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[2022] ZAKZDHC 34
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Body Corporate of Green Meadow Country Estate v Ethekwini Municipality (D7917/2020) [2022] ZAKZDHC 34 (19 August 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
No: D7917/2020
In
the matter between:
BODY
CORPORATE OF GREEN MEADOW
COUNTRY
ESTATE APPLICANT
and
THE
ETHEKWINI
MUNICIPALITY RESPONDENT
ORDER
In
the circumstances the following order is made:
The
applicant’s application is dismissed with costs.
JUDGMENT
Mathenjwa
AJ
[1]
This is an application in which
the applicant, the body corporate of Green Meadow Country
Estate,
seeks an order, inter alia that the respondent, eThekwini
Municipality, be directed to:
(a)
credit the applicant’s account under account number [....] in
the amount of R694 008.04;
(b)
charge the applicant, in respect of its water consumption, in
accordance with the correct applicable
tariff, such tariff being
based on average use of water per household at the applicant’s
estate; and
(c)
credit the applicant’s account the amount equivalent to the
supply of six kilolitres of water
per month per household for 90
households which is based on the 2020/2021 tariff fees of R12 646.80
per month.
The
applicant further deposed to a supplementary affidavit in which it
amended its relief sought and added further relief sought
that the
respondent should be directed to recalculate any municipal bill,
which has been issued by it after December 2020. The
respondent
opposes the application.
[2]
In its founding papers the applicant contends that in terms of the
regulations promulgated
in terms of the
Water Services Act 108 of
1997
, the respondent is obliged to provide 6 Kilolitres of water to
every household per month. Notwithstanding the aforesaid the
respondent
has failed to provide such six kilolitres of water free of
charge. The applicable scale for consumption of water ought to be the
average monthly use for each household, however the respondent has
charged for the total consumption of water used by the applicant
without regard to the fact that such consumption is being used by 90
households, and on the assumption that such water is consumed
by a
single household. Thus, it is contended, the respondent has been
overcharging the applicant in respect of water consumption.
[3]
The respondent contends that the applicant is not entitled to six
kilolitres of free
water, because in terms of the respondent’s
policy the six kilolitres is allocated only to those households whose
property
value is R250 000 and below, and the
applicant is well above the threshold. The applicant was charged
according to a
recognised water tariff at a rate of R21.39 for
properties that are above the threshold. During address the
applicant’s counsel
informed this court that it withdrew its
claim claimed that the respondent should credit its account in the
amount of R694 008.04,
and that it has also withdrew its claim
for six kilolitres basic water. However, the applicant introduced a
new ground for the
relief sought which was based on the allegations
that the applicant was charged for a higher water consumption by the
respondent
at the rate of a domestic consumer whereas it is a
commercial consumer.
[4]
I agree with counsel for the respondent that the applicant’s
contention is unfounded
and based on a misinterpretation of the
respondent’s policy. The applicant’s counsel relied on
the provision of the
respondent’s policy which makes provision
for different rates to other classes of consumers other than domestic
consumers.
The applicant’s reliance on this provision is
misplaced because the respondent’s policy does not exclude the
applicant
from the category of domestic consumers. Therefore, the
contention that the applicant is not a domestic consumer is not
supported
by the respondent’s policy.
[5]
It is trite that an applicant in motion proceedings must make out a
proper case in
the founding affidavit and may not make out a new case
in the replying affidavit (see
National Council of Societies for
the Prevention of Cruelty to Animals v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) para 29). Furthermore, an applicant may make out a case for
relief on the averments contained in the answering affidavit
(see
Administrator, Transvaal, and Others v Theletsana and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 19H-IThus, there is no merit in the
applicant’s case against the respondent, and it should fail
accordingly.
Order
[6]
In the circumstances the following order is made:
The
applicant’s application is dismissed with costs.
Mathenjwa
AJ
Date
of hearing:
12
August
2022
Date
of Judgment:
19
August
2022
Counsel
for Applicant:
N T L Ntuli
Instructed
by:
Luthuli Sithole
Attorneys
56
Henwood Road
Morningside
Durban,4001
Email:
mpendulo@luthulisithole.co.za
candice@luthulisithole.co.za
Counsel
for Resondent:
M C Tucker
Instructed
by:
Peacock
Liebenberg & Dickson Inc
1
Loundon Park
8
St Mary’s road
Kloof
Email:
brian@pldinc.co.za
Judgment
duly handed down electronically.