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This article considers the legality of a municipality serving pre-termination notices over SMS or a similar form of direct electronic communication such as Whatsapp.
Our offices have taken note of an alarming increase in the number of SMSes sent to clients by the City of Johannesburg Metropolitan Municipality (“COJ”) advising that that their services would be disconnected if amounts outstanding were not paid.
Important note: The focus in this article will be on the laws that relate to the COJ, so if you are in a different municipal jurisdiction you may need to check the by-laws relevant to that particular municipality because they may differ to the COJ ones referenced in this article.
Our law does not always require that all types of notices be given in writing (although this is most certainly the norm), so it is possible that a court may in the future find that the SMS itself constitutes sufficient notice of the pending disconnection of services. In our view, however, this can only lawfully follow if the SMS is delivered to the customer in a manner that complies with the relevant by-laws and court judgments. The four most important requirements are:
- The notice must be delivered to the customer in one of the ways prescribed by the Local Government: Municipal Systems Act (“the Act”). To the extent that a municipality’s policies or by-laws specify a method of delivery that conflicts with those in the Act, the provisions of the Act will take precedence over the by-laws/policy.
- The notice must give at least 14 days’ notice (as per the Constitutional Court in the famous Joseph case) or the number of days specified in the by-laws or policies of the municipality concerned (if there are conflicting provisions in different laws, whichever is the longer number of days will be the provision that applies).
- The method of delivery specified in the relevant law must be complied with (examples include registered mail, hand delivery, via sheriff).
- The person to whom the notice is delivered, must be the appropriate person (where a person is specified).
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