Can a municipality simply ignore a decision made by a national government department if it believes it is not valid?
This is the question the Merafong City Local Municipality wants answered by the Constitutional Court.
Merafong‚ situated on Gauteng’s West Rand and including the areas Carletonville‚ Fochville and Khutsong together with many of the country’s richest gold mines‚ has been charging AngloGold Ashanti mines situated in its municipality an extra fee on water supplied to it since 2007. The municipality did this despite then minister of water affairs and forestry Buyelwa Sonjica’s ruling in 2005 that it cannot do so.
Anglogold Ashanti had appealed to the minister because it felt the tariff proposed by Merafong was excessively higher than the equivalent Rand Water tariff while Merafong was not assuming any responsibility for any aspect of the water supply. The difference amounted to R498599 per month.
Sonjica said that a surcharge could be levied only on the portion of water that the mines were using for domestic purposes and not for industrial use.
Merafong ignored the minister’s ruling. Its attorneys had told the municipality that the minister had acted beyond the powers of national government in relation to a function that was within the exclusive competence of a municipality.
AngloGold Ashanti paid under protest in the face of a threat by the municipality to cut off its water supply. This has cost the mining house tens of millions extra over the years.
The mining company succeeded in its high court bid in 2014 to force the municipality to comply with the minister’s ruling and not charge a surcharge on water for industrial use.
The Supreme Court of Appeal (SCA) dismissed Merafong’s application for leave to appeal in May this year. It said Merafong’s failure to challenge the minister’s ruling in judicial review proceedings posed an insurmountable difficulty for its case.
It said even if unlawful‚ the minister’s ruling existed in fact and had legal consequences.
“Merafong could‚ therefore‚ not simply treat it as though it did not exist and act in the very manner that it sought to prevent‚” the SCA said.
Now‚ asking the Constitutional Court to overturn the court’s decision and allow it to impose the surcharge‚ the municipality’s lawyer Anton de Swardt said decisions that fell beyond the scope of the powers conferred on a public officer had no validity and could simply be ignored even when they had yet to be set aside on review.
AngloGold Ashanti‚ which is opposing the application‚ said unjust administrative action was not a nullity but valid until reviewed and set aside.
AngloGold Ashanti’s lawyer Ian Lindsay said Merafong’s argument concerning the lawfulness of the minister’s decision must be decided by courts in review proceedings and not by the municipality itself in what amounted to an exercise of “self-help”.
The court has yet to say whether or not it will hear the appeal.
Court asked to decide whether municipality must do as minister said
Can a municipality simply ignore a decision made by a national government department if it believes it is not valid?
This is the question the Merafong City Local Municipality wants answered by the Constitutional Court.
Merafong‚ situated on Gauteng’s West Rand and including the areas Carletonville‚ Fochville and Khutsong together with many of the country’s richest gold mines‚ has been charging AngloGold Ashanti mines situated in its municipality an extra fee on water supplied to it since 2007. The municipality did this despite then minister of water affairs and forestry Buyelwa Sonjica’s ruling in 2005 that it cannot do so.
Anglogold Ashanti had appealed to the minister because it felt the tariff proposed by Merafong was excessively higher than the equivalent Rand Water tariff while Merafong was not assuming any responsibility for any aspect of the water supply. The difference amounted to R498599 per month.
Sonjica said that a surcharge could be levied only on the portion of water that the mines were using for domestic purposes and not for industrial use.
Merafong ignored the minister’s ruling. Its attorneys had told the municipality that the minister had acted beyond the powers of national government in relation to a function that was within the exclusive competence of a municipality.
AngloGold Ashanti paid under protest in the face of a threat by the municipality to cut off its water supply. This has cost the mining house tens of millions extra over the years.
The mining company succeeded in its high court bid in 2014 to force the municipality to comply with the minister’s ruling and not charge a surcharge on water for industrial use.
The Supreme Court of Appeal (SCA) dismissed Merafong’s application for leave to appeal in May this year. It said Merafong’s failure to challenge the minister’s ruling in judicial review proceedings posed an insurmountable difficulty for its case.
It said even if unlawful‚ the minister’s ruling existed in fact and had legal consequences.
“Merafong could‚ therefore‚ not simply treat it as though it did not exist and act in the very manner that it sought to prevent‚” the SCA said.
Now‚ asking the Constitutional Court to overturn the court’s decision and allow it to impose the surcharge‚ the municipality’s lawyer Anton de Swardt said decisions that fell beyond the scope of the powers conferred on a public officer had no validity and could simply be ignored even when they had yet to be set aside on review.
AngloGold Ashanti‚ which is opposing the application‚ said unjust administrative action was not a nullity but valid until reviewed and set aside.
AngloGold Ashanti’s lawyer Ian Lindsay said Merafong’s argument concerning the lawfulness of the minister’s decision must be decided by courts in review proceedings and not by the municipality itself in what amounted to an exercise of “self-help”.
The court has yet to say whether or not it will hear the appeal.
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