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[2022] ZANCHC 86
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Saunderson v Boegoeberg Water Users Association (338/22) [2022] ZANCHC 86 (12 August 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NO:
338/22
DATE HEARD:
27 MAY 2022
DATE OF ORDER:
12
AUGUST 2022
In
the matter between:
SAUNDERSON,
JAN HENDRIK GERHARDUS
Applicant/Defendant
a
quo
And
BOEGOEBERG
WATER USERS ASSOCIATION
Respondent/Plaintiff
a
quo
Coram:
Nxumalo J
REASONS FOR JUDGMENT
Per:
Nxumalo J
INTRODUCTION
:
1.
The applicant in these proceedings, a
farmer residing and farming in Upington, Northern Cape, on 26 April
2022, lodged an urgent
interim mandatory interdict seeking to compel
the respondent to fully restore water supply to several of his
farming properties.
The applicant also sought the respondent to
bear the costs of the motion on an attorney and client scale; and
further and/or alternative
relief. The motion was set-down for
hearing on
29 April 2022
,
at 14h00.
2.
Of significance is that at the time this
motion was lodged, the respondent had already shut down the water
supply to the applicant’s
properties since
21
April 2022
. The interim interdict
sought was therefore contemplated to remain extant, pending the final
determination of the main action,
pending between the parties.
The said action relates to certain monies alleged owing to the
respondent by the applicant for
the supply of certain volumes of
water to the latter’s properties, as part of his farming
activities.
3.
The
respondent, for its own part, is a water users’ association, a
body corporate with the powers of a natural person of full
capacity
mutatis
mutandis
,
as contemplated in
Section 94
of the
NATIONAL
WATER ACT
36 of 1998
,
[1]
unless same are
inconsistent with the Act. It is also significant to point out
at the outset that Schedule 4 (excluding item
4(3) of
Part 1
thereof)
applies to the respondent as if it were an institution and a member
of its management committee were a director within
the meaning of
that Schedule, except to the extent that the responsible Minister may
otherwise direct.
BRIEF
STATEMENT OF THE RELEVANT BACKGROUND FACTS
:
4.
The chronology of some salient events is of
some relevance here. On or about
08
March 2022
, the respondent issued a
letter of demand for payment of certain amounts by the applicant for
the water allegedly supplied to him,
to be paid within 7 days of
receipt thereof; failing which, the respondent would terminate the
supply of the said water to certain
of the applicant’s
properties, respectively. The applicant denied liability and
never obliged.
5.
Soon thereafter, the respondent instituted
civil proceedings against the applicant on or about
14
March 2022
, in terms whereof the former
claimed the disputed amounts. The applicant is resisting this
claim and denies that he owes
the respondent the impugned monies.
To this extent, the applicant has entered appearance.
6.
According to the applicant, the disputed
amounts arise from the respondent unilaterally and without any legal
basis adding an impugned
amount allegedly owed by the previous owner
for water previously supplied to the said properties, onto and
carrying same over onto
his account, as the current owner. This
notwithstanding that when the disputed amount was allegedly incurred,
he was neither
the owner of any of the affected properties nor did he
receive or utilise any water from the respondent.
7.
The applicant maintained that he is not
liable for the impugned amount and that the respondent could not
unlawfully take the law
into its own hands and close the sluices that
provided the much need and essential irrigation water to his farming
properties.
That, notwithstanding his numerous protestations in
this regard, the respondent persisted to keep the disputed amount on
his account,
plus interest thereon, in the amount of R864 884.09,
which later increased to R983 695.09.
8.
Thereafter,
on or about 22 March 2022, the respondent issued another letter of
demand on more or less the same terms as the one
dated 08 March 2022,
which was subsequently responded to by the applicant.
[2]
The foregoing notwithstanding, on or about 21 April 2022, the
respondent proceeded to shut down his water supply, by affixing
padlocks on the sluice which provide his farming properties with
water. Thus his attorney immediately thereafter, and in
writing, requested the respondent to remove the said locks on or
before close of business on
22
April 2022
,
to no avail.
[3]
Nor was the said
letter responded to by the respondent. It is against this
backdrop that this application was lodged.
9.
On
29 April 2022, having heard counsel for both parties and having read
the documents filed of record, this Court ordered as follows;
that:
the matter be postponed to 27 May 2022; the respondent were to
restore, in full, the water supply to the relevant property
of the
applicant, pending the finalisation of the matter;
[4]
the respondent were to file its supplementary opposing
affidavits on or before 06 May 2022; the applicant were to file its
replying affidavit on or before 13 May 2022; the applicant were to
file its heads of argument on 23 May 2022 and the respondent
on
25 May 2022; and the costs of the hearing of the matter on 29 April
2022, were to stand over for adjudication at the final hearing
of the
matter.
[5]
10.
Meanwhile,
on
17
May 2022
,
the respondent delivered a notice indicating that it was opposed to
the main claim being referred to mediation for
inter
alia
,
the following reasons; to
wit
:
At that stage, as alluded above, even though the applicant had not
yet pleaded to the plaintiff’s claim, he persisted
in his
denial of liability for the impugned amounts. That the issue in
contention was most likely to be the interpretation
of
Section 60
of
the Act and the constitutionality thereof. That in light of the
respondent’s claim in the pending action and the
applicant’s
stance in that regard, there existed no prospects that the parties
could reach any settlement through the process
of mediation.
[6]
11.
The respondent subsequently delivered a
brief answering affidavit, on or about 29 April 2022. On 06 May
2022, the respondent
delivered its supplementary affidavit. Of
significance is that both affidavits are deposed to by one Mr Jean
Lombard, the
executive officer of the respondent. The
applicant, for its own part, delivered its replying affidavit on 16
May 2022.
PRELIMINARY
POINTS
:
12.
In paragraph 26 of his founding affidavit
the applicant took issue with the fact that the respondent has failed
to provide any authorisation
or delegation for the conduct of Mr PM
Kotze, who is both the chairperson of the respondent and the author
of the impugned “pre-directive
notices.”
13.
This
Court is of the opinion that this point is not legally sound and
therefore fell to be dismissed for the following reasons.
It
can be deduced from the facts and circumstances of this case that Mr
Kotze, as chairperson of the respondent, was held out by
the
respondent to be authorised to act as he did at all material time
hereto. It is so since in our law, the presence of
ostensible
authority is established if it is shown that the principal created an
appearance that the agent had the power to act
on the principal’s
behalf. Nothing more is required.
[7]
Mr Kotze’s authority may also be inferred from the fact that he
was acting in his capacity as the incumbent chairperson
of the
respondent, at all material times hereto.
[8]
14.
The applicant also quibbled with the fact
that the deponent to the respondent’s affidavits, one Mr Jean
Lombard, who is its
chief executive officer (CEO) did not attach any
authorisation evincing his mandate to depose to the said affidavits.
In
the premise, the applicant denied that the said deponent had any
rightful authority to depose to the said affidavits.
15.
In
this Court’s opinion, the foregoing contention is not only
completely misplaced but also unduly technical. It is
so for at
least the following trite reasons. If an attorney acting for a
party is authorised to act, there is no need for
any other person,
whether he be a witness or someone who becomes involved, to be
additionally authorised.
[9]
In
our law, a deponent to an affidavit need not be authorised by the
party concerned to depose thereto. It is the institution
of the
proceedings and the prosecution thereof which must be authorised.
[10]
The bottom line is, anyone who can lawfully be a witness in a
matter, may execute an affidavit pertaining to that matter.
In
any event, as correctly pointed out by the respondent, the applicant
did not invoke rule 7 of the Uniform Rules.
[11]
In the premise, this point
in
limine
also fell to be dismissed.
16.
The respondent, for its own part, contented
preliminarily that the application was not urgent. As alluded
above, the applicant
lodged these proceedings on 26 April 2022, and
set it down for hearing on 29 April 2022, at 14h00. It is
common cause that
at the time this motion was lodged, the respondent
had already shut down the water supply to the applicant’s
properties since
21 April 2022. The interim interdict sought
was therefore contemplated to remain extant, pending the final
determination
of the main action, pending between the parties.
17.
The respondent, in the main complained of
what it referred to as “
Inappropriate
short notice and inadequate time it was given to [deliver] a fully
ventilated opposition.”
The nub
of the respondent’s complaint in this regard was that it was
served the urgent motion on Tuesday 26 April 2022 at
14h05. It
was contemporaneously directed to enter appearance the same day and
to file its answering affidavit before 14h00
on Thursday 28 April
2022, approximately less than 48 hours, after the delivery of the
said motion.
18.
It is against this backdrop that the
respondent contended that it did not have enough time to fully
consult with all the interested
parties or to obtain crucial
information as well as substantiating documentation, pertaining to
this matter. For these reasons,
according to the respondent, it
could not answer the allegations contained in the founding affidavit
seriatim.
19.
In the premises, the respondent maintained
that the application was not urgent, and therefore fell to be struck
from the roll with
costs. In the alternative, the respondent
implored this Court to be granted a postponement for it to fully
answer the applicant’s
motion
vide
a supplementary answering affidavit, in the event that the
application is not struck.
20.
It is common cause that at the time of the
final hearing of this motion, the applicant’s water supply had
been restored by
agreement between the parties, which was thereupon
made an order of this Court. The motion was subsequently
postponed to
cure any prejudice any party may suffer, as a result of
any non-compliance with the Uniform Rules.
21.
As to the reasons for urgency, the
applicant contended that same is conterminous to the irreparable harm
traversed in paragraph
29 of his affidavit. That without the
impugned water supply, he cannot conduct his farming activities,
which in turn would
result in him suffering irreparable financial
harm. He maintained he will suffer irreparable harm and
ultimately “
financial demise
”
of his farming enterprise, with the accompanying job losses of his
employees and financial hardship for their extended families,
if his
water usage is not restored with immediate effect. In the
premise, he contended that the motion was urgent.
22.
It
is clear from the foregoing that the applicant predicated the urgency
of this matter against the fact that without water supply,
it was
impossible to conduct his farming activities on his farms. That
the said state of affairs will lead to his and his
employees’
financial ruin. It is so that urgency of commercial interests
may justify the invocation of rule 6(12) no
less than any other
interests.
[12]
In the
premise, this Court found that, despite the postponement, the motion
remained urgent enough to justify it being heard
out of turn,
notwithstanding that same had to be postponed.
THE
PARTIES’ SUBSTANTIVE ARGUMENTS, IN SUM
:
The Applicant’s:
23.
The applicant in sum argued as follows.
That he has a
bona fide
defence to the impugned claim in the main action for the following
reasons. The respondent has failed to indicate on which
basis
does it provide him with water. Whether or not it is in terms
of a verbal agreement or not. It has also failed
to state why
it is able to supply water to him. The respondent has further
failed to provide him with a sufficient 90-day
notice in terms
whereof he was entitled to petition, if the bill was erroneous and if
this remains so, he was entitled to exercise
his rights to an appeal
to the Water Tribunal in terms of the Act.
24.
That the respondent failed to plead on
which legal basis he, the applicant, will be liable for the disputed
amounts as most is interest
on the capital of the disputed amount
that was due by the previous owner. The respondent is obliged,
but failed to render
a special account as to how much water was
supplied, to which property and for what period. That at least
an amount in excess
of R500 000.00, of the amount claimed has
prescribed already, as more than 3 years have passed since the debt
was incurred.
Nowhere in the amount of more or less
R590 000.00, reflected, which amount was paid by him during his
time as owner nor is
there an amount for the provision of water in
the summons.
25.
That
the respondent’s conduct, after the main action was already
instituted; appearance entered; a notice of bar served as
well as
rules 30 and 30A notices were delivered; boiled down to
parate
executie,
which is clearly unlawful.
[13]
In the aforementioned, the respondent took the law into its own hands
and executed without a legal basis to do so. That in
terms of
the respondent’s constitution, as well as the Act, the
respondent had to make an election of instituting action
or shutting
down the water supply, the latter of which he contends that the
respondent does not possess the necessary authority
in terms of the
Act to do so.
26.
According to the applicant, the respondent
was furthermore only entitled to shut down the said water supply if
certain procedures
were followed, which was clearly not the case
herein. Alternatively, it was contended for the applicant, that
to the extent
that he was in free and unhindered possession and use
of the impugned water supply, the unilateral conduct of the
respondent of
terminating the said water supply, notwithstanding his
prior warnings not to do so, constitutes nothing more than
spoliation.
27.
That it is clear that he had a
bona
fide
defence in this matter and that
the respondent acted
mala fide
in the attempt to take the law into its own hands without any legal
grounds to do so; alternatively despoiled him in his possession
and
supply of the impugned water.
28.
As far as the issue pertaining to
irreparable harm is concerned, the applicant
inter
alia
contended as follows. That
his properties are provided with water by the respondent, without
which his farming activities
could not proceed. That he would
suffer irreparable harm were he not able to water his crops urgently
as well as ultimately
lead to the demise of his farming activities.
That apart from the irreparable damages that he would suffer, same
would ultimately
lead to the financial demise of his farming
activities and subsequent catastrophic job losses and financial
hardship of his employees
and their extended families. In the
premise, the applicant also maintained that he had a
prima
facie
right to be granted the relief
sought.
29.
The applicant also contended that he had no
other satisfactory remedy, regard being had to the facts and
circumstances of this matter.
In this regard, he averred
inter
alia
; as follows. That the
respondent at no time provided him with the opportunity or was not
interested in his oral or written
explanation as to why he was not
indebted to it in the amount claimed from him. That the
respondent had due knowledge of
the fact that he disputed the amounts
claimed on the invoices since January 2018 and that he has lodged
disputes with the respondent
repeatedly.
30.
That it was clear from the inquiries lodged
by him that the impugned amounts remained in dispute at all material
times hereto.
The foregoing notwithstanding, the respondent
still proceeded in terminating the impugned water supply to his
properties and his
requests and disputations were simply ignored by
the respondent throughout. That the constitution of the
respondent determines
the following in clause 18.5 thereof, loosely
translated to English:
“
If
any charge, including interest, owed to the Association is more than
90 days overdue after due notice, the Management Committee,
in
addition to the powers vested in it under Section 59(3) of the Act,
may, without any further notice, also collect due amount
by (a)
issuing summons in a magistrate's Court having jurisdiction; (b) stop
water supply, regardless of the amount involved, in
which case the
member will be liable for all collections and legal costs, including
attorney and client costs.”
[14]
31.
That it is further clear that the
employment of the word “or” in Section 53 of the Act,
clearly indicates that the respondent
must make a choice of either
carrying out certain works or apply to a competent Court for an
appropriate relief. That to
the extent that the respondent has
made an election by issuing summons in the matter and on this basis
alone, the respondent is
prohibited from suspending the applicant’s
use of water. That in the premise, the applicant had a
reasonable defence
to the applicant’s claim as averred in the
founding papers.
32.
Relying
on the minority judgment
per
Heher JA, in
Lourens
NO & Others v Impala Water Users Association
,
[15]
that the respondent still has to prove that the applicant is liable
to pay the impugned amount before Section 59 can be invoked,
as was
determined in both
Lourens
v Impala (
supra
)
and
Impala
Water Users Association v Lourens No & Others
[16]
matters. The applicant also relied on the
dictum
in
Jordaan
and Others v Tshwane
Metropolitan
Municipality and Others
,
to contend that a new owner is not liable for the historic debt of a
previous owner.
[17]
The Respondent’s:
33.
The respondent, for its own part, submitted
and contended as follows. The provisions of Section 53(2) of
the Act, are clearly
not intended to deal with financial issues or
with steps that could be taken in respect of outstanding charges.
That the
said provisions are clearly intended to deal with cases
where the conditions of licence or authorisation were contravened and
where
certain remedial action was not taken, as directed in terms of
Section 53(1) of the Act.
34.
That it is not in dispute that the
respondent is entitled to recover the impugned water charges.
That it is so because Section
58 of the Act, enjoins it to do so
without restriction or limitation with regard to the remedies it may
invoke to do so.
Section 59(3) of the Act, expressly and
clearly provides for the restriction or suspension of water supply,
without suggesting
that it would only be permissible, where no
summons have been issued.
35.
That it is so since Section 59(3) of the
Act, expressly provides for such restriction or suspension “
until
the charges together with interest have been paid
”
means that the respondent, in the meantime is entitled to payment,
which in turn implies that it would, notwithstanding
the restriction
or suspension of water supply, be entitled to enforce its claim of
payment.
36.
In
so far as the provisions of clause 18.5 of the respondent’s
constitution may purport to restrict the respondent to elect
either
to issue summons or to suspend the supply of water, same is invalid
to the extent of its inconsistency with the provisions
of the Act.
That it is so since clause 2 of the respondent’s constitution
expressly provides that its provisions are
subject to the Act.
The applicant’s interpretation of Sections 53 and 59 of the
Act, would lead to absurd results.
[18]
That it is so since it would mean that, if summons is issued to
enforce payment of a perfectly valid debt, the water user would
continuously be entitled to its normal water supply, at the very
least, for as long as the litigation continued.
37.
If the respondent is denied the power to
suspension or restriction of water supply of a defaulting water user,
it would deprive
the association of the right to enforce payment of
the debt, thus it would mean that the respondent would be deprived of
payment
of a valid debt and the defaulting water user would get off
scot-free. That the applicant’s reliance on the minority
judgment of Heher JA in
Lourens v Impala
and on
Impala v Lourens
(supra)
,
is misdirected.
38.
That it is clear from the majority judgment
in
Lourens
that the right to suspend or restrict water supply provided for in
Section 59(3) of the Act, is also available in cases where the
existence of the amount or the liability for the payment of a water
charge is disputed, as long as the applicant is first given
the
opportunity of making representations to the respondent as to why the
debt is not payable and/or why the suspension or restriction
of the
water supply would be unfair in the particular circumstances.
39.
That in any event, the applicant has
admitted being indebted to the respondent when he was afforded a
final opportunity on 24 March
2022, to make representations. As
early as June 2018, the applicant made an undertaking to settle the
outstanding water charges
by the end of April 2019. The
foregoing constituted an implied admission that the applicant was
liable for the payment of
the outstanding water charges on his
property.
40.
That the same applies as far as the
applicant’s offer of 25 September 2019 and the applicant’s
instructions that the
outstanding water charges be paid from the
proceeds of the sale of the property, are concerned. The bare
denial of the foregoing
in the replying affidavit, does not
constitute a proper challenge or a genuine factual dispute.
41.
That in paragraph 13 of the letter by the
attorney of the applicant dated 16 March 2022, the applicant
admitted that when he
acquired the property from his brother and
predecessor-in-title, Mr PK Saunderson, an amount of R364 112.69,
was outstanding
in respect of water charges pertaining to the said
properties. In any event, it is clear that the outstanding
amounts do
not consist of only the water charges of the applicant’s
predecessor, but also those incurred by him.
42.
The applicant’s reliance on the
provisions of clause 18.2 of the respondent’s constitution is
misplaced. In fact,
the said provisions, like Section 60(1) of
the Act, make it clear that water charges can be recovered from
subsequent owners of
a property. Clause 10.1 of the
respondent’s constitution, for its own part, also recognises
the respondent’s
right to claim payment from a subsequent owner
of property, in terms of Section 60 of the Act.
43.
The
applicant was given two warnings with regard to the imminent
suspension of the impugned water supply on 08 and 24 March 2022,
which did not elicit payment of any amount at all. That there
is absolutely no merit in the applicant’s contention
that the
water charges incurred by his predecessor has prescribed because
water charges do not constitute a debt under the
Prescription Act 68
of 1969
.
[19]
That in any
event, this point was not pertinently raised in the founding
affidavit.
44.
That in light of the foregoing, the
respondent at all material times hereto, acted lawfully in suspending
the applicant’s
water supply. That the applicant has
failed to make its case based on spoliation. That in the
circumstances, the applicant
has failed to show that it has any
right,
prima facie
or otherwise, to an uninterrupted supply of the impugned water.
DETERMINATION
:
45.
In
the nature of interim interdicts, the requisites for the right to
claim same are; to
wit
:
a
prima
facie
right; a well-grounded apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief is eventually
granted; that the balance of convenience favours the granting of an
interim interdict; and that the applicant has no other satisfactory
remedy.
[20]
46.
It
is so that the jurisprudential basis of an interim interdict is to
preserve or restore a
status
quo
,
pending the final determination of the rights of parties. It is
also so that an interim interdict does not determine these
rights,
nor does it affect their final determination.
[21]
It is further so, in our law, that the important factors taken into
consideration as far as interim interdicts are concerned are
the
relative strengths of the parties’ respective cases
[22]
and whether any other remedy is available.
[23]
47.
It is however trite that our Courts have
always retained wide discretionary powers to refuse interim
interdicts, even if the requisites
have been met. This has been
held to mean that our Courts are obliged to have regard to a number
of disparate and incommensurable
features in coming to decisions,
because they do not have free and unfettered discretionary powers.
Contrariwise, it is also
trite that our Courts have no discretionary
powers whatsoever to grant any interim interdict if the requirements
have not been
met.
Whether the suspension
of the water entitlement of the applicant was unlawful or amounted to
spoliation:
48.
The applicant, in the main contended that
the respondent took the law into its own hands and executed without a
legal basis to do
so. He maintained that it is so since the
respondent does not possess the necessary authority in terms of the
Act to do so.
That in terms of the respondent’s
constitution as well as the Act, the respondent had to make an
election of either instituting
action against him or shutting down
the water supply. That the respondent evidently chose the
option to institute an action.
49.
The applicant also contended, without
conceding, that even if the respondent was entitled to shut down the
water supply, it could
only do so after following certain procedures
which clearly were not followed in this case. Alternatively, so
the applicant
argued, to the extent that at all material times
hereto, he was “…
in free
and unhindered possession and use”
of the impugned water supply, the unilateral conduct of the
respondent of terminating same, constituted spoliation.
50.
The respondent, for its own part, submitted
as follows. That the suspension of the water entitlement of the
applicant is lawful,
regard being had to the provisions of
Sections
53
;
54
;
59
(3) and
60
of the Act, read together. That it is
common cause that the applicant has been farming on the said land or
has owned same
since at least 2015; regard being had to annexure JL1
to the founding affidavit. It was also contended for the
respondent
that to the extent that the applicant was aware of the
outstanding impugned amounts when he purchased the properties in
question,
he accepted that he would become liable for the payment of
same should the former owner fail to do so.
51.
That in terms of
Section 60(1)
of the Act,
any charge in terms of
Section 57(1)
of the Act, is a charge on the
land and is thus recoverable from the incumbent owner of the land.
52.
It
is so that in terms of
Section 57(1)
of the Act, water use charges
may be made within a specific water management area; or on a national
or regional basis; and must
be made in accordance with the pricing
strategy for water use charges set by the Minister or a relevant
“
responsible
authority
”
within the contemplation of
Section 1
of the Act.
[24]
It is common cause that the respondent is a “water management
institution”
[25]
and
therefore the relevant “
responsible
authority
”
within the contemplation of the Act.
[26]
It is so that charges made within a specific water management area
may be made by and are payable to the relevant water management
institution and that the respondent is such an institution; regard
being had to
Section 57(2)
of the Act.
[27]
53.
Section 59(2)
of the Act, for its own part,
contemporaneously requires any person registered in terms of a
regulation under
Section 26
of the Act; or holding a license to use
water, to pay all charges imposed under
Section 57
of the Act, in
respect of that water use. The applicant is such a person.
It is so that if water use charge is not
paid, interest is payable
during the period of default at a rate determined from time to time
by the Minister, with the concurrence
of the Minister of Finance, by
notice in the Gazette; regard being had to
Section 59(2)
and (3) of
the Act. It is also so that
Section 59(3)(b)
of the Act,
contemporaneously empowers the respondent to restrict or suspend the
supply of water to the applicant until he has
paid the impugned
charges, together with interest, thereon.
54.
A
claim to relief under the
mandament
van spolie
,
arises solely from deprivation of possession otherwise than through
legal procedure. Our law stipulates, if reliance is
placed on
an illegality flowing from the provision of a statute, reference to
the provision must be made in the relevant pleading;
or the pleading
must be so formulated that it is sufficiently clear on which
statutory provision reliance is placed. It was
therefore
incumbent on the applicant in these proceedings not only to allege
but prove being unlawfully deprived of the right to
the supply of
water by the respondent. In this context, it is settled law
that “unlawful” does not only denote
dispossession
without the applicant’s consent but also without legal
process.
[28]
55.
This Court is of the opinion that the
election referred to by the applicant in
Section 53(2)
of the Act,
contextually and purposively only pertains to “
rectification
of contraventions
” pertaining to
licensees’ failure to take remedial action within the time
specified in the notice, or any longer time
allowed, the responsible
authority may thereafter “
carry
out any works and take any other action necessary to rectify the
contraventions and recover its reasonable costs from the
person on
whom the notice was served or apply to a competent Court for
appropriate relief
” other than
the failure to pay for water use charges to which the land relates,
as contemplated in
Section 59
Section of the Act.
56.
Section 59(2)
of the Act, which is aptly
headed “
Liability for Water Use
Charges
” expressly and
unambiguously obligates any person registered in terms of
regulation
26
or holding a licence to use water to pay all charges imposed under
Section 57
, in respect of that water use.
Section 58(3)
of the
Act, which renders the respondent and the applicant jointly and
severally liable to the state for water use charges, expressly
empowers the respondent to recover same from the applicant.
57.
Section 59(3)(b)
, for its own part,
expressly empowers the respondent, if a water use charge is not paid
to restrict or suspend the supply of water
to the applicant until the
charges, together with interest, have been paid. This is
permissible, after a water user has been
given an opportunity to make
representations within a reasonable period on any proposed
restriction or suspension before same is
imposed.
58.
It
is clear from the foregoing that regard being had to the facts and
circumstances of this case, the respondent at all material
times
hereto had the statutory right to dispossess the applicant, upon the
latter’s failure to defray the overdue water use
charges and
interest due thereon. It is also clear that the applicant was
given sufficient opportunities to make representations
within
reasonable periods before the impugned suspension of water was
imposed, as contemplated in
Section 59(4)
of the Act. This
Court thus found that the respondent has correctly invoked the
relevant statutory provisions and that same
has occurred strictly
within the limits of the Act.
[29]
59.
The applicant avers without more that the
respondent failed to follow “
certain
procedures which clearly were not followed in this case.”
It is so in our law that a person relying on illegality must not only
plead it, but that express reference to the relevant provisions
must
be made, if reliance is placed on an illegality allegedly flowing
from a provision of a statute. In other words, the
pleading
must be so formulated that it is sufficiently clear on which
statutory provision reliance is placed. None of the
foregoing
in law or in fact appear
ex facie
the applicant’s pleadings. Significantly, liability for
water use charges is not mentioned in
Section 148
of the Act, which
regulates appeals to the Water Tribunal.
60.
In the premise, this Court was constrained
to find that to the extent that the applicant has not paid the
impugned water use charges
and interest thereon, the suspension of
the water entitlement of the applicant was lawful.
Whether the
respondent’s conduct constitutes “
parate executie”
or has made an election in terms of
Section 53
of the Act:
61.
The
applicant contended that the respondent’s conduct, after the
main action was already instituted; appearance entered; a
notice of
bar served as well as
rules 30
and
30A
notices were delivered; boils
down to
parate
executie,
which is clearly unlawful.
[30]
The applicant also contended that, notwithstanding the various
correspondence between the parties and the fact that the respondent
already made an election in terms of
Section 53
of the Act and clause
18.5 of its own constitution to institute action, the respondent
unilaterally and unlawfully terminated his
use of water.
62.
The respondent, for its own part simply
denied that its conduct constituted
parate
executie
because at all material times
hereto, it has acted in terms of the Act and specifically
Section 60
,
thereof.
Section 60(1)
of the Act, expressly and unambiguously
attributes water charges on the land and the incumbent owner thereof,
thus:
“
60
Water use charges are charges on
land-
(1)
a charge made in terms of
Section 57(1)
, including any interest,
is
a charge on land to which the water use relates and is recoverable
from the current owner of the land
without
releasing any person who may be liable for the charge.”
[31]
63.
It is clear from the foregoing that whether
the disputed amount was allegedly incurred when the applicant was
neither the owner
of any of the impugned properties, or did not
receive or utilise any water from the respondent at the relevant
period, is immaterial.
The heart of the matter is that as
matters stand, the charges made in terms of
Section 57(1)
, including
any interest, are a charge on land to which the water use relates and
is recoverable from the current owner of the land.
64.
This Court agreed with the respondent’s
contention that
Jordaan v Tshwane
Metropolitan
(supra)
,
is distinguishable from the present case. It is so since
distinguishably,
Jordaan
indeed concerns charges for “municipal service fees, surcharges
on fees, property rates and other municipal taxes, levies
and
duties”, within the contemplation of Section 118(3) of the
MUNICIPAL SYSTEMS ACT
32 of 2000.
Jordaan
does not apply to water charges under Section 57(1) of the Act.
Reliance on the said case was ill-advised and legally
astray.
65.
This Court, therefore, agreed with the
respondent also for the following reasons. A “
parate
executie”
clause generically
seeks to entitle a secured creditor to dispose of the hypothecated
property through private sale without going
through the normal Court
process, when the debtor defaults on payment obligations under the
loan or some other agreement.
Section 53 of the Act does not
only authorise the disposal of any hypothecated property through
private sale without going through
the normal Court process, it is
also irrelevant in these proceedings.
66.
It is so because the said Section’s
application is limited to the “
rectification
of contraventions”
generically
and not “
liability for water use
charges”
specifically as
contemplated in Section 59 of the Act. As alluded to above,
Section 59(3)(b) of the Act, expressly and unambiguously
empowers the
respondent to restrict or suspend the supply of water to a water user
from a waterworks or the authorisation to use
water thereof, until
the user has paid the impugned charges, together with interest,
thereon. This is evinced by the fact
that Section 59(3)(b) of
the Act squarely falls within the purview of Part 10 of Chapter 4 of
the Act, which expressly and generally
regulates “
contraventions
of or failure to comply with authorisations”
(ss 53-55); as opposed to Part 1 of Chapter 5 of the Act (ss56-60)
which specifically regulates “
water
use charges”
67.
The former expressly and unambiguously
stipulates as follows in its pre-amble:
“
This
Part deals with the consequences of contraventions of licence
conditions.
These
range from the responsible authority requiring the licensee to take
remedial action, failing which it may take the necessary
action and
recover reasonable costs from that person, to the suspension or
withdrawal of a licence
…
.”
[32]
68.
The latter for its own part
inter
alia
stipulates as follows, in its
pre-amble:
“…
Water
use charges are to be used to fund the direct and related costs of
water resource management, development and use, and may
also be used
to achieve an equitable and efficient allocation of water. In
addition, they may also be used to ensure with
prescribed standards
and
water
management
practices
according to user pays and polluter pays principles…Non-payment
of water use charges will attract penalties, including
the possible
restriction or suspension of water supply from a waterworks or an
authorisation to use water.”
[33]
69.
An
election generally involves a waiver. It only occurs where one
right is waived by a party electing to exercise another
right which
is inconsistent with the other. As alluded above, the
provisions of Part 10 of Chapter 4 and Part 1 of Chapter
5, are not
mutually exclusive, they are compassable. The invocation of one
therefore cannot connote the revocation of another.
[34]
70.
Of
significance is that there is no general proposition in our law that
a party with more than one remedy at its disposal must elect
at some
given point which one to pursue and that having done so, that party
is assumed to have abandoned all other remedies.
The position
would have been different if the above mentioned remedies were
inconsistent.
[35]
71.
Of
significance also is that to the extent that the duty of the
respondent to recover payment from individual water users is in
the
public interest and not for its private benefit, it cannot be
renounced or waived by it. It is so since it is impermissible
in our law to do so. In our law, no one may renounce a right
contrary to law or right introduced in the public interest and
not
only for personal benefit.
[36]
72.
The following can be surmised from both of
the respondent’s affidavits; to
wit
:
“
8.1
On
or during June 2018 the applicant, however, made an appointment with
me. The applicant undertook to repay the total outstanding
in
monthly repayments of R5 000.00, until the end of March 2019,
whereafter he would make a lump sum payment of the total
outstanding
amount at the end of April 2019. The applicant also acquiesced
that in the event that he does not make the payments
as agreed upon,
legal action against him will commence and that his water entitlement
will be suspended.
I
sent a letter with the applicant’s new undertaking to the
respondent, which I herewith attach as “
JL2”
.
The
undertaking by the applicant was formally put in writing and signed
on 10 July 2018, which was accepted by the respondent.
The
applicant again failed to make payments. The undertaking and
acknowledgment of debt is attached hereto marked as “
JL3”
.
[37]
8.2
On
25 September 2019 the applicant sent another offer to the respondent,
in which offer the applicant advanced that the respondent
should stop
charging interest so that he can discharge the capital amount only.
I attach the letter as “
JL4”
.
9
…
10
THE
NATIONAL
WATER ACT
(“the Act”), Act 36 of 1998 AND SPOLIATION
10.1
In terms of Section 57(2) of the Act any person registered in
terms of a regulation under Section 26 or holding a licence to use
water must pay all charges imposed under Section 57 in respect of
that water use.
10.2
I am advised that spoliation is justified where it is lawful and that
the mandament van spolie can
only be successful if the applicant can
show cause that he was in undisturbed possession.
10.3
On
8 March 2022 the applicant issued a notice in terms of Section 53(1)
of the Act. Find attached the notice marked as JL7.
In
terms of the act the owner can take action to rectify the
contravention within a period not shorter that (sic) 2 working days.
The respondent afforded the applicant 7 days to rectify the
contravention.
[38]
The
applicant’s attention
was
also drawn to Section 54(1), 151(1)(d) and 151(2) of the Act.
[39]
11.
On
24
March 2022
the respondent issued a second notice to the applicant.
[40]
The only response to these notices was two letters sent from the
applicant’s attorneys, which tried to raise technical issues.
The
applicant deliberately refused to follow the remedies as set out in
the Act.
Find
attach
(sic)
the letter dated
24
March 2022
and marked as
JL8
.
[41]
12
It
is extremely important to take into account, a point that the
applicant conveniently fails to disclose, that despite settlement
of
the outstanding amount,
the
applicant’s yearly water entitlement fee is R167 626.30.
The last payment that the applicant made was in 22
July 2021. A
total amount of R1 000 044.11 is owed by the applicant as
on 29 April 2022. Find attached
the statement as “
JL9”
.
The
applicant therefore expects the honourable Court to come to his
assistance and expects to be allowed to continue drawing benefit
from
the water supply while he has not even been making the regular six
monthly payments due to the respondent.
[42]
13
Section 54(1) clearly
stipulates that the respondent may by notice to the applicant who is
entitled to use water under this Act
suspend or withdraw the
entitlement if the applicant fails-
(a)
to comply with the condition
of entitlement;
(b)
to comply with this Act; or
(c)
to
pay a charge which is payable in terms of Chapter 5.
[43]
14
In terms of Section
59(3) of the Act, the respondent is justified to suspend the supply
of water to the water user from a waterworks
until the charges,
together with interest, have been paid. It is therefore
submitted that the applicant is not entitled to
the relief he claims
as the suspension of the entitlement is justified. Therefore,
the application stands to fail with
costs.”
73.
In
reply to the foregoing, the applicant barely denied that he undertook
to pay the impugned amount, without more. He contended
that the
respondent unlawfully and unconstitutionally carried over an amount
from the previous owner to his account, which amount
together with
other amounts have since prescribed, which is to be raised in the
pending main action. That he has entered
appearance to defend
the respondent action, in this regard. That whether or not he
owes any amount to the respondent is an
issue to be decided in the
pending action between the parties.
[44]
The foregoing is not good enough.
74.
In
Wightman
v Headfour
(Pty)
Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA), the penultimate Court
per
Heher JA, held
inter alia
;
as follows:
“
[13]
A
real, genuine and bona fide dispute of fact can exist only where the
Court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed.
There
will of course be instances where a bare denial meets the requirement
because there is no other way open to the disputing
party and nothing
more can therefore be expected of him.
But
even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party and no basis is laid
for
disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial the Court
will generally have difficulty in finding that the test is
satisfied.
I
say ‘generally’ because factual averments seldom stand
apart from a broader matrix of circumstances all of which needs
to be
borne in mind when arriving at a decision.
A
litigant may not necessarily recognise or understand the nuances of a
bare or general denial as against a real attempt to grapple
with all
relevant factual allegations made by the other party.
But
when he signs the answering affidavit, he commits himself to its
contents, inadequate as they may be, and will only in exceptional
circumstances be permitted to disavow them. There is thus a
serious duty imposed upon a legal adviser who settles an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully and accurately in the
answering affidavit.
If
that does not happen it should come as no surprise that the Court
takes a robust view of the matter
.”
[45]
75.
In
Lourens
NO & Others v Impala Water Users Association
[46]
Brand JA held for the majority, as follows: ”
“
[50]
The
ambit of our disagreement is delineated by Heher JA’s
conclusion (in para 43) that ‘[t]he representation procedure
for which s 59(4) provides, must take place after the debt has been
admitted or judicially established’
.
Succinctly stated, my contrary view is that although the requirements
of both s 59(3) and 59(4) must be satisfied in order
to justify the
restriction of a debtor’s water supply under s 59(3)(b),
I
am unable to infer the prescription of an order of proceedings found
by Heher JA, – which requires the establishment of
both the
fact and the amount of the debt prior to the hearing in terms of s
59(4) – in either of the two subsections concerned.
[51]
If Heher JA’s conclusion is correct, it would mean that the
association is compelled to seek a Court order whenever the fact
or
quantum of the debtor’s alleged liability is denied, however
spurious or contrived the grounds for such denial may be.
As
is, with respect, correctly pointed out by Heher JA (in para 39), s
59(3) creates a mechanism of enforcing a debt without the
requirement
of judicial sanction. On his construction, judicial sanction
can, however, only be avoided if the debtor admits
liability.
In the absence of such admission, the association will be compelled
to seek judicial determination of the debt
before the jurisdictional
prerequisite of a s 59(4) hearing can be satisfied, with the
resulting delay and period of grace for
the defaulting debtor that it
entails.
[52]
As appears from Heher JA’s judgment, he arrived at this
conclusion of a prescribed order,
essentially for two reasons: first,
because this was held to be the position by this Court in Impala 1;
secondly, on the basis
that it follows from the structure and purpose
of the provisions of s 59(3) and (4). I respectfully find
myself unpersuaded
by either of these two considerations. I
first deal with the purpose and structure of the provisions of the
two subsections.
In my view a proper reading of two
subsections reveals the following: when a debtor is in the opinion of
the association a defaulter
in the sense of one who has not paid a
water charge lawfully raised, it must allow the debtor to make
representations. If
those representations do not persuade the
association otherwise, it would be entitled to restrict or suspend
the water supply.
[53]
If the debtor admits being in default, no question of seeking the
sanction of the Court arises.
If the debtor disputes the
association’s claim, the latter has two courses of action open
to it.
First, it may proceed to exercise the statutory power
under s 59(3), but it must be ready to ward off spoliation
proceedings, and
to discharge the onus which it will bear in those
proceedings to establish both the fact and the amount of the debtor’s
alleged
liability
. Apart from a spoliation order, inability
on the part of the association to discharge this onus may, of course,
also give
rise to a claim against it for the damages resulting from
its unlawful action.
[54]
The alternative and more cautious procedure would be to approach the
Court first, either in
proceedings seeking an order for payment of
the amount claimed, or in proceedings, such as those launched by the
respondent in
this matter, for an order sanctioning the restriction
or suspension of the debtor’s water supply under s 59(3).
In
the exercise of the latter option, the association must be
prepared to establish the fact and quantum of the debtor’s
liability
in motion proceedings.
[55]
In any event, the association would
have to afford the debtor the opportunity to make representations
in
terms of s 59(4) and then to consider those representations before it
either decides to restrict the water supply of its own
accord, or to
seek a Court order to that effect.
However,
if it decides not to adopt the option of first seeking an order for
payment of the amount claimed, there is nothing, in
my view, that
precludes the association from inviting s 59(4) representations to be
made on the supposition, assumption or premise
that the amount
claimed is due. The invitation would, of course, have to make
it clear that the purpose of the proposed hearing
is not to establish
liability, but to elicit explanation why, on the supposition or
premise that liability had been established,
the restriction should
not be imposed. A debtor who, in the light of this invitation
elects not to make representations,
but to rely solely on his denial
of liability, will do so at his peril.
If
the association can prove the fact and the amount of his liability,
either in spoliation proceedings or in the proceedings seeking
authorisation to restrict the debtor’s water supply, all the
requirements for invoking the statutory powers bestowed upon
it by s
59(3) will be met.
No
consideration derived from a construction of the Act, or of logic, in
my view, dictates that a debtor who wrongfully disputes
liability
should be allowed a period of grace or an opportunity to delay the
restriction of his water supply which is denied to
a debtor who
admits default. This would be the effect of the construction
adopted by Heher JA”
[47]
76.
It is however also clear from the facts and
circumstances of this case that the applicant has not only admitted
the impugned debt
in writing, but was also afforded a reasonable
opportunity to make representations in terms of Section 59(4) of Act
as to why the
supply of water to his properties should not be
restricted or suspended. More, the applicant also seems to have
acquiesced
that in the event that he does not make the payments as
agreed upon, legal action against him will commence and that his
water
entitlement will be suspended.
Whether
the balance of convenience favours the granting of the interim
interdict
:
77.
The applicant submitted that the balance of
convenience favours him. That it is so since he would suffer
irreparable harm
if his water usage was not restored. The
respondent, for its own part, maintained that at all material times
hereto it has
acted in accordance with the Act and denied that the
law was taken into its own hands. That in the event that the
respondent
cannot fulfil its administration and statutory functions,
users high up in the irrigation system will use more than their share
of water entitlement, which will have the effect that users lower in
the irrigation system will not have sufficient water to irrigate
their farms. The respondent contended that it has a statutorily
delegated duty to make sure that all users in the irrigation
system
get a fair share of water.
78.
The respondent thus contended that the
balance of convenience does not favour the applicant. That
should the order sought
be granted, the respondent will be left in a
dire position if the remedies envisaged in terms of Section 60 of the
Act are nullified.
That the balance of convenience therefore
clearly favours it and consequently the water users that it serves
and who are keeping
up with the payment of their water charges.
79.
This
Court of course had to weigh the prejudice the applicant will suffer
if the interim interdict was not granted against the prejudice
the
respondent will suffer if it is.
[48]
The exercise of this discretion required a consideration of the
prospects of success and the balance of convenience. The
stronger the prospects of success, the less the need for such balance
to favour the applicant. Contra wise, the weaker the
prospects
of success, the greater the need to favour him.
[49]
This Court is of a view that regard being had to the facts and
circumstances of this case, the applicant’s prospects
of
success are weak. In the premise, this Court found that the
balance of convenience favours the respondent.
Whether the applicant
has a
prima facie
right:
80.
The respondent contended that, regard being
had to the facts and circumstances of this case and the applicable
law, the applicant
has failed to evince any right worth protecting in
the circumstances. That the applicant would only have had a
right if he
was not in arrears with his accounts and that he had more
than a reasonable time to adhere to the notices sent to him, which he
decided not to. That any harm suffered by the applicant is
therefore self-inflicted. This Court could not agree more
with
the respondent.
CONCLUSION
:
81.
It
is so in our law that no discretion vests in a Court to grant any
interdict for the protection of an alleged right which is found
not
to exist.
[50]
The degree of
proving a
prima
facie
right has been formulated as follows in our law: ‘Whilst a
right can be
prima
facie
established, even if it is open to some doubt, a mere acceptance of
the applicant’s allegations is insufficient’.
[51]
82.
Having considered the facts as set out by
the respondent, which the applicant could not dispute; the inherent
probabilities and
the ultimate
onus
in the action; and the facts as set out in contradiction by the
respondent; this Court decided that the applicant has failed to
evince any compliance with any antecedents or reciprocal obligation
in terms of the Act. This Court therefore concluded that
the
applicant has failed to evince the existence of any graspable right
in substantive law that the respondent is alleged to have
infringed.
A fortiori
,
the remainder of the requisites for an interim interdict became moot.
83.
It is against this backdrop that this Court
found that, regard being had to the facts and circumstances of this
case, the respondent
has shown that its actions in interfering with
the applicant’s flow of water fell strictly within the four
corners of the
Act and that the portion of water charge withheld by
it was lawfully owing and payable. Judgment was reserved on 27
May 2022.
Thereafter on 12 August 2022, this Court was
constrained to grant an order as follows:
ORDER
:
(a)
The application is dismissed with costs.
JUDGE APS NXUMALO
HIGH COURT OF SOUTH
AFRICA
NORTHERN CAPE DIVISION
KIMBERLEY
Counsel for the
Applicant:
ADV DC JANKOWITZ
Instructed by:
Engelman
Magabane Inc.
Ref:
Ms JA
Snyders
Counsel for the
Respondent:
ADV JL OLIVIER
Instructed by:
Haarhoffs Inc.
Ref:
Mr D
Pretorius
[1]
Hereinafter
referred to as “
the
Act
”
[2]
Annexure
JHGS6 and 7, pp56-57, FA
[3]
Annexure
JHGS9,
ibid
[4]
i.e.
the urgent application
[5]
i.e.
27 May 2022
[6]
p112-115,
Urgent Application, Vol 2
[7]
Makate
v Vodacom
2016 (4) SA 121 (CC)
[8]
Inter-Continental
Fin and Leasing Corp v Stands 56 and 57
1979 (3) SA 740 (W)
[9]
Eskom
v Soweto City Council
1992 (2) SA 703
(W) at 705E
[10]
Ganes
and Another v Telecom Namibia Ltd
2004 (3) SA 615
(SCA) at 624G-H
[11]
Unlawful
Occupiers School Site v City of Johannesburg
2005 (4) SA 199
(SCA) at 205J-207G
[12]
Twentieth
Century Fox Film Corporation and another v Anthony Black Films (Pty)
Ltd
1982 (3) SA 582
(W) at 586G
[13]
A
“
parate
executie”
clause generically seeks to entitle a secured creditor to dispose of
the hypothecated property through private sale without going
through
the normal Court process, when the debtor defaults on payment
obligations under the loan or some other agreement.
[14]
“
Indien
enige vordering, insluitend rente, verskuldig aan die Vereniging
meer as 90 dae agterstallig is na behoorlike kennisgewing,
kan die
Bestuurskomitee, benewens die bevoegdhede wat ingevolge Artikel
59(3) van die Wet aan hom berus, sonder enige verdere
kennisgewing,
ook die verskuldigde bedrag in te vorder deur (a) dagvaarding uit te
reik in 'n Landdroshof wat jurisdiksie het;(b)
watertoevoer staak,
ongeag die bedrag betrokke, in welke geval die lid aanspreeklik sal
wees vir alle invorderings en regskostes,
insluitend prokureurs- en
kliënt koste.”
[15]
[2006]
JOL 17550 (SCA).
[16]
[2004]
JOL 12564(SCA).
[17]
2017
ZACC 31; 2017 (6) SA 287 (CC)
[18]
Ngwenyama
v Mayelane and Another
2012 (3) All SA 408(SCA)
[19]
Minister
of Water and Sanitation v Amathole District Municipality
2021 (4) SA 252
(ECG).
[20]
Moredubi
and others v Barker and others
[2022]
JOL 54788
(GP)
,para
10;
Eriksen
Motors (Welkom) Ltd
v
Protea Motors, Warrenton and Another
1973 (3) SA 685 (A);
Knox
D'Arcy Ltd and others v Jamieson and others
1996 (4) SA 348 (A)
at 361
[21]
Apleni
v Minister of Law and Order
1989 (1) SA 195
(AD) at 201
[22]
Beecham
Group Ltd v B-M Group (Pty) Ltd
1977 (1) SA 50
(T) at 55
[23]
Cresto
Machines (Edms) Bpk v Die Afdeling Speuroffisier SA Polisie,
Noord-Transvaal
1970 (4) SA 350
(T), at 367G-368E
[24]
A
“
responsible
authority
”
in relation to a specific power or duty in respect of water uses,
means-
(a) if that power or
duty has been assigned by the Minister to a catchment management
agency, that catchment management agency;
or
(b) if that power or
duty has not been assigned, the Minister.
[25]
Section
1 of the Act defines the expression “
water
management institution
”
as:
‘
a
catchment management agency, a water association, a body responsible
for international water management or any person who fulfils
the
functions of a water management institution in terms of this Act.’
[26]
In
terms of Section 1 of the Act, a “
responsible
authority
”
in relation to specific power or duty in respect of water uses,
means-
(a) if that power or
duty has been assigned by the Minister to a catchment management
agency, that catchment management agency;
or
(b) if that power or
duty has not been so assigned, the Minister.
[27]
“
May”
contextually means “must”
[28]
George
Municipality v Vena and Another
1989 (2) SA 263(A)
[29]
Ngqukumba
v Minister of Safety and Security
2014 (5) SA 112 (CC)
[30]
A
“
parate
executie”
clause generically seeks to entitle a secured creditor to dispose of
the hypothecated property through private sale without going
through
the normal Court process, when the debtor defaults on payment
obligations under the loan or some other agreement
[31]
Emphasis
supplied
[32]
Emphasis
supplied.
[33]
Emphasis
supplied
[34]
Xenopoulos
and Another v Standard Bank of SA Ltd and Another
2001 (3) SA 498 (W)
[35]
Thomas
v Henry and Another
1985 (3) SA 889 (A)
[36]
De
Jager v ABSA Bank
2001 (3) SA 537 (SCA)
[37]
Emphasis
supplied.
[38]
The
respondent at paragraph 2.3, p122, SAA, refers to same as
“
pre-directive
notices
”
[39]
Emphasis
supplied
[40]
Second
pre-directive notice
[41]
Emphasis
supplied
[42]
Emphasis
supplied
[43]
Emphasis
supplied
[44]
Paragraphs
24-28, RA, p147.
[45]
Emphasis
supplied.
[46]
Ibid,
fn 15
[47]
Emphasis
supplied
[48]
Glaxo
Wellcome
(Pty) Ltd and Others v Terblanche NO and Others
(No
2
)
2001 (4) SA 901
(CAC), at 911
[49]
Olympic
Passenger Service (Pty) Ltd v Ramlagan
1957 (2) SA 382 (D)
[50]
Sweets
from Heaven (Pty) Ltd and Another v Ster Kinekor Films (Pty) Ltd and
Another
1999 (1) SA 796
(W), at para 11
[51]
Selected
Products Ltd v Enterprise Bakeries (Pty) Ltd
1963 (1) SA 237
(C);
Molefi
Thoabala Inc v Mangaung Metropolitan Municipality and others
[2016]
JOL 37092
(FB), at para 4