THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 427/2022
In the matter between:
CORUB PROPERTY (PTY) LTD APPELLANT
and
PAUL GANCALVES BARBUZANO RESPONDENT
Neutral Citation: Corub Property (Pty) Ltd v Barbuzano (427/2022) [2023] ZASCA
89 (8 June 2023)
Coram: DAMBUZA ADP and NICHOLLS, GORVEN, MEYER and GOOSEN JJA
Heard: 10 May 2023
Delivered: This judgment was handed down electronically by circulation to the
parties’ representative via email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time of hand-down is deemed to be 11:00 am on
8 June 2023.
Summary: Lease – commercial premises – interpretation of certain provisions of
written lease agreement governing lessee ’s liability to pay to les sor municipal
electricity and water charges consumed on the leas ed premises – whether lessor
established such liability and the amount thereof.
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ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Victor and
Mahalelo JJ) sitting as a court of appeal):
1. The appeal is upheld with costs to the extent set out in paragraph 2 below.
2. The order of the full bench of the Gauteng Division of the High Court,
Johannesburg, is set aside and substituted with the following:
‘2.1 Save for the reduction of the amount set out below, the appeal against the
order of the Regional Court, Roodepoort is dismissed with costs:
The amount of R400 000.00 stated in paragraph (a) of the order is
substituted with the amount of R308 167.22.
2.2 The review application is dismissed with no order as to costs.’
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JUDGMENT
___________________________________________________________________
Meyer JA (Dambuza ADP and Nicholls, Gorven and Goosen JJA concurring):
[1] This appeal concerns the interpretation of certain provisions of a written lease
agreement of premises situated in a shopping centre. The disputed provisions govern
the lessee ’s liability to pay to the lessor municipal electricity and water charges
consumed on the leased premis es. The appeal also concerns the question whether
the lessor has proven the amount of such liability.
[2] The appellant, Corub Property (Pty) Ltd qua owner of the Lindhaven Shopping
Centre, Lindhaven, Johannesburg (the shopping centre) and lessor of various shops
in the shopping centre (the lessor), initiated action proceedings in the Regional Court,
Roodepoort (the regional court) against the respondent, Mr Paul Gancalves
Barbuzano qua lessee of leased premises in the shopping centre (shop 9). It, inter
alia, claimed payment of arrear municipal electricity and water charges consumed on
the leased premises, which included shop 9 and the common areas. It succeeded with
its claims. The regional cour t ordered the lessee to pay to the lessor the amount of
R400 000 plus interest and costs.
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[3] Aggrieved by that order, the lessee appealed to the Gauteng Division of the
High Court, Johannesburg (the high court). A full bench of the high court (Victor and
Mahalelo JJ) upheld the appeal. Regrettably, it did not set aside the regional court ’s
order and substitute it with its own. Special leave to appeal the high court’s order was
granted to the lessor by this Court.
[4] The utility account of the shopping centre was previously managed by a
company referred to in the evidence as ‘Oxers’. During February 2014 the lessor
appointed a company called ‘Collective Utility Management ’ (CUM) as its agent to
manage the shopping centre’s utility account on its behalf. The servi ces rendered by
it to the lessor included monthly meter readings, the calculations in accordance with
the applicable municipal by-laws and the compilation of the monthly invoices rendered
to the tenants of the shopping centre.
[5] The four witnesses call ed on behalf of the lessor were all employees of CUM
(the CUM witnesses): two were meter readers (the meter readers), one a director and
technical manage r who underwent in -service practical and theoretical training
provided by experienced former Eskom employees in various aspects of electricity and
meters, including the workings of meters, the identification of different meters, the
installation of and fault finding in meters. He was also trained in the tariff structures of
the different electricity sup ply authorities which included the tariffs prescribed by the
City of Johannesburg municipality and approved by the National Energy Regulator of
South Africa (NERSA).1 The last witness was a senior tariff analyst of utility accounts,
the identification of a rrears, cost reduction and potential over and undercharges
pertaining to various supply authorities (the tariff analyst).
[6] The only question that remained for determination by the time th e appeal was
heard by this Court, was whether the less ee was, in terms of the lease agreement ,
liable to pay to the lesso r for the kilovolt amp (KVa) component, over and above for
the kilowatt hour (KWh) component of the monthly readings of the electronic electricity
1 NERSA is a regulatory authority established in terms of s 3 of the National Energy Regulator Act 40
of 2004.
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meter that was installed for shop 9. The determination of this question requires the
interpretation of the relevant provisions of the lease agreement. It is well -settled that
the triad – language, context, and purpose – finds application in the interpretative
analysis of a written instrument, such as the lease agreement under consideration.2
[7] The pertinent , broader context ual facts are straightforward and essentially
uncontroversial. The Van der Linde Family Trust (VLFT) was the previous owner of the
shopping centre. On 31 October 2008, the lessee and VLFT concluded the written
lease agreement (the lease) in terms whereof VL FT let shop 9 to the lessee for a
period of five years from 1 July 2008 until 31 August 2013. The lessor purchased the
shopping centre from VLFT, and ownership passed to it on 11 September 2012. With
the termination of the lease looming, the lessee, on 13 June 2013, renewed the lease
with the lessor on the same terms of the initial lease he had concluded with VLFT.
[8] The Greater Johannesburg Metropolitan Council (the municipality) has adopted
a uniform set of electricity by-laws for the entire Metropolitan area served by
Metropolitan Electricity, namely the ‘Greater Johannesburg Metropolitan Electricity By-
laws’ (the applicable municipal by-laws).3 The lessor purchases the electricity supplied
to the shopping centre by the municipality and, in turn, resells the electricity to its
tenants.4 Additionally, the applicable municipal by-laws state that:
‘Such electricity shall, in respect of each purchaser, be metered through a sub-meter… .’5
[9] The lessee conducted the business of a supermarket from shop 9 and was an
anchor tenant. The supermarket initially had a bakery. The electricity meter that was
installed for shop 9 is, what was referred to in the evidence, a ‘Buy-Rite’ or ‘CT’ or ‘low
voltage demand’ meter. The rationale for the installation of that type of electricity meter
is that an anchor tenant usually requires a bigger circuit breaker because it is usually
a large electricity consumer. The circuit breaker installed for shop 9 is a 200 Ampere
circuit breaker. The electricity meter has two registers: a kilovolt (KVa) register and a
2 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others
[2021] ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) para 25.
3 Gauteng Gazette No 16, Notice No 1610 of 1999, Greater Johannesburg Metropolitan Coun cil.
4 Section 17 of the Greater Johannesburg Metropolitan Electricity By-laws.
5 Ibid s 17(1).
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kilowatt hour (KWh) register. Monthly electricity readings are taken and captured from
both registers.
[10] The pertinent provisions of the lease are these:
’18 ELECTRICITY , WATER AND SANITARY FEES
18.1 The LESSEE shall pay on demand to the LESSOR:
18.1.1 The cost of all electricity , water and gas, if any, consumed on the leased premises;
and
18.1.2 . . .
18.2 The LESSEE’S liability for charges for electricity, water and gas shall be determined
as calculated by the LESSOR in accordance with the provisions of the applicable
municipal by-laws together with such amount as the LESSOR is entitled to charge in
respect of the service charge of the meter of the leased premises.
[11] The words used in clauses 18.1.1. and 18.2 are clear and unambiguous. These
provisions make it plain that the lessee is obliged to pay on demand to the lessor the
charges for all electricity consumed on the leased premises. The lessor is obliged to
determine such liability of the lessee. The lessor ’s obligation is to calculate such
liability ‘in accordance with the applicable municipal by -laws’. The lessee’s obligation
is to pay to the lessor the cost of electricity that was so calculated by the lessor in
accordance with the applicable municipal by-laws. Nothing in the context of the lease
as a whole or in the broader factual context detracts from this interpretation of the
words used in clauses 18.1.1 and 18.2. The purpose of clause 18 is self -evident: it is
to place the obligation on the lessee to pay the lessor the cost of electricity consumed
on the premises as calculated in accordance with the applicable municipal by-laws.
[12] In an all too brief judgment on the question under consideration, the high court
reached the conclusion , without more, that the lessee is not liable for the KVa
component of the monthly electricity charges. In this regard it held:
‘There was also a dispute about the cost of the 200 AMP circuit breaker in the leased premises.
Only an 80 AMP was necessary. Mr SM Colling testified that the circuit breaker had its own
electricity meter for which KWh and KVa was read. In our view it was clear that the need for a
200 AMP meter was objected to years before with the appellant requesting its removal. T he
respondent failed to remove the meter and continued to charge the appellant. We find that the
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appellant’s version on this aspect was plausible. The reason for the 200AMP meter was
because there was a bakery in the shop. The bakery had been closed for years.’6
[13] However, no such obligation and breach thereof formed part of the lessee ’s
pleaded case. It is trite that a court should not pronounce upon a claim or defence not
raised in the pleadings nor was evidence to that effect led by the lessee. In Member
of the Executive Council, Department of Education, Eastern Cape v Komani School
and Office Suppliers CC t/a Komati Stationers,7 this Court re-emphasised that-
‘One of the enduring tenets of judicial adjudication is that courts are enjoined to decide only
the issues placed before them by litigants. And that it is not open to court to change the factual
issues presented by the parties or introduce new issues.’
[14] The discretionary power referred to in Shill v Milner,8 which is an incident of the
inherent power of the court,9 should also not be exercised in this instance. There, this
Court recognised that a court enjoys a discretion to give some latitude to a litigant to
raise issues at the trial that were not explicitly pleaded, where to do so gives rise to no
prejudice, and where all the facts have been placed before the trial court.10
[15] To give latitude in this instance woul d prejudice the lessor. Apart from the fact
that no obligation to remove the 200 Ampere meter had been pleaded, the necessary
facts had not been placed before the regional court. In his plea, the lessee placed in
dispute the correctness of the invoices rendered by CUM on behalf of the lessor and
the validity or correctness of the meter readings and charges. It is safe to assume that
the lessor accordingly only called the CUM witnesses to testify at the trial and no
director of CUM testified . During the ir cross-examination, the CUM witnesses were
confronted with averments concerning the lessee’s requests to the landlord to have
the 200 Ampere circuit breaker to shop 9 replaced with an ‘80 Ampere A3 Phase ’
electricity supply circuit breaker and the lessor ’s refusal to accede to such requests.
They were unable to reply thereto. The technical manager explained that CUM is a
6 Para 37 of the high court judgment.
7 Education, Eastern Cape v Komani School and Office Suppliers CC t/a Komati Stationers [2022]
ZASCA 13; 2022 (3) SA 361 (SCA) para 53.
8 Shill v Milner 1937 AD 101 at 105.
9 Close-Up Mining (Pty) Ltd and Others v The Arbitrator, Judge Phillip Boruchowitz and Another [2020]
ZASCA 43 para 35.
10 Ibid para 8.
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utility management company and was only appointed to do the utility management on
behalf of the l essor. It does not perform electrical installations, upgrades, or
downgrades. As mentioned, the lessee led no evidence at all, satisfying himself with
putting a version to the witnesses which neither arose on the pleadings nor was
testified to by any witness.
[16] Through the evidence of the meter readers , the lessor established that the
monthly meter readings at the shopping centre generally, and speci fically those of
shop 9, were properly undertaken and correctly recorded jointly by the two meter
readers, for capturing and preparation of invoices at CUM’s offices. The meter readers
corroborated the evidence of each other in material respects.
[17] The technical manager ’s uncontroverted evidence was that upon being
appointed by the lessor as its agent to manage the shopping centre ’s utility account
during February 2014, CUM undertook a complete technical investigation of all the
electrical and water meters in the shopping centre, including those installed for shop
9, and found them to be in good working order. Through his evidence, the lessor further
established that the lessee of shop 9 was to be classified as a lar ge consumer with
low voltage demand. The electrical installation fitted for shop 9 was one with a bigger
200 Ampere circuit breaker and a meter from which K Wa and KVa readings were
obtained. The electricity tar iff prescribed by the applicable municipal by -laws for a
large consumer with low voltage demand is payment for a minimum of 70 KVa. The
technical manager received the meter readings from the meter readers. He was
responsible for putting the data into a computer program, designed to prepare the
invoices with reference to the meter readings and the use of the correct tariffs
prescribed by the applicable municipal by-laws. Despite the prescript of the applicable
municipal by-laws, he levied the lessee for the actual monthly reading of shop 9’s KVa
register, which was less than 70 KVa specified in the by-laws. Through the evidence
of the tariff analyst , who analysed the invoices for electricity and water compiled by
CUM for shop 9, the lessor corroborated the evidence of the technical manager in its
material respects. His analysis revealed that the lessee was charged the correct tariff
for the KWh electricity component and for the water consumed in shop 9. The average
monthly KVa electricity readings for shop 9 ranged between 40-50 KVa, and the lessee
was charged according to those readings only.
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[18] A reading of the record shows that the judgment of the regional court correctly
analysed the pleadings and the factual issues presented by the parties. The favourable
credibility findings made by the regional court in respect of the four CUM witnesses
were justified and correct. Indeed, each one ’s evidence was credible and correctly
accepted by the learned regional court magistrate. 11 Their evidence in respect of the
facts relevant to a determination of this appeal was neither refuted by the lessee and
his witnesses, nor did the lessee present countervailing evidence.
[19] Indeed, the lessee ’s father, Mr Barbuzan o (snr), who assists his son in the
running of the supermarket business from shop 9, testified that he had no knowledge
as to how the lessor ’s electricity charges for shop 9 were calculated. The lessee
agreed that shop 9 had a 200 Ampere circuit breaker. He testified that they did not
have a problem with the meter readings as such. He also testified that he did not know
the prescripts of the applicable municipal by-laws.
[20] The inevitable conclusion, therefore, is that the lessor p roved the lessee ’s
liability and the amount of such liability as claimed by the lessor for the municipal
electricity and water charges consumed on the leased premises during the relevant
period.
[21] The lessor abandoned its claim for certain charges that were included in the
amount of R400 000 awarded by the regional court. On appeal before us it only
persisted with its claim for the municipal electricity and water charges, which amounts
to R312 377.71. We were thus requested to amend paragraph (a) of the regional
court’s order accordingly.
[22] In the result, the following order is made:
1. The appeal is upheld with costs to the extent set out in paragraph 2 below.
2. The order of the full bench of the Gauteng Division of the High Court,
Johannesburg, is set aside and substituted with the following:
11 Standard Bank of South Africa Ltd v Sibanda [2019] ZAGPJHC 481; 2021 (5) SA 276 (GJ) paras 3-
14.
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‘2.1 Save for the reduction of the amount set out below, the appeal against the
order of the Regional Court, Roodepoort is dismissed with costs:
The amount of R400 000.00 stated in paragraph (a) of the order is
substituted with the amount of R308 167.22.
2.2 The review application is dismissed with no order as to costs.’
P. A. Meyer
Judge of Appeal
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Appearances
For the appellant: S McTurk
Instructed by: Otto Krause Inc, Roodepoort
Honey Attorneys, Bloemfontein
For the respondent: R Erasmus
Instructed by: Riekie Erasmus Attorneys, Roodepoort
Symington & De Kok Attorneys, Bloemfontein