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[2016] ZAGPPHC 650
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Smit and Another v The Mbombela Local Municipality (73670/2015) [2016] ZAGPPHC 650 (29 July 2016)
IN
THE
HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
DATE: 29 JUJY
2016
CASE
NO.:
73670/2015
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
STEPHANUS JOHANNES PAULUS KRUGER
SMIT First applicant
THE BODY CORPORATE
OF
ELJO
GEBOU Second
applicant
and
THE MBOMBELA
LOCAL
MUNICIPALITY Respondent
JUDGMENT
VAN DER WESTHUIZEN, A J
1. The
applicants seek declaratory orders that are premised upon
the interpretation of the
respondent's Refuse (Solid
Wastes) and Sanitary By-Laws
together with an order for repayment of monies paid by
the first applicant to the
respondent in respect of services rendered by
the respondent and other
relief.
2. The
first applicant is Stephanus Johannes Paulus Kruger Smit. He
is the titleholder of all the
units in registered in the Sectional
Title Scheme in respect of the
ELJO Building.
3.
The
second applicant is the Body Corporate of the ELJO
Building.
4.
The respondent, the Mbombela Local Municipality,
opposes the application.
5.
The application and the
relief sought were premised upon
the provisions of the Refuse
By-Law that was published by the then Administrator as meant in
section 2 of the Local
Government Ordinance, 17 of
1939 in the Provincial Gazette by way
of Administrator's Notice No.
1171 on 16 August
1978.
6.
The opposition to the
application was similarly premised upon
inter
alia
that
Administrator's Notice and other
legislation.
7.
Heads
of
argument
were
filed
on
behalf
of
the
applicants
and
the respondent. In the
respondent's heads of argument, the reliance
on the said Administrator's
Notice in the application and the
opposition was challenged. It
was submitted in the respondent's heads
of argument that the said
Administrator's Notice had been
superseded by the publication
of the Mbombela Local Municipality Solid
Waste Management Bylaw
gazetted in the Provincial Gazette
Extraordinary on 25 April 2006
under Local Authority Notice 1054 (the current
Solid Waste
Bylaw).
8.
When the matter was
called, Mr Myburgh, who appeared on behalf
of the applicants conceded the
point in respect of the repeal of the
said Administrator's Notice
and the applicability of the current Solid
Waste Bylaw. A copy thereof was
handed into court. The current
Solid Waste Bylaw is the
applicable legislation to be considered in
respect of the relevant period
to which this application relates.
9.
The
relevant facts are common cause between the parties and
the only bone of contention
relates to the interpretation that is to be accorded to the
applicable provisions of the current Solid
Waste
Bylaw
This is to be read against the provisions of the applicable Tariff
Schedule.
10.
Before
dealing with the arguments presented by both counsel, it will be
prudent to set out the relevant provisions of the current
Solid
Waste
Bylaw.
11.
The
term "owner" is defined in the current Solid Waste Bylaw
as
"'owner'
includes
any
person that
has
the
title
to
any
premises
or land or any person receiving the rent or profits of any land or
premises from any tenant or occupier thereof, or who
would
receive such rent or profits if such land or premises were let,
whether for his own account or
as
an agent for any person entitled
thereto
or
interested therein:
Provided
that
the
'owner'
in
respect of the premises on the Sectional Title Register opened in
terms of
Section
12
of the Sectional Titles
Act, 1986
(Act 95 of 1986), means the body corporate
as
defined in that
Act, in
relation
to
such
premises;"
12.
The
current Solid Waste Bylaw defines the term "premises" to be
'"premises' means an erf or any
other portion of land,
including any
building
thereon or
any
other
structure
utilised
for
business, industrial or
residential purposes;"
13.
The
term "council services" is defined the current Solid Waste
Bylaw
as
'"council services' means
a
municipal service relating to the collection of waste,
including domestic waste and business waste
provided
exclusively by the
council
or
service
providers in accordance
with
the
provisions
of
the
Systems
Act;"
14.
Section 12(2) of the current
Solid Waste Bylaw stipulates
inter
alia
that
the council may determine the quantities of waste that will be
collected, which residential or commercial premises require
council services more
frequently than the regular collection service and
the maximum amount of waste
that may be placed for collection
without the provision of an
additional service or
the imposition of an
additional tariff.
15.
The current Solid Waste Bylaw,
in section 14 thereof, enables
the council to either levy
rates on property and/or determine tariffs for the provision of
council services.
16.
The liability to pay for
council services is determined in section 15(1) of the current Solid
Waste Bylaw which provides:
" The owner of premises is
liable to the council to pay the prescribed fee for the provision of
council services, and is
not entitled to exemption
from the liability to pay the prescribed fee by reason of his not
making use, or of making
a
partial or
limited use, of council services
regardless of whether the
council provides such
services
directly
of
through
a
service
provider."
17.
In my view, section 15(1) of
the current Solid Waste Bylaw clearly stipulates that the owner of
the premises, as defined, is
the party who is liable for the
council services rendered to those premises.
18.
It follows that in the present
instance the Body Corporate of ELJO Building, i.e. the second
applicant, is the "owner"
of the
relevant premises.
19.
Accordingly, the second
applicant is the party that is liable for payment of council
services rendered to the relevant premises.
20.
It follows that the applicants
are entitled to the declaratory
orders sought in prayers 1 and
3 of the notice of motion.
21.
There is a further issue
that requires consideration.
That issue relates to the tariff that should apply. However, this
issue was
resolved
between
the
parties
during
the tea
adjournment
and
an
agreement was reached in
respect of the wording of prayer 4 of the notice
of motion should the applicants
be
successful
in
obtaining
the requested declaratory orders. Accordingly it does not require
further attention.
22.
The first applicant seeks
repayment of the amounts paid to
the respondent,
amounting
to
R65
223.25,
in
respect
of
the
levying
of tariffs for the rendering of
council services to the relevant premises. The first applicant
alleges that he had paid those
monies in the
bona
fide
belief that he
was the party liable to pay. The respondent had issued invoices for
the council services rendered in respect of
each of the units in the
Sectional Title Scheme ELJO Building to the
first applicant as owner of
those units. The respondent had issued those invoices to the first
applicant in
view
of the respondent's interpretation of the Bylaw relating thereto.
23.
The
first applicant states that on the proper interpretation of the
relevant Bylaw, he
was
not the party liable for payment thereof and is thus entitled to
repayment as the respondent was
unjustifiably enriched at his
expense, his estate accordingly being impoverished thereby. The
relevant By-law is the current Solid
Waste Bylaw
having been published during
April 2006, i.e. prior to the issuing of the
said invoices to the first
applicant in respect of the council
services rendered to the
premises.
24.
Mr van Wyk, who appeared on
behalf of the respondent,
faintly submitted
that
in the
present
instance the first
applicant
was
for
all practical reasons the Body
Corporate of ELJO Building as he
was the registered owner of all
the units in
the Sectional Title Scheme of
ELJO
Building. In that regard, the Body Corporate of ELJO
Building would in all probability recoup the payment of the said
tariffs from
its members and hence the monies would in the present
instance be paid from the same "purse". Thus it would make
no
difference in the end and repayment was not required.
25.
However,
Mr van Wyk conceded, and correctly so, that the
Body Corporate of ELJO
Building was a separate legal
persona.
26.
Having found that the
applicants are entitled to the declaratory
orders sought, it follows that
the first applicant is entitled to repayment of
the amount of R65 223.25 in
respect of the monies levied for the council services
rendered.
27.
In view thereof that the
applicants are successful in obtaining
the relief sought, costs
should follow the event. Mr. van Wyk did
not contend otherwise.
28.
I grant the following
order:
(a)
It is declared that the
first applicant is not liable for the respondent's service charges
relating to the removal of
business refuse from the
premises situated at Erf 174, 15 Bell Street, Nelspruit;
(b)
It is declared that the
second applicant is liable for
the respondent's service
charges relating to the removal of
the business refuse from the
premises situated at Erf 174, 15 Bell Street,
Nelspruit;
(c)
It is declared that in
terms of the respondent's By-Laws
read with its Tariff Schedule
for the relevant financial year,
the respondent may only charge
a single monthly minimum refuse removal fee for each of the five
structures in the sectional
title
complex,
ELJO Building, subject to the second applicant
not exceeding the maximum
prescribed amount of waste for
the selected service, to
the second
applicant;
(d)
The
respondent is directed to repay the amount of R65 223.25 to the first
applicant;
(e)
The
respondent is to pay the costs of the
application.
CJ VAN WESTUIZEN
ACTING JUDGE OF THE HIGH
COURT
On
behalf of Applicants:JL Myburgh
Instructed
by:
Du
Toit-Smuts & Mathews Phosa
Attorneys
On
behalf of
Respondents: P van
Wyk
Instructed
by:Madonsela Mthunzi Attorneys