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[2015] ZAGPJHC 124
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Chambord Investments (Pty) Ltd and Others v City of Johannesburg abd Another; In re: Chambord Investments (Pty) Ltd and Others v City of Johannesburg (2014/39212) [2015] ZAGPJHC 124 (9 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
JUDGMENT
CASE NUMBER: 2014/39212
HEARD: 9 JUNE 2015
DELIVERED: 12 JUNE 2015
In the matter between:-
CHAMBORD INVESTMENTS (PTY)
LTD
.................................................................
First
Applicant
CHESTNUT HILL INVESTMENTS 6 (PTY)
LTD
.................................................
Second
Applicant
QUICK LEAP INVESTMENTS 280 (PTY)
LTD
.......................................................
Third
Applicant
And
CITY OF
JOHANNESBURG
......................................................................................
First
Respondent
MPHO PARKS
TAU
................................................................................................
Second
Respondent
In re:
CHAMBORD INVESTMENTS (PTY)
LTD
.................................................................
First
Applicant
CHESTNUT HILL INVESTMENTS 6 (PTY)
LTD
.................................................
Second
Applicant
QUICK LEAP INVESTMENTS 280 (PTY)
LTD
.......................................................
Third
Applicant
And
CITY OF
JOHANNESBURG
......................................................................................
First
Respondent
JUDGMENT
HERTENBERGER, AJ:
[1] This matter has a long complex
history. The first application to court was launched in June 2012.
Two court orders have preceded
the application now before court.
From the onset I must record that during argument it became apparent
that the parties are not
proceeding with the contempt application, as
there has since been compliance with part of the order by the
Honorable Judge Weiner,
however the court will nonetheless make an
order as to who ought to bear the costs of the contempt application.
What the applicant
contends is that the matter has boiled down to the
determination of a single point in law, namely whether the payment
made under
protest in order to obtain clearance figures to transfer
an immovable property falls to be refunded by the first respondent to
the first applicant, as the first respondents claim thereto has
become prescribed. The first applicant has in this regard formulated
a stated case to assist the court in identifying this crisp issue.
[2] The respondent contends that the
matter is not as easily determinable as the applicant wishes the
court to believe and that
the matter ought to be referred to oral
evidence in order for the court to make a finding in the matter.
[3] From the papers before court, it
appears that the first respondent has taken a backseat approach
throughout the matter. The
impression of the court is that the first
respondent has to be continually jolted into action by the first
applicant. It is telling
that only after the application for
contempt was launched, the first respondent felt obliged to make an
effort to resolve the queries
on two other accounts and partly in
respect of the one remaining dispute. Meetings where held by the
parties and the only remaining
dispute is the account relating to the
building known as Hoffman New Yorker, Electricity account number:
206616964. The parties
attended meetings in order to debate the
aforesaid account, but could not agree. In the course of such
discussions a spreadsheet
was created by the first respondent, which
spreadsheet is not disputed and which is annexed by both parties in
the application,
except that the respondent’s version appears
to be an incomplete version of the same document (annexure “COJ
1”) annexed by the applicants to
their replying affidavit as annexure “RA3”. Upon
examination of the spreadsheet
in conjunction with the clearance
figures issued by the first respondent and attached to papers in the
application dated October
2012 it becomes apparent that the clearance
amount of R1 177 292,04 was made up of R875 285.07 (electricity
consumed) and R302
006.34 (a future projection of electricity
consumption). The first respondent paid the clearance amount with
the proviso that
it was doing so under protest, as it had sold the
building and could not effect transfer thereof without obtaining the
required
clearance certificate. It is trite that the parties have
not resolved the dispute pertaining to the R875 385.07 portion of the
payment to date. The payment was made on 27 September 2009. To date
hereof the first respondent has not taken any positive action
in
order to claim payment of this amount. The applicant avers that any
claim that the first respondent may have had, has become
prescribed
and thus the amount ought to be repaid.
[4] As a point of departure in this
matter regard must be had to the limitation of the period preceding
the date of application
for a clearance certificate to two years as
set out section 118(1) of Municipal Systems Act. As quite correctly
stated in Real
People Housing (Pty) Ltd v City of Cape Town
2010 (1)
SA 411
at 424 E, this does not mean that “Payment by a property
owner in an amount contemplated in s118(1)(b) does not relieve the
property owner of any liability of an amount due in respect of an
earlier period. The municipality still retains a right to proceed
against the previous owner by way of an action to recover the balance
outstanding”. This view is supported by BOE Bank Ltd
v Tshwane
Metropolitan Municipality 2005 (4) 336 (SCA), City of Johannesburg v
Kaplan NO
2006 (5) SA 10
(SCA) and Geyser and Another v Msunduzi
Municipality and Others
2003 (5) SA 18
(N). This implies that the
first respondent could at all times have taken steps to recover the
amount it claims is due to it
and thereby prevent the amount from
prescribing, as it has. I agree with and accept the argument by the
respondents that a payment
under protest and with the reservation of
rights is not at any time capable of being interpreted as anything
else than “an
express disavowal of such indebtedness”.
It lay in the hands of the first respondent to protect its rights,
which it failed
to do. See City of Tshwane Metropolitan Municipality
v Mathabathe and Another
2013 (4) SA 319
(SCA).
[5] The spreadsheet, which sets out the
quantum of the claim in this matter was produced by the first
respondent. The applicants
accept the content thereof. I can find
no reason why this matter should be further delayed by referring this
matter to trial.
I am of the opinion that the documents speak for
themselves. The first respondent failed to pursue the claim that it
had against
the first applicant and as a result such a claim has
prescribed. There is a further amount of R237 080.24 which is an
existing
debt owed by the first applicant to the respondent, thus
this amount ought to be subtracted from the amount due to the first
respondent
by the first applicant. Accordingly the applicant must
succeed in its application and the first respondent must refund the
amount
that has prescribed less the debit, which it acknowledges
still exists.
[6] In respect of costs this court has
to make a finding in respect of the contempt application and the main
application. Having
regard to what has already been stated above,
there can be no doubt that the first respondent would not have made
any attempt to
resolve the matter had it not been faced with the
possibility of having the second respondent held in contempt. The
launching
of the contempt application was thus the deciding factor in
bringing the first respondent to comply (albeit it in part only) with
the previous orders of this court. On this basis, I find that the
first respondent is to pay the cost of the contempt application
on
the scale as between attorney and client. In respect of the main
application, I cannot find any reason to make a punitive cost
order
herein and thus these costs shall be borne by the first respondent on
the party party scale.
In the result an order is made in terms
of the draft order annexed hereto as “X”
R HERTENBERGER
ACTING JUDGE OF THE HIGH COURT
1. Representation of Applicant :
Nochumsohn & Teper
2. Representation of Respondent :
Mogaswa Incorporated
3. Date Heard : 09 June 2015
4. Date Judgment Delivered: 12 June
2015