About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 61
|
|
Cosmo Retail Park (Pty) Ltd v City of Tshwane Metropolitan Municipality (95508/2015) [2018] ZAGPPHC 61 (12 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
CASE NO:95508/2015
12/2/2018
In
the matter between:
COSMO
RETAIL PARK (PTY)
LTD
APPLICANT
and
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
The applicant seeks the following declaratory relief as set out in
the notice of motion:
1.
That
it be declared that the applicant is not indebted to the respondent
in respect of property rates for the period prior to May
2011;
2.
That
the respondent be ordered to immediately rectify the applicant's
monthly account (account number [….]), to give effect
to the
order in 1 above;
3.
That the respondent be ordered to pay
the applicant's costs on an attorney and client scale.
[2]
The applicant became the registered
owner of certain immovable properties on 17 July 2006 comprising of
seven erven which were consolidated
into one erf on 27 May 2008
situated at 449, Pretorius Street, Silverton, Pretoria. The
respondent says the street number is 447
but it's not relevant for
present purposes as the identity of the property in question is not
in dispute.
[3]
In terms of the Provincial Gazette dated
18 August 2004, the seven erven, which had until then been zoned
'residential', were re-zoned
'General Business' and accordingly
attracted higher property rates than when they were zoned residential
properties.
[4]
The applicant says since about September
2010 it had repeatedly informed the respondent municipality that it
disputed the property
rates levied against the several properties
prior to their consolidation and also after they were consolidated
but the matter remained
unresolved. The details are not relevant for
present purposes.
[5]
On 3 May 2011 the applicant delivered
two separate letters to the respondent enclosing cheques for payment
of R350,000.00 for property
rates and R6,541.67 for water consumption
respectively. A cashier at the respondent's offices acknowledged
receipt of the cheque
on the same day.
[6]
It is only the payment of R350,000.00
for the rates that is in issue. The applicant contends that it had
tendered the cheque in
full and final settlement of any outstanding
amounts in respect of the property rates up to 30 April 2011. The
respondent is adamant
that payment of the R350,000.00 did not
extinguish the balance of the amount allegedly owing which, as at 20
September 2010 was
R564,871.31.
[7]
The crisp issue to be determined is
whether the payment 'in full and final settlement' extinguished the
balance of the debt alleged
to be owing to the respondent. The
respondent denies it, hence the application for a declarator in the
notice of motion.
[8]
It is necessary to quote the contents of
the letter written by the applicant-
'Hiermee
aangeheg tjek, ender tjeknommer 00000037 in die bedrag van
R350,000.00 (Orie Honderd en
Vyftig
Duisend Rand) as volle en
finale vereffening van enige uitstaande bedrae socs verskuldig soos
beweer deur u kantore.
Ons tjek
ten bedrae van R350,000.00 (Orie Honderd en Vyftig Duisend Rand) gaan
hierby aangeheg in volle en finale vereffening van
al u eise ten
aansien van die eiendomsbelasting met betrekking tot die voormelde
eiendom tot en insluitende 30 April 2011.
Ons ontken
aanspreeklikheid vir betaling van enige verdere eiendomsbelasting ten
aansien van die eiendom tot 30 April 2011.
Aanbieding
en ontmoeting van die tjek sal tot gevolg h dat al u eise ten aansien
van eiendomsbelasting met betrekking tot die eiendom
tot op 30 April
2011 uitgewis sal word.'
[9]
The letter was marked for the attention
of 'Munisipale Kasiere, Tshwane Stadsraad . . . (Municipal Cashiers,
City Council).'
[10]
Freely translated, the letter reads as follows-
"
Herewith
attached is a cheque ... in the amount of R350,000.00 ... as payment
in full and final settlement of any amounts outstanding
as alleged by
your offices.
Our cheque
for R350,000.00 . . . will be attached in full and final settlement
of all your claims for property rates regarding the
abovementioned
property up to and including 30 April 2010.
We deny
responsibility for payment of any further property rates in respect
of the property up to 30 April 2011.
Presentment
and meeting [payment) of the cheque will have the consequence that
all your claims for the property rates in respect
of the property up
to 30 April 2011 will be extinguished."
[11]
It is common cause that the cheque was
indeed presented for payment by the respondent and it was paid. The
respondent relies on
its Credit Control and Debt Collection By-Laws
(published by Local Authority Notice 226 in the Provincial Gazette
Extraordinary
No. 44 of 27 February 2002 which provides as follows in
sub-section 2.3 -
'
(a)
The
City Treasurer shall be at liberty to appropriate monies received in
respect of any of its municipal services as it deems
fit.
(b)
Where
the exact amount due and payable to the Council has not been paid in
full, any lesser amount tendered to and accepted by any
Council
employee, except the Treasurer and/or his/her fully authorised
delegate, shalt not be deemed to be in final settlement
of such an
amount.
(c)
The
provisions in (a) above shalt prevail notwithstanding the fact that
such lesser payment was tendered and/or accepted in full
settlement.
(d)
The
Treasurer and/or his/her delegate shall consent to the acceptance of
such a lesser amount in writing.'
[12]
The respondent says its treasurer did
not consent to the acceptance of the lesser amount tendered by the
applicant and the full
amount remained outstanding in accordance with
sub-section 2.3 of the stated by-law.
[13]
The respondent's arguments, as I
understood them to be from the answering affidavit and oral
submissions during the hearing are
firstly, that it was expressly
stated that the payment was conditional upon it being accepted in
full and final settlement hence
sub-section 2.3(b) was not applicable
because there it is stated that a payment which is less than the
outstanding total will not
be 'deemed to be in final settlement' of
the total outstanding amount. The deeming provision was not
applicable because here the
payment was expressly conditional. The
argument is not understood. In my view the provisions of sub-section
2.3 are clear, and
hardly need to be elaborated upon. Any lesser
amount tendered in full and final settlement be it expressly stated
to be so will
not be regarded ('deemed') to be in final settlement.
[14]
However, it was also argued that once a
cashier at the respondent's offices accepted the cheque by
acknowledging receipt meant that
the cheque was accepted on behalf of
the treasurer as the cashier was the authorised delegate of the
treasurer. The submission
is without merit in the face of the clear
wording of sub-section 2(3)(b). The respondent denies that the
cashier was the treasurer's
'fully authorised delegate' as provided
for in sub-section 2(3)(b). No proof has been tendered by the
applicant that the cashier
is the authorised delegate of the
treasurer within the meaning of sub-section 2.3
[15]
Furthermore, sub-section 2.3(d)
expressly provides that the treasurer and/or his/her delegate shall
consent to the acceptance of
such a lesser amount in writing. No
proof has been provided of acceptance in writing by the treasurer or
the treasurer's delegate
of the lesser amount. Apart from an
acknowledgement of the copy of the letter by the cashier that he or
she received the letter
and the attached cheque there is no evidence
that the cahier had authority from the treasurer to enter into a
compromise with the
applicant and accept the cheque in full and final
settlement.
[16]
The applicant also says in the replying
affidavit that even if it is disputed that the cashier was an
authorised delegate of the
treasurer, such an employee will have
ostensible authority and the respondent will therefore also be
estopped from denying the
authority of the employee. Again, in my
view, the submission cannot pass muster as one cannot circumvent the
clear provisions of
the by-law in this manner.
[17]
It is also to be noted that
correspondence was exchanged between the applicant's attorneys and
the respondent's attorneys regarding
the disputed account and, at
some stage, also between the debt collecting agent of the respondent
and the applicant. However, the
applicant did not send the cheque to
the respondent's attorneys, through its own attorneys, as would be
expected in the normal
cause of events. Instead it addressed a letter
itself to the cashiers who had no part in the discussions between the
parties. In
my view this was clearly a contrived attempt to make the
payment in 'full and final settlement' binding on the respondent.
[18]
The applicant applies for a declaratory
order. It bears the onus to prove that it is entitled to the relief
claimed. In my view,
the applicant has failed to discharge the onus
upon it to prove that it is entitled to the declaratory relief it
seeks hence the
application must fail.
[19]
The application is dismissed with costs.
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant
: Adv. A.P.J
Els
Instructed
by
: JW Botes Inc.
Counsel
on behalf of Respondent
: Adv. A Vorster
Instructed
by
: Hugo & Ngwenya Inc.
Date
heard
: 31 January 2018
Date
delivered
: 12 February 2018