The Excessive Court docket in Pretoria will this week hear an software by a number of intensive vitality customers within the North West municipality of Madibeng which will have far-reaching implications for municipal tariff willpower countrywide.
They allege that Madibeng is unlawfully making big income on electrical energy gross sales and utilizing these income to cross-subsidise different municipal providers.
They’re asking the court docket to evaluation and put aside vitality regulator Nersa’s approval of Madibeng’s tariffs for 2013/14, 2014/15 and all subsequent years; on the idea that Nersa’s choice was unconstitutional, illegal, irrational and that Nersa acted past its mandate (extremely vires) when taking the choice.
If the applying succeeds, electrical energy customers elsewhere might equally problem the tariffs their municipalities cost for electrical energy gross sales.
Nersa and the Madibeng municipality are each opposing the applying.
Related pending authorized challenges
This comes towards the backdrop of one other pending software through which the Nelson Mandela Bay Enterprise Chamber (NMBBC) and the Pietermaritzburg and Midlands Chamber of Enterprise (PMCB) are difficult the methodology Nersa depends on to find out municipal tariffs.
No date has been set for this software to be heard.
Within the meantime, Nersa is finalising a dialogue doc concerning the guideline it is going to set for municipal tariffs that may apply from July 1.
Nersa’s observe is to publish a suggestion yearly for the proportion improve in municipal tariffs, in contrast with the earlier 12 months, in addition to benchmark tariffs for each shopper group.
Every municipality nonetheless has to use for its personal tariffs and is just allowed to cost the tariff Nersa approves.
Madibeng’s disputed tariffs had been additionally set in accordance with this observe.
The Madibeng candidates nonetheless argue that this observe doesn’t adjust to the Electrical energy Regulation Act (ERA), which supplies for electrical energy tariffs to be cost-reflective. An environment friendly licensee, on this case the municipality, is entitled to recuperate from tariffs its price of provide in addition to an inexpensive margin.
In keeping with the intensive customers Nersa’s choices weren’t cost-based and it’s not possible to calculate an inexpensive return with out understanding what the environment friendly price is.
They argue that Nersa is the truth is permitting the municipality to impose a surcharge with out being authorised to take action.
A municipal surcharge might solely be imposed in compliance with the Municipal Fiscal Powers and Features Act, which doesn’t authorise Nersa to approve such surcharges.
‘Use Eskom information’
The candidates are asking the court docket to set the choices apart and remit them to Nersa. They suggest that within the absence of a correct examine to find out the price of provide in Madibeng, Nersa use the cost-of-supply information that Eskom bases its electrical energy distribution tariffs on.
Additionally they allege that Nersa’s tariff determinations had been procedurally unfair, as a result of the regulator doesn’t require any public participation concerning the municipal tariff software.
Functions from municipalities which are inside the guideline, and consistent with the benchmark on three totally different tariffs, are merely authorized with none public participation.
They additional argue that Nersa failed to use a prudency check that took under consideration that the municipality’s electrical energy losses had been sky-high – as a lot as 41.5% towards a benchmark of 10% in 2011/12.
Nersa in its heads of argument disputes that the choices had been taken unlawfully.
Nersa accuses the candidates of asking the court docket to second-guess Nersa and factors out that this may occasionally put the separation of powers enshrined within the Structure in danger.
Nersa says the candidates are misunderstanding the authorized regime, and accuses them of taking the regulation into their very own arms by underpaying the electrical energy payments for years after reaching an settlement to that impact with Madibeng.
The candidates obtained an interdict earlier to stop Madibeng from disconnecting their energy provide pending the finalisation of this software.
By underpaying, Nersa says they disregarded the Nersa-approved tariffs.
Nersa argues that the sooner tariff determinations are not in power and can’t be reviewed.
It alleges the municipality did present sufficient info for the choice to be based mostly on its price of provide, and says that whereas it doesn’t have sufficient time through the means of tariff willpower to confirm the data offered by the municipality, it has “checks and balances” in place.
Nersa additional states that it did take Madibeng’s excessive electrical energy losses under consideration.
It additional states that municipalities are allowed to redirect a few of their electrical energy earnings to different providers.
They’re solely anticipated to ringfence earnings that’s above the Nersa-approved guideline.
Nersa’s electrical energy sub-committee is scheduled to approve the consultations doc coping with the municipal guideline for the approaching monetary 12 months on March 22, after which will probably be printed for public remark.