Year: 2009 (Date of Decision: 9 October, 2009)
Forum, Country: Constitutional Court; South Africa
Standards, Rights: Procedural fairness; Human dignity; Right to adequate housing
Summary Background: In this case, the applicants sought a declaration regarding their entitlement to notice before municipal agencies terminated their power supply. Although the applicants who were tenants had regularly paid the owner of their building their electricity bills as part of the rent, the owner had run up arrears, due to which the City of Johannesburg’s electricity service provider, City Power, discontinued supply, giving notice to the owner, but not the tenants with whom City Power has no contractual relationship. The applicants lived without electricity for around one year, as they could not afford to move.
Holding: In this case, violation of human dignity was argued as the termination of electricity supply constituted a retrogressive measure violating the negative obligation to respect the right to adequate housing protected under the Constitution; however the case was primarily decided on the basis of the procedural fairness principle [paras. 2 and 32].
The Court held that electricity is one of the most important basic municipal services and that municipalities have constitutional and statutory obligations to provide electricity to the residents in their area as a matter of public duty [paras. 34-40]. The Court thus affirmed that the applicants were entitled to receive this service as a public law right [para. 40].
The Court further held that the government was required to act in a manner that is responsive, respectful and in conformity with procedural fairness when fulfilling its constitutional and statutory obligations [para. 46]. The Court outlined the importance of procedural fairness in the following terms: “Procedural fairness … is concerned with giving people an opportunity to participate in dignity and worth of the participants, but is also likely to improve the quality and rationality of administrative decision-making and to enhance its legitimacy” [para. 42]. Accordingly, the Court decided that in depriving the tenants of a service they were receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would materially and adversely affect that right [para. 47]. The Court found that procedural fairness in this case included adequate notice (containing all relevant information) at least 14 days before disconnection [para. 61]. Implied in the affording of such notice is that users of the municipal service may approach the City, within the notice period, to challenge the proposed termination or to tender arrangements to pay off arrears [para. 63]. The order also declared that, to the extent the electricity by-laws permit the termination of electricity supply “without notice”, these by-laws are unconstitutional.
In addition the discontinuation of electricity supply to the applicant’s residence was found to be unlawful and the City was ordered to reconnect the building immediately [para. 78].
Additional Comments: This case addresses the State’s duty to respect ESC rights.
Link to Full Case: http://www.saflii.org/za/cases/ZACC/2009/30.html