Jesaya Mukwambi
Africa-Press – Namibia. Residents of Windhoek have increasingly found themselves in a precarious situation despite diligently paying for their prepaid electricity, their power supply is being blocked due to outstanding balances on other municipal services such as water, rates and taxes.
This practice, implemented by the City of Windhoek, raises serious legal questions and appears to stand in direct contravention of the very legislation designed to govern the electricity supply in Namibia. Understanding the legal framework and the pronouncements of the regulatory body is crucial to determining the lawfulness of this contentious policy.
The cornerstone of electricity regulation in Namibia is the Electricity Act No.4 of 2007. This Act serves as the primary legislation dictating the rules for the generation, transmission, supply, and distribution of electrical power within the country. It established the Electricity Control Board (ECB), a body mandated with significant authority to oversee the electricity supply industry. The functions of the ECB are wide-ranging, encompassing the efficient operation and development of the sector, ensuring the reliable provision of electricity, and the regulation of tariffs and service conditions. The Act further empowers the ECB to formulate rules and codes deemed necessary for the fulfilment of its objectives, including those pertaining to electricity metering.
In recent times, the ECB has made its position unequivocally clear regarding the blocking of prepaid electricity meters for debts unrelated to electricity consumption. The regulatory body has explicitly stated that this practice by local authorities is not permissible under the Electricity Act (Act No. 4 of 2007).
The ECB’s interpretation of the law is that the Act and its accompanying regulations, notably the Economic Rules of 2016, specifically stipulate that the discontinuation of electricity supply due to arrears can only be justified by unpaid electricity bills. This pronouncement from the established regulatory authority, tasked with the oversight and implementation of the Electricity Act, carries considerable legal weight.
Crucially, Section 36(2) of the Electricity Act provides a definitive answer in the event of a conflict between the Local Authorities Act and the Electricity Act concerning the supply of electricity. This section explicitly states that the provisions of the Electricity Act shall take precedence. This establishes a clear legal hierarchy, positioning the Electricity Act as the supreme law in matters directly related to electricity supply, thereby limiting the applicability of the Local Authorities Act in such specific circumstances.
The explicit precedence granted to the Electricity Act in this domain suggests that the City’s reliance on its broader powers under the Local Authorities Act might be legally unsound when dealing with specific actions concerning electricity disconnection.
The Electricity Act, as a specific piece of legislation tailored to the electricity sector, is intended to govern this area, and Section 36(2) reinforces this principle by directly addressing potential conflicts with the more general Local Authorities Act.
The City of Windhoek, as a local authority, derives its powers and duties from the Local Authorities Act 23 of 1992. Section 30 of this Act grants local authorities a broad range of powers, including the provision of electricity (though this is stated to be subject to the Electricity Act) and the authority to determine charges for the services they render. The City has argued that its Credit Control Policy empowers it to employ various methods for recovering outstanding debts, including the blocking of prepaid electricity meters for residents who have not paid other municipal dues. The Mayor of Windhoek has publicly defended this policy, emphasizing the necessity of maintaining the City’s financial stability and encouraging residents to make timely payments for all municipal services.
However, the powers granted to local authorities under the Local Authorities Act are not without limitations. These powers are often subject to specific regulations outlined in sector-specific legislation such as the Electricity Act. Section 36 of the Electricity Act directly addresses the provision of electricity by regional and local authority councils, further underscoring the primacy of the Electricity Act in this particular area. The ECB’s directive explicitly clarifies that in case of any conflict between the Local Authorities Act and the Electricity Act regarding electricity supply, the Electricity Act and its subordinate legislation will prevail. Therefore, the City’s justification for its actions based solely on its mandate under the Local Authorities Act appears to disregard the superior legal standing of the Electricity Act in matters concerning electricity supply and disconnection. The legal principle that a specific law overrides a general law when both address the same issue (lex specialis derogat legi generali) is pertinent here. The Electricity Act is a specific law governing the electricity sector, while the Local Authorities Act is a general law concerning the functions of local authorities.
Consequently, the Electricity Act should take precedence in matters related to electricity supply and disconnection. Furthermore, the City’s reliance on its Credit Control Policy as justification is weakened by the ECB’s assertion that all policies related to electricity provision must align with the Electricity Act and its regulations. If the City’s Credit Control Policy permits actions that are prohibited by the Electricity Act, then that specific aspect of the policy is likely legally invalid.
The Electricity Control Board, as the independent regulatory body established by the Electricity Act, holds significant authority in interpreting and enforcing the legislation. Its functions include the control and regulation of electricity provision, use, and consumption throughout Namibia. The ECB’s directives are issued based on its expert understanding and interpretation of the Electricity Act.
The interpretation of a law by the body responsible for its enforcement is generally accorded considerable weight by the courts. The ECB’s clear and consistent stance against the City’s practice of blocking prepaid meters for non-electricity debts strengthens the argument that this practice is legally unsound.
Source: neweralive
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