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[2023] ZAKZPHC 44
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Enyuka Prop Holdings (Pty) Ltd v Umzinyathi District Municipality (8850/2022P) [2023] ZAKZPHC 44 (26 April 2023)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
8850/2022P
In
the matter between:
ENYUKA
PROP HOLDINGS (PTY) LTD APPLICANT
and
UMZINYATHI
DISTRICT MUNICIPALITY RESPONDENT
Coram:
Mossop
J
Heard:
26
April 2023
Delivered:
26
April 2023
ORDER
The
following order is granted
:
The
application is dismissed with costs.
JUDGMENT
Mossop
J
:
[1]
This is an ex tempore judgment.
[2]
In this application, the applicant seeks an interdict against the
respondent
restraining it from disconnecting a supply of water to the
applicant’s commercial property, which supply of water is
regulated
through a water meter bearing number GZ[....]4. The
interdict sought is to remain in force pending the resolution of a
dispute
in respect of the applicant’s liability:
‘
for
water consumed via water meters in the vicinity of the premises other
than water meter number GZ[....]4.’
[3]
It is necessary to briefly mention the facts that underlie the
current application.
The applicant is the owner of certain commercial
business premises in the form of a shopping mall, known as ‘The
Old Acre
Plaza’ (the Plaza) in the town of Dundee in Northern
KwaZulu-Natal. Directly adjacent to the Plaza is a building occupied
by Shoprite Checkers, a well-known supermarket. The applicant does
not own the building occupied by Shoprite Checkers. Who owns
that
property is not disclosed on the papers, save to say that it is not
the applicant. The applicant contends that the Plaza is
supplied with
water through the aforementioned water meter bearing number GZ[....]4
and which meter is associated with account
number 0[....]44. That
account is in the name of the applicant. I shall refer to this as
‘the GZ[....]4 account’. According
to the applicant,
Shoprite Checkers receives its supply of water through a meter
bearing number LZ[....]0, and which meter is associated
with account
number 0[....]97. I shall refer to this account as ‘the
LZ[....]0 account’. This account is not in the
applicant’s
name.
[4]
The applicant contends, and the respondent agrees, that the GZ[....]4
account
is not in arrears. By virtue of this fact, the supply of
water to the Plaza remains unimpeded, even as the matter is argued
before
me today. The applicant, however, contends that it is being
held liable by the respondent for water charges associated with the
LZ[....]0 account, in respect of which it denies any liability. The
LZ[....]0 account is in arrears by approximately R2,6 million.
The
applicant believes that the respondent will consolidate the GZ[....]4
account with the LZ[....]0 account and then, because
of the disputed
arrears on the latter account, terminate the supply of water to the
Plaza supplied through the GZ[....]4 account,
to disastrous effect to
it.
[5]
The fulcrum around which this application moves is the reasonableness
of the
applicant’s belief that the respondent will consolidate
the two accounts. The respondent has opposed the relief sought by
the
applicant on the grounds that it has never threatened to consolidated
the two accounts and will not do so in the future. As
previously
mentioned, the respondent concedes that the GZ[....]4 account is
currently not in arrears. It has undertaken not to
disconnect that
account unless it falls into arrears. It contends that the applicant
had no basis for believing that it would consolidate
the two
accounts.
[6]
In his replying affidavit the deponent, Mr Machiel Botha, states that
he intends
not to say any more than is necessary about the dispute.
That is a parsimonious approach that I intend also following in this
judgement
and I therefore do not intend to state more than is
strictly necessary to resolve this application. There are a number of
ancillary
issues which occupy a fair amount of space in the papers
but which are not of any practical relevance to the applicant’s
case and the relief claimed. They need not be dealt with.
[7]
The applicant’s belief that the supply of water to the
GZ[....]4 account
will be disconnected appears to me to be based upon
the occurrence of two events. The first is that the water supply
regulated
through the GZ[....]4 account was previously briefly
disconnected by the respondent. And the second is that the
applicant’s
attorneys wrote to the respondent and sought an
undertaking from it that it would not discontinue the supply of water
to the GZ[....]4
account, which undertaking the respondent allegedly
declined to give.
[8]
The previous disconnection of the supply of water to the GZ[....]4
account occurred
allegedly on 14 June 2022, according to the
applicant. That day, its representative met with the respondent’s
representative
and was informed that the respondent intended to:
‘…
disconnect all meters
until the now R2.6 million owed on meter 280 is received.’
According
to the applicant, the supply of water to the GZ[....]4 account was
restored the next day, 15 June 2022. It has never been
disrupted
again. The same day, 15 June 2022, the applicant states that the
respondent sent an undated letter to it in which it
stated that:
‘…
the disconnection on the
14
th
of June 2022 was due to an illegal connection, that
the Respondent’s meter was tampered with and that the
respondent [sic]
must pay for all their existing debts and that more
meters need to be added to their account.’
[9]
The letter referred to by the applicant is, in fact, a report
prepared
by the respondent into the entirety of the dispute between
the parties (the report). It is entitled ‘Site Visit Report For
Enyuka Properties’. It makes no reference to a disconnection of
the GZ[....]4 account on any date, let alone on 14 June 2022.
The
disconnection that it refers to appears to be the disconnection of
the LZ[....]0 account.
[10]
In its answering affidavit, the respondent denies that it ever
disconnected the GZ[....]4 account.
It states that:
‘
The
respondent has only disconnected 280 for the arrears on the account
number 0[....]97.’
This
is consistent with what is stated in the report. The respondent goes
on to state that it never threatened to disconnect the
GZ[....]4
account to enforce payment of the arrears on the LZ[....]0 account.
It says, finally, that this must be correct as the
GZ[....]4 account
remains entirely functional and the LZ[....]0 account remains
disconnected. It is difficult to argue against
this logic.
[11]
The second event relied upon by the applicant is its attorney’s
letter written to the respondent.
The letter must be carefully
considered. It is dated 21 June 2022. This letter exposed a chink in
the applicant’s armour.
Its previous position had unequivocally
been that the water supplied through the LZ[....]0 account did not
supply its property.
It was now required to concede that this was not
correct. It stated:
‘
It
did, however, turn out that, unbeknown to us, 280 supply [sic] to a
portion of our client’s property, …’
Thus
the applicant’s denial that it was liable for any amounts
arising out of the LZ[....]0 account had to be retracted, which
the
applicant did when it stated that:
‘…
at best our client and/or
its tenants might be liable for a portion of that consumption,
assuming that the consumption recorded
on the account is correct.’
[12]
The disconnection that allegedly occurred on 14 June 2022 was
thereafter addressed in the letter by
the applicant’s
attorneys. It was denied that meter GZ[....]4 had been tampered with
or that the account was in arrears.
The letter terminated with the
following paragraph:
‘
We
require an undertaking, that you will not switch off water meter 294,
while the above disputes are being resolved, this undertaking
must be
received before the close of business tomorrow being the 22 June
2022, Failing [sic] which our client will approach the
honourable
High Court for an interdict to protect its rights.’
The
respondent’s failure to give the requested undertaking has thus
contributed to the decision of the applicant to bring
this
application.
[13]
It will immediately be noticed that the undertaking does not refer to
the possible consolidation of
the GZ[....]4 account and the LZ[....]0
account. There is no reference to this at all. Yet, there can be no
doubt that this is
the basis upon which the application has been
brought as is revealed from the following extract from the founding
affidavit:
‘
The
respondent may not consolidate separate accounts in order to
implement debt collection measures. In other words, it may not
cut
the supply of water to the applicant’s shopping centre to force
the debt of the separate Shoprite account, even in the
event that the
applicant is found responsible for that account.’
[14]
The undertaking demanded by the applicant’s attorneys was
therefore not linked to the unpaid
LZ[....]0 account being
consolidated with the GZ[....]4 account. It was a straight demand
that the water supply to the GZ[....]4
account could not be cut in
the future under any circumstances whilst the dispute over the
LZ[....]0 account raged. That undertaking
is sought, on the wording
of the letter, even if the GZ[....]4 account fell into arrears. That
the respondent declined to give
it is, in the circumstances,
completely understandable. It could not give it because to do so
would result in it being in dereliction
of its duties to ensure that
where accounts are not paid, such payment is demanded and recovered.
[15]
The
position thus is that at present the Plaza continues to receive a
supply of water through the GZ[....]4 account and the supply
of water
through the LZ[....]0 account has been stopped. The respondent
acknowledges that the GZ[....]4 account is up to date and
undertakes
that it will not consolidate the two accounts in order to try and
force the payment of the LZ[....]0 account. I accept
that this
undertaking is revealed in the answering affidavit for the first
time. I can, however, discern no basis why the applicant
conceives
that there was a reasonable possibility that the feared consolidation
would, indeed, occur at some time in the future.
The two accounts are
in the name of two completely different entities unrelated to each
other and relate to the supply of water
to two different properties
and could not be consolidated.
[1]
In this regard the matters of
Ekurhuleni
Metropolitan Municipality v Anzotrax (Pty) Ltd t/a Topbet
Germiston
[2]
and
Rademan
v Moqhaka Local Municipality and Others
[3]
are
instructive.
There is, furthermore, no evidence that the respondent had previously
attempted to consolidate those two accounts.
[16]
The requirements for an interim interdict are well known: a prima
facie right, a well-grounded apprehension
of irreparable harm, the
balance of convenience in favour of the granting of the interdict and
the absence of an alternative remedy.
In my view, the applicant fails
on at least two of these requirements. Firstly, it has not
established a well-grounded apprehension
of irreparable harm. The
applicant
has not come close to establishing
the likelihood of it suffering any harm in the future. And secondly,
if there is a likelihood
of the consolidation occurring, there is an
alternative remedy available to the applicant foreshadowed in
section
102(2)
of the
Local Government: Municipal Systems Act 32 of 2000
.
That section makes mention of a consumer declaring a dispute which
would then prohibit a municipality from effecting such consolidation
prior to the resolution of the dispute.
[17]
In the circumstances, I am not satisfied that the applicant has made
out a case for the relief claimed
by it. I accordingly grant the
following order:
The
application is dismissed with costs.
MOSSOP
J
APPEARANCES
Counsel
for the excipients: Mr
M Bingham
Instructed
by: Kritzinger
Ellish Attorneys
Care
of: Venns
Attorneys
30 Montrose Park
Boulevard
Victoria
Country Club Estate
170
Peter Brown Drive, Montrose
Pietermaritzburg
Counsel
for the plaintiffs: Mr
I A Sardiwalla
Instructed
by: Matthew
Francis Incorporated
Suite 4, 1
st
Floor, Block A
21
Cascades Crescent
Montrose
Pietermaritzburg
Date
of Hearing: 26
April 2023
Date
of Judgment: 26
April 2023
[1]
Section
102(1)
of Act 32 of 2000 reads as follows:
‘
(1)
A municipality may - (a) consolidate any separate accounts of
persons liable for payments to the municipality; (b) credit
a
payment by such a person against any account of that person; and (c)
implement any of the debt collection and credit control
measures
provided for in this Chapter in relation to any arrears on any of
the accounts of such a person.’
[2]
Ekurhuleni
Metropolitan Municipality v Anzotrax (Pty) Ltd t/a Topbet Germiston
[2016]
ZAGPJHC 178.
[3]
Rademan
v Moqhaka Local Municipality and Others
[2013]
ZACC 11
;
2013 (4) SA 225
(CC);
2013 (7) BCLR 791
(CC).