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Municipality should have gone to courts to challenge minister's water surcharge decision: ConCourt

24 October 2016 2:30 PM
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This was a majority ruling made by the Constitutional Court on Monday.

Merafong municipality had approached the highest court in the land asking to be allowed to levy a surcharge on water used by mines under its jurisdiction.

AngloGold Ashanti‚ which operates mines in Merafong‚ appealed to Sonjica in 2005 and she ruled that the municipality should not levy a surcharge on water supplied to the company for industrial use.

AngloGold claims it had been unlawfully overcharged nearly R31 million for water and forced to pay up under an enterprise-throttling threat of cut-off.

Instead of challenging Sonjica’s ruling‚ the municipality simply ignored it.

The municipality believed that such a decision was beyond the minister’s powers and kept charging AngloGold Ashanti extra for water.

AngloGold Ashanti approached the Pretoria High Court in 2011 to enforce Sonjica’s decision.

In 2014‚ the same court dismissed the municipality’s claim that it had the exclusive authority to set water tariffs and held that the minister’s decision was lawful and bound Merafong.

The municipality appealed to the Supreme Court of Appeal but that court ruled last year that even if the minister’s decision was unlawful‚ the municipality could not simply treat it as though it did not exist.

In its ruling the Constitutional Court upheld the municipality’s leave to appeal the SCA’s decision. The ConCourt also set aside the orders of the high court and the SCA.

“In their stead‚ the matter is remitted to the High Court to determine‚ after the lodging of further affidavits as the applicant‚ Merafong City Local Municipality‚ and the Minister of Water Affairs and Forestry may consider appropriate‚ on the lawfulness of the Minister’s decision of 18 July 2005‚ and‚ if necessary‚ what remedy is to be granted‚” the court ruled.

The majority judgment noted that‚ “As a good constitutional citizen... Merafong should have either accepted the Minister’s ruling as valid or gone to court to challenge it“.


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