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[2018] ZAGPJHC 668
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Arewa v City of Johannesburg Metropolitan Municipality (2017/40710) [2018] ZAGPJHC 668 (13 November 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2017/40710
In
the matter between:
ABDUL
RASAQ OLAWALE
AREWA APPLICANT
And
CITY
OF JOHANNESBURG METROPOLITAN MUNICIPALITY RESPONDENT
JUDGMENT
WINDELL,
J:
INTRODUCTION
[1]
This is an application brought by the applicant for payment of the
amount of R147 437.22 (One Hundred and Fourty Seven
Thousand
Four Hundred and Thirty-Seven Rand and Twenty-Two Cents) by the
respondent to the applicant within 20 (Twenty) days from
the date of
the order with interest at 10,25% per annum from date of judgment to
date of payment.
[2]
At the time of launching the application the applicant was the
registered owner of Erf 2120, Blairgowrie (“the property”).
[3]
A court order under case number 19412/2016 was handed down on 20
September 2016 ordering the respondent to deliver a duly vouched
and
accurate account in respect of the municipal services to the property
within 10 (ten) days of the order.
[4]
The applicant sold the property on 29 May 2017.
[5]
On 3 June 2017, the applicant’s transferring attorneys applied
for clearance figures.
[6]
On 20 September 2017, a court order was handed down ordering the
respondent to provide the applicant with figures relating to
the
property under case number 27329/2017.
6.1 On 21 September 2017,
the respondent provided the clearance
figures to
the applicant and indicated that an amount of R152 241.21
due to the respondent for the respondent to produce a
clearance
certificate as envisaged in terms of
section 118(1)
of the
Local
Government Municipal
Systems Act 32 of 2000
.
6.2 On 27 September 2017,
the clearance amount was paid by the
applicant.
It was submitted that the amount was paid in order to obtain
the clearance certificate.
6.3 On 24 October 2017,
the applicant launched this application for
repayment
of the amount not due to the respondent and paid under
protest.
6.4 On 31 October 2017,
the property was transferred to the new owner.
[7]
The main issue to be determined is if the payment qualifies as a
payment under protest or an application for a refund.
CLAIM
FOR REPAYMENT OF AMOUNT PAID UNDER PROTEST OR APPLICATION FOR A
REFUND?
[8]
The applicants rely on the matter of
Euphorbia
(Pty) Limited Trading as Gallagher
Estates
v City of Johannesburg
[1]
.
In this
matter Van Oosten J confirmed the principle that an amount paid under
protest and not due can be re-claimed.
[9]
In a letter dated 21 September 2017, the applicant informed the
respondent that he would make payment of the amount under protest
and
claim back the amount not due to the respondent.
[10]
It is submitted that the applicant only made the payment of the
amount under protest to obtain the clearance certificate he
required
to finalize the sale of the property.
[11]
In Commissioner for Inland Revenue v First National Industrial Bank
Ltd
[2]
, the court held that:
“
The addition of
the words “under protest when a payment is tendered can, so it
seems, fulfil one or more of several functions: (i)
The phrase can serve as
confirmation
that, in the broad sense, the payment was not a voluntary one or,
in the narrower sense, that it was due to duress.
The failure so to
stipulate could support an inference that the payment was
voluntary or that in truth there was no duress. (ii)
It can serve to anticipate or
negate an
inference of acquiescence, lest it be thought that, paying without
protest, the solvens conceded the validity or the
legality of the debt, or his
liability to
pay it, or the correctness of the amount claimed. The object is to
reserve the right to seek to reverse the payment.
The effect is not
to create a
new cause of action but to
preserve and protect an existing one namely, that
payment
was an indebitum solutum which is recoverable in law, e.g. by means
of the condictio indebiti or in terms of section
32(1)(a) of the Stamp Duties Act,
1968.
(iii) It could serve as the basis for an agreement between the
parties on
what should happen if the
contested issue is tested and resolved in favour of
solvens. Such an agreement would indeed would indeed
create a new and
independent cause of
action.
In the instant case
(i) is not applicable because the payment was a voluntary
one, not due to duress; and (ii) is not applicable
because, in the absence of
mistake, duress
or any other recognized ground for invoking the condictio
indebiti; there was no independent cause of action to
preserve or protest.
Hence the real
question is whether (iii) applies.”
[Commissioner
for Inland Revenue (supra) at 333]
[12]
The respondent submits that the payment made by the applicant was not
one made under duress – for similar reasons as
in the
Commissioner for Inland Revenue
matter referred to above.
[13]
It follows that the “payment under protest” could have as
function (ii) or (iii) as referred to in the
Commissioner for
Inland Revenue
matter .
[14]
Function (ii) as referred to in Commissioner for Inland Revenue has
as object to reserve the right to seek to reverse the payment.
The
effect is not to create a new cause of action but to preserve and
protect an existing one, namely, that the payment was an
indebitum
solutum
which is recoverable in law, e.g. by means of the
condictio indebiti
or in terms of legislation (section
32(1)(a) of the Stamp Duties Act, 1968 (
Commissioner for Inland
Revenue
matter).
[15]
In the present matter, a refund would be similar to the provisions of
section 32(1)(a) of the Stamp Duties Act as in
Commissioner for
Inland Revenue
matter. The applicant has however disavowed
reliance on a refund.
[16]
As far as (ii) in the Commissioner for Inland Revenue is concerned,
the respondent must therefore rely on recovery by means
of a
condictio indebiti.
[17]
The applicant has, however, failed to make out a case for relief
based on the
condictio indebiti,
amongst others by failing to
prove that it was the applicant that made payment of the amount paid
under protest and also, that in
the absence of mistake, duress or any
other recognized ground for invoking the
condictio indebiti
,
there was no independent cause of action to preserve or protect.
[18]
All that remains open to the applicant would therefore be to place
reliance on the third (iii) function as discussed in
Commissioner
for Inland Revenue.
[19]
This would entail an agreement to the effect that the amount would be
recoverable
if not due
.
[20]
If the applicant is therefore relying on this third function of
“payment under protest”, it was bound to show how
the
condition of the “agreement” for repayment between the
parties have been met, namely, that the amount paid “under
protest” was (eventually) determined not to be due.
[Commissioner
for Inland Revenue
(supra)
at 335]
[21]
Presumably in an attempt to show that the payment was not due, the
applicant raises a number of issues, none of which resolves
the
question on whether payment was made (even under protest) of an
amount that was determined not to be due to the Respondent.
[22]
To this end, the applicant refers to the account statement of
September 2016, that, according to the applicant reflected
indebtedness
of the applicant to the respondent of an amount of
R37 060.37. The applicant, however, never alleges that this
amount was
indeed paid (and only did so in reply).
[23]
The applicant refers to the account statement for July 2017 that
reflected indebtedness of an account of R1 578.43 towards
the
respondent and to the account statement for September 2017 that
reflected indebtedness of R4 803.99.
[24]
The applicant again failed to prove that these amounts were paid and
further does not deal with the fact that irrespective
of these
account statements, the indebtedness of the applicant has been
demonstrated in terms of the account statement of November
2017.
AMOUNT
LIQUIDATED AND CAPABLE OF EASY AND PROMPT ASCERTAINMENT
[25]
It is submitted that the amount claimed by the applicant is
liquidated as it is capable of speedy and prompt ascertainment
for
the following reasons:
25.1 On 20 September 2016
the court ordered that respondent to provide
the
with a vetted and accurate account;
25.2 The respondent duly
did so and provided the applicant with a vetted
accurate
account of R37 060.37.
25.3 This amount was paid
by the applicant and thereafter the applicant
received
monthly accounts from the respondent. The account for
September 2017 (the same month the clearance figures
were issued)
indicated that an amount of
R4 803.99 was due to the respondent.
25.4 The applicant has
admitted that the municipal charges for October
2017
should be deducted from the amount that needs to be repaid
as
the property was transferred on 1 October 2017.
25.5 It is therefore
submitted that the amount that needs to be repaid to
applicant
can simply be calculated as follows:
25.5.1
R152 241.21 (clearance figures paid) – R4 803.99
(amount
due in September 2017) – amount due
for October 2017) =
amount payable to applicant.
[26]
The respondent submitted that when determining the clearance amount
it scrutinized and vetted the account to come up with the
number.
[27]
The respondent itself had vetted and scrutinized the same account as
per a court order in September 2016 and provided the applicant
with
an amount of R37 060.37 that the applicant duly paid.
[28]
The allegation by the respondent that the account went up with
R152 241.21 in a year with the applicant paying monthly
accounts
received from the respondent cannot be held.
THE
APPLICANT SHOULD HAVE FORESEEN THAT THE AMOUNT WOULD BE DISPUTE
[29]
It is submitted that the applicant should have foreseen that the
amount would be disputed. I cannot agree for the following
reasons:
29.1
The calculation set out above is an easy and quick one;
29.2
The respondent has already vetted the account in September 2016;
29.3
The applicant had been receiving monthly accounts since September
2016.
PREMATURE
INSTITUTION OF LEGAL PROCEEDINGS
[30]
The respondent alleges that the applicant instituted legal
proceedings prematurely and should have applied for a refund in
terms
of the respondent’s Credit Control and Debt Collection By-Laws.
[31]
This is not an application for a refund and the Debt Collection
Policy is not applicable to the matter.
[32]
The applicant, upon receiving the clearance figures and given the
long history of the matter could clearly see that the figures
were
incorrect and followed the principle set out in the matter of
Euphorbia
referred to above to make payment of the amount
under protests.
[33]
The applicant informed the respondent on 21 September 2017, that it
would pay the amount under protest and institute these
proceedings to
recover the amount not due to the respondent.
[34]
The applicant only made payment of the amount under protest to obtain
the clearance figures he required to finalize the sale
of the
property.
[35]
The applicant had no other recourse, but to launch these proceedings.
IS
APPLICANT ENTITLED TO REPAYMENT OF MONEY?
[36]
The respondent’s main defence is that it vetted the municipal
account and found only R10 634.71 is due to the applicant.
[37]
In support of this allegation the respondent annexed annexure “TN2”
to its answering affidavit and alleges that
the account shows all the
charges on the property over the entire period that the applicant was
the owner as well as all the payments/transfers
received.
[38]
The account does not show all the payments/transfers received from
the applicant and only shows an alleged lump sum amount
apparently
received from the applicant over the period he was the owner of the
property.
[39]
The respondent had already vetted the account and provided the
applicant with an amount of R37 060.37 in September 2016
as per
a court order handed down by the above Honourable Court under case
number 2016/19412.
[40]
In the matter of
Argent
Industrial Investment (Pty) Ltd and Ekurhuleni
Metropolitan
Municipality
[3]
,
the
court held that water and electricity charges prescribe after three
years. Any water and electricity charged older than three
years that
the respondent added to the account which had not been charged for
previously had prescribed. The court also pointed
out that
prescription to run when the Municipality should have become aware of
the charges and not when an account is issued.
[41]
Section 96 of the Local Government: Municipal Systems Act 32 of 2000
(“the Act) holds that:
“
A municipality –
(a)
must collect all money that is due and payable to
it, subject to this Act and
any other applicable
legislation; and
(b)
for this purpose, must adopt, maintain and
implement a credit control and debt collection policy which is
consistent with its rates
and tariff policies and
complies
with the provisions of this Act.”
[41]
In the Constitutional Court case of Jordaan
et
al
v
The City of Tswane Metropolitan Municipality
et
al
[4]
,
the
court specifically dealt with the duty imposed on Municipalities
under section 96(a) of the Act. The court specifically pointed
out
that a municipality has a duty to send out regular accounts, develop
a culture of payment, disconnect the supply of electricity
and water
in appropriate circumstances and take appropriate steps to collect
amounts due.
[42]
In
Euphorbia
referred to above at paragraph 8 this court held
that the onus is on the Municipality to prove the correctness of its
accounts.
[43]
The above matters show that the duty to accurately account is with
the respondent and that the respondent should have all the
information (including the specific payments received) relating to
the account on its system.
[44]
The onus of proving the correctness of its accounts and in this
matter annexure “TN2” is with the respondent. (
See
Euphorbia
).
[45]
After the respondent vetted the account in September 2016, following
the court order referred to above, it sent the applicant
monthly
accounts, the last account being in September 2017 which showed that
an amount of R4 803.99 was due to the applicant.
[46]
The allegation that the account had gone into arrears by R152 241.21
in a year (with the applicant receiving monthly accounts
which he
paid) after the account had been vetted by the respondent in
September 2016 is simply not plausible.
[47]
In addition to the above if it is found there are indeed charges that
the respondent missed in its vetting during September
2016, water and
electricity charges older than three years cannot be considered as
per the
Argent Industrial Investment (Pty) Ltd
judgment
referred to above.
_________________________
L.
WINDELL
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Attorney
for applicant: Neels Engelbrecht Attorneys
Counsel
for plaintiff: Advocate D Landman-Louw
Attorney
for defendant: Sello Ramashilo Attorneys
Counsel
for respondent: Advocate P.J. Kok
Date
matter heard: 28 August 2018
Judgment
date:
[1]
[2016] ZAGPPHC 548 at 10
[2]
[1990] 2 All SA 327 (A)
[3]
Argent Industrial
Investment (Pty) Ltd and Ekurhuleni Metropolitan Municipality
(17808/2016) [2017] ZAGPJHC 14;
2017 (3) SA 146
(GJ) (13 February
2017 at para 11 to 20
[4]
2017 (6) SA 287
(CC)