About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 553
|
|
Eastbury Body Corporate t/a Body Corporate 399 Marshall v City of Johannesburg and Others (2018/32995) [2018] ZAGPJHC 553 (18 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
2018/32995
In
the matter between:
EASTBURY
BODY CORPORATE t/a
BODY
CORPORATE 399
MARSHALL
Applicant
and
CITY
OFJOHANNESBURG
First
Respondent
CITY
POWER
Second
Respondent
MURRAY
ROBERTS & HOUSING
TVL
T
hird
Respondent
JUDGMENT
ADAMS
J
:
[1].
This is an urgent
application by the applicant for interim interdictory relief against
the first and second respondents. Some of
the relief prayed for by
the applicant is also in the form of a
mandamus
in that the applicant seeks declaratory orders. The cause of action
of the applicant is based on constant and continuous threats
by
representatives of the first and second respondents to terminate the
supply of electricity and water to the property situated
at 399
Marshall Street, Jeppestown, Johannesburg (‘the property’).
The property, so the applicant alleges in its founding
affidavit, is
‘managed by the applicant’.
[2].
In its notice of
motion the applicant applies for an order
inter
alia
in
the following terms:
‘
2.
An order interdicting the first and second respondents from
terminating the supply of electricity and water to the applicant’s
premises situated at 399 Marshall Street, Jeppestown, Johannesburg,
pending the resolution of the dispute lodged by the applicant.
3.
An order interdicting the first and second respondents from removing
the pre – paid meter boxes on the premises managed
by the
applicant situated at 399 Marshall Street, Jeppestown, Johannesburg.
4.
An order declaring that the applicant is not liable for the payment
of the amount reflected as outstanding under account number
205695353
on the basis that this account does not belong to the applicant, but
to Murray Roberts & TVL.
5.
An order directing the first and second respondents to open an
account in the name of the applicant and to invoice the applicant
under this new account for services and other related charges.
6.
An order declaring that the services and other related charges are to
the exclusion of charges for electricity as these are pre
–
paid.’
[3].
The applicant
describes itself as a duly registered Sectional Title Scheme in terms
of the Sectional Titles Act 95 of 1986 (‘the
Act’). This
description is problematic. I shall however assume in favour of the
applicant that what was meant was that the
applicant is a Body
Corporate as contemplated in the said Act, which would in turn mean
that the applicant manages the Sectional
Title Scheme, consisting of
four residential units, as provided for in the said Act. The
applicant itself does not own any
of the units, which, again
presumably, are owned by other individuals and / or corporations.
Some of these facts have to be presumed
because the applicant does
not deal with them in its application as it is required to do in
motion court proceedings.
[4].
Logically, the
first and second respondents supply water and electricity to the
owners of the individual residential units, and
this, according to
the applicant, is done through the medium of pre – paid meters
in respect of the electricity and, as regards
the supply of water,
the individual owners get billed directly. The applicant and the
individual owners took transfer of the property
and the individual
units during or about 2006. The details relating to the transfer of
the ownership is sorely lacking, and there
may very well be merit in
the contention on behalf of the first and second respondents that the
applicant has failed to demonstrate
what its exact relationship to
the property is.
[5].
On the 27
th
of August 2018, the respondents threatened to cut municipal services,
including electricity and water to the property. This was
done in the
form of a pre – termination notice to the third respondent.
Also, so the applicant alleges, on previous occasions
representatives
of the first and second respondents attended on the premises at the
property and cut the supply of electricity
and water to the property.
They did this on the basis that there is an amount of R156 871.39
due and payable to the first
respondent in respect of municipal
services payable in respect of the property.
[6].
The applicant
and the owners of the property dispute this. The applicant alleges
that there is in operation a pre – paid meter
or pre –
paid meters in respect of the supply of electricity to the property
and the individual units and that the applicant
and the owners pay
for the supply of electricity on the basis of paying in advance for
electricity to be consumed. Therefore, so
the applicant contends,
there cannot possibly be amounts due to the first and second
respondents in respect of the supply of electricity.
The details
relating to these pre – paid meters are scant as are the
particulars relating to the payments on these pre –
paid
meters. As regards the accounts relating to the supply of water and
other municipal services, it is the case of the applicant
that these
services are charged to and paid for by the owners of the individual
units. Again the details relating to these payments
are scant in the
extreme. Additionally, the one solitary invoice produced by the
applicant in support of the aforegoing assertion,
which is addressed
by the first respondent to the owners of one of the units,
contradicts this claim by the applicant. On this
invoice no debits
are raised relative to the supply of water. The only items debited by
the first respondent are for property rates
and refuse. No mention is
made of the supply of water to the property or to the individual
units.
[7].
There are two
difficulties with the applicant’s application.
[8].
The first
difficulty relates to the applicant’s
locus
standi in iudicio
.
In terms of section 2(5) of the Sectional Titles Schemes Management
Act, 8 of 2011, read with the
Sectional Titles Act, 95 of 1986
, a
body corporate is responsible for the enforcement of the rules and
for the control, administration and management of the common
property
for the benefit of all owners. By definition therefore the
applicant’s interest in this application would be of
a very
limited nature and would relate specifically to the supply of
electricity, water and other municipal services in relation
to the
‘common property’ at the premises in question. The bulk
of the electricity and other services would be supplied
to and at the
instance of the owners of the individual units. Any termination or
the threat of the termination of the supply of
services would then,
of necessity, affect and be of interest to the owners of the units
and not the applicant itself. This then
means that the individual
owners are the ones that should have instituted these motion court
proceedings and not the applicant,
whose interest, as I have
indicated, is of a very limited nature.
[9].
Therefore, the
application stands to be dismissed on the basis that the applicant
does not have the necessary
locus
standi in iudicio
.
[10].
Closely
related to the first problem with the applicant’s application
is the second one, which concerns the requirement that
the applicant,
who seeks an interim interdict, is required to satisfy the court that
it has a
prima
facie
right. I deal with this aspect of the matter in the context of the
requirements for an interim interdict which are the following:
that
the applicant has a
prima
facie
right; that the applicant is threatened with immediate and
irreparable harm; that the applicant does not have available an
alternative
remedy; and that balance of convenience favours it. In
that regard s
ee:
Pietermaritzburg
City Council v Local Road Transportation Board
,
195 (2) SA 758
(N) at 772 C-E;
Setlogelo
v Setlogelo
,
1914 AD 221
at 227;
Olympic Passenger Services (Pty) Ltd v
Ramlagan
,
1957 (2) SA 382
(D) at 383
A-E;
LF Boshoff Investments v Cape Town
Municipality
,
1969 (2) SA 256
(C) at
267 B-D.
[11].
The difficulty with the applicant’s
case is that, at best, it has failed to demonstrate what
prima
facie
right it relies on in order for
it to obtain the interim interdict. On the papers there appears to be
no contractual relationship
between the applicant and the first and
second respondents. In passing mention is made that the first
respondent has opened an
account in the name of the applicant. That
is as per advices from the first respondent to the applicant. The
applicant does not
deal in any way with the detail of this
relationship. Questions that remain unanswered are: What are the
terms and conditions of
the agreement between the applicant and the
first and second respondents? What municipal services are rendered by
the first and
second respondents to the applicant pursuant to the
contractual arrangement between them? Has the applicant been paying
for these
services and is its account with the first and second
respondents up to date? What payments, if any, have been made by the
applicant
to the first and second respondents in respect of the
supply of electricity and water, municipal rates and taxes and refuse
removal
in relation to the common property? These are questions which
are not dealt with in any way by the applicant in its founding
papers.
In the absence of these particulars, the applicant does not
even begin to prove a
prima facie
right on which to base an order for an interim interdict.
[12].
Furthermore, the applicant, being
the entity responsible for the management of the ‘common
property’ only, is not, as
a fact, supplied with water and
electricity and other municipal services. Common sense dictates that
it is the owners of the individual
units who would be supplied with
electricity and water. They would therefore be the ones who are
entitled as of right, be it on
the basis of a contractual
relationships or by virtue of the constitution of the Republic and /
or legislation, to the supply of
electricity and water. The right on
which to base interim interdictory relief therefore vests in the
owners of the individual units
and not in the applicant. The
individual owners are also the ones who would possibly suffer harm if
the interdict is not granted
and not the applicant. In that regard,
it is clear that there is a contractual relationship with the owners
of at least one of
the units, namely B D and K M G Mamatela, in whose
name an account has been opened with the first respondent.
[13].
Therefore, the applicant’s
urgent application stands to be dismissed on the basis that it has
failed to meet the requirement
that is has a
prima
faci
e right on which to found this
application for an interdict. The main difficulty with the
applicant’s application is the fact
it deals with issues in a
rather superficial manner and it does not make full disclosure to the
court. But however one views this
matter, the persons who should have
approached the Court for the relief claimed are the owners of the
units, who should have explained
in detail their relationship (if
any) with the first and second respondents and the financial history
between them arising from
that relationship. They should also explain
how the supply of water to the property is dealt with and whether the
applicant and
the owners pay for the supply of water. This important
issue is not dealt with at all by the applicant in its papers. The
consumption
of water at the property is apparently charged to the
account of the third respondent, which account is not paid because,
so the
applicant and the owners contend, the said account is
addressed to the third respondent. The fact of the matter is however
that,
on the version of the applicant, the consumption of water is
not paid for.
[14].
The
applicant’s application therefore stands to be dismissed.
Order
In
the result, I make the following order:-
1.
The applicant’s urgent application is
dismissed with cost.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD
ON:
14
th
September 2018
JUDGMENT
DATE:
FOR
THE APPLICANT:
18
th
September 2018
Mr
Mpho Mamatela
INSTRUCTED
BY:
Mamatela
Attorneys Inc
FOR
THE FIRST & SECOND RESPONDENTS:
Adv
L Nyangiwe
INSTRUCTED
BY:
Kunene
Ramapala Inc