CHALLENGES AND EFFECTIVENESS OF MUNICIPAL COURT

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CHALLENGES AND EFFECTIVENESS OF MUNICIPAL COURT

• City Of Johannesburg
• Presented to
• SARPA Conference 2006
• MIDRAND
• Presented by
• Johannes Collen Weapond
• 21 July 2006

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AREA OF SUPPLY
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BACKGROUND

• Historically, illegal connections and meter
  tampering were difficult to prove in a Court of
  Law.
• Over the past few years, with the influx of
  people from the rural areas and other countries,
  these people have occupied vacant land and
  buildings. By so doing, began to also steal
  electricity from light poles, over head lines and
  paying consumers. This has resulted in additional
  burden being placed onto City Powers network,
  which has a direct effect on outages, which
  affects businesses and secondary electrical
  networks, such as robots.
• City Power has over the past two years proved
  beyond a reasonable doubt that there was
  sufficient evidence to convict those who
  transgress the Electricity Act by stealing
  electricity.
• Because of the importance of precedent and
  publicity in this regard one needs to consider
  whether it is possible to commit theft of
  electricity. One therefore needs to consider the
  following questions
• First, the statutory basis for prosecuting
  consumers who misappropriate electricity. Under
  this head we shall examine
• the Electricity Act
• the electricity by-laws
• Secondly, we consider whether the common law
  concept of theft applies to the misappropriation
  of electricity

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ELECTRICITY ACT SEC.24 27(1),(2) (3)

• The Electricity Act
• The Electricity Act 41 of 1987 (the Electricity
  Act) provides, inter alia, for the control of
  the generation and supply of electricity and
  matters connected therewith. Of relevance, for
  present purposes, are the following provisions
• Section 24, which provides
• 24 Lines, meters and other apparatus are not
  fixtures
• Any lines, meters, fittings, works or apparatus
  belonging to an undertaker and lawfully placed or
  installed in or upon any premises not in his
  possession shall, whether or not fixed to any
  part of such premises, remain the property of and
  may be removed by such undertaker, and shall not
  be subject to the landlord's hypothec for rent of
  such premises, and are not liable to be taken in
  execution under any process of law or any
  proceedings in insolvency or liquidation against
  the owner or occupier of such premises, provided
  adequate indication is given on such premises
  that such undertaker is the actual owner of such
  lines, meters, fittings, works or apparatus.
• (2) For the purposes of this section and Section
  23, lines, meters, fittings and apparatus let,
  rented or disposed of by the undertaker on terms
  of payment by instalments shall, until such
  instalments have been paid, be deemed to belong
  to him.

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Electricity Act Section 27

• Section 27, which provides
• 27 Offences and penalties
• (1) If any person carries on an undertaking in
  contravention of any provision of this Act or of
  the conditions of his licence or if any
  undertaker fails to carry out a directive of the
  Minister under Section 15 (2), or any order or
  decision of the regulator, or fails to comply
  with any condition imposed by the regulator, he
  shall be guilty of an offence and liable on
  conviction to a fine not exceeding the amount
  which the Minister may from time to time
  prescribe by regulation for each day on which the
  undertaking is so carried on or the failure
  continues.
• (2) Any person who without legal right (the proof
  of which shall be upon him) abstracts, branches
  off or diverts or causes to be abstracted,
  branched off or diverted any electric current, or
  consumes or uses any such current which has been
  wrongfully or unlawfully abstracted, branched off
  or diverted, knowing it to have been wrongfully
  or unlawfully abstracted, branched off or
  diverted, shall be guilty of an offence and
  liable on conviction to the penalties which may
  be imposed for theft.
• (3) Any person who without legal right (the proof
  of which shall be upon him) cuts off or damages
  or interferes with any apparatus for generating,
  transmitting or supplying electricity, shall be
  guilty of an offence and liable on conviction to
  a fine not exceeding the amount which the
  Minister may from time to time prescribe by
  regulation or to imprisonment for a period not
  exceeding 12 months or to both such fine and such
  imprisonment. (own emphasis)

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Electricity Act - continue

• The significance of section 24 is that it makes
  it clear that the apparatus associated with the
  supply of electricity belongs to the supplier of
  such electricity, and not to the consumer. This
  is potentially important in establishing
  unauthorised use or handling of such apparatus.
• The importance of Section 27(2) is obvious. It
  makes it clear that a person who misappropriates
  electricity is guilty of a statutory offence the
  penalty for which is the same as that in respect
  of common law theft. To a large extent, this
  answers the question posed by the GJMC, and
  minimises the relevance of whether or not the
  common law recognises the theft of electricity.
  This is because the penalty upon conviction of
  the statutory offence created by Section 27(2) is
  just as serious as that for theft hence the
  punitive and deterrent aspect of a successful
  prosecution under Section 27(2) would be
  equivalent to a successful prosecution for theft
  of electricity.
• Section 27(3) is potentially useful in
  prosecuting those who misappropriate electricity.

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By-Laws

• The Electricity By-Laws
• Section 38
• Offences and Penalties
• Any person contravening or failing to comply with
  any provision of these by-laws shall be guilty of
  an offence and shall on conviction thereof be
  liable to a fine not exceeding R2000 or in
  default of payment to imprisonment for a period
  not exceeding six months.
• (2) The occupier, or if there be no occupier, the
  owner of any premises supplied with electricity,
  on which a breach of these by-laws is committed,
  shall be deemed to be guilty of that breach
  unless he proves that he did not know and could
  not by the exercise of reasonable diligence have
  known that it was being or was likely to be
  committed and that it was committed by some other
  person over whose acts he had no control.
• (3) Any person who contravenes the provisions of
  section 15 and who is in consequence not charged
  for electricity which has been consumed or is
  charged for such electricity at a rate lower than
  that at which he should properly have been
  charged shall, notwithstanding any penalty which
  may be imposed in terms of this section, be
  liable to pay to the council the sum which would
  have been paid to it had the said offence not
  been committed, and such sum shall be calculated
  in terms of the highest charge which could have
  been made according to the tariff applicable from
  the date when the contravention first took place.

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Electricity By-laws - continue

• The relevant provisions of the By-laws which may
  be prosecuted under Section 38 are
• Section 3(1) provides that electricity can be
  supplied only pursuant to a consumers agreement.
  
• Section 3(2) prohibits the use of electricity
  without a consumers agreement.
• Section 3(4) prohibits the leading of electricity
  temporarily or permanently to any point of
  consumption or place which does not form part of
  the electrical installation for which a supply
  has been agreed upon or given, unless the
  engineers permission has been obtained in
  advance.
• Section 4(1)(a) provides that the charge
  determined by the council shall be payable for
  electricity consumption.
• Section 14(1) permits the council without notice
  to disconnect the supply of electricity from any
  installation or part thereof in respect of which
  charges due to the council are in arrear.
• Section 15 deals with unauthorised connection. It
  provides No person other than an employee of
  the council authorised thereto shall without
  written permission from the engineer connect or
  reconnect or attempt to connect or reconnect any
  electrical installation to the service connection
  or the supply main.
• Section 15(2) imposes upon the consumer or owner
  concerned a duty to take all reasonable steps to
  ensure that a supply which has been disconnected
  in terms of section 14 is not reconnected. (The
  provision refers to section 13, but this is an
  obvious error and the only logical reference is
  to section 14.)

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By-laws continue

• Section 15(3) provides that if such reconnection
  nevertheless occurs, the owner or consumer
  concerned must take all reasonable steps to
  ensure that no electricity is consumed on the
  premises, and must notify the treasurer of the
  council of the reconnection.
• Section 15(5) provides In any prosecution for a
  contravention of or failure to comply with
  subsection (2) or (3), or both, or any or both of
  those subsections read with subsection (4), any
  contravention or failure to comply, whether
  intentional or negligent, shall be sufficient to
  constitute an offence and, unless the contrary is
  proved, it shall be deemed that
• reasonable steps contemplated in subsection (2)
  and (3) were not taken and
• such contravention or failure was due to an
  intentional act or omission of the person
  charged.
• The common law
• In S v Mintoor 1996 (1) SA SACR 514 (C), a
  magistrate had found the accused guilty of the
  theft of 901 units of electricity from the
  Bredasdorp Municipality. On review, the Court
  set the conviction aside on the basis that
  electricity could not be regarded as a thing
  which could form the subject of a charge of theft
  at common law.
• The purport of this decision may be summarised as
  follows
• The Court specifically considered and rejected
  the view expressed by Hunt, a respected academic
  commentator on criminal law, that electricity,
  like water or gas, if reduced to private
  possession, falls within the class of res
  commercium or commercial goods, which are capable
  of being stolen. Unlike water or gas, said the
  Court, electricity did not exist as specific
  matter or material
• by the same token, the Court rejected the view
  of Snyman, another respected commentator on
  criminal law, to the effect that electricity
  (like other forms of energy), to the extent that
  it is a distinct part of physical nature which is
  put to economic use as a form of energy, is
  capable of being stolen. The Court said that
  whether or not electricity is a distinct part of
  physical nature, it is clear that it cannot be
  described as a material or physical thing
• a decision that electricity is capable of theft
  would therefore necessarily amount to an
  extension of the criminal law by means of
  judicial decision, which is generally
  undesirable, since the extension of the criminal
  law is properly the task of the legislature.

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The purpose of Municipal Courts

• Municipal courts have been established to
• enforce the law -by laws,
• Public safety,
• Enforce and exercise the message of the City
  Major with regards to the-,
• Batho Pele principal - service to the community.
• Challenges encountered by Municipal courts
• To fill the court roll
• Skills development e.g. court procedure and lead
  of evidence
• Execution of Section 56 Notices
• Avoid quantity and to produce quality
• Criminal Procedure Act clearly indicates
  compliance with regards to the completion of
  section 56 notices.

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• The following reasons can be sited for the
  rejection of section 56 notices
• Mistakes
• Alternation on document after notice have been
  issued to the accused
• Investigations are under way into the section 56
  notice to cater for utilities e.g. stand no in
  stead of vehicle registration number in the case
  of City Power by law.
• A clear recording should be done indicating the
  reason for the issuing of the section 56 notice.
• A backlog exist on the processing of section 56
  notices due to
• Shortage of manpower,
• and alternative resources
• Offence codes provided / allocated by Civatas
  system (computer system) not properly
  functioning.
• Efforts have been made to address the current
  backlog and to rectify the shortcomings.

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Effectiveness of Municipal Court

• Chief Magistrates of the court jurisdiction is
  responsible for the approval of the schedule of
  fines and various reasons are given by the
  Justice department for the prolonging of the
  approval of the schedule of fines.
• Due to a shortage of Magistrates in the
  Johannesburg jurisdiction warrants get referred
  to district courts outside of the Johannesburg
  Magistrate court for those magistrates to sign or
  confirm such warrants which causes quiet a delay
  in the process.
• Chief magistrates given clear instructions that
  all warrants and stagnated cases to be withdrawn
  for the year 2003.
• Warrants can now be only prosecuted as from 30
  June 2004.
• The court does not view by law offences as a
  serious crime.
• After an enforcement officer have been warned to
  appear in court, and if they still fail to appear
  in court the consequences is that the accused
  gets the benefit of the doubt.

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Ineffectiveness of Municipal Court

• The ineffectiveness of the Municipal court can be
  attributed to the following reasons
• When enforcement takes place the accused get
  served with a section 56 notices to appear in
  court. When an accuse fails to appear in court on
  the day of his / her court case resulting in the
  offence becoming a warrant of arrest for the
  accused.
• Most of the cases on the court roll become
  warrants of arrest causing the court not to
  continue or go into session for the simple reason
  that the accused blatantly ignoring the section
  56 notice.
• Law enforcement agencies are currently
  investigating various avenues to make sure the
  accused appears in court.
• J 175 process is also under investigation to
  build a case with a no admission of guilt fine,
  with the magistrate to agree on sentencing.
• SAP 69 is then registered which is criminally
  based against the accused after sentencing.

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Conclusion

• Effectiveness
• To ensure effectiveness at municipal court level
  is an ongoing process and can only be achieved if
  we can find a solution to our manpower and
  resources shortages and skills development and
  training.
• Enforcement officers must be trained to
  understand their definition of Peace Officer
  status and their mandated power to act.
• Enforcement Officers must also convince
  magistrate of the seriousness of our goal which
  lies in the over coming of the by law violation.
• Conclusion
• The Municipal court is currently a pilot project
  with the City of Johannesburg and is based at the
  Johannesburg magistrate court court 35.
• Efforts are made to ensure that the court roll is
  sufficiently populated to run effectively on a
  day to day basis.
• It was agreed that 600 cases per day should be
  placed on the court roll.
• City Power alone has for the 2005 / 2006 year to
  date removed 98 486 illegal connections alone
  with an allocate cost of R5 526 470.