Advice and Opinion • Residential

It has been reported to HBG Schindlers Attorneys by several sources that City Power is visiting properties and terminating the electricity supply thereto on the basis that the electricity matter at the property is bypassed when in fact, the property has solar, and the reason for the low or nil consumption.

This article by Chantelle Gladwin-Wood and Charissa Kok, Partners at HBG Schindlers, considers in which a City Power technician is obliged to investigate and consider whether a customer is bypassing, and remedies available to an aggrieved customer who is of the view that the technician has failed to carry out the inspection properly or, has come to an incorrect conclusion.

This is especially important in the context of the termination of the supply of electricity to large power users such as larger sectional title schemes with hundreds of homes and commercial properties that require electricity for production.

To cut or not to cut?

While it is lawful (and good governance) for City Power to cut off people who are actually bypassing the meter, could the same be said for the situation where City Power alleges – wrongly – that a customer is bypassing, such as the situation where a City Power technician wrongly assumes that a low (or lack of) measured electricity consumption as reflecting on the meter is in indication of a meter bypass?

In the cases that have been reported to HBG Schindlers’ offices, the City Power official concerned determined from a cursory examination (of the meter only) that bypassing had taken place as consumption has either decreased or been reduced to zero, when the truth of the situation is that the customer had implemented electricity saving mechanisms that reduced their electricity supply (such as solar power).

Evidence of the existence of a solar power installation is not always readily apparent to the City Power technician. It might not be visible from the outside of the property, and the solar installation is not usually connected directly to the municipal electricity meter itself. Normally solar power installations are “tied in” or connected directly to the customer’s electricity network at the customer’s distribution board, which is usually located inside the customer’s home/buildings and not on the pavement outside the house next to the electricity meter.

Does City Power have to give fourteen days notice if they are cutting off supply because of a bypassed meter?

This is a fraught question in law. Some courts have found that there is a danger to human life or property. Other courts have stressed that any decision by a municipality that adversely affects a customer (such as the decision to cut off supply to a property), in terms of section 33 of our Constitution and the Promotion of Administrative Justice Act, will only be lawful where that municipality has first notified the customer of the potential action (namely, the cut off) and given the customer the opportunity to make representations to the municipality before carrying out the administrative action (the cut off).

The answer to this question may also differ based on the by-laws and policies unique to each municipality. It may also depend on the facts of the case, and in particular who bypassed the meter in the first place. In many cases the municipality itself bypasses a meter temporarily because it does not have a replacement meter in the stock room, and so it temporarily bridges or bypasses the meter with the promise that it will return to put a new meter in and rectify the bypass.

Safe to say, this doesn’t always happen. It is arguable that if the municipality itself bypassed the meter, that the municipality’s obligation to provide fourteen days written notice of a pending termination is required by law. If, however, the customer has bypassed the meter, this might militate towards notice not being required. In short, it is not clear whether a right exists in our law, at present, to receive notification of a cut off if that cut off is to rectify a bypassed meter.

Inspection of the meter by City Power or its authorised contractor

City Power is empowered to inspect a meter at a customer’s property in terms of the electricity by-laws (Greater Johannesburg Metropolitan Council Standardisation of Electricity By-laws). An engineer from the municipality may at any reasonable time (if it is not an emergency) or at any time (if it is an emergency) inspect a customer’s property.

The engineer has the right to test any part of the electrical infrastructure at the property, whether it consists of the meter itself, or part of the customer’s domestic reticulation/infrastructure. However, this does not mean that City Power can pitch up at any time, without having given reasonable notice of the visit, and insist on seeing any part of the customer’s electrical infrastructure that is located within the customer’s property or even inside their house.

If a City Power technician or engineer wants access to any part of a property that is cordoned off and not accessible from the street, City Power must make an appointment, on reasonable notice, with the customer. What “reasonable notice” consists of will differ from case to case. In HBG Schindlers’ opinion (which is not binding on a court, but which they would argue ought to apply) a minimum of 72 hours’ notice would be required because most people work away from their homes and need to make special arrangements with their employer, or take leave, to be at home to allow in an inspector. However, if there is a stay-at-home mom or dad at home at the relevant time, and they do not have any other appointments to be away from the home, it could be argued (albeit in HBG Schindlers’ opinion, with little chance of success) that less notice (or no notice) would be “reasonable” in the circumstances.

Can a City Power engineer or technician touch, change, or disrupt any part of the customer’s internal domestic electricity infrastructure?

An authorized person may inspect or test any part of the customer’s domestic infrastructure, but may not damage, remove or disrupt any part of it unless it is necessary to disconnect any unlawful (unauthorized) supply from the municipality’s electrical system or unless there is danger to life or property arising from the customer’s domestic infrastructure.

An engineer or technician is also permitted to require a customer to remove any bricks, earth, stone, woodwork, or other construction or building material that is obstructing access to a municipal meter. This may require “trenching” (meaning digging a trench to find or repair or install cables). A municipal engineer may also put a seal onto any wire, cable, meter, fuse, circuit or even room (whether owned by the municipality or by the customer) after which the customer may not break that seal and interfere with that part of the electrical installation.

Can a customer lawfully refuse to provide any information to an engineer or technician?

If the information sought is relevant to the safety or lawfulness of the electrical
connection, it would be unlawful for a customer to refuse to provide it. However, if it is irrelevant (for example, if the technician asks if you have a South African Identity Card, or to see your immigration documents) then it is lawful to refuse to provide this information. It is also unlawful to hinder an authorized official in doing their inspection or carrying out their duties in terms of the bylaws.

Who is an ‘authorized’ official?

In terms of the by-laws, the engineer has to be a person authorised by the council,
alternatively the head of the council’s (municipality’s) electricity department. Any
person who is not authorized by the municipality as an engineer should not be let into the property, or engaged with by a customer, because this person might be a fraudster or criminal pretending to be cloaked with authority in order to cause the customer harm.

Is it lawful for a municipal official to disconnect the supply on the suspicion of
bypassing alone?

In terms of the by-laws, it is probably not lawful for a municipality to terminate the
supply to a property if bypassing is suspected. Bypassing, on its own, is not expressly referred to in the by-laws as a reason that a City Power authorized official would be lawfully entitled to cut off the supply. This is because the by-laws must be restrictively interpreted to protect an abuse of power by the municipality. However, the by-laws would need to be interpreted by the court in the case in question, and it is not guaranteed that a court would agree with the opinion put forth in this article.

Playing devil’s advocate for a minute, if a municipal official was of the reasonable view that the bypass was putting life or property in danger, they would be (hypothetically, if the provisions of PAJA do not apply as we posited above) then on a plain reading of the bylaws the authorised official would not be required to give notice.

Chantelle and Charissa emphasize, however, that they are of the view that even though the by-laws say that no notice need be given if a municipal official is of the view that the installation is dangerous – it may still be possible that a court would find that notice is required in terms of PAJA, the Constitution or another law, and that an opportunity to make representations must be given to the customer before the disconnection will be lawful.

The requirements for a decision to cut-off because you have bypassed, to be lawful

All decisions taken by municipal officials that adversely and materially affect customers (such as the decision to disconnect) are subject to review by the court for
lawfulness in terms of PAJA. There are many reasons that a decision can be set aside as unlawful in terms of PAJA, and not all of them are necessary to include here.

However, if a decision was taken in any of these circumstances, it might be challengeable in court as unlawful:

• If it was taken for an ulterior purpose or motive (namely, if the municipal official was attempting to elicit a bribe from you, you refused and so they cut you off alleging you were bypassing);
• If it was taken based on irrelevant considerations or it was taken without factoring in relevant circumstances (for example where your low or lack of consumption is caused by your installation of solar power or other power-saving mechanisms, and is not caused by bypassing);
• Where the action is not authorized by law (Chantelle and Charissa argue that the by-laws do not give the municipality the power to cut off for bypassing alone);
• Where a procedural rule involved in the cut off was not complied with (as we argue above, in our view disconnection without having given notice and an opportunity to make representations would likely be unlawful); and/or
• Where the decision was so unreasonable that no reasonable person could have arrived at it.

If the customer isn’t available to let City Power in to conduct an inspection of his / her solar, can City Power cut you off there and then?

HBG Schindlers would argue that this would be unlawful for all of the reasons explained above.

Relief or remedy if City Power takes unlawful decisions relating to cutting you off:

• If you are affected by a decision that you think could be unlawful, you have the right to ask the municipality to provide you with written reasons for the taking of the decision in terms of PAJA.
• If you have been cut off based on your outstanding municipal charges, and you dispute that you owe these amounts, you can challenge this using the dispute resolution procedure in the City’s Debt Collection and Credit Control Policy. This involves logging a query, sending a letter of complaint and thereafter a letter of demand.
• You can approach the COJ Ombud for assistance.
• You can challenge the decision taken as being unlawful for the reasons referred to above (and others), in terms of PAJA.
• If this all fails, you can approach court for assistance. If your matter is urgent and you require immediate reconnection, you can approach court on an urgent basis. If however, the matter is not urgent you can bring it “in the ordinary course” which usually takes several months. If you are successful in court, you would ordinarily be entitled to be paid a portion of your legal costs back by the City.

Please note: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case-by case basis and you should consult an attorney before taking any action contemplated herein.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of Property Wheel.