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[2017] ZASCA 15
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Moila v City of Tshwane Metropolitan Municipality (249/2016) [2017] ZASCA 15 (22 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 249/2016
In
the matter between:
LUCAS
MOILA
(NOW
SUBSTITUTED BY THE EXECUTRIX
OF
HIS DECEASED ESTATE, DORKAS LETTIE
SINCLAIR)
APPELLANT
and
THE
CITY OF TSHWANE METROPOLITAN MUNICIPALITY
RESPONDENT
Neutral
citation:
Moila
v City of Tshwane Metropolitan Municipality
(249/16)
[2017] ZASCA 15
(22 March 2017)
Coram:
Cachalia,
Willis, Zondi and Van der Merwe JJA and Mbatha AJA
Heard:
6 March 2017
Delivered:
22
March 2017
Summary:
Claim
for the rendering of a statement of account by a municipality for the
supply of utility services and a debate thereof :
ex facie the
pleadings, no fiduciary relationship existed between the parties, no
contractual agreement between them to this effect,
no statutory
provision creating this obligation : point
in
limine
upheld : appeal dismissed with costs.
ORDER
On
appeal from:
The
Gauteng Division of the High Court, Pretoria (Ranchod J sitting as
the court of first instance).
The
appeal is dismissed with costs.
JUDGMENT
Willis
JA
(Cachalia,
Zondi and Van der Merwe JJA and Mbatha AJA concurring):
[1]
Lucas Moila (the deceased) was the plaintiff in the court a quo. He
had claimed the right to a statement of account for his
electricity
and water utility charges and a debate thereof from the respondent,
which is The City of Tshwane Metropolitan Municipality
(the
municipality). The claim was dismissed with costs in the court a quo
(Ranchod J). Leave to appeal to this court was granted
by the court a
quo.
[2]
The deceased died on 24 August 2016. Dorkas Lettie Sinclair was duly
appointed as executrix of the estate of the deceased in
terms of a
Letter of Executorship issued in terms of the Administration of
Estates Act 66 of 1965 on 26 October 2016. In terms
of Rule 15(3) of
the Rules of the Superior Courts, the executrix has given notice to
the municipality, as well as registrar of
this court, that she wishes
to be substituted in this appeal for the deceased. No one has
objected thereto. In an attempt to avoid
confusion, the name of the
deceased has been retained in the rubric of the judgment.
[3]
The deceased was a businessman. He was the registered owner of an
immovable property in Mamelodi, which falls within the area
of
jurisdiction of the municipality. The registration of the deceased’s
ownership occurred in 1998. The deceased claimed
that the
municipality incorrectly charged him for amounts for utility services
that were due and payable by the previous registered
owner of the
immovable property and that the municipality has, in addition,
overcharged him. Owing to the deceased’s substantial
arrears
with his payments for these services, the municipality terminated its
supply thereof to him in August 2010.
[4]
In consequence of the termination of these services, the deceased
brought an urgent application before the high court (Kollapen
AJ) for
the restoration thereof. The court granted an interim order to this
effect on 15 November 2010, making the order conditional
upon the
outcome of an action to be instituted by the plaintiff against the
municipality, as well as the outcome of that action.
The deceased
instituted the action, which came before the court a quo.
[5]
Set out fully, the extent of the relief sought by the deceased in
that action reads as follows:
‘
That
the defendant be ordered to render to the plaintiff within 30 days
from [the] date of the order a true and proper statement
of account
together with substantiating documents reflecting the correct
charges, levies and amounts levied against the plaintiff
in respect
of the property for the period August 1998 to date;
(b)
That the defendant be ordered to debate the aforesaid account with
the plaintiff within 30 days from the time it was rendered
in terms
of paragraph (a) above;
(c)
That it be declared that the plaintiff is not indebted to the
defendant in any sum whatsoever in respect of the property;
(d)
That the defendant be ordered to pay the costs of this action;
(e)
Further and/or alternative relief
.’
There
was no dispute between the parties that the deceased was entitled to
receive regular accounts from the municipality.
[6]
Shortly before the pre-trial conference, the deceased received a
comprehensive statement of account. This occurred on 6 July
2015. The
deceased complained, however, that he had not received any ‘source
documents’. A pre-trial conference between
the parties was held
on 16 July 2015. At that conference, the deceased took the stance
that the account had to be debated between
the parties before the
Court could be approached for a debate thereof. Accordingly, the
deceased contended that the matter was
not ripe for hearing, which
had been set down for 30 July 2015, and that the trial would have to
be postponed. The municipality
took the contrary view that the trial
should proceed. It relied, inter alia, on the fact that the matter
had previously been set
down for trial in June 2013 and that the
municipality had made discovery of numerous documents relating to the
account since 1998.
[7]
With these points in contention, the matter came before the court a
quo for a hearing on the date set down for trial. The deceased
argued
that the matter should be postponed. The municipality disagreed,
however, contending that the matter should not be postponed
and that
the interim interdict should be discharged and the plaintiff’s
claim dismissed. With regard to the question of the
plaintiff’s
right to debate the account, the municipality, in effect, took a
point
in
limine
.
[1]
The point was that, on the facts as pleaded, the plaintiff had no
right, in law, to debate the account. The parties agreed that
this
point should be argued before any further steps were taken in the
trial. No evidence was led, the court a quo upholding the
municipality’s point. Consequently, the court a quo refused the
application for a postponement, discharged the interim interdict
and
dismissed the plaintiff’s claim, with costs.
[8]
Relying on
FPS
Ltd v Trident Construction (Pty) Ltd
,
[2]
the appellant has submitted that the municipality’s point
in
limine
should
not have been upheld as it had not been pleaded. This point cannot
succeed. The municipality’s point of law relates
to the facts,
as pleaded. In his particulars of claim, the deceased did not set out
the basis upon which he would have been entitled
to debate the
account. The deceased did allege the existence of a fiduciary
relationship between him and the municipality but this
was done with
regard to the allegation that he was entitled to receive regular
accounts. The allegation was not, however, made
insofar as a debate
of the account was concerned. In any event, no basis for the
allegation of a fiduciary relationship subsisting
between the parties
was alleged and none is apparent from the facts, as pleaded.
[9]
Besides, as Wessels J said as long ago as
Scheepers
& Nolte v Pate
,
a
litigant
has the duty to take the most expeditious course to bring litigation
to a conclusion.
[3]
In view of the history of the matter, especially the deceased’s
dilly-dallying over the final adjudication of the dispute
between the
parties, the municipality cannot, in my opinion, be criticised for
raising the point as it did.
[10]
The right to debate an account is not to be confused with the right
to receive the same. The two are not coextensive. The rights
of those
who are liable for the payment of municipal services to receive
accounts from the relevant municipality is made clear
in sections 95
and 102 of the Local Government Municipal Systems Act 32 of 2000 (the
LGMS). The relevant portions of s 95 read
as follows:
‘
Customer
care and management
In
relation to the levying of rates and other taxes by a municipality
and the charging of fees for municipal services, a municipality
must,
within its financial and administrative capacity –
...
(e)
ensure
that persons liable for payments, receive regular and accurate
accounts that indicate the basis for calculating the amounts
due;
(f)
provide accessible mechanisms for those persons to query or verify
accounts and metered consumption, and appeal procedures which
allow
such persons to receive prompt redress for inaccurate accounts;
(g)
provide accessible mechanisms for dealing with complaints from such
persons, together with prompt replies and corrective
action by the
municipality;’
Section
102 (1) provides that 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.’
[11]
In
ABSA
Bank Bpk v Janse Van Rensburg
,
[4]
t
his
court made it clear that, in order to obtain an order to debate an
account, the person seeking such an order must establish
that a
fiduciary relationship existed between that person and the other
party; or that there was a contractual agreement between
them that
this would occur or that a statutory provision created such an
obligation.
[5]
Ex facie the pleadings – and, more especially, the deceased’s
own particulars of claim – none of these requirements
was met.
During the hearing before this court, Mr Jacobs, who was counsel for
the appellant, disavowed any reliance on a fiduciary
relationship
having existed between the deceased and the municipality. He
submitted that, by reason of the provisions of ss 95
(f)
and
(g)
of
the LGMS, set out above, the right to a debate of the account had, by
necessary implication, been incorporated into the contract
between
the two relevant parties. I disagree. Section 95
(f)
provides for public law rights for a person liable for the payment of
accounts for municipal services to receive ‘prompt
redress for
inaccurate accounts’, not for any ‘debate’ thereof;
s 95
(g)
for a right to ‘prompt replies’ to complaints and to
‘corrective action’ but also no right to a debate
of
accounts.
[12]
The court a quo usefully referred to those provisions of ss
95
(f)
and
(g)
of the LGMS, which provide for ‘accessible mechanisms’
respectively to ‘query or verify accounts’,
‘appeal
procedures’ and the ‘dealing with complaints’,
together with ‘corrective action’. Much
that could be in
dispute is governed by municipal by-laws. As that court noted,
the deceased would not have been without
equitable remedies if he had
wished to resort to them. His remedy would have been to avail
of his rights under s 95 of the
LGMS.
[13]
The court a quo correctly relied on
ABSA
Bank v Janse Van Rensburg
to
dismiss the appellant’s claim. The following order is made:
The
appeal is dismissed with costs.
______________________
N
P WILLIS
Judge
of Appeal
APPEARANCES:
For
Appellant:
G Jacobs
Instructed
by:
Morris
Pokroy Attorneys, Pretoria
Lovius
Block, Bloemfontein
For
Respondent:
A Vorster (with him, S Webster)
Instructed
by:
Hugo
& Ngwenya Inc, Centurion
c/o
Phatsoane Henney Attorneys, Bloemfontein
[1]
Recognised for its
convenience, a point
in
limine
is, typically, a question of law, raised at the beginning of the
hearing of a matter, before any evidence is led, which point
may, if
successful, dispose of the dispute or bring the proceedings
instituted to a conclusion. See, for example,
Scheepers
& Nolte v Pate
1909
TS 353
at 360;
Allen
& others NNO v Gibbs & others
1977
(3) SA 212
(SE) at 214E and 216A.
[2]
FPF Ltd v
T
rident
Construction (
P
ty)
Ltd
1989
(3) SA 537
(A) at 541J- 542D.
[3]
Scheepers
(
supra
)
at
3
60.
See also
Allen
v Gibbs
(
supra
).
[4]
ABSA Bank Bpk v
Janse Van Rensburg
2002
(3) SA 701 (SCA).
[5]
Para 15. See also
Rectifier
and Communications Systems (Pty) Ltd v Harrison
1981
(2) SA 283
(C) at 289H, referred to with approval in
ABSA
Bank v Janse Van Rensburg
(supra).