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2023
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[2023] ZAGPJHC 1180
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Paramount Property Fund Limited v Eskom Holdings SOC Ltd (2022-15013) [2023] ZAGPJHC 1180 (18 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: 2022-15013
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
18/10/23
In the matter between:
PARAMOUNT
PROPERTY FUND LIMITED
Applicant
And
ESKOM
HOLDINGS SOC LTD
Respondent
JUDGMENT
WRIGHT J
1.
The applicant company owns a piece of immovable
commercial property which it lets to tenants. The tenants demand a
supply of electricity.
The respondent, Eskom supplies the
electricity.
2.
The applicant seeks a declarator that Eskom’s
invoices for the three year period before October 2018 have
prescribed and it
sought, in the original notice of motion, payment
from Eskom of R380 000, which it says it paid under protest to
avoid a cut
off. This sum increased to R407 000 in the replying
affidavit. Counsel for the applicant in argument said that he did not
proceed with the R407 000 claim but limited the claim to
R380 000. In my view, the applicant could not have calculated
a
figure of R407 000 unless it had a meter or meters on its
property which it read when it wanted to.
3.
Eskom seeks dismissal of the application and
raises a conditional counterclaim for R223 000.
4.
The applicant says that Eskom’s billing and
administration is chaotic and that Eskom never billed the applicant
for the period
May 2003 to October 2018. The applicant is vague as to
why it did not query the non-receipt of invoices for fifteen years. A
simple
“
verbal
“
agreement with Eskom is alleged. In effect, the applicant pleads
prescription for twelve years from 2003 to 2015. Whether
or not the
Eskom employee who concluded the alleged “verbal“
agreement, if such agreement was concluded, had authority
is a matter
which should be decided in a trial.
5.
The answering affidavit raises huge disputes of
fact. The deponent says that the applicant knows how much power it
used over the
years but kept quiet. Multiple accounts were opened
covering the property in question. Meetings were held in 2003 to 2004
to resolve
disputes. Two new large delivery points were constructed
by Eskom. Eskom was unaware for some time that power was being taken
by
the applicant from 2003 to 2020.
6.
The replying affidavit does nothing to lessen the
wide area of dispute of fact.
7.
There is no replying affidavit in the
counter-application.
8.
This case needs full pleadings, including on the
question of prescription, full discovery, possibly expert notices and
then a trial.
ORDER
1.
The notice of motion stands as a simple summons.
2.
The notice to oppose stands as a notice of
intention to defend.
3.
The applicant is to deliver a declaration by 30
November 2023.
4.
Thereafter, the matter proceeds as a trial
action.
5.
Costs reserved.
GC Wright
Judge of the High
Court
Gauteng Division,
Johannesburg
HEARD
: 18 October 2023
DELIVERED
: 18 October 2023
APPEARANCES
:
APPLICANT
Adv
J C Viljoen
jcv.law@mweb.com
083 289
5120
Instructed
by
Liebenberg
Malan Liezel Attorneys
litigation3@liebenrgmalam.co.za
012 460
4149
RESPONDENT
Adv
P L Uys
083 388
4679
lafras@lulaw.co.za
Instructed
by
Devachander
Attorneys
011 894
4400
shevira@devainc.co.za
/
admin@devainc.co.za