of the Constitutional Court judgment in the Joseph case. If a municipality disconnects a customer’s electricity and/or water supply without having first given appropriate notice, the disconnection is unlawful and a court will order that the supply be reconnected and that the municipality give appropriate notice.
NOTICES IN RELATION TO PROPERTY VALUATION ROLLS
Section 49 of the Local Government : Municipal Property Rates Act (“the Rates Act”) deals with how notices in relation to valuation rolls are to be posted. This Act stipulates that, when it comes to giving notice to consumers of the publication of a valuation roll, municipalities are permitted to send a notice to the affected consumers by ordinary post (“snail mail”). Customers need to be given notice of potential increases in the rates, so that they can budget to
pay these increases. As the court said in the Kungwini case:“To my mind, the object of these provisions is to ensure that residents in the municipal area concerned are ‘properly and optimally informed’of what their financial obligations will be, should the published amendments (in this case, the rates increases) take effect, and precisely when such obligations will become enforceable. In the absence of such information, it would be well-nigh impossible for residents timeously to arrange their financial affairs such that they make allowances for any anticipated increased demand upon their purses. Just as financial discipline and advance planning is legitimately required of a municipality, so too can it be expected of ratepayers.”
However, the sending of notice (via snail mail) is not the only publicity requirement of municipalities in relation to valuation rolls. Section 49 further requires municipalities to give notice to the community by posting the valuation roll on their website, by publishing it in the Government Gazette and further by advertising the publication of the valuation roll to the local community in accordance with Chapter 4 of the Local Government: Municipal Systems Act (the “Systems Act”). This may be why our Legislature deemed it permissible for a municipality to send notices by snail mail when it comes to valuation rolls – because the municipality is under other forms of notice obligations and it is envisaged that one way or another the municipality’s actions will result in notice of the publication of the property roll coming to the attention of the consumer concerned.
That being said, in Kungwini the court set aside certain rates increases that had come into effect without proper notice of same having been given. This is a warning to municipalities that where proper notice (even if that notice is required to be given by snail mail) is not given, the effect of the rates increase that results may be set aside as unlawful.
NOTICES RELATING TO MUNICIPAL CHARGES
When it comes to the posting of notices by a municipality in relation to anything other than rates in connection with property valuation rolls, the law is slightly different. In this regard we need to look to Section 115 of the Systems Act, which states that a municipality must post notices to a consumer in a specified way. This section does not allow a municipality to use snail mail to post notices and requires that notices be posted using “registered” or “certified” mail, or by delivering the notice by hand to the consumer personally, or leaving it at their work or place of residence with a person in charge and apparently over the age of 16 years. This section also contains several other methods of delivery that the municipality can utilize when the whereabouts of the person whom the notice is addressed is unknown (which includes service upon an agent or representative of the consumer).
It is worth noting that these methods of delivery are more onerous on the part of the municipality than the obligation to serve via snail mail in section 49 of the Rates Act. This is (presumably) because there aren’t any other publicity obligations placed on the municipality when it comes to these other types of notices in section 115 of the Systems Act, in the same way as there are when it comes to notices of property rolls in terms of section 49 of the Rates Act.
MUNICIPAL POLICIES BY-LAWS
A municipality’s by-laws or policies may not be inconsistent with the national legislation in terms of which the municipality is empowered to create the by-laws or policies. To the extent that any municipal policy or by-law violates a provision of the national legislation (including the Rates Act or the Systems Act) these policies or by-laws will be invalid and not enforceable. Accordingly then, if any municipal by-law or policy states that a municipality is entitled to serve any notice (other than a notice in terms of Section 49 of the Rates Act advising a consumer that their property has been placed on a property roll) by ordinary snail mail, this will violate the provisions of Section 115 of the Systems Act which requires that these notices be served in a method other than via snail mail. In such a case the provisions of the by-laws or policy concerned will be invalid and unenforceable against the consumer.
EXAMPLE: COJ’s 2019 DRAFT CREDIT CONTROL POLICY , SECTION 14
Clause 14.1 of the above mentioned (draft) policy [not yet in effect] reads as follows:
“In the event that the consumer fails to pay the full amount due on or before the due date, the unpaid amount is deemed to be in arrears and a pre-termination notice and/ or final demand notice shall be sent and may be hand delivered or delivered in conjunction with the services invoice, or shall be delivered by means of electronic means available, to the most recent recorded address, electronic contact address and or number of the consumer”.
For the reasons referred to above, the provisions of the policy that permit the COJ to deliver notices by e-mail are invalid, as they conflict with section 115 of the Local Government: Municipal Systems Act.
CONCLUSION
When receiving a demand or a notice from a municipality, it might be critical to the consumer’s case to understand what the municipality’s legal obligations are in terms of how that notice needs to be served, upon whom it must be served, and when it must be served. If you find yourself in this predicament contact an experienced municipal property lawyer to assist you as the matter can be relatively complex and is not always as simple as it might appear at first blush.
Written by Chantelle Gladwin-Wood and Maike Gohl
