Introduction

Recently City Power has blamed power outages on an unlawful strike by two hundred City Power employees. Can losses caused by the power outages be recovered?

Who is liable?

Someone should be paying for the losses incurred during this period of darkness, but that ‘someone’ should not be the ratepayers who, in return for payment of rates and services, are entitled to expect service delivery from their service provider. An attempt to hold the individual strikers personally liable may prove futile considering that it would be a tremendous feat to prove which specific worker was responsible for a specific resident’s lack of electricity at their household. Furthermore, there is the question of resources, and individual workers probably won’t have the requisite funds to compensate residents for their losses. The Municipality however (which owns City Power) will sometimes be liable to compensate residents in terms of statutory law, constitutional provisions, those of the Consumer Protection Act, the Rental Housing Act, labour law and in the circumstances at hand, delictual law, for losses caused by wayward employees of City Power.

The City’s duties in terms of law

City Power has the duty to supply electricity to paying clients in accordance with the Local Government Municipal Systems Act, the Electricity Regulations Act as well as the City’s own bylaws. In addition, section 25 of the Constitution affords citizens of the Republic the right to property and access to electricity is one of the entitlements of the use and enjoyment of one’s property. Furthermore, according to the case of Joseph v City of Johannesburg 2010 (4) SA 55 (CC), the City is obliged to provide residents with essential services as a matter of public duty. Moreover, it was confirmed in the recent case of Afriforum v Minister of Trade and Industry and Others 2013 (4) SA 63 (GNP) that municipalities are subject to the provisions of the Consumer Protection Act (the “CPA”). Section 54 of the CPA states that in the event where a supplier fails to perform a service to expected standards, the consumer may require the supplier to either remedy any defect or alternatively refund the consumer a reasonable portion of the price.

A municipality can also be held liable for losses caused in the law of delict. In considering a delictual claim, our courts could follow Cape Town’s example, where recently the Public Protector awarded damages to a resident whose household electrical appliances were destroyed during a power failure. The City's insurance department rejected the resident’s claim, informing her that an investigation by the electricity department found the malfunction at the substation to be the result of vandalism or theft of neutral copper bars. The City refused to take responsibility, stating that it had no control over criminal activities and that it could not be held accountable for the loss. The Public Protector however took a different view and went on to hold the council responsible for its negligence in failing to maintain the substations in question adequately. She not only ordered the council to settle with the resident within 30 days but further to apologise to her for the inconvenience. This decision should be commended and should serve as a warning to City Power. After all, the fear of a costs order may be the catalyst necessary to create some sense of accountability in the future.

What to do if you have suffered losses

Option 1: Complete and submit the City Power’s complaint form for re-imbursement. If this doesn’t work -

Option 2: Make an application to the National Consumer Protection Commission for the issue of a compliance order to compel the City to compensate you for your loss. If this fails -

Option 3: Submit a complaint to NERSA to order City Power to compensate you. If options 1 – 3 fail or you would rather skip them, then -

Option 4: Consult an attorney to claim for the loss suffered by way of legal action.