It is worthy to note at the outset that section 152(b) of our Constitution places an obligation on local authorities to ensure that they provide services to communities in a sustainable manner. These services include but are not limited to, the provision of electricity, roads, water, supply of water drainage and refuse removal etc.
In the recent case of Hillandale Homeowners Association t/a Woodland Hills Wildlife Estate Homeowners Association (Woodland Hills) v Mangaung Metropolitan Municipality and Another (5026/2022) [2023] ZAFSHC 484, the issue of refuse removal, its takeover and related fees were required to be dealt with by our courts.
The Woodland Hills Estate (“Estate”) brought an application to the Free State High Court seeking an order declaring its entitlement to take over the refuse removal rights from the Mangaung Metropolitan Municipality (“Municipality”) and also seeking an order that the Municipality immediately cease to levy fees concerning the refuse removal from residents.
The Court, firstly, addressed the issue of whether the Estate could take over the refuse removal rights from the Municipality. In addressing the issue, the Court had to take into consideration the signed service level agreement between the parties, the extension agreement and two Proclamations that were published when the Woodland Hills township was established. The two published Proclamations made provision for conditions of services to be rendered. However, both Proclamations stipulated that “The Town Owner shall be responsible for the removal of household refuse in the town.” Accordingly, the Court found that the Estate was entitled to provide refuse removal services to its residents.
The Court then had to consider whether levies would still need to be paid to the Municipality for the refuse removal services. The Court noted that even though Woodland Hills will take over the refuse removal rights, they will still make use of the landfill sites, and the question was therefore whether it was legally permissible for the landfill site to be utilized by the residents of Woodland Hills without reimbursing the Municipality for the maintenance thereof.
Interestingly, the Court held that because a counter application was not brought by the Municipality, the Court could not consider or make an order in terms of the levies for the use of the landfill site. The Court went further and quoted the Constitutional Court case of Rademan v Moqhaka Local Municipality 2013 (4) SA 225 (CC) which provides that, “There is no obligation on a resident, customer or ratepayers to pay the municipality for a service that has not been rendered.”
Accordingly, the Court held that the Municipality could not charge a fee for a service it does not render and that the Municipality was only entitled to payment for services it rendered. The Court held that the Municipality must therefore cease to charge fees in terms of the refuse removal services to residents of the Estate.
This may not be the final word on the matter, and it should be noted that the issue of charges for use of the Municipalities’ landfill site was not canvassed. The case does however provide a precedent for acknowledging that a Homeowners Association could take over the removal of refuse, although a thorough investigation into the town planning conditions, bylaws and agreements with the local authority would need to be considered. Should this be possible, it also appears that a strong case can be made that a local authority will not be entitled to charge for the services not rendered.
Should your Homeowners Association be considering providing refuse removal services it would be advisable to consult an attorney or property specialist for guidance on the matter before establishing infrastructure to do this.
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