By-Law Water amendments- its impact on Landlords (Owners)and tenants

The soundcloud to the brief interview with Marlon Shevelew on CapeTalk 14 December 2017

I have extracted certain relevant portions of the existing water by laws to highlight the proposed changes. 

I note that provision for water management devices already exists (in section 24(6):

(6) The Director may install a Water Management Device at any premises as part of the water meter and its associated apparatus to— 

(a) encourage water demand management; or 

(b) ensure implementation of an affordable approach in providing access to basic water services. 

‘Director’’ means an employee responsible for water and sanitation in the City

The proposed substitution to the above subsection is the following:

"(6) The Director may install a Water Management Device or prepayment meter at any premises as part of the water meter and its associated apparatus to—” (etc.); 

The important amendment is not, therefore, that the City can now insist on the installation of water management devices as they are already empowered to do so in terms of the 2010 by-laws. 

Instead, the key change is that the City may now also require the installation of prepayment meters at any property (business or dwelling) for the same purpose (i.e. to encourage water demand management et al as set out in (a) and (b) above).

Regarding whose responsibility it is to maintain such devices, the proposed amendments provide as follows:

“(1A) The owner is responsible for ensuring compliance with this By-law in respect of all or any matters relating to the water installation, and the maintenance thereof.”; 

It is important to note that a "water management device" is a device that controls the quantity of water flowing through a water meter over a certain time period. It is therefore unclear whether it is a “water installation,” which is defined as:

"the pipes and water fittings which are situated on any premises and vested in the owner thereof and used or intended to be used in connection with the use of water on such premises, and includes— 

(a) a pipe and water fitting situated outside the boundary of the premises, which either connects to the communication pipe relating to such premises or is otherwise laid with the permission of the City; and 

(b) a ‘‘consumer installation’’ as defined in section 1 of the Water Services Act, 1997 (Act No. 108 of 1997);

“prepayment meter” means a meter that can be programmed to allow the flow of a pre-purchased volume of water to the customer.

The proposed amendment to section 28 states inter alia that (each subsection being a substitution): 

“(2) The Director may, after informing the owner of the property in writing of his or her intention to install a meter to an existing unmetered fire connection [referred to in subsection (1)(d)], at the cost of the City, install such meter and subsequently render an account for water consumed through the connection.”;

“(3) A meter and its associated apparatus that is provided and installed by the City, remains the property of the City and may be replaced when deemed necessary by the Director.”;

“(9) The Director may at the cost of the owner, install or require the installation of a private sub-meter,[or volume controlling device] water management device or prepayment meter to each section, business or dwelling unit on any premises for use in determining the quantity of water supplied to each section, business or dwelling unit or portion of the premises.”

It therefore seems that the property owner would indeed be the party responsible for maintaining any water management device or prepaid meter which the City installs at his or her property. 

Moreover, an owner has the following obligations in terms of the proposed substitution of section 48:

Substitution of section 48 of the City of Cape Town Water By-law, 2010 

26. The following section is hereby substituted for section 48 of the principal by-law— 

“Responsibilities of a property owner 

48(1) A property owner must [ensure that the installation work done on his or her premises] ? 

(a) ensure that the installation work done on his or her premises is carried out by a [person or] plumber qualified in terms of Section 47; 

(b) [complies with this By-law;] notify the City of any changes, replacements or installations to the pipework mentioned in section 42(7); and 

(c) [on completion thereof], ensure that a certificate of [compliance] approval for newly completed or altered water installations, is submitted to the Director. 

(2) If installation work is being done in contravention of section 47, the Director may by written notice require the owner of the premises concerned to cease such work until he or she has employed a qualified plumber to— 

(a) inspect such work and rectify any part of it which does not comply with this By-law; 

(b) test and disinfect the work in terms of section 49; and 

(c) ensure that a certificate of [compliance] approval for newly completed or altered water installations, stating that the work carried out complies with this By-law, is submitted to the Director.”

It is therefore clear that, where the City requires an owner to install any one of the listed fixtures — i.e. meter, water management device, or prepayment meter — the cost of the installation must be borne by the owner, and the installation itself will remain the property of the City. 

As to whether the owner can pass the cost of such an installation to the tenant, I would argue that the specific reference to “owner” means there is no immediate basis for any tenant bearing the full, or a proportionate amount of the cost. 

However, the following proposed amendment is relevant in this regard:

“(1B) the consumer is responsible for compliance with this By-law in respect of matters relating to the wastage or other abuse of any water.”

The implication of this subsection seems to be that, in instances where a tenant has been found to have abused the water supply, and this results in the City installing, or requiring the insulation of, a water management system or prepaid meter at the owner’s expense, in my opinion the owner should be entitled to recoup the related costs from the tenant. 

While an owner’s liability to the City is, in essence, a contractual one — in that the by-laws function as a contract between the City and the owner (or consumer, as the case may be) — the tenant’s negligent conduct, or reckless abuse of the water supply, which necessitates such an installation would, in turn, give rise to a claim in delict to the owner against the tenant, in terms of which the costs to install such a mandated water fixture could be claimed as damages suffered by the owner. 

Below I have quoted various important sections (some of which I’ve already cited above) appearing in both the existing by-laws, and the proposed amendments, for your ease of reference.

A: Existing Water By Law (2010)

‘‘meter’’ means a device which measures the quantity of water passing through as contemplated in the Trade Metrology Act, 1973 (Act No. 77 of 1973);

‘‘water installation’’ means the pipes and water fittings which are situated on any premises and vested in the owner thereof and used or intended to be used in connection with the use of water on such premises, and includes— 

(a) a pipe and water fitting situated outside the boundary of the premises, which either connects to the communication pipe relating to such premises or is otherwise laid with the permission of the City; and 

(b) a ‘‘consumer installation’’ as defined in section 1 of the Water Services Act, 1997 (Act No. 108 of 1997);

‘‘water management device’’ means a device that controls the quantity of water flowing through a water meter over a certain time period;

Application and purpose 

2. (1) This By-law applies to all premises situated within the jurisdiction of the City. 

(2) Unless the contrary is proved, a breach of this By-law committed on premises in respect of the— 

(a) water installation, other than a provision relating to the use of water in the installation, is deemed to be a breach by the owner of the premises; and 

(b) use of water from a water installation is deemed to be a breach by the consumer. 

(3) No owner is required to comply with this By-law by altering a water installation or part thereof which was installed in conformity with any law applicable immediately before the date of commencement of this By-law except for the provisions of section 3(1) and item 15 of Schedule 1. 

(4) Water may only be supplied within the area of jurisdiction of the City in terms of the provisions of this By-law. 

(5) The Director may, in consultation with the Executive Director City Health, where it is not reasonably possible or cost effective to supply water to each consumer within a particular area, determine an alternative manner of water supply. 

(6) Where the Director has determined an alternative manner of water supply in terms of subsection (5), this By-law applies to the supply of water to such area, subject to such conditions as he or she may determine. 

(7) Where the City makes use of an external water services provider, this By-law remains applicable and the Council remains the regulating authority.

General conditions of supply 

24. (1) The supply of water by the City does not constitute an undertaking to maintain at any time or at any point in its water supply system— 

(a) an uninterrupted supply; 

(b) a specific pressure or rate of flow in such supply; or 

(c) a specific standard of quality of the water, provided that if the water supply to a consumer is interrupted for more than 24 hours, the City will endeavour to provide an alternative basic water supply as soon as reasonably possible.

(2) The Director may specify the maximum height to which water will be supplied from the water supply system. 

(3) If an owner requires an uninterrupted supply, a specific pressure or rate of flow or a specific standard of quality of water on the premises, the owner must make his or her own arrangements for compliance to such requirements. 

(4) Subject to the provisions of this By-law, the City may interrupt the supply of water to any premises without prior notice. 

(5) If the consumption of water on premises adversely affects the supply of water to other premises, the Director may apply such restrictions as he or she may deem fit to the supply of water to the first-mentioned premises in order to ensure a reasonable supply of water to the other premises, and must inform the owner of, or consumer who resides in, the first mentioned premises of such restrictions. 

(6) The Director may install a Water Management Device at any premises as part of the water meter and its associated apparatus to— 

(a) encourage water demand management; or 

(b) ensure implementation of an affordable approach in providing access to basic water services. 

PROPOSED SUBSTITUTION:

"(6) The Director may install a Water Management Device or prepayment meter at any premises as part of the water meter and its associated apparatus to—”; 

(7) Where a Water Management Device has been installed at any premises, a consumer may request to enter into an agreement with the Director to set the drinking water supply to their premises to a predetermined daily volume.

Chapter 3 

Water Restrictions and Water Conservation 

Water Restrictions 

36. (1) The Director may, by public notice, whenever there is scarcity of water available to it for distribution and supply to consumers, or for any other good cause— 

(a) prohibit or restrict the consumption of water in the whole or part of the City— 

(i) in general or for specified purposes; 

(ii) during specified hours of the day or on specified days; 

(iii) in a specified manner; 

(b) determine and impose limits on the quantity of water that may be consumed over a specified period; 

(c) impose restrictions or prohibitions on the use or manner of use of certain appliances by means of which water is used or consumed, or on the connection of such appliances to the water installation; and 

(d) invoke the special tariffs in respect of water restrictions, determined in terms of the Tariff By-law.

(2) The Director may limit the application of the provisions of a notice issued under subsection (1) to specified areas or categories of consumer, premises and activities, and may permit deviations and exemptions from, and the relaxation of any of such provisions on reasonable grounds, provided that there will be no deviation from the tariffs referred to in subsection (1)(d). 

(3) The Director may order a consumer to take such measures, including the installation of meters and devices for restricting the flow of water, as may be necessary to ensure compliance with a notice published as contemplated in subsection (1), at the cost of such consumer. 

(4) The Director— 

(a) may discontinue for such period as he or she may deem fit or limit the supply of water to any premises in the event of a failure to comply with the terms of a notice referred to in subsection (1); and 

(b) must, where the supply has been discontinued in terms of paragraph (a), restore it only when the fee for discontinuation and reconnecting the supply has been paid. 

(5) The provisions of this section also apply in respect of water supplied directly by the City to consumers outside the City, notwithstanding anything to the contrary in the conditions governing such supply, unless otherwise specified in the notice published as contemplated in subsection (1).

B: Proposed Amendment of section 2 of the City of Cape Town: Water By-law, 2010 

3. Section 2 of the principal by-law is hereby amended— 

a) by the insertion after subsection (1) of the following subsections:

“(1A) The owner is responsible for ensuring compliance with this By-law in respect of all or any matters relating to the water installation, and the maintenance thereof.”; 

“(1B) the consumer is responsible for compliance with this By-law in respect of matters relating to the wastage or other abuse of any water.” 

Proposed Amendment of section 24 of the City of Cape Town: Water By-law, 2010 

11. Section 24 of the principal by-law is hereby amended— 

b) by the substitution in subsection (6) for the words preceding paragraph (a) of the following words: 

"(6) The Director may install a Water Management Device or prepayment meter at any premises as part of the water meter and its associated apparatus to—”; 

c) by the substitution for subsection (7) of the following subsection: 

“(7) Where a Water Management Device or prepayment meter has been installed at any premises, a consumer may request to enter into an agreement with the City in terms of the City’s Credit Control and Debt Collection Policy and it’s Credit Control and Debt Collection By-law, 2006, to set the [drinking] domestic water supply to their premises to a predetermined daily volume."

About the Author

Marlon Shevelew is the director of Marlon Shevelew and Associates Inc. a law firm specialising in rental property, contractual, consumer and company law. The firm is the recipient of more than 50 international property law awards. Marlon is the original (but not current) author of the TPN leasepack, a facilitator for SAPOA, the current author of PayProp’s rental documentation, a PayProp Capital legal advisor, preferred rental property attorney to the Institute of Estate Agents South Africa (IEASA), the Rental Housing Tribunal Western Cape and presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town. Marlon has featured on Cape Talk 567 and Property Matters on DStv, contributes as a guest expert to several property publications and was invited by Juta to write a book on rental property law, by LexisNexis Butterworths to edit its forms and precedents on rental property law and, on no less than three occasions, was invited by the Law Society of South Africa to lecture and train candidate attorneys and attorneys on rental property law. The Rental Retainer Club, RentDoc and LevyDoc which offers clients affordable legal fees for rental property and sectional title related matters was proudly created by Marlon as well. He is contactable on [email protected] anytime for more information on these services.