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[2016] ZAGPPHC 987
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Van der Merwe v City of Tshwane Metropolitan Municipality (19347/2014) [2016] ZAGPPHC 987 (28 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
19347/2014
In
the matter between
BAREND
JOHANNES VAN DER
MERWE
APPLICANT
and
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
RESPONDENT
JUDGMENT
LIVORSTER,
AJ:
1.
This case concerns the question whether an owner of property within a
municipal area is liable to the Local Authority in question
for the
payment of electricity charges incurred by a tenant of its property.
2.
The relevant facts are simple and can be summarized as follows:-
2.1
The Plaintiff is and was at all relevant times the owner
of two
properties situated within the area of jurisdiction of the Defendant
as Local Authority: Erf 99 Bellview situated at 521
Moreleta Street,
Bellview, Pretoria and Erf 98 Bellview situated at 266 Robert Street,
Bellview, Pretoria.
2.2
Both these erven are zoned industrial and were let by
the Plaintiff
to a company named Classique Sales (Pty) Ltd. The company entered
into an agreement with the Defendant for the supply
of electricity by
the Defendant to the company in relation to the aforesaid two
properties.
2.3
During the period 1s1 of March 2010 and 30 October 2013,
the
aforesaid company incurred debts for electricity supply. In the
course of time the company got into arrears with its payment
of
electricity charges and has since become liquidated.
2.4
The Defendant contends that the Plaintiff as owner of
the aforesaid
properties is liable for payment of the electrical charges of the
aforesaid company incurred whilst it was the tenant
of the aforesaid
two properties. The Plaintiff disputed its liability to the Defendant
as alleged by the Defendant and approached
this Court for a
declaratory order. The declaratory order is an order declaring that
the Plaintiff as owner of the said properties
is not liable for the
electrical charges of its erstwhile tenant. The Defendant filed a
counterclaim in which the Defendant claims
from the Plaintiff an
amount of R2 104 803,03 and interest and costs, being the alleged
liability of the Plaintiff in respect of
the electricity charges
which had become payable by the aforesaid company as the tenant of
the Plaintiff in respect of the aforesaid
two properties.
3.
As appears from what I have already said, the crucial legal question
in this case is whether, and to what extent, an owner of
property
within a municipal area is liable for electrical charges contracted
for by its tenant in the event of such charges not
being paid by the
tenant.
4.
In essence the Defendant alleges in its contention that the Plaintiff
as lessor, is liable for the electrical charges of its
tenant, the
Defendant implicitly relies on joint and several liability of the
Plaintiff and its lessee in respect of payment of
the electricity
charges. There can be no other legal ground on which the Plaintiff as
lessor can be held liable for the electricity
charges of its tenant
which is a completely separate legal persona than the Plaintiff. At
common law, joint and several liability
for payment of debts
presupposes a pre-existing underlying liability of all parties in
respect of that debt - for example, as surety
and co-principal debtor
to the principal debtor which is a voluntarily assumed
in
solidum
liability, by agreement.
Vide:
Ekurhu
l
eni Metropolitan
Municipality v Anzotrax
(Pty)
Ltd
(2016)
ZAGPJHC
178,
a decision of the Full Bench of the Gauteng Local Division,
Johannesburg.
In
casu,
there is no allegation of an agreed contractual
relationship between the Plaintiff, the tenant and the Defendant in
terms of which
the Plaintiff assumed liability for the debts of its
lessee. What remains to be considered is the question whether there
is any
statutory authority for the proposition that the Plaintiff is
liable for the debts of its lessee in respect of electricity charges.
The Defendant relies on the City of Tshwane Metropolitan Municipality
Standard Electricity Supply Bylaws published in terms of
Local
Authority Notice No 1076 published in the Extraordinary Provincial
Gazette dated 71h of August 2013. The concluding paragraph
of that
Local Authority notice provides that the bylaws and policy will come
into operation on date of promulgation thereof. In
Section 1thereof
the concept of consumer is defined as follows:
"'Consumer'
means the
occupier of
any
premises in which
the municipality
has
agreed
to
supply
or
is
actually
supplying
electricity,
or, if
there
is
no
occupier, the
person
who
has entered into
a
current valid
agreement
with the municipality
for the
supply
of
electricity
to
the premises, or
if
such
a
person
does
not exist
or
cannot
be
traced
or
has absconded
or
for whatever reason is not able to
pay,
the
owner of the premises."
5.
Municipal bylaws are subordinate legislation which, for their
validity, depends on the question whether they fall within or outside
the limits of the empowering legislation which provides for their
formulation and promulgation. That much, with respect, is trite
law.
The tail cannot wag the dog.
6.
Section 118(3) of the Municipal Systems Act (Act No 32 of 2000)
provides as follows:-
"(3)
An
amount
due
for
municipal
service
fees,
surcharges
on
fees,
property rates and other
municipal taxes, levies and duties is
a
charge
upon
the
property in
connection
with
which
the
amount
is
owing and
enjoys
preference over
any
mortgage bond
registered against the
property."
Section
118(3) of the Municipal Systems Act has been interpreted to mean
nothing more than the imposition of a burden on the property
which
affords security to the Local Authority in the event of insolvency or
a sale in executio.n of the property concerned.
Vide:
City
of Tshwane
Metropolitan
Municipality v
Thomas
Mathabathe & another
(502/12)
(2013) ZASCA 60.
Perregrine
Joseph
M
i
tchell
v
City
of
Tshwane
Metropolitan
Municipal
Authority
,
case
no.
50816/14
SCA
at
23,
where the following was said:
"In
the
absence
of
an
agreement
to
that
effect,
the
(Respondent)
has
not
become
a
co-debtor with
regard to the
principal
debt.
But,
as
has
been
shown
above,
the
sale
in
execution
and
subsequent
transfer
of
the
property
into
the
name
of
the Respondent did not extinguish the
hypothec created by section 118(3)
of
the
Act
in
favour
of
the
Appellant."
7.
The definition of
"consumer"
in the electricity
bylaws quoted above saddles the owner of the land in question with
liability
in solidum
for payment of the charges and fees in
respect of electricity consumption which such occupiers or lessees
have contracted with the
Local Authority to pay. That is clearly a
deviation of the common law which I have referred to above. I find no
authority in Section
162 of the Constitution or the provisions of the
Municipal Systems Act authorising bylaws rendering the owner of
property liable
in
solidum
for the
electrical consumption fees of occupiers or lessees or whoever else
on the property. I am consequently driven to the conclusion
that the
definition of
"occupier"
in the electrical
bylaws is
ultra vires
the empowering sections of any
legislation in terms of which it was formulated or promulgated, to
the extent that an owner of land
is liable for the electricity
charges of anyone else but the owner itself. Consequently, in my
view, the Defendant did not make
out a case that the Plaintiff as
owner of the properties is liable for the electricity charges of the
tenants. It also follows
that I am of the view that the Plaintiff is
entitled to the declaratory order it seeks.
8.
There is in my view another obstacle in the way of the Defendant in
respect of its counterclaim. It is common cause that the
lessees
incurred debts in respect of electrical charges between the period
1•t of March 2010 and 30th of October 2013. The
standard
electricity supply bylaws of the Defendant were promulgated on the
7lh of August 2013. They came into operation on that
date which is
clear from the last paragraph of the Local Authority Notice No
227/1076 promulgated on the 7th of August 2013. Section
13(b) of the
Municipal Structures Act provides that a bylaw passed by a Municipal
Council takes effect when published, unless a
future date is
determined by or in terms of the bylaw. In the instant case the
bylaws took effect on the 7th of August 2013, being
the date of
promulgation. It follows that, prior to 7th of August 2013, the
bylaws had no effect on the Plaintiff. Consequently
all debts
incurred by the tenants prior to 7lh of August 2013 could not, in
terms of the bylaws, be debts for which the Plaintiff
as owner became
liable. There was no evidence indicating what portion of the amount
claimed by the Defendant in the counterclaim
is debts incurred before
and after 7th of August 2013. On this ground also, the Defendant
cannot succeed with its counterclaim.
9.
In the premises of the aforegoing, it follows that I am of the view
that the Plaintiff succeeded in proving its entitlement to
the
declaratory order it seeks and that the Defendant failed to prove any
entitlement in terms of its counterclaim. I make the
following order:
"a)
The Plaintiff
is
declared
to
be
not
liable
for
the
debt
incurred
by
Classique
Sales CC to the
Defendant In
respect of electricity
charges
for
electricity
consumed
up
and
until
30
th
of October
2013;
b)
The
Defendant's counterclaim is dismissed;
c)
The
De
f
en
d
ant
is ordered
to
pay
the Plaintiff's
costs
of suit."
_____________________
L
I VORSTER, AJ
27
October 2016