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[2018] ZAGPJHC 593
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Body Corporate of Annper Heights v City of Johannesburg (2017/38126) [2018] ZAGPJHC 593 (13 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2017/38126
In
the matter between:
THE
BODY CORPORATE OF ANNPER
HEIGHTS Applicant
And
CITY
OF
JOHANNESBURG Respondent
JUDGMENT
WINDELL,
J:
INTRODUCTION
[1]
This is an application for the rendering of a statement of account by
the respondent and a debate thereof.
[2]
The applicant is the Body Corporate of Annper Heights, of the
Sectional Title Scheme known as Annper Heights, duly established
in
terms of Section 2(1) of the Sectional Titles Schemes Management Act,
No. 8 of 2011. The applicant’s building is
in Edenvale
and comprises of a block of flats of 11 floors with 56 Units, 2 lifts
and staff rooms.
[3]
The respondent is City of Johannesburg, a Municipality duly
established by the MEC for Local Government and Development Planning,
in the Gauteng Province, acting in terms of
Section 12(1)
of the
Local Government Municipal Structures Act 1998
, by notice in
Provincial Gazette No.6766 of 2000, dated 1 October 2000.
[4]
The respondent supplies electricity to the applicant, which purchases
same from the respondent.
THE
COMPLAINT
[5]
The applicant contends that the charges for electricity consumption
billed to its account are incorrect as it is exceptionally
high and
the charges that it had calculated through Prime Property Investments
(Pty) Ltd (“Prime”) (the authorized
managing agent of the
applicant) was less.
[6]
It is submitted that the reason for the incorrect billing is three
electric meters that were installed at the applicant’s
building
(“the Old Meters”). The applicant contends that the Old
Meters were faulty and the respondent therefore replaced
them with a
single meter, Number 98369708 (“the Replacement Meter”)
in April 2017. The applicant only became
aware of the
Replacement Meter when it received the Statement/Tax Invoice for June
2017 from the respondent. This statement set
out the actual
consumption on the Replacement Meter, but since then low estimate
charges had been raised, that resulted in a lesser
recovery from
tenants/occupants/owners of the applicant. The respondent contends
that it is entitled in terms of its by-laws to
charge for consumption
based on estimations where actual readings are not available. As soon
as actual readings become available,
the charges based on estimations
are reversed on the account statement of the consumer and the
respondent will replace such charges
with charges based on actual
meter readings.
[7]
On 11 September 2017 the applicant’s attorney, Arnold Joseph
addressed a letter to the respondent setting out the applicant’s
position. In the letter the applicant requested:
[7.1] Full and precise
details as to how each debit, reflected on the applicant’s
account has been computed and calculated
from July 2016 to April 2017
in respect of the Old Meters and from May 2017 to date hereof in
respect of the Replacement Meter
(“the Relevant Periods);
[7.2] The amount of
consumption and the method of calculation for the
Relevant
Periods;
[7.3] Copies of the meter
readings, log book(s) and any other information pertaining to the
debits raised on the account for the
Relevant Periods;
[7.4] Full details of the
tariff used in calculating the debits over the Relevant Periods;
[7.5] A full and precise
statement of the amount owing by the applicant to COJ, alternatively,
credits due by COJ to the applicant
in respect of electricity charges
for the Relevant Periods, duly suspended by meter readings and/or
proper proof thereof;
[7.6] A debatement of the
account;
[7.7] An irrevocable
written undertaking to continue the supply of electricity to the
applicant;
[7.8] An irrevocable
written undertaking that the applicant’s account will be
flagged so as to avoid disconnection of the
supply of electricity to
the applicant.
[8]
A reconciliation of the accounts was received from the respondent,
which included the reading period, the number of days, actual
or
estimate readings on the Old Meters and the Replacement Meter, the
total consumption and over or under recovery from the Unit
owners.
The applicant contends that the reconciliation clearly shows that the
billing by the respondent was incorrect. For example:
On the November
2016 account, for a 15 day period and on an actual reading, the
respondent billed the applicant R196,346.61 excluding
VAT, but for
the months from November 2016 to March 2017, the billings were
exceptionally high, totalling R756,388.18 excluding
VAT, with a
small credit of R61,493.15 excluding VAT, being reversed on the
statement for April 2017. For the same period,
Prime, on behalf of
the applicant, using the respondent’s published tariffs
together with readings taken by the caretaker
of the applicant,
calculated and only recovered R256,863.39, resulting in an
unrealistic shortfall.
[9]
A rates consultant was subsequently instructed by the applicant to
take the matter up with the respondent. During this time,
the
respondent disconnected the supply of the electricity to the building
of the applicant on two occasions. The applicant contends
that the
disruption in the supply of electricity to the building of the
applicant compelled the latter to enter into a payment
arrangement
with the respondent even though its charges were being disputed at
the time. The respondent agrees that electricity
was disconnected as
the account was in arrears when the disconnection was effected. The
respondent states that it had noted from
the account history that
electricity consumption had been high at the applicant’s
building and the applicant was attempting
to create a scenario in
which the replacement of meters could be identified as the cause of
extraordinary high consumption and
that this caused the account to
accumulate a large amount of arrears. However, the account was
already in arrears in May 2016 in
the amount of R493,029,89 and the
applicant entered into an instalment plan or arrangement to settle
the arrears over a certain
period.
[10]
On 1 December 2017, the applicant obtained an interim order
interdicting the respondent from disconnecting the supply of
electricity
to the applicant pending the outcome of this application.
[11]
The applicant conceded that its account is in arrears, but states
that is as a result of the incorrect consumption and charges
reflected on the respondent’s statement of account. It is
submitted that it is entitled to receive accurate statements from
the
respondent on the basis of a contract, alternatively, under the
Statutory Regulation for the supply of Municipal Services.
Furthermore, in support of its submission, the applicant contends
that it has exhausted all its options available to it outside
of
instituting this application. The respondent agrees that the
applicant is entitled to accurate accounts and alleges that it
has
complied with its obligations in that regard. It however disagrees
that the applicant has exhausted its internal remedies and
contends
that the applicant has not shown that it logged any dispute within
the meaning of section 102 of the Local Government
Municipal Systems
Act, 2000 (“the Act”) with the respondent.
RENDERING
OF AN ACCOUNT
[12]
The monthly account statements form part of the papers before the
court. The following particulars could be gleaned from the
account
statements provided to the applicant:
[12.1] the period to
which the meter readings relate and in respect of which
charges for electricity consumption are included on any
particular
statement;
[12.2] the meter numbers
from which readings were obtained;
[12.3] the meter reading
obtained from each meter;
[12.4] whether such
reading was an actual or estimated reading;
[12.5] the amount of
consumption (per meter and cumulatively on all meters)
during
the meter reading period;
[12.6] the calculation of
the charges for electricity consumption by reflecting
the
amount of consumption multiplied by the appropriate tariff
(depending on the relevant tariff step) and reflecting
the appropriate
tariff;
[12.7] all other charges
and levies (e.g. demand side management levy,
service
and network charge).”
[13]
In terms of Section 95(d) of the Act the respondent must, where the
consumption of electricity has to be measured, take reasonable
steps
to ensure that the consumption by individual users of electricity is
measured through accurate and verifiable metering systems.
In terms
of Section 95(e) of the Act, the respondent must ensure that persons
liable for payments receive regular and accurate
accounts that
indicate the basis for calculating the amounts due. The respondent’s
contention is that it had already provided
the applicant with all the
information it sought as per the monthly account statements and that
the applicant failed to show that
the information requested from the
respondent (by way of its letter of 11 September 2017) was not
contained on the account statements
that the applicant has received –
especially as the account statements issued by the respondent contain
all the details and
information as set out in paragraph 10 of the
Answering Affidavit.
[14]
I agree with the respondent. It is evident that the applicant had
received monthly account statements from the respondent as
they were
attached to the applicant’s founding affidavit. The only
outstanding issue as contained in the notice of motion
is the
debatement of the account.
IS
APPLICANT ENTITLED TO THE DEBATEMENT OF THE ACCOUNT?
[15]
The respondent, relying on the decision in
Moila
v City of
Tshwane
Metropolitan Municipality
[1]
submits that the applicant, essentially, has no cause of action as it
has no right in law to debate the account. It is argued
that a
distinction must be drawn between the right to receive an account and
the right to debate an account. In
Moila,
Willis
JA held that a ratepayer is not entitled to the debatement of a
municipal account. He found as follows:
“
The
right to debate an account is not 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…….”:
[16]
In
Absa
Bank Bpk v Janse van Rensburg
[2]
Brand JA held that in order to succeed in a claim for delivery and
debatement of an account, a party would have to prove either
one of
the following categories of relationships: firstly, the
existence of a fiduciary relationship between the parties;
secondly,
a contractual obligation to do so; and thirdly, the existence of a
statutory duty obliging the other party to deliver
and debate an
account. The learned Judges stated as follows:
“
Dit
spreek eintlik vanself dat daar nie ‘n vertrouenshouding tussen
skuldeiser en skuldenaar bestaan nie… ek
kan nie aan
enige rede dink waarom ‘n skuldeiser in dié
omstandighede regtens verplig sou wees om die bedrag van die
eis teen
homself, te help bepaal nie”.
[18]
The applicant relies on s 95 (f) of the Act which provides for the
‘prompt redress for inaccurate accounts’. In
Molia
supra
the court held that s 95 does not
provide for the debate of the account and that s 95 is of no
assistance in a matter where the
relief sought is the statement and
debatement of an account.
[19]
In the present matter, the relationship between the parties does not
entitle the applicant to a statement and debatement of
account. In
accordance with generally accepted principles, the basis for the
underlying relationship between the applicant and
respondent is that
of debtor and creditor which falls outside the ambit of a fiduciary
relationship.
[20]
In the result the following order is made:
[20.1] The application is
dismissed with costs.
________________________________
L
WINDELL
JUDGE
OF THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA
Attorney
for applicant: Arnold Joseph Attorneys
Counsel
for applicant: Advocate C.D. Roux
Attorney
for respondent: Selolo Ramashilo Attorneys
Counsel
for respondent: Advocate PJ Kok
Date
matter heard: 13 June 2018
Judgment
date: 13 September 2018
[1]
[2017] ZASCA 15
[2]
2002 (3) SA 701
(SCA)