Introduction
This article examines the kinds of fines and penalties that a municipality can lawfully charge a consumer, and in which circumstances it can lawfully do so.
What are Fines and Penalties?
A fine is a “sum of money paid as punishment for breaking the law”.It is trite law now that a fine is a “once off” charge, whereas a penalty is a reoccurring fine for an offence that has not been remedied.
Criminal Fines Collected by a Municipality
Where a consumer commits a criminal offence as contemplated in a municipal by-law they can be fined or sometimes imprisoned. This type of offence is normally prosecuted by a municipal official acting under the authority of the National Prosecuting Authority. However, fines/imprisonment for breach of a by-law can only imposed upon conviction by a court (which is usually a municipal court but can also be a Magistrate’s or High Court).
Typical examples of this type of fine are found in the City of Johannesburg’s (“COJ’s”) Water Services By-Laws 2003, which provide in section 119(l) that it is an offence to fail to comply with any of the by-laws, in section 119(2) that any alleged defence must be investigated by the Johannesburg Metropolitan Police Department and in section 119(3) that if convicted such offender is liable to imprisonment not exceeding 6 months or a further fine of R 50 for every day that the default continues (the latter being a penalty rather than a fine because of its continuing nature). These must be read with the fines set out in the Schedule of Fines to the Water Services By-Laws 2003, which were published in 2004, and which provide for further “once off” fines for certain offences. These fines range from R 500 to R 1,500 per offence.
The Greater Johannesburg Metropolitan Council Standardisation of Electricity By-laws (which govern electricity in COJ) also contain a similar type of fine. Section 38(1) says that any person contravening these by-laws are guilty of an offence and upon conviction will be liable to a fine not exceeding R 2,000 or imprisonment for not more than 6 months.
Similarly, section 105(1) of the Local Government Ordinance 17 of 1939 empowers the local authority to make provision for the imposition of a fine in its by-laws should its by-laws be breached, but limits that fine to an amount of R2000.
How Much Can be Charged?
The examples above show that normally the amount that can be charged (and the prison term that could be imposed) are specifically provided for in the empowering legislation when the offence, and the power to levy a fine or imprison a person found guilty of that offence, is created. However in some instances there are no limits set. In this case section 106 of the Local Government Ordinance referred to above provides that where there are no specific penalties prescribed, a breach of a by-law will result in a R 300 fine and further that they can only be recovered by a court of competent jurisdiction.
Cumulative Fines/Imprisonment
Note that a person could be found guilty of several different offences and fined, or imprisoned for each. For example a person might be found guilty of interfering with a municipal water system, as well as damaging it, if they break a municipal water pipe.
Some types of offences can also be committed more than once, whereas others once committed cannot be committed again, although the conduct of the offender remains non-compliant with the relevant laws. For example, if you unlawfully connect yourself to a municipal water pipe, you will be liable upon conviction to one fine unlawfully connecting yourself to a municipal water pipe, whereas if you are convicted of unlawfully using water, you might be convicted on several counts of unlawfully using water (ie every time you turn on the tap and water comes out). Alternatively a person might have a penalty imposed on them (which is a recurring fine) for an offence that is recurring in nature, rather than the imposition of a once off fine for various offences. This depends on how the offence is couched and prosecuted. Note further that depending on the wording of the law in question, you might be fined and imprisoned, or fined in lieu of imprisonment (or vice versa).
Where are Fines Paid?
In terms of section 113 of the Local Government: Municipal Systems Act 32 of 2000 they must be paid into the Revenue Fund of the local municipality if they were recovered in terms of offences created in item 2 of schedule 4 of the Public Finance Management Act 1 of 1999. If they are fines from other by-law breaches, they are paid to the local prosecuting authority.
Disguising fines as other types of charges
Because the levying of fines and penalties is very onerous on the accused person, the law requires that it be strictly interpreted in favour of the accused. Municipalities often attempt to disguise fines as other types of charges that they are entitled to levy without having first obtained a conviction against an offender. Typical examples include meter tampering charges which are levied against the offender’s municipal statement, or other ‘fines’ for unauthorized electricity/water connections. In some municipal jurisdictions these ‘fines’ are as high as R 20,000. This is unlawful and such conduct amounts to extortion. Any person who has suffered this can claim a refund in terms of the laws of unjust enrichment or sometimes in terms of empowering statutes that create the fines.
Conclusion
Take legal advice before paying a ‘fine’ levied by a municipality, as it may not have been lawfully imposed and thus might not be due and payable. Recovering money paid for an unlawfully levied ‘fine’ is much more difficult and expensive than obtaining the correct legal advice to fight it in the first place.
Written by Chantelle Gladwin-Wood and Shaun Piveteau
