Joseph v. the City of Johannesburg 2010 (4) SA 55 (CC)
Constitutional Court decision as to the nature of the relationship between local government body as service provider and the end user of the service, where the service is provided through a third party such as a landlord; Nature of right to basic municipal services, including a right to electricity; Procedural fairness under national and Constitutional law.
The South African Constitutional Court was asked to decide whether tenants of a block of flats were entitled to notice before the municipal electricity utility, City Power, disconnected their supply. The tenants paid for their electricity to the owner of the property, and despite their regular payment, the owner allowed substantial arrears to run up on the account, and City Power disconnected the property, giving the owner, but not the tenants, notice. The tenants claimed that the disconnection without notice violated their constitutional right to access to adequate housing (implying a right to electricity) and human dignity (under sections 26 and 10 of the South Africa Constitution, respectively), and their contractual rights against the owner of the property. They also challenged the constitutional validity of by-laws allowing termination without affording notice and an opportunity to make representations.
The primary issue in the case was whether the applicants were entitled to procedural fairness under domestic law, considering the relationship between City Power as a service provider and the end users of that service. Unanimously reversing the decision of the High Court, the Constitutional Court considered that electricity is an important basic municipal service and decided that local government had a constitutional and statutory obligation to provide it. Therefore, receiving electricity was declared to be a public law right, by virtue of Constitutional and statutory obligations. Accordingly, the applicants were entitled to procedural fairness in the exercise of the right, and the Court found that this included adequate notice of at least 14 days before disconnection. By-laws within City Power dispensing with this obligation to adequately inform those receiving electricity were declared inconsistent with the Constitution.
Keywords: Joseph v. the City of Johannesburg 2010 (4) SA 55, Housing, Rights
Unfortunately, the outcome of this case has not brought any direct relief to the applicants, who remain without electricity. This is because, in the time it took for the case to reach the Constitutional Court, vandals had stripped the building of its electrical wiring, meaning that it was no longer possible for the City to reconnect without incurring considerable expenses, which it was unwilling to incur, and which the residents could not afford.
Centre for Applied Legal Studies
The public law right to electricity implied by legislation in Joseph was a significant advance in the interpretation and enforcement of socio-economic rights. The judgment opens up a range of new possibilities for holding electricity providers accountable. Indeed, during 2010, the Socio-Economic Rights Institute of South Africa (SERI) secured the reconnection of electricity to 420 low-income residents of Soweto, relying directly on the Joseph precedent. It is also possible that utilities will also in future be required to act reasonably in deciding whether or not to disconnect an electricity supply. The decision also raises the possibility of reviewing inaccurate billing practices and unjust disconnections that follow from them. However, no substantive conclusions about the right can yet be drawn.