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[2016] ZAGPPHC 497
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Herbst and Another v City of Tshwane (32443.2015) [2016] ZAGPPHC 497 (27 May 2016)
REPUBLIC OF
SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 32443/15
DATE
OF JUDGMENT:27 MAY 2016
In the matter
between:-
PETRUS LOUW
HERBST
First Applicant
JACOBS &
SMILAWSKI CC
Second Applicant
and
CITY OF
TSHWANE METROPOLITAN MUNICIPALITY Respondent
JUDGMENT
KOOVERJIE
A
J:
A.
APPLICATION:-
1.The
Applicant seeks interim interdictory relief against the Respondent
from terminating the water and electricity supply to the
property,
pending the outcome of the action to be instituted by the Second
Applicant for a declarator to be instituted by the second
applicant
within 15 days.
Previous
Litigation
2. At this
juncture it is necessary to deal with the previous applications
brought by the applicants. The issues between the parties
have been
dealt with by our courts since 2011.
3. In 2011 the
second applicant launched an application against the respondent
requesting the restoration of the water and electricity
supply to the
property coupled with an order declaring the respondent to be in
contempt of court in respect of a Magistrate's court
decision. An
interim order was granted in the second applicant's favour. However
the
rule nisi
lapsed.
4. The opposed
application was then set down before Judge Kubushi on 10 July 2013
and was dismissed with costs. The order read that
the
rule
nisi
was discharged. This judgment has been attached as
Annexure "COT1" to the respondent's answering papers and
will be dealt
with in detail below.
5. The second
applicant obtained leave to appeal to the Supreme Court of Appeal.
The Supreme Court of Appeal requested additional
heads in
interalia
addressing the court on whether or not the order was appealable
due to the fact that the
rule nisi
had lapsed. The applicants
decided not to proceed with the appeal and filed their notice of
withdrawal on 20 August 2014.
6.Counsel for the
respondent, submitted that the issues in dispute had already been
dealt with by Judge Kubushi and raised the point
of
res judicata
.
The matter was dealt with as an opposed matter. Although the
rule
nisi
had already lapsed, counsel representing both parties agreed
between themselves and approached Judge Kubushi that the matter would
be argued on the basis that the Applicant seeks a final order as set
out in the Notice of Motion.
7. It was further
submitted that the order given by Kubushi J namely that the
"rule
nisi
is discharged" instead of dismissing the application
with costs was an oversight on her part.
This explanation
was relayed to the Supreme Court of Appeal by way of heads which the
Judge President had requested.
9. However, counsel
for the applicant submitted that since Kubushi J's order is
irregular or the term she used "non sensical"
this court
should not have regard to it. In light of this a dispute still
persists between the parties and no determination has
been made in
this regard
10. On the
conspectus of the evidence before me, I find that Kubushi J dealt
with the issues in dispute and the application proceeded
as an
opposed application where the parties agreed to a final
determination. I reiterate paragraph 2 of Kubushi J's judgment:
"...
The
matter was in court again on 13 March 2013 and it
was
postponed sine die. When the matter appeared before
me
on
22 April
2013,
the
rule
nisi
had
expired
but
the applicant
still
persisted
with the relief
sought."
On this basis,
therefore this court would consider the judgment of Kubushi J.
B.
BACKGROUND
:-
11. The Second
Applicant is the registered owner of the property situated at 262
Charles Street, Brooklyn in Pretoria.
12.There are two
separate accounts in respect of the property. The water and
electricity account is in the name of AB Truter, a
previous tenant of
the property. This account is not in arrears and is duly paid. The
First Applicant resides and runs a business
from this property. Since
occupation, the first applicant has not changed the account to his or
his business' name.
13. The
rates and taxes account is in the name of the second applicant. The
Second Applicant is obliged to pay the rates and taxes
account. He
alleges in the papers that he pays an amount of R3 500,00 per month.
At the time of the application, the property was
zoned as a
"residential area". Since the Applicants are conducting a
dive business on the property, the property was
considered to fall
under "non-permitted use".
14.
The rates and taxes account remains in substantial arrears. As
a result thereof the electricity services to the property had been
terminated on or about August 2011. It was on this basis that the
Applicants approached Court for urgent relief.
(i)
"A
Dispute"
15.
Counsel for the applicant argued that a dispute between the
parties still exist concerning the calculation of the rates and taxes
amount, hence they are entitled to the interim relief.
16.
The Applicants rely on Section 102(2) of the Local Government
Municipal Systems Act, 32 of 2000
( "the Municipal Systems
Act').
On their understanding thereof, the municipality may not
consolidate the separate accounts of persons nor implement debt
collection
in respect of the arrear amount, if there is a
dispute
between the municipality and a person referred to concerning any
specific amount claimed by the municipality from thatperson. In
other
words since a dispute persists between the parties, the municipality
is prohibited from enforcing its debt collection on
the arrear
amount. Counsel for the respondent submitted that the applicants have
misconceived the interpretation of Section 102
of the aforesaid Act.
Reference was made to
Rademan v Moghaka Municipality
&
Others
2012 (2) SA 387
(SCA) in par 1
9,
where it clarified the interpretation of the aforesaid
section:
"[19]
This section makes it clear that in pursuit of its obligations
to
charge and receive payments for
municipal services,
a
municipality
has the
option
to consolidate the
accounts for
various services it provides ... It should
be borne in mind that
water and electricity are not the
only municipal services that
a
municipality is
responsible for... Thus
a
failure to pay rates
and taxes is likely to have very serious consquences."
17.
The Respondent contended on the papers, that no dispute
existed between the parties, neither has any formal dispute been
lodged
by the Applicants as required in terms of the by-laws.
18.
The Applicant's argument was
inter alia
the following:
18.1 a dispute
exists in respect of the arrear amount in respect of the rates and
taxes;
18.2 the word
"dispute" has not been defined in the Municipal Systems
Act. It is thus imperative for the court in the
action proceedings
make a determination.
18.3 the
Applicants submitted that, despite the meeting held on 18 August 2014
and the Second Applicant's letters dated 20 August
2014 and 21 May
2015, the Respondent had failed to provide the Second Applicant with
an explanation upon which the calculation
was made.
18.4 the Respondent
persists with its view that it is entitled to charge the rates and
taxes based on the
"non-permitted
use"
of the property. The Respondent is not entitled to charge a
higher rate in respect of the full property as a result of the fact
that only 30% is being used for business purposes.
18.5 The
Respondent is not entitled to charge a penalty to the First Applicant
since the property is used for multiple purposes
as contemplated in
Sections 9(1) and 9(2) of the Municipal Property Rates Act. The rates
should have been calculated in accordance
with these provisions.
18.6 The Applicants
further contended that at no stage prior to this application had the
Respondent formally notified the Applicants
of its intention to
terminate the water and electricity services. Itis on this basis that
the Applicants should be granted interim
relief.
(ii)
Judge Kubushi's
Judgment
19.
As
already alluded to above, this Court's attention was drawn to a
previous matter launched by the second applicant under case number
47730/2011, in the matter between
Jacobs and Smilawaski and
the City of Tshwane Metropolitan Municipality.
Having
read the judgment I find that, Judge Kubushi had dealt with the
aforesaid issue in dispute. This very
"dispute"
has
once again been brought before this Court.
20.
The
Court made the following findings in respect of the aforesaid dipute:
•
Paragraph
21
"The
Applicants' property thus falls squarely within the category. It is
common
cause
that
the property
is
currently
zoned
for
residential
usage. Even though the Applicant alleges that he has
applied for the rezoning of the property, it is not in dispute that
the property
has not been rezoned. By
operating a
business on the property the
Applicant
is doing
so
in contravention with
the permitted use of the property. The Respondent is thus entitled to
levy y the rate as it d
oes. There is no reason and
the Applicant himself has provided none for the Respondent to be
charging rates for business and
commercial
usage. There
is
no
reason
provided for
in
either
policy
or
the
bylaws for the rates which the Applicant wants to enforce. The
property
is currently
3
areas
as
residential
and residential
use
rates
must
be
applicable but
once the Applicant is
using the property
for
the
purpose for which it is not zoned 'non permitted use' rates must be
l
evied."
(my emphasis)
•
When
considering whether the Respondent was entitled to disconnect the
Applicants water and electricity supply, Kubushi J stated
at para 23:
"The
Local Government Systems Act 32 of 200 (the Systems Act) is a
legislative measure that seeks to support and strengthen
the capacity
of municipalities to manage their own affairs. Section 96 thereof
provides for every
municipality
a credit
control
and
debt
collection
policy.
The municipalities are therefore mandated by Section
96(1)(a) to collect
all money that is due
and payable.
In terms of Section 97(1) a
credit control and debt
collection
policy
must
provide
for
amongst
(a)
credit
control procedures
and mechanisms (b) debt collection procedures and mechanisms and (g)
provision for termination of municipal services
or restriction
of the provision
of
municipal
services
when
payments of ratepayers are in arrears
....
•
At
paragraphs 24 and 26 she makes the following findings:
[24]
It is clear from the above mentioned that a
municipality
has the power to terminate
or restrict the provision of municipal services when a resident is in
arrears for payments for services
...
"
[26]
On
the basis of the b bylaws the Respondent
is
therefore entitled to terminate the services of water
and electricity to the property of the Applicant
when he is
in arrears with
his payments in respect of any of his
s
ervices.
In this instance,
I
have already made a finding;
the Applicant is in arrears with the payment of the rates account of
the property."
(my emphasis)
21.
This Court is of the view that the dispute is before the Court
on the same facts and in respect of the same parties. The relief
sought however was different. In the previous matter the Second
Applicant (the Applicant in that matter) requested relief to order
the Respondent to restore the water and electricity account. In this
matter the relief sought is to interdict the Respondent for
"terminating the water and/or electricity
supply".
22.
Since the Court has already made a finding on the
"dispute"
it falls away. I am in agreement that with the findings
therein and had further applied my mind to the provisions of the
relevant
legislation. The respective provisions the Municipal Systems
Act as well as the Credit Control By-Law which empowers the
municipality
to restrict and disconnect the supply of municipal
services.
23.
More specifically: cognisance is taken of the relevant
legislative provisions namely:
•
Section
97(1)(g)
of the Municipal Systems Act stipulates:
"(1)
A credit control and debt collection policy provide for-
(g)
termination of services or the restriction of the
provisions of services when payments are in
arrears."
•
Section
5(2)(b)
of the Municipal Systems Act stipulates that members of
the community have a duty to pay service fees, sub-charges on fees,
rates
on property and other taxes, levies and duties imposed by the
municipality promptly.
•
Section
5(2)(a)(i)
of the Credit Control By-Law further stipulates:
"(a) The
council may, restrict or disconnect the supply of water, gas and
electricity, or discontinue any other service to
any premises
whenever a user of any service:
(i)
fails to make
full payment on the due date or fails to make
acceptable
arrangements for the repayment of
any amount for
services, rates of taxes."
•
Clause
5.2(d)
of the Credit Control By-Laws empowers the entities of the
municipality to terminate services of one account if another account
is in arrears,even when the account is in the name of a different
person.
•
Clause
5.4(b)
of the Credit Control By-Laws stipulates that even in the
event that a dispute exists in respect of the amount owing by an
owner
in respect of municipal services the owner is required to make
regular minimum payments based on the calculation of the average
municipal account.
C.
INTERIM RELIEF
24.
It is settled law that for the Applicants to succeed in
obtaining interim relief it has to establish:
24.1 a
prima
facie
right;
24.2 a
well-grounded apprehension of irreparable harm if the interim relief
is not granted and the ultimate relief if it is eventually
granted;
24.3
a balance of convenience in favour of the granting of the interim
relief; and
24.4 the absence
of any other satisfactory remedy.
Prima
facie
rights
25.
In demonstrating that the Applicants have a
prima facie
right they have to demonstrate that they have a right upon a
balance of probabilities and that the Respondent has threatened such
right.
26.
The
high watermark of the Applicant's case and consequently their rights
was premised on Section 102(1) and 102(2) of the Municipal
Systems
Act. In essence, since a dispute exists between the parties, Section
102(2) prevents the Respondent from pursuing the arrear
rates and
taxes as well as restricting the water and electricity supply.
27.
This court finds that the Applicant's rights are premised on a
misconstrued interpretation of the aforesaid provision.
28.
As
already alluded to above, the relevant provisions of the Credit
By-Laws entitles the Respondent to terminate the water and
electricity
services. Kubushi J had dealt with the issues in dispute
between the parties and made a finding thereon.
Irreparable
Harm
29.
The test in this regard is an objective one i.e. on the basis
of the facts presented to it, the court must decide whether there is
any basis for the entertainment of a reasonable apprehension of
injury to the Applicant.Irreparable loss in this instance would
be if
the Applicants are entitled to the services in issue and it is taken
away from them.
30.
It is trite law that if the Applicant establishes a clear
right then this test is not necessary. In
Setloqelo v
Setloqelo
1914 AD 221
at 2
27,
the court
stated
"the test must be applied whether the continuance of a
thing against
which an interdict is sought would cause
irreparable injury to the
applicant."
31.
The Applicants have not established a
prima facie
right
and thus there exists no basis to entertain if there would be
irreparable injury caused to the Applicant.
Balance of
Convenience
32.
In this instance this court must weigh the prejudice to the
Applicant if the interim interdict is refused against the prejudice
to the Respondent if it is granted. This is normally considered in
light of the prospects of success in the main action. The stronger
the prospect of success, the less need for the balance of convenience
to favour the Applicant. The weaker the prospects of success,
the
greater the need for the balance of convenience to favour him.
33.
The
Applicants have indicated that a business is being managed on the
premises and the provision of water and electricity services
are
crucial to the operation of the business. The Respondent on the other
hand, submitted that arrears in municipal accounts are
detrimental to
the efficient running of the Respondent.
find that the
Applicants' prospects of success in the main action are not
promising. As already alluded to above, they have
not established a
prima facie
right.
No Other
Satisfactory
Remedy
35.
In the absence of another adequate remedy, a court should
grant interim relief. Counsel for the Applicants emphasised that the
applicants
have no other alternative remedy. The Respondent is the
service provider who is responsible to make the municipal services
available
to the Applicant. They
require
these services for their
business.
[1]
36.
The alternative remedy is to comply with Clause 5.4(b) of the
Credit By-Laws by making the minimum payments or enter into an
arrangement
with the Respondent on the outstanding arrears.
37.
It is trite law that a court should exercise its discretion
judicially upon a consideration of all facts. This court further
takes
cognisance of the fact that the "dispute" between the
parties have been ongoing long before the first application was
lodged in the Magistrate's Court.
38. Kubushi J dealt
with the facts of this matter in detail,the same issues in dispute
which were again presented in this court,
which judgment had already
been delivered on 10 July 2013. After lodging an appeal in the
Supreme Court of Appeal, they withdrew
such appeal on 20 August 2014.
There are no new facts before this court, particularly on what the
Applicant has done to resolve
the matter, and in settling the arrear
rates and taxes .
39. It is common
cause that this account is in arrears. Kubushi J had made a finding
that the calculation method applied by the
Respondent was in line
with premises which fell under "non-permitted uses".
D.CONCLUSION:-
40. Consequently
the Applicants are not entitled to the interim relief they seek. This
court has noted that the Applicant has requested
the Respondent to
furnish it with the calculation formula. The Respondent has an
obligation to furnish the Applicant with the calculation
method and
the updated calculation itself.
ORDER:-
The
following order is made:
(1) The
application is dismissed with costs.
(2) The
Respondent is requested to furnish the Applicant with a detailed
updated calculation of the arrear amount in respect of
the rates and
taxes to date, as well as the calculation method it applied within 5
days of date of judgment.
(3) The
Respondent restricted from terminating the access of the water and
electricity services to the property for a period of
1 month, which
period is calculated from the date of this judgment.
KOOVERJIE
AJ
Acting Judge
Date of
hearing: 7 June
2016
Parties:Applicants'
attorney:
Schooner
Attorneys
Applicants'
counsel:Adv. C Grabler
Respondent's
attorney: Matabane
Attorneys
Respondent's
counsel: Adv. N Erasmus
[1]
Olympic Passenger Service (Pty) Ltd v Ramlagan
1957 (2) SA 382
(D)
at 383 E -F
14
1