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[2012] ZASCA 54
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City of Cape Town v Strümpher (104/2011) [2012] ZASCA 54; 2012 (4) SA 207 (SCA) (30 March 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 104/2011
Reportable
In the matter between:
CITY OF CAPE TOWN
…........................................................
APPELLANT
and
MARCEL MOUZAKIS STRÜMPHER
…............................
RESPONDENT
Neutral citation:
City
of Cape Town v Strümpher
(104/2011)
[2012] ZASCA 54
(30
March 2012)
Coram:
Mthiyane DP, Van
Heerden, Bosielo, Majiedt JJA and Ndita AJA
Heard: 12 March 2012
Delivered: 30 March 2012
Summary:
Right to water
─ access to water supply cut off by water service authority ─
whether service founded solely on contract
─ whether spoliation
order available to water user.
_____________________________________________________________________
ORDER
On appeal from:
Western
Cape High Court, Cape Town (Desai J and Gassner AJ sitting as court
of appeal):
The appeal is dismissed with
costs.
___________________________________________________________
JUDGMENT
MTHIYANE DP (VAN HEERDEN,
BOSIELO, MAJIEDT JJA and NDITA AJA CONCURRING)
[1] This is an appeal from a
judgment of the full bench of the Western Cape High Court (Desai J
and Gassner AJ) upholding a spoliation
order granted by the Strand
Magistrates’ Court,
in
terms of which the City of Cape Town (the City) was directed to
reconnect the water supply to a property in the Strand (the property)
owned by the respondent. The respondent alleged that the
disconnection of the water supply constituted interference with his
statutory
water rights in terms of the
Water Services Act 108 of 1997
and constituted a spoliation. He argued that the water supply could
not be disconnected unless the amount in arrears had been determined
judicially in the City’s favour. The City on the other hand
contended that the summary disconnection of the water supply
was
authorised by the City’s water by-law and its debt collection
by-law. It maintained that water was supplied to the respondent
in
terms of a supply contract it had with him and that,
on
the authority of the decision of this court in
Telkom
SA Ltd v Xsinet (Pty) Ltd
,
1
a mandament van spolie was not
available to the respondent. On appeal to this court with the leave
of the court below, the City
advances the same argument.
[2] The common cause facts are
succinctly summarised by Gassner AJ.
For
the past 37 years the respondent has operated a caravan park for
permanent tenants at the property. Throughout that period the
respondent had use of water supplied by the City. On 16 May 2007 the
City notified the respondent that unless arrears of some R182
000,
which had accumulated on the
property’s water account,
were
paid within two days, the water supply would be disconnected.
[3]
On
28 May 2007,
the
respondent’s attorneys addressed a letter to the City querying
the water account and declaring a dispute
2
regarding the accumulated
arrears. The dispute had been on the table for some time. Previous
accounts showed that something was
amiss because in certain months
the recorded water usage was exceptionally high without good reason.
It had been demonstrated to
an employee of the City,
who
had visited the property,
that
the water meter was defective and kept running even when the main
water connection was closed. After conducting an inspection
on the
property, the City had the old water meter and the main connection
removed and replaced. However,
a
leakage was discovered where the old water meter and the main
connection had been removed and this was reported to the City. After
several pipes were replaced by the respondent, at the request of the
City following the report, the recorded water usage dropped.
[4] On 17 August 2007 the City
disconnected the water supply to the property without responding to
the letter of 28 May 2007 from
the respondent’s attorneys. In
its answering affidavit the City did not deal with the merits of the
dispute, set out in general
terms in the founding affidavit,
but merely focused on technical
points. It contended that the mere existence of a dispute did not
avail the respondent because,
for
example,
the City’s
monthly statement to the respondent stipulated that, even in the case
of a dispute, payments may not be withheld.
3
[5] The above contentions did not
carry much weight with the full bench which upheld the spoliation
order.
Desai J then
granted the City leave to appeal to this court.
[6] The primary issue on appeal
is whether the City was entitled to cut off the water supply to the
property due to non-payment
of arrears, notwithstanding the fact that
the respondent disputed liability. The City advances two main grounds
as justification
for its summary disconnection of the water supply to
the property. First, it argues that the respondent’s right to
the water
supply is simply a personal right founded on a contract.
Second, the City argues that its interference was authorised by its
water
by-law and the debt collection by-law.
[7] The above submissions will be
considered in turn. As to the first, counsel for the City exhorted us
to consider,
as an
appropriate starting point,
to
the nature of the relationship between the respondent and the City.
He argued that if one had regard to
ss 18
and
19
(2) of the City’s
water by-law
4
and
s 4
of the credit control and
debt collection by-law,
5
the relationship between the
respondent and the City was a contractual one. Referring to
s 18
he
argued that no person was permitted to use water without first
concluding an agreement. That section reads as follows:
‘
No
person may use water from the water supply system─
unless an agreement
referred to in
section 19
or
20
has been concluded. . . .’
The application for the supply of
water is provided for in
s 19.
Subsection 2 thereof reads as follows:
‘
(2)
An application for the supply of water approved by the Director:
Water constitutes an agreement between the municipality and
the owner
and takes effect on the date referred to in the application.’
So too, in terms of the
Water
Services Act, the
duty of the water service authority to provide
water service is subject to the water user’s obligation to pay
reasonable
charges. (See
s 11(1)
and
s 11(2)(
d
).
It is clear from the water by-laws that the supply of water is
subject to the payment of fees in respect of the supply of water.
(See
ss 19(3)
,
19
(4)(
b
)
and 23(2)(
c
).
[8] Counsel argued that
compelling the City to supply water to the respondent amounted to
nothing more than the enforcement of contractual
rights under an
agreement which, on the authority of the
Xsinet
case,
could
not provide a basis for the granting of a spoliation order.
[9] The argument advanced on the
City’s behalf is misplaced. It is true that consumers,
living within a municipal area,
who wish to access water from a
water service authority,
such
as the City,
have to
conclude a water supply contract with that authority. The fact that a
contract must be concluded does not, however, relegate
the consumer’s
right to water to a mere personal right flowing from that contractual
relationship. It does not relieve the
City of its constitutional and
statutory obligation to supply water to users, such as the
respondent. The right to water is a basic
right. Everyone has the
right in terms of the Constitution to have access to sufficient
water.
6
This constitutional provision is
given effect to in
s 3(1)
of the
Water Services Act which
provides
that:
‘
(1)
Everyone has a right of access to basic water supply . . . .’
The City’s duty to provide
water supply services is provided for in s 27(2) of the Constitution
which declares that:
‘
(2)
The state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation
of
each of these rights.’
Section 27(1)(
b
)
of the Constitution is also given effect to by s 152(1)(
b
)
of the Constitution which provides that:
‘
(1)
The objects of local government are─
. . .
(
b
)
to ensure the provision of services to communities in a sustainable
manner.’
[10] It follows from the above
statutory and constitutional provisions that the right to water,
claimed by the respondent when he
applied for a spoliation order,
was
not based solely on the contract which he concluded with the City,
but was underpinned by the constitutional and statutory provisions
discussed above. This view is fortified by the decision of this court
in
Impala Water Users
Association v Lourens NO & others
.
7
In that case a water user had
obtained a spoliation order directing a water user association in
terms of s 98(6)(
a
)
of the
National Water Act 36 of 1998
8
to remove locks, chains and
welding works from certain sluices and to restore the flow of water
from a dam to reservoirs on the
water users’ farms. A dispute
arose between the parties concerning the legality of water charges
assessed by the water users
association relating to the costs of
financing the construction of a dam. Although proceedings to recover
these charges were pending,
the
water users association decided to exercise its powers in terms of
s
59(3)(
b
)
of the
National Water Act.
9
The crucial question which the
court, on appeal, had to consider was whether the rights on which the
water user relied were merely
contractual rights. Farlam JA
distinguished the
Xsinet
decision and came to the
conclusion that the personal rights flowing from the water supply
contract,
which the water
user in that case had concluded with the water users association,
were replaced or subsumed into
rights under the
National Water Act, which
was the act that was
applicable in that case. In this regard the learned judge of appeal
expressed himself in paras 18 and 19 as
follows:
‘
[18]
The first question to be considered, in my view, is whether the
rights on which the respondents relied were merely contractual
and
whether the
Xsinet
decision
can be applied. In my opinion, it is not correct to say that the
rights in question were merely contractual. It will be
recalled that
the respondents or the entities they represent were all entitled to
rights under the previous Water Act 54 of 1956,
which rights were
registered in terms of the schedule prepared under s 88 of that Act.
These rights were clearly not merely personal
rights arising from a
contract. The individual respondents and the entities represented by
the other respondents all automatically,
in terms of para 7.2a of the
appellant’s constitution, became founding members of the
appellant. It is clear therefore that
the rights to water which
belonged to the individual respondents and the entities represented
by the other respondents, insofar
as they were replaced by or,
perhaps more accurately put, subsumed into rights under the Act,
cannot be described as mere personal
rights resulting from contracts
with the appellant. It follows that, on that ground alone, the
Xsinet
decision,
on which the appellant’s counsel relied, is not applicable.
[19] The facts of
this case also differ in another material respect from those in the
Xsinet
case. There is was held (at paras 12 and 13) that the
respondent’s use of the bandwidth and telephone services in
question
did not constitute an incident of its use of the premises
which it occupied, with the result that the disconnection by Telkom
of
the telephone lines to Xsinet’s telephone and bandwidth
systems did not constitute interference with Xsinet’s
possession
of its equipment. In the present case, however, the water
rights interfered with were linked to and registered in respect of a
certain portion of each farm used for the cultivation of sugar cane,
which was dependent on the supply of the water forming the
subject-matter of the right. The use of the water was accordingly an
incident of possession of each farm which was, in my view,
interfered
with by the actions of the appellant’s servants. Indeed in the
Xsinet
decision itself it was said at the end of para 12 (at
314C - D):
“
Xsinet
happened to use the services at its premises, but this cannot be
described as an incident of possession in the same way as
the use of
water or electricity installations may in certain circumstances be an
incident of occupation of residential premises.”
In my view, unless
the
Bon Quelle
decision
is to be overturned, the respondents have clearly established that
the rights to water enjoyed by the individual respondents
and the
entities represented by the other respondents were capable of
protection by the mandament van spolie.’
[11] The respondent in the
present matter finds himself in a position similar to that of the
water users in the
Impala
case. Water users have a statutory
right to the supply of water in terms of
s 11(1)
of the
Water
Services Act which
imposes a duty on a water services authority to
ensure access to water services to consumers. It follows that the
respondent’s
right to a water supply to the property could not
be classified as purely contractual. As in the
Impala
case the
respondent’s right to a water supply was subsumed into rights
under the
Water Services Act and
cannot be described as merely
personal rights resulting from a contract as contended by counsel for
the City.
[12] I turn to the second issue
of whether the City’s interference with the respondent’s
water supply was authorised
by the
Water Services Act or
the relevant
water by-law and the City’s debt collection by-laws, and is
therefore lawful. As a justification for the City’s
conduct in
shutting off the water supply, the City relied, in the first
instance, on
s 30(1)
of the water by-law which provides as follows -
‘
(1)
Subject to any other right the municipality may have, the City
Manager may, if an owner has failed to pay a sum due in terms
of the
Tariff Policy By-law,
by
written notice inform him or her of the intention to restrict or cut
off the supply of water on a specified date and to restrict
or cut
off such supply on or after that date.’
[13] The city also relied on
s
11(2)(
d
) of the
Water Services Act, which
provides that the
duty of a water services authority to ensure access to water services
is subject to a duty of consumers to pay
reasonable charges and
s
11(
g
) which authorises the water services authority ‘to
limit or discontinue the provision of water services if there is a
failure
to comply with reasonable conditions set for the provision of
such services’. In counsel’s heads of argument reliance
was also placed on
s 9
of the debt collection by-law. It provides
that the City Manager may restrict or disconnect the supply of any
service to the premises
of any user when such user inter alia fails
to make payment on the due date. Reference was also made to
s 6(5)
of
the Credit Control and Debt Collection Policy where it is provided
that the City shall inter alia not provide any services to
any
persons who are in arrears with municipal accounts, except as
provided for in the policy as determined by the City from time
to
time.
[14] Armed with this arsenal of
statutory provisions, the City considered that immediate
disconnection of the water supply to the
respondent’s property
was authorised. In my view, the City appears to have overlooked the
provisions of
s 4(3)(
a
) of the
Water Services Act, which
requires that ‘the limitation or discontinuation of water
services must be fair and equitable’ and its own dispute
resolution procedures provided for in the Credit Control and Debt
Collection Policy.
Section 7
of the policy lays down the procedure to
be followed when the water user (debtor) has declared a dispute.
Section 7(3)(a)
thereof provides that all disputes must be concluded
by the City Manager within 30 days.
Section 7(3)(d)
provides for an
appeal where the water user is not satisfied with the outcome of the
purported resolution of the dispute. The appeal
is lodged in terms of
s 62
of the
Local Government: Municipal Systems Act 32 of 2000
.
[15] In my view, the dispute
resolution procedures provided for in
s 7
of the City’s policy
were meant to meet the threshold requirements of ‘fairness and
equity’ referred to in
s 4(3)(
a
) of the
Water Services
Act. The
notification in the statement of account sent to a consumer
(debtor) suggesting that payment should be made even if the debtor is
involved in a dispute with the City, appears to fly in the face of
the provisions of fairness and equity referred to in
s 4(3)(
a
)
and the dispute resolution procedures referred to above. To expect
the respondent to pay R182 000 while he is disputing the very
amount
erodes the principles of fairness contemplated in
s 4(3)(
a
)
and the dispute resolution procedures. The harshness of the demand
for payment could, however, be ameliorated by the City insisting
that
the water user continue to pay his or her usual monthly average water
charge while an attempt is being made to resolve the
dispute. In my
view that arrangement would be fair to both the water user and the
water services authority. This would also satisfy
the fairness and
equity standard set in
s 4(3)(
a
).
[16] There is no acceptable
reason given by the City in this case as to why the procedure
prescribed in
s 7
of the policy was not followed before the water
supply was to the respondent’s property was shut off. The City
did not even
provide to the respondent a written acknowledgment of
receipt of the dispute, as required by
s 7(2)(e)
of the policy. The
flimsy excuse given by the City, during argument, namely that the
procedure was not followed because the account
number of the
respondent was not given in the letter declaring a dispute, appears
to be an afterthought and falls to be rejected.
[17] Counsel for the City also
attempted to place reliance on the judgment of this court in
Rademan
v Moqhaka Municipality & others
2012 (2) SA 387
(SCA) as a
justification for the City’s abrupt disconnection of the water
supply to the property. Such reliance is however
misplaced for two
important reasons. First, the case dealt with discontinuance of
electricity supply to defaulters. Second, the
case is distinguishable
on the facts in that in the
Rademan
case there was a
deliberate withholding of payment by the defaulters ‘who
claimed to be unhappy with the municipal services
rendered by the
municipality’. (See para 2 of the judgment).
[18] It follows therefore that
there was in my view no justification for the City to cut off the
water supply to the property.
[19] Finally I turn to the
question whether the spoliation order was the appropriate remedy in
the circumstances. I consider that
it was. A spoliation order is
available where a person has been deprived of his or her possession
of movable or immovable property
or his or her quasi-possession of an
incorporeal. A fundamental principle at issue here is that nobody may
take the law into their
own hands. In order to preserve order and
peace in society the court will summarily grant an order for
restoration of the status
quo where such deprivation has occurred and
it will do so without going into the merits of the dispute. The
evidence in the present
matter shows that the respondent for the past
37 years received an uninterrupted supply of water from the City at
the time when
that service was summarily terminated. I have already
alluded to the fact that the respondent’s rights to water were
not
merely personal rights flowing from a contract but public law
rights
10
to receive water, which exist
independently of any contractual relationship the respondent had with
the City. The respondent’s
use of the water was an incident of
possession of the property. Clearly interference by the City with the
respondent’s access
to the water supply was akin to deprivation
of possession of property. There is therefore no reason in principle
why a water user
who is deprived of a water service summarily by a
water service authority,
without
that authority complying with its procedural formalities for dispute
resolution laid down in its own by-laws,
should
not be able to claim reconnection of the water supply by means of a
spoliation order. It therefore follows that the mandament
van spolie
was available to the respondent and the courts below were correct in
granting the relief claimed by the respondent.
[20] Accordingly the appeal is
dismissed with costs.
______________________
K K MTHIYANE
DEPUTY PRESIDENT
APPEARANCES
For Appellant: EA de
Villiers-Jansen
Instructed by:
Adriaans Attorneys, Cape Town
Honey Attorneys, Bloemfontein
For Respondent: RS van Riet SC
Instructed by:
Hannes Pretorius Bock &
Isaacs c/o Visagie Vos, Cape Town
Bock Van Es Nikamanzi,
Bloemfontein
1
Telkom
SA Ltd v Xsinet (Pty) Ltd
2003 (5) SA
309
(SCA).
2
The
meaning of ‘dispute’ is explained in clause 7(1) of the
City’s Credit Control and Debt Collection Policy
which reads
as follows:
‘
.
. . “dispute” refers to the instance when a debtor
questions the correctness of any account rendered by the
Municipality.’
3
The
relevant portion of the account reads as follows:
‘
4.
Selfs al is u in ‘n dispuut betrokke met die Raad oor hierdie
rekening mag u nie betaling weerhou nie.’
4
City
of Cape Town Water By-law
Provincial
Gazette
(Western Cape)
6378 of 1 September
2006.
5
City
of Cape Town Credit Control and Debt Collection By-law
Provincial
Gazette (Western Cape)
6364 of 15 June
2006.
6
Section
27(1) of the Constitution reads as follows:
‘
(1)
Everyone has the right to have access to
─
. . .
sufficient
. . . water. . . .
’
7
Impala
Water Users Association v Lourens NO & others
2008 (2) SA
495
(SCA).
8
That
section provides:
‘
(6)
If the Minister accepts the proposal, the Minister may by notice in
the
Gazette
─
(a)
declare
the board [meaning the irrigation board] to be a water user
association.’
9
That
section provides:
‘
(3)
If a water use charge is not paid─
(b)
the supply of water to the water user from a waterwork or the
authorisation to use water may be restricted or suspended until
the
charges, together with interest, have been paid.
’
10
Joseph
& others v City of Johannesburg & others
2010
(4) SA 55
(CC) para 34.