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[2010] ZAGPPHC 204
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Residents of Eloff Social Housing Complex v Housing Company Tshwane and Others (67520/2010) [2010] ZAGPPHC 204 (17 November 2010)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO: 67520/2010
DATE:17/11/2010
IN
THE MATTER BETWEEN
THE
RESIDENTS OF ELOFF SOCIAL HOUSING COMPLEX
….................
APPLICANT
AND
HOUSING
COMPANY
TSHWANE
....................................................................
1
ST
RESPONDENT
TRIPLE
"M" METERING SERVICES
CC
.........................................................
2
nd
RESPONDENT
CITY
OF
TSHWANE
............................................................................................
3
rd
RESPONDENT
REASONS
FOR JUDGMENT
MAKGOBA.
J
This
matter came before me in the urgent court on 3 November 2010. After
argument I gave an order dismissing the application with
costs and
indicated to the parties that my reasons for judgment would follow in
due course.
The
following are my reasons.
Introduction
[1]
The applicant brought an urgent application against the
respondents seeking an order in the following terms:
1.1
that the first and second respondents be interdicted and/or
restrained from disconnecting the supply of water and/or electricity
to any of the residents pursuant to the decision of the first
respondent to change the conditions of the residents' stay at Eloff
Social Housing Complex;
1.2
in the event that the supply of water and/or electricity has already
been disconnected by the time this order is made, that
the first and
second respondents be instructed and required to reconnect the supply
of water and/or electricity at no charge to
the residents;
1.3
that the first and second respondents be instructed and required to
re-install the prepaid electricity meters to each of the
units from
which they were removed together with the respective electricity
credits;
1.4
that the first respondent be instructed and required to continue to
sell electricity to the residents of Eloff Social Housing
Complex;
1.5
that the first respondent be instructed and required to suspend the
implementation of additional water supply charges to the
residents of
Eloff Social Housing Complex;
1.6
that the appointment of the second respondent by the first respondent
or any other institution to handle electricity and water
metering at
Eloff Social Housing Complex be suspended and/or operate to the
extent that same does not infringe or threaten the
rights of the
residents of Eloff Social Housing Complex, until the court has
pronounced on the validity of the first respondent's
decision.
[2]
The above orders sought by the applicant in Part A of the notice of
motion are interim in nature in as much as the applicant
in Part B of
the notice of motion indicated that within thirty days of the
finalisation of Part A, the applicant will bring an
application to
review, correct and/or set aside the first respondent's decision to
change the conditions of the stay at the Eloff
Social Housing
Complex.
Factual
background
[3]
The first respondent is an association incorporated under section 21
of the Companies Act 61 of 1973 with the purpose to develop
and
manage social and/or rental housing for qualifying
beneficiaries/tenants. It was established in 2001 by the third
respondent
for the sole purpose of developing and managing
social/rental housing. The Eloff Social Housing Complex is a building
with 91 residential
units over seven floors and four commercial
units. This building used to be the property of the third respondent
but was donated
to the first respondent.
[4]
The first respondent is therefore the landlord of Eloff Building and
each of the individual tenants has lease agreements in
place with the
first respondent. The residents are required to renew these
agreements annually. In terms of clause 3.1 of the agreements
the
rental amount payable by the residents to the landlord (first
respondent) does not include any municipal charges (water,
electricity,
sewage and refuse removal).
[5]
In the past a pre-paid electricity meter was installed at each
residential unit, and residents used to buy their electricity
from a
shop known as "Food 2 Riches", located a block away from
Eloff Building. According to the first respondent tremendous
problems
were experienced with these pre-paid meters: these meters were
installed in 2002-2003 but became outdated and unserviceable.
The
technology is obsolete and the meter units cannot be serviced
anymore. It was also possible to "rig" the pre-paid
meters.
Some of the meters were bypassed, which resulted in tenants having
had electricity for months without paying for it.
[6]
The system had become very expensive and cheaper electricity could be
obtained by installing new and conventional meters provided
by the
second respondent. The electricity and water meters currently
installed at Eloff Building are provided and managed by the
second
respondent. The second respondent is a reseller of electricity
provided in bulk by the third respondent. The price per kwh
on the
pre-paid system is currently Rl,01. The price offered by the second
respondent per kwh is 88c. There is therefore a saving
of 13 cents
per kwh for the residents with the new system. The first respondent
avers that by changing to the new system, it acted
in the best
interest of all the residents of Eloff Building.
[7]
The first respondent as the landlord entered into an agreement with
the second respondent to provide electricity and water to
the tenants
until 2013. The tenants are individually billed by the second
respondent monthly in arrears for their individual electricity
usage.
Each individual tenant/resident should enter into and sign an
agreement with the second respondent for him to be billed
by the
second respondent.
[8]
The deadline for removing the prepaid meters from each unit and
linking each tenant to the conventional electricity metering
system
was 30 October 2010. As on 2 November 2010 only six units and four
shops had entered into agreements with the second respondent
to
migrate to the new electricity billing system. The rest of the
units and/or tenants who had not done so had their electricity
supply
disconnected by the second respondent. It is against that background
that the residents brought the present application
before court.
Points
in
limine
[9]
The first respondent has raised a point
in
limine
and
asked for dismissal of the application on the basis that it (the
first respondent) has no
locus
standi
to
be sued in this matter. It is submitted that the first respondent is
not a provider of municipal services in terms of its lease
agreement
with the tenants and an interdict against it for provision connecting
municipal services will therefore have no practical
effect or
enforceability.
[10]
The first respondent is merely a landlord, and also cannot install
prepaid electricity meters or provide services. The first
respondent
is not a registered electricity vendor and cannot sell electricity to
the residents of Eloff Building. Therefore the
prayers sought in the
notice of motion have no practical effect and will be unenforceable.
[11]
All new meters have already been installed at Eloff Building. The
installation was completed on 30 September 2010. Such installation
was done by the second respondent. An order against the first
respondent to suspend the implementation of meters will therefore
have no practical effect and will be unenforceable.
[12]
I agree with the submissions made by the first respondent. From the
above it is clear that the relief asked against the first
respondent
is not executable due to the fact that the first respondent is not
the provider of municipal services. The first respondent
is merely
the landlord and should not be before the court with regard to the
provision of municipal services. On this ground alone,
the
application will not succeed against the first respondent.
[13]
The second respondent raised a point
in
limine
regarding
the uncertainty as to the identity of the applicant. In other words,
that the applicant has no
locus
standi
to
bring this application on behalf of the tenants/residents of Eloff
Social Housing Complex (Eloff Building). The second respondent
submits that it is unclear who the applicant is. No resolution has
been provided by all the tenants of Eloff Building (95 in number)
authorising the deponent, Mapula Lebia, to depose to the founding
affidavit on behalf of "the collective residents".
More so,
not all residents' electricity had been cut by the second respondent.
[14]
The applicant is cited as "THE RESIDENTS OF ELOFF SOCIAL HOUSING
COMPLEX". It is not alleged that the applicant is
an association
which, by its constitution, provides that it has the capacity to
acquire rights and obligations in its own name,
and which has
perpetual succession, can acquire legal personality and become what
is known as a
universituspersonarum.
See:
Interim
WardS 19 Council v Premier, Western Cape Province and Others
1998
3 SA 1056
(CPD) at 1060G-1061A. Compare:
Molotlegi
& Another v President of Bophnthatswana
1989
3 SA 119
(B).
[15]
It is trite that where an association institutes legal proceedings by
way of notice of motion, it must appear that the person
who brings
the application on behalf of that association is duly authorised by
it to do so. See:
Yiba
and Others v African Gospel Church
1999
2 SA 949
(CPD).
[16]
A further submission made by counsel for the second respondent is
that the supply of electricity by the second respondent to
the
residents is governed by the agreements between the parties.
In
casu,
the
defaulting residents have not signed agreements with the second
respondent. In fact, they refused to enter into such agreements.
[17]
In the decision of
Soshanguve
Residents Joint Committee
v
Noordelike
Pretoria Metropolitaanse Substrukture
case
no 1034/2000 (T) (unreported) which was delivered in June 2000 by VAN
DER WESTHUIZEN. J (then a member of this court) the following
was
said:
"If
the real cause of action is a matter of contract (and in that case
the electricity supply was the cause of action just
as it is here)
there can be no class action. It is correct that the contract between
the first respondent and members of the applicant
is governed by
several statutes, but so are virtually all contracts. The mere fact
that contracts are governed by statutes does
not elevate the issues
between the parties to a constitutional issue. Under the
circumstances the applicant has no
locus
standi
and
while I am convinced that the matter ought to be struck off the roll
because it is not urgent, I dismiss it with costs because
the
applicant does not have
locus
standi."
[18]
Further reference in this regard can be made to the matter of
Pretoria
Belastingbetalersvereniging v Tshwane Metropolitan Municipality,
(unreported
judgment of BERTELSMANN.
J
in
the North Gauteng High Court under case no 48320/09). This decision
was followed in the matter of
Very
N.O. v City of Tshwane Metropolitan Municipality
(unreported
judgment of ISMAIL, AJ in the North Gauteng High Court under case no
14985/09) delivered on 1 December 2009.
[19]
I make a finding that the identity of the applicant in this matter is
uncertain and thus it has no
locus
standi
to
institute these proceedings on behalf of the tenants/residents of
Eloff Building. Furthermore there is no contractual relationship
between the second respondent and the residents which obliges the
second respondent to supply electricity to them. The points
in
limine
raised
by the second respondent are accordingly upheld.
Conclusion
[20]
Having upheld the points
in
limine
raised
by both the first and second respondents, I deem it unnecessary to
enter into the merits of the case. That would be a mere
academic
exercise.
The
application is accordingly dismissed with costs.
EM
MAKGOBA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
67520-2010
HEARD
ON: 3 NOVEMBER 2010
FOR
THE APPLICANT: V C TSHISHONGA (ATTORNEY)
INSTRUCTED
BY: MUNDALAMO TSHISHONGA
ATTORNEYS
FOR THE FIRST RESPONDENT: Ms S MENTZ
INSTRUCTED
BY: KIRKCALDY PEREIRA INC
c/o
DYSON INCORPORATED
FOR
THE SECOND RESPONDENT: A WILKINS
INSTRUCTED
BY: VAN DEN BERG & MEINTJIES INC