Mbombela Borehole Water: Municipalities Can Levy Sewage Charges

• South African homeowners using private boreholes are still subject to municipal sewage charges, not for water extraction, but for discharging used water into public sewer systems.
• Municipalities are legally permitted to charge for sewer services as this utilizes their infrastructure, but cannot charge for the water drawn from a borehole itself.
• Many municipalities calculate these sewage charges using a flat rate, which is applied regardless of the actual volume of water discharged into the sewer.
• This flat-rate system is highly controversial and faces legal challenges because it conflicts with the principle of 'the more you use, the more you pay' and can result in overcharging.
• Some municipal bylaws require meters on boreholes for accurate measurement, but this is not consistently enforced, contributing to the reliance on flat-rate tariffs.

Many stakeholders argue that this approach to flat rate sewer charges legality is inequitable, as it contradicts the fundamental principle of tariff setting in South Africa: that charges should be proportionate to usage.

An increasing number of South African homeowners are investing in private boreholes to mitigate the impact of unreliable municipal water supplies. However, this move to self-sufficiency does not necessarily exempt them from all municipal charges. A significant point of contention, particularly highlighted in Mbombela and other regions, revolves around the imposition of sewage charges on households that utilize borehole water, rather than fees for the extraction of the water itself.

While municipalities lack the legal authority to levy charges for the water homeowners draw from their own boreholes, the situation changes when that water is subsequently discharged into the municipal sewer system. This act constitutes the use of municipal services and places a burden on public infrastructure, thereby creating a legitimate basis for municipalities to impose a fee. Once borehole water has been used within a household, it typically enters the municipal wastewater network, much like water supplied through the public grid.

The distinction between charging for water extraction and charging for wastewater disposal is crucial under South African law. Chantelle Gladwin-Wood, head of public law at HBGSchindlers Attorneys, clarifies that while drawing water from a private borehole is not subject to municipal tariffs, the subsequent disposal of that water into the municipal sewer system is a service for which a charge can be applied. This is because the municipality is providing a service and maintaining the infrastructure required to process and dispose of the wastewater.

Determining the exact volume of borehole water entering the sewer system presents a challenge, as it bypasses municipal water meters. Some municipal water bylaws in South Africa address this by requiring the installation of meters on boreholes, allowing for accurate measurement of water discharged into the sewer. However, in many instances, municipalities do not immediately enforce such metering, even if their bylaws reserve the right to do so. Consequently, the calculation of these sewage charges for private boreholes in ZA often relies on alternative methods.

A widespread practice among South Africa municipal borehole tariffs for sewage is the application of a flat rate. This means that residential customers are charged a fixed amount, which could range from R500 to R800 depending on the location, irrespective of the actual volume of water they discharge into the sewer. This flat-rate system applies whether a household disposes of one kilolitre or 200 kilolitres, leading to significant controversy regarding its fairness and legality.

Many stakeholders argue that this approach to flat rate sewer charges legality is inequitable, as it contradicts the fundamental principle of tariff setting in South Africa: that charges should be proportionate to usage. The current system can potentially lead to homeowners paying more than they should, as municipalities may be estimating consumption or applying a blanket charge without accounting for individual usage patterns. This contentious issue has sparked numerous legal disputes across the country, highlighting the ongoing debate about how best to fairly charge for municipal services when private water sources are involved.

Lawyers should advise clients using borehole water on the legal basis for municipal sewage charges, particularly regarding flat-rate tariffs that may not align with actual usage, and be aware of local bylaws requiring meters for boreholes. Compliance officers should audit municipal billing for properties with boreholes to identify potential overcharges for sewage disposal.

Source: Original reporting via Briefly.co.za