Jordaan and Another v City of Tshwane Metropolitan Municipality and Others; New Ventures Consulting & Services (Pty) Ltd and Others v City of Tshwane Metropolitan Municipality and Another; Livanos and Others v Ekurhuleni Metropolitan Municipality and Another; Oak Plant Rentals (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality (74195/2013; 13039/2014; 13040/2014; 19552/2015; 23826/2014) [2016] ZAGPPHC 941; [2017] 1 All SA 585 (GP); 2017 (2) SA 295 (GP)  (7 November 2016)

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[2016] ZAGPPHC 941
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Jordaan and Another v City of Tshwane Metropolitan Municipality and Others; New Ventures Consulting & Services (Pty) Ltd and Others v City of Tshwane Metropolitan Municipality and Another; Livanos and Others v Ekurhuleni Metropolitan Municipality and Another; Oak Plant Rentals (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality (74195/2013; 13039/2014; 13040/2014; 19552/2015; 23826/2014) [2016] ZAGPPHC 941; [2017] 1 All SA 585 (GP); 2017 (2) SA 295 (GP)  (7 November 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 74195/2013
In
the matter between:
CHANTELLE
JORDAAN
1
st
Applicant
NEW
VENTURES CONSULTING & SERVICES (PTY)
LTD
2
nd
Applicant
and
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
1
st
Respondent
THE
MINISTER OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
2
nd
Respondent
Case
No: 13039/2014
In
the matter between:
NEW
VENTURES CONSULTING & SERVICES (PTY)
LTD
1
st
Applicant
CLASS
OF AFFECTED MUNICIPAL SERVICE
CONSUMERS
2
nd
Applicant
F
M
KEKANA
3
rd
Applicant
M
R
MALEBOLOA
4
th
Applicant
S
R
MALEBOLOA
5
th
Applicant
M
MAMOTSAU
6
th
Applicant
and
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
1
st
Respondent
THE
MINISTER OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
2
nd
Respondent
Case
No: 13040/2014
In
the matter between:
BILLIE
ANN
LIVANOS
1
st
Applicant
LEAH
HENDERSON
2
nd
Applicant
NEW
VENTURES CONSULTING & SERVICES (PTY)
LTD
3
rd
Applicant
CLIFTON
DUNES INVESTMENTS 317 (PTY)
LTD
4
th
Applicant
and
THE
EKURHULENI METROPOLITAN
MUNICIPALITY
1
st
Respondent
THE
MINISTER OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
2
nd
Respondent
Case
No: 19552/2015
In
the matter between:
GEMMA
DIAMONDS (PTY) LTD
1
st
Applicant
NEW
VENTURES CONSULTING & SERVICES (PTY)
LTD
2
nd
Applicant
and
THE
EKURHULENI METROPOLITAN
MUNICIPALITY
1
st
Respondent
THE
MINISTER OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
2
nd
Respondent
Case
No: 23826/2014
In
the matter between:
OAK
PLANT RENTALS (PTY)
LTD
1
st
Applicant
STEPPING
THE WORLD (PTY)
LTD
2
nd
Applicant
NEW
VENTURES CONSULTING & SERVICES (PTY)
LTD
3
rd
Applicant
and
THE
EKURHULENI METROPOLITAN
MUNICIPALITY
Respondent
JUDGMENT
D
S FOURIE, J:
(1)
This matter concerns five applications, the first
two against the City of Tshwane Metropolitan Municipality and the
remaining three
against the Ekurhuleni Metropolitan Municipality.
Similar relief is sought in the first four applications (except that
in case
number 4 additional relief is also sought), namely a
declaratory order relating to the municipality's alleged obligation
to render
municipal services and to open a services account under
circumstances where there is a debt outstanding in respect of the
property
concerned beyond the two year period provided for in
section
118(1)
of the
Local Government Municipal Systems Act No 32 of 2000
.
There is, furthermore, a constitutional attack against the provisions
of
section 118(3)
of the said Act. The applicants in case number 5
are not proceeding with their application and the only issue relates
to costs.
There is also a counter­ application brought by the
Ekurhuleni Municipality, but it has been abandoned.
(2)
The parties have agreed that all the applications
should be heard together, but no order for consolidation should be
granted. The
main reason why this extraordinary procedure is followed
is mainly because of the considerable overlap in the type of relief
sought.
This arrangement was agreed upon for purposes of costs and/or
any possible application for leave to appeal and was authorised by

the Deputy Judge President of this Division. I have been given the
assurance by counsel acting for the applicants that there was
proper
compliance with the provisions of
Rule 16A(1)
in respect of all the
applications where a constitutional issue has been raised.
BACKGROUND
(3)
The applicants in the first three applications
(Ms Jordaan, Ms Kekana, Mr and Mrs Maleboloa, Ms Livanos and Clifton
Dunes) each
bought an immovable property at a sale in execution. The
applicant in the fourth application (Gemma Diamonds (Pty) Ltd) bought
an immovable property from a company in liquidation, the sale having
been accepted and approved by the liquidators. In all cases
the
applicants took transfer of the immovable properties after a
certificate in terms of section 118(1) of the Municipal Systems
Act
had been issued by the municipality concerned. In terms thereof the
municipality where the property is situated certified that
all
amounts that became due in connection with that property for
municipal service fees as well as property rates and taxes during
the
two years preceding the date of application for the certificate, have
been fully paid.
(4)
In all the cases there are historical debts
outstanding with regard to each of the properties. These are debts
which had been incurred
by previous owners and/or occupiers prior to
the two year period envisaged by section 118(1) of the Act. The City
of Tshwane was
relying,
inter a/ia,
on
its policy to demand that all historical debts in respect of a
property be paid before entering into a service agreement with
a new
consumer. It therefore adopted the approach that it has the right to
refuse municipal services to the applicants when municipal
debts in
respect of the property concerned, remain outstanding. It has been
contended that it is entitled to do so, because the
historical debts,
as "a charge upon the property" as contemplated in section
118(3), survived transfer of ownership and
were therefore enforceable
against the applicants and their successors in title.
(5)
As far as the other two applications are
concerned (Ms Livanos and Gemma Diamonds) there appears to be a
dispute regarding the question
whether or not the Ekurhuleni
Municipality had also refused to enter into agreements with the
applicants for the supply of municipal
services. In one of the
applications (Ms Livanos) it is alleged that the municipality refused
to enter into a consumer agreement
because of the outstanding
historical debt incurred by a former owner. This is disputed by the
Ekurhuleni Municipality. It is alleged
that the applicant (Ms
Livanos) was advised to approach the correct department and to comply
with certain administrative requirements
in order for a consumer
account to be opened, which the applicant failed to comply with. It
is further alleged that if she had
complied with the neccessary
administrative requirements, a consumer account would have been
opened. I shall later again refer
to these issues.
(6)
Due to the dispute with regard to the payment of
historical debts and the allegation that the municipalities had
refused to enter
into service agreements, some of the applicants
applied for interim relief in this regard. On 10 December 2013 an
order was granted
in favour of Ms Jordaan against the City of Tshwane
for the rendering of municipal services pending the finalisation of
the other
relief claimed in Part B of the application . A similar
order was granted on 18 February 2014 against the City of Tshwane in
favour
of Kekana, Maleboloa and Mamotsau in the second application .
On the same day and by agreement (without admission of liability)

similar relief was granted in favour of Ms Livanos against the
Ekurhuleni Municipality. In the fourth application it was confirmed

by Gemma Diamonds that it did not require water and electricity to
the property and that it would only be responsible for municipal

rates and basic services.
(7)
The main issue to be decided relates to the
constitutionality of section 118(3) of the Municipal Systems Act. I
shall therefore
first consider the issue with regard to section
118(3) and thereafter the other issues relating to the other relief
sought.
SECTION
118 OF THE MUNICIPAL SYSTEMS ACT
(8)
Section 118, in so far it is relevant, provides
as follows:
"(1) A registrar
of deeds may not register the transfer of property except on
production to that registrar of deeds of
a
prescribed certificate
–
(a)
issued by the municipality or municipalities
in which that property is situated; and
(b)
which certifies that all amounts that became
due in connection with that property for municipal service fees,
surcharges on fees,
property rates and other municipal taxes, levies
and duties during the two years preceding the date of application for
the certificate
have been fully paid.
(1A) A prescribed
certificate issued by
a
municipality
in terms of subsection (1) is valid for
a
period of 60 days from the date it has been
issued.
(2) In the case of the
transfer of property by
a
trustee
of an insolvent estate, the provisions of this section are subject to
section 89 of the Insolvency Act, 1936 (Act No. 24
of 1936).
(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."
(9)
Broadly stated, section 118(1) of the Act
provides for an embargo against the transfer of a rateable property,
unless the municipality
concerned certifies that all debts have been
settled in respect thereof for a period of two years preceding the
date of application
for the certificate. Section 118(3) provides a
municipality with security for repayment of the debt and enjoys
preference over
any mortgage bond registered against the property.
The principal elements of section 118 are accordingly an embargo
provision with
a time limit and a security provision without a time
limit
(City of Tshwane Metropolitan
Municipality v Mathabathe
&
Another
2013 (4) SA 319
(SCA) par 9). It is also
important to bear in mind that section 118(3) is on its own wording
an independent, self-contained provision.
It does not require the
incorporation of the time limit in section 118(1) to make it
comprehensible or workable
(BOE Bank Ltd v
Tshwane Metropolitan Municipality
2005 (4) SA
336
(SCA) par 8).
(10)
Furthermore, as no time limit exists with regard
to the security provision contained in section 118(3), this right (or
statutory
hypothec) is not extinguished by the transfer of the
property from one owner to another whilst there is still a debt
outstanding
with regard to that property
(
Mathabathe, supra,
par 12). It also does not
matter whether such transfer follows upon a sale in the ordinary
course of business or by a sale in execution
(Tshwane
City v Mitche/1
2016
(3) SA 231
(SCA)).
However, it should also be pointed out that the security provision
contained in section 118(3) (or statutory hypothec with
specific
reference to the words "charge upon the property")
signifies only that it is security for the payment of a debt.
Put
differently, a statutory hypothec as a form of real security should
not be confused with the principal debt. Notwithstanding
this
position, nothing would prevent a municipality (subject to compliance
with its own by-laws relating to liability for municipal
debts) from
perfecting its security over the property, should it wish to do so,
to ensure payment of an outstanding historical
debt. Perfecting its
security would involve obtaining a court order, selling the property
in execution and applying the proceeds
to pay off the outstanding
historical debt, notwithstanding the fact that the property was
transferred into the name of a new owner.
It was explained by
Baartman AJA in
M
itchell
(par 23) that
"it is in that sense that
the respondent, as owner of the property, could be
said to be liable for the historical debt".
(See also in this regard
City
of Johannesburg v Kaplan N.
0. &
Another
2006 (5) SA 10
(SCA) par 26.)
THE
CONSTITUTIONAL CHALLENGE
(11)
Paragraph 4 of Part B of the Jordaan application
(case no 74195/2013) reads as follows:
"In the
alternative to paragraph 3 above, and in the event that this
honourable court finds that
section 118(3)
of the
Local Government:
Municipal Systems Act 32 of 2000
...
imposes
a
charge on the new
owner of property in relation to historic debts incurred by previous
owners, consumers or tenants, declaring that
section 118(3)
is invalid and unconstitutional
to the extent that it burdens the new owner with the municipal debts
incurred by the previous owner,
consumer or tenant."
(12)
I have already indicated above that the security
provision contained in
section 118(3)
survives transfer of ownership
and that nothing would prevent a municipality from perfecting its
security over the property to
ensure payment of an outstanding
historical debt. It is in that sense that the new owner of the
property could be said to be liable
for the historical debt. The
practical effect of this conclusion means that the relief sought in
paragraph 4 of Part B of the Jordaan
application constitutes a direct
attack on the constitutionality of
section 118(3).
(13)
Similar relief is sought in paragraph 5 of Part B
in the application of Kekana, Maleboloa and Mamotsau (case no
13039/2014) as well
as in the application of Livanos (case no
1304'0/2014). The relief sought by Gemma Diamonds (Pty) Ltd (case no
19552/2013) with
regard to the constitutional issue is not formulated
in the alternative. It reads as follows:
"Setting aside
section 118(3) of the Act as unconstitutional and invalid to the
extent that it burdens the new owners of properties
with
the municipal debts incurred by previous owners, or tenants of
previous owners;".
(14)
It was contended on behalf of the City of Tshwane
that the constitutional challenge has been prematurely invoked in
proceedings
where the municipality does not seek to perfect its
security. It was further argued that in the event that the applicants
are aggrieved
by administrative decisions of the municipality not to
provide services, they should take the decision on review linked with
appropriate
interdictory relief, i.e. a
mandamus
.
Counsel acting on behalf of the Ekurhuleni
Municipality conceded that the question with regard to the
constitutionality of section
118(3) is indeed one of the issues to be
decided. In reply counsel for the applicants pointed out that in all
the cases (except
for the application by Stepping the World (Pty) Ltd
- case no 23826/2014) interim prohibitory and/or mandatory relief was
already
sought in addition to the constitutional challenge. He also
contended , having regard to the facts of the matters, that an
interim
order was already granted in favour of Jordaan, Kekana,
Maleboloa and Mamotsau for the rendering of municipal services
pending
the finalisation of the other relief, including the
constitutional issue, claimed in Part B of those applications . In
any eve.nt,
so it was contended, the issues with regard to the other
relief claimed, i.e. the rendering of municipal services to the new
owners
notwithstanding outstanding historical debts incurred by
previous owners and/or occupiers, are directly linked to the
constitutional
issue regarding section 118(3).
(15)
It is settled
jurisprudence
that a court should not ordinarily decide a
constitutional issue unless it is necessary to do so. A court should
also not decide
a constitutional issue which is moot or when a right
has not been infringed or threatened. The doctrine of "ripeness
for hearing"
prevents a party from obtaining relief prematurely
when he or she has not been subject to prejudice as a result of the
legislation
or conduct alleged to be unconstitutional. In S
v
Mhlungu
&
Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC) at 895E Kentridge AJ
laid down, as a general principle, that where it is possible to
decide any case without reaching a constitutional
issue, that is the
course which should be followed .
(16)
Having regard to these general principles, I have
to take into account that a constitutional issue with regard to
section 118(3)
has been raised in four of the applications before me.
Furthermore, in three of those applications interim relief has
already been
granted with regard to the provision of essential
municipal services such as water, electricity and sewerage disposal
pending finalisation
of these applications. It is also important to
bear in mind the position taken by the City of Tshwane in this
regard. It has been
admitted that the City of Tshwane refused to
enter into agreements with the applicants for the supply of municipal
services, unless
the historical debts have been paid. It was
contended that the City of Tshwane is entitled to do so because the
historical debts,
as "a charge upon the property" as
contemplated in section 118(3), have survived transfer of ownership
and were therefore
enforceable against the applicants and their
successors in title. No doubt, by following this approach, the
constitutionality of
section 118(3) has been drawn into the arena and
it can therefore hardly be said that this issue is moot or has been
prematurely
raised. It would therefore be wrong, in my view, to avoid
deciding this issue.
(17)
It was contended on behalf of the applicants that
historical debts incurred by a former property owner may not be
transferred to
a new property owner, unless there is a specific
agreement between them to this effect. The substance of their
argument is that
section 118(3) provides for a charge upon the
property only in relation to the amount owing by a specific property
owner, which
may not be applied against subsequent property owners as
it would constitute a violation of the right to property which is not
supported by sufficient reason.
(18)
It was submitted on behalf of the City of Tshwane
that section 118(3) is concerned, amongst other things, with the
question whether
the respondent may collect a debt from the estate of
the current owner of property for the unpaid debt of an erstwhile
owner and/or
occupier of that property. It was contended that the
purpose of the provision is to secure payment of municipal debts, by
using
the property as security, notwithstanding who the current owner
of that property is and notwithstanding the fact that the current

owner could at no stage be held liable for payment of those debts.
(19)
Counsel for the Ekurhuleni Municipality argued
that section 118(3) creates a tacit hypothec in favour of a
municipality which renders
outstanding debts in respect of municipal
rates and service charges a charge upon the property concerned . This
hypothec survives
transfer of such property and permits the
municipality, as a matter of general principle, to recover such debt
by way of an appropriate
court order from the new owner to the extent
of the security value of the property in question. Although it was
conceded that the
provisions of this section amount to a deprivation,
it was contended that such deprivation is not arbitrary and exists
for good
reason, being to enable municipalities to recover municipal
debts in the interests of the community as a whole.
DEPRIVATION
OF PROPERTY
(20)
Section 25 of the Constitution distinguishes
between deprivation of property and expropriation of property. In
First National Bank of SA v Commissioner, SARS
[2002] ZACC 5
;
2002 (4) SA 768
(CC) par 57 it was pointed
out that expropriation is a particular form, in the narrow sense, of
deprivation. Generally speaking,
expropriation (as a specie of
deprivation) takes place when ownership (usually with regard to
immovable property) is terminated
by the State and the expropriated
property is then acquired by the State for a public purpose against
payment of compensation (Cf
Harksen v Lane
[1997] ZACC 12
;
1998 (1) SA 300
(CC) par 32). Viewed from
this perspective, the purpose of section 118(3) of the Municipal
Systems Act is to provide security for
the payment of outstanding
municipal charges and not to authorise expropriation.
(21)
Section 25( 1) of the Constitution provides that
no one may be deprived of property except in
terms of law of general application, and no law may permit arbitrary
deprivation of
property.
Assuming (without
deciding) that section 118(3) is a law of general application (in the
sense that it applies generally , impersonally
and not to specific
individuals), the question is whether it permits arbitrary
deprivation of property. In
First National
Bank of SA
(par 57) it was held that, in a
certain sense, any interference with the use, enjoyment or
exploitation of private property involves
some deprivation in respect
of the person having title or right to or in the property concerned.
It was pointed out by Ackermann
J (in par 58) that if the deprivation
infringes or limits section 25(1) and cannot be justified under
section 36, that is the end
of the matter. The provision is
unconstitutional.
(22)
In terms of section 118(3) of the Municipal
Systems Act an amount due for municipal service fees, property rates
and other municipal
taxes is a charge upon the property in connection
with which the amount is being owed and enjoys preference over any
mortgage bond
registered against the property. This is a security
provision without a time limit and operates irrespective of who the
present
owner is. It enables a municipality to perfect its security
(subject to compliance with its own by-laws) over the property to
ensure
payment of an outstanding municipal debt, not only with regard
to a person who is the owner of the property when the debt is
incurred,
but also with regard to subsequent or new owners of the
same property who took transfer thereof after these debts (historical
debts)
had been incurred. This does not mean that section 118(3)
turns subsequent or new owners into co­ principal debtors, but it

does provide an execution process for the recovery of historical
debts.
(23)
Section 118(1) contains a time limit of only two
years. It was decided by the Constitutional Court in
Mkontwana
v Nelson Mandela Metropolitan Municipality
2005
(1) SA 530
(CC) that section 118(1) is not unconstitutional. However,
the Court refrained from considering the constitutional validity of
section 118(3) and this question was left open (par 13). The absence
of any time limit in section 118(3) is important, because in
practice
it means that a subsequent or new owner of the property could be
"held liable" for historical debts not covered
by the two
year time­ period referred to in section 118(1). What _would be
the position if that new owner refuses or is unable
to settle the
historical debt? Relying on the provisions of section 118(3), a
municipality would be entitled to perfect its security
(subject to
compliance with its own by-laws) by obtaining a court order, selling
the property in execution and applying the proceeds
to pay off the
historical debt. This process was explained as follows in
City
of Johannesburg v Kaplan, supra,
par 26:
'Any amount due for
municipal debts (i.e. not limited by the aforesaid period of two
years) that have not prescribed is secured
by the property and, if
not paid and an appropriate order of Court is obtained, the property
may be sold in execution and the proceeds
applied in payment of the
debts. In such event, the proceeds will be applied to payment of the
municipal debts in full. Only after
satisfaction of such debts will
the remainder, if any, be available for payment of the debt secured
by
a
mortgage bond
over the property."
(24)
This means that section 118(3) could result in a
loss of ownership for new or subsequent owners and consequently a
loss of the ability
to use, enjoy or exploit the property. Even in
the absence of actual loss, the mere existence of such a drastic
remedy as a security
provision constitutes a severe limitation of a
new owner's property rights in terms of sec 25(1). I therefore
conclude that this
infringement or limitation of rights constitutes a
deprivation for the purposes of section 25(1) of the Constitution
(see also
in this regard the minority judgment of O'Regan J in
Mkontwana v Nelson Mandela Metropolitan
Municipality, supra
par 86).
ARBITRARINESS
(25)
The next question to be considered is whether the
deprivation is arbitrary? A deprivation will be arbitrary when the
"law"
referred to in section 25(1) does not provide
sufficient reason for the particular deprivation in question or is
procedurally unfair
(First National Bank of SA
v Commissioner, SARS, supra,
81O par 100). In
Mkontwana
Yacoob J
pointed out (in par 65) that procedural fairness, in the context of
section 25(1), is a flexible concept and that the requirements
that
must be satisfied to render an action or a law procedurally fair
depends on all the circumstances. I shall assume (without
deciding)
that the deprivation contemplated in section 118(3) is not
procedurally unfair as it arises from legislation (as opposed
to, for
instance, administrative action) which requires a municipality to
follow a due process of law as referred to in par 23
above.
(26)
In addition to procedural considerations, a
deprivation of property is arbitrary when the law concerned does not
provide sufficient
reason for the deprivation in question. It was
held by Ackerman J in
First National Bank of
SA
(par 100) that sufficient reason is to be
established as follows:
"(a) It is to be
determined by evaluating the relationship between means employed,
namely the deprivation in question and ends
sought to be achieved,
namely the purpose of the law in question.
(b) A complexity of
relationships has to be considered.
(c) In evaluating the
deprivation in question, regard must be had to the relationship
between the purpose for the deprivation and
the person whose property
is affected.
(d) In addition,
regard must be had to the relationship between the purpose of the
deprivation and the nature of the property as
well as the extent of
the deprivation in respect of such property.
(e) Generally
speaking, where the property in question is ownership of land or
a
corporal movable,
a
more compelling purpose will have to be
established in order for the depriving law to constitute sufficient
reason for the deprivation
than in the case when the property is
something different and the property right something less extensive.
This judgment is not
concerned at all with incorporeal property.
(f) Generally
speaking, when the deprivation in question embraces all the incidents
of ownership, the purpose for the deprivation
will have to be more
compelling than when the deprivation embraces only some incidents of
ownership and those incidents only partially.
(g) Depending on such
interplay between variable means and ends, the nature of the property
in question and the extent of its
deprivation,
there may be circumstances when sufficient reason
is
established by, in effect, no more than
a
mere rational relationship between means and
ends; in others this might only be established by
a
proportionality evaluation closer to that
required
by s
36(1) of
the Constitution.
(h) Whether there
is
sufficient reason to warrant the deprivation
is a
matter to be
decided on all the relevant facts of each particular
case,
always bearing in mind that the enquiry
is
concerned with 'arbitrary' in relation to the
deprivation of property under
s
25."
(27)
In his comment on this dictum, Yacoob J who was
writing for the majority, pointed out in
Mkontwana
(par 34 and 35) that if the purpose of the
law bears no relation to the property and its owner, the provision is
arbitrary. On the
other hand, if there is a connection between the
purpose of the deprivation and the property or its owner, there must
be sufficient
reason for the deprivation otherwise the deprivation is
arbitrary. A mere rational connection between means and ends could be
sufficient
reason for a minimal deprivation. However, the greater the
extent of the deprivation the more compelling the purpose and the
closer
the relationship between means and ends must be.
(28)
It was pointed out in the
First
National Bank
case, sufficient reason will
depend,
inter alia,
on
the extent of the deprivation, the nature of the property concerned,
the relationship between the purpose for the deprivation
and the
person whose property is affected as well as the relevant facts of
each particular case. Taking into account these considerations,
I
turn now to consider, as a first step, the extent of the deprivation
caused by section 118(3), then to evaluate the purpose of
the
deprivation and finally to decide whether there is sufficient reason
for the deprivation .
The
extent of the deprivation
(29)
The question regarding the extent of the
deprivation is closely related to the nature of the property
concerned. In this case we
are not concerned with the deprivation of
a single incident of ownership (as was the case in
Mkontwana,
par 45), but with a deprivation that can
result in the complete removal or loss of ownership of land in the
event of the section
118(3) security being perfected. Ownership is
potentially the most extensive private right that a person can have
with regard to
property. In principle, it entitles the owner to deal
with his or her property as he or she pleases within the limits set
by law.
The comprehensive right of ownership embraces not only the
power to use and to enjoy the fruits, but also the power to possess,

to dispose of and to resist any unlawful invasion of property
(Wille's Principles of South African Law,
9
th
Ed, 470).
(30)
In
Mkontwana
Yacoob
J pointed out, with reference to section 118(1), that the deprivation
is temporary as it "lasts for two years only"
(par 45). In
the present case we are not dealing with a similar situation. The
section 118(3) deprivation is not a temporary interference
with
ownership, but one that can result in a complete and permanent
removal of ownership. Upon completion of the process contemplated
by
section 118(3) with regard to a subsequent or new owner of the
property, that person will be completely and permanently divested
of
all his or her rights of ownership.
(31)
What is the connection between the (historical)
debt, the property and the owner? This question was also considered
with regard
to section 118(1) by Yacoob and O'Regan JJ in the case of
Mkontwana.
It was
decided (par 41) that there is a level at which the owner and the
debt are usually connected or related regardless of the
nature of the
relationship between the owner and the occupier of the property. This
is because the owner is bound to the property
by reason of the fact
of ownership which entails certain rights and responsibilities. It
was also pointed out that, in relation
to tenants, landowners can
limit the potential effect of section 118(1) in several ways through
contractual arrangements and they
can also reduce their risk by
requesting municipalities to furnish them with regular statements of
account (par 100 and 101).
(32)
I do not understand that judgment, when reference
was made to the owner of property, to mean that it should also
include successors
in title as far as historical debts are concerned.
It would be very difficult, if not impossible, for subsequent owners
to guard
against the accumulation of outstanding consumption charges
through contractual arrangements or to reduce their risk in relation

to the consumption of services by tenants and other occupiers, during
a period when another person was the owner and/or lessor
of the
property. The point is that it will not be reasonably possible for
subsequent or new owners to reduce the risk with regard
to historical
debts by taking responsible action at a time when there is no
connection or relationship between them, the property
and the debt.
On the other hand, it is not only possible but also desirable for a
municipality to prevent the accumulation of historical
debts by
taking responsible action before the property is transferred into the
name of a subsequent or new owner. Nothing would
prevent a
municipality from demanding payment, issuing summons and if the
current owner then fails to pay, to perfect its security
in terms of
an order of Court to ensure payment of
all
outstanding debts.
As a matter of fact, in
terms of section 96 of the Municipal Systems Act a municipality is
obliged to collect all money "that
is due and payable to it",
subject to any applicable law. No doubt, having regard to all these
considerations, I have to conclude
that the extent of the deprivation
is substantial.
The
purpose of the deprivation
(33)
It is clear from its provisions that the overall
purpose of section 118(3) is to ensure payment of municipal claims
that fall within
the stipulated category
( BoE
Bank Ltd v Tshwane Metropolitan Municipality
2005
(4) SA 336
(SCA) par 7). The manner in which this purpose is achieved
is by providing security for the payment of outstanding municipal
debts
in the form of a statutory hypothec and to afford
municipalities a preference over any mortgage bond registered against
the property.
Although this form of security relates to the property
concerned, it not only affects the present owner, but also subsequent
owners
if the municipal debt remains unpaid. In other words, it also
gives a municipality a security right over that property after it
has
been transferred into the name of a new owner who is not necessarily
a debtor of the municipality.
(34)
It is important to bear in mind that transfer of
a property into the name of a new owner (when there are historical
debts outstanding
with regard to that property) does not cause the
new owner to become a co­ principal debtor. A statutory hypothec
as a form
of real security is not in law the same concept as the
principal obligation. The one is a debt and the other security for
payment
of the debt. It provides an execution mechanism for the
recovery of a debt. In the absence of an agreement to that effect, it
does
not make the new or subsequent owner a debtor of the
municipality (cf
First National Bank of SA v
Commissioner, SARS, supra,
7890-E). However,
this raises the question why should a municipality be entitled to
visit the sins of a predecessor in title upon
innocent third parties
when there is no relationship or connection between that party and
the debts in question? A new owner, who
has no connection to
historical debts, is in no position to prevent or minimise any
delinquency on the part of former owners or
tenants who incurred
these debts. They have no way of ensuring responsible behaviour by
previous owners and tenants. They have
no say in the choosing of
tenants by former owners. They cannot ensure that earlier agreements
of tenancy were appropriately drafted.
In other words, they were in
no position whatsoever to manage and control the indebtedness of
their predecessors in title, whereas,
in the ordinary course of
business, a municipality is (and also was) in a position to do so.
(35)
In
Geyser
&
Another v Msunduzi Municipality
&
Others
2003 (5) SA 18
(N) at 37H-I Kondile J, when considering the purpose to be achieved
by the deprivation in section 118, said the following:
"Outstanding
debts of this magnitude seriously threaten the continued supply of
basic municipal services and demonstrate
a
need for effective security being put in place
in respect of such service. This is
a
legitimate and important legislative purpose,
which is essential for the economic viability and sustainability of
municipalities
in the country and in the interest of all the
inhabitants. There is therefore
a
rational
connection between the means employed and the legitimate legislative
purpose designed to be achieved. "
(36)
I deem it necessary to make a few observations
about this dictum. First, the Court in that case was essentially
seized with a section
118(1) issue. Although reference was made to
section 118(1) and (3), it was pointed out by Yacoob J in
Mkontwana
(in par 13) that very little is said in the
Geyser
judgment about
the meaning and effect of section 118(3), nor was the
constitutionality of section 118(3) considered separately from
the
constitutionality of section 118(1). Therefore, section 118(3) was
not really in issue. Second, there is a vast difference
between the
embargo provision in section 118(1) and the security provision in
section 118(3). The former only concerns a temporary
interference
with a single incident of ownership with regard to immovable property
whilst it is still registered in the name of
the current owner,
whereas the latter can result in a complete and permanent deprivation
of ownership whilst the property is registered,
not only in the name
of the current owner, but also in the name of a subsequent owner who
has no connection with any of the historical
debts. Third, section
118(1) and (3) clearly provides a municipality with sufficient and
effective security for the payment of
a//
outstanding
municipal debts
against the current owner who
does have a connection with all the outstanding municipal debts
whilst the property is still registered
in his or her name. The
legislative purpose, as described in the
Geyser
judgment, can therefore still be achieved,
without being thwarted in any manner, whilst the property is still
registered in the
name of the current owner without extending it to
new or subsequent owners. Taking into account all these
considerations, it appears
to me that the purpose of the deprivation,
as the section now reads, has been indiscriminately extended far
beyond what is necessary.
Is
there sufficient reason for the deprivation?
(37)
In the present case we are not dealing with a
deprivation of property in the hands of the current owner who has a
connection with
all the outstanding municipal debts. This case
concerns the deprivation of immovable ·property in the hands
of a subsequent
owner who has no connection with any of the
outstanding historical debts. This statutory "transfer of
historical debts"
from the current owner to a new or subsequent
owner appears to be an open-ended process without any limitation
regarding the quantum
of municipal debts that have not yet prescribed
and the number of consecutive transfers into the name of new owners
in future.
Even if there is a connection between the purpose of the
deprivation and the property concerned, there must still be
sufficient
reason for the deprivation, otherwise the deprivation is
arbitrary. Moreover, the greater the extent of the deprivation the
more
compelling the purpose and the closer the relationship between
means and ends must be.
(38)
No doubt, there is a legitimate and important
legislative purpose, essential for the economic viability and
sustainability of municipalities.
It however does not justify forcing
a property owner to pay the municipal debts of his predecessor in
title, or to forfeit his
ownership if he refuses to do so, no matter
how important the objective is. Put differently, the purpose of the
deprivation has
been indiscriminately extended far beyond what is
necessary. In short, section 118(3) "casts the net far too
wide". The
means employed sanctions the total deprivation of a
subsequent owner's immovable property under circumstances where such
owner
has no connection with the transaction giving rise to the
municipal debt or the debt itself. The new or subsequent owner is
neither
a debtor of the municipality with regard to these debts, nor
was he or she in a position to prevent the accumulation of historical

debts before transfer is effected (cf.
First
National Bank v Minister of Finance, supra,
par
108).
(39)
In the absence of any such relevant relationship
between the purpose for the deprivation and the person whose property
is affected
(i.e. the new or subsequent owner), no sufficient reason
exists for section 118(3) to deprive new or subsequent owners (other
than
the current owner before transfer takes place) of their title in
the property concerned . I therefore conclude that the deprivation

with regard to new or subsequent owners is arbitrary for purposes of
section 25(1) of the Constitution.
Justification
(40)
Once it is established that a law infringes a
right protected by the Bill of Rights, it should then be considered
whether the infringement
can be justified as a permissible limitation
of that right. Section 36 of the Constitution provides as follows in
this regard:
"(1) The rights
in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account
all relevant factors,
including
(a)
the nature of the right;
(b)
the importance of the purpose of the
limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its
purpose; and
(e)
less restrictive means to achieve the purpose.
(2) Except as provided
in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in
the Bill of Rights."
(41)
I have already assumed (without deciding) that
section 118(3) is a law of general application (par 21 above). I have
also concluded
that this section constitutes a deprivation with
regard to new or subsequent owners of the property concerned and that
it is arbitrary
for purposes of section 25( 1) of the Constitution
(par 39 above). The question now to be considered is whether the
limitation
caused by such deprivation is reasonable and justifiable
in an open and democratic society, taking into account the factors
referred
to in section 36(1) of the Constitution.
(42)
The learned authors Currie & De Waal,
The
Bill of Rights
Handbook
(6
th
Ed 162 and 163) explain the limitation test to be applied as follows
:
"Put at its
simplest, this part of the limitation test requires
a
law that restricts
a
fundamental right to do so for reasons that
are acceptable to an open and democratic society based on human
dignity, equality and
freedom. In addition, the law must be
reasonable in the
sense
that
it should not invade rights any further than its needs to in order to
achieve its purpose. To satisfy the limitation test then,
it must be
shown that the law in question
serves a
constitutionally acceptable purpose and that
there
is
sufficient
proportionality between the harm done by the law (the infringement of
fundamental rights) and the benefits it
is
designed to achieve (the purpose of the law)."
(43)
The weighing up of competing values (and
ultimately an assessment based on proportionality) was explained as
follows by O'Regan
J in
S v Gwadiso
[1995] ZACC 11
;
1996
(1) SA 388
(CC) in par 18:
"In sum,
therefore, the Court places the purpose, effects and importance of
the infringing legislation on one side of the scales
and the nature
and effect of the infringement caused by the legislation on the
other. The more substantial the inroad into fundamental
rights, the
more persuasive the grounds of justification must be."
(See
also:
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC) par 104).
(44)
I do not deem it necessary, on the facts of the
present case, the considerations referred to above and the
conclusions which I have
already reached, to embark in any detail on
a section 36(1) justification analysis. Section 36 contains a set of
relevant factors
to be taken into account when considering the
reasonableness and justifiability of a limitation. These factors have
already been
considered, either by specific reference or by necessary
implication. A conclusion that section 118(3) constitutes a
deprivation,
that no sufficient reason exists for such deprivation
and that it is arbitrary with regard to new or subsequent owners of
the property
concerned, should be sufficient to also conclude that
this deprivation or limitation is not reasonable and justifiable in
an open
and democratic society. Put differently, I am unable to find
that the infringement serves a purpose that is considered legitimate

by reasonable citizens in a constitutional democracy that values
human dignity, equality and freedom above all other considerations.

(Cf.
The Bill of Rights
Handbook, supra,
171
and 172).
THE
OTHER RELIEF SOUGHT
(45)
I shall first consider the other relief sought by
the applicants against the City of Tshwane and thereafter against the
Ekurhuleni
Municipality. The City of Tshwane is a respondent in the
first two applications (Ms Jordaan in case number 74195/2013 and Ms
Kekana,
Mr and Mrs Maleboloa in case number 13039/2014). The
Ekurhuleni Municipality is a respondent in the remaining three
applications
(Ms Livanos in case number 13040/2014, Gemma Diamonds in
case number 19552/2015 and Stepping the World in case number
23826/2014).
However, the applicants in case number 5 (Stepping the
World) are not proceeding with their application and the only issue
relates
to costs.
APPLICATIONS
AGAINST CITY OF TSHWANE
(46)
As was pointed out above, on 10 December 2013 an
order was granted in favour of the applicants in the first
application and on 18
February 2014 in favour of the applicants in
the second application against the City of Tshwane for the rendering
of municipal
services pending the finalisation of the other relief
claimed in Part B of the applications. There is to a certain extent
an overlap
between the different kinds of relief sought. However,
they can for practical purposes be regarded to fall into two main
categories:
·
a declaratory order that the municipality is
obliged, upon request from a property owner or his or her duly
authorised representative,
to render municipal services within the
jurisdiction of the municipality where no debt exists in respect of
municipal services
between the municipality and such an owner; .
·
a declaratory order that the municipality is
precluded from claiming amounts from any consumer within its
jurisdiction who has no
debt relationship with the municipality
insofar as municipal service fees, surcharges on fees, property rates
and other municipal
taxes, levies and duties are concerned.
(47)
According to the applicants (Jordaan and Kekana)
they were informed by a representative of the municipality that the
historical
debts must be paid first before a consumer agreement can
be concluded. The municipality maintains that it has the right to
demand
that all historical debts in respect of a property be paid
before entering into a service agreement with a new consumer. The
municipality
maintains that it has the right to refuse municipal
services to the applicants when municipal debts in respect of the
properties
concerned, remain outstanding . In addition to section
118(3) of the Municipal Systems Act, the municipality was also
relying on
certain by­ laws to justify this approach. Copies of
these by-laws were made available to me by the attorneys of record
acting
for the City of Tshwane. I shall therefore accept that these
are the by-laws applicable to the issues concerned.
Electricity
Supply By-Laws
(48)
Reference was made to the Standard Electricity
Supply By-Laws published by Local Authority Notice 1132 in the
Provincial Gazette
Extraordinary No 234 of 25 June 2003. It was
contended that in terms of these by-laws subsequent owners remain
liable for the historical
debts of predecessors in title.
(49)
These by-laws make provision for an application
to use an electricity supply which has to be approved by the
municipality. Section
18(1) provides that the "consumer" is
liable for all electricity supplied to his or her premises. It also
provides that
the municipality must render an account for the amount
payable on a regular basis to the consumer. A "consumer" is
defined
to mean the occupier of any premises to 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. The "owner" in
relation to immovable property means the "person registered"

in the office of the Register of Deeds.
(50)
Section 18(6) provides that after a consumer's
electricity supply has been disconnected owing to non-payment of an
account, the
consumer must pay the prescribed fees and any amounts
due before a reconnection can be made. Section 21 also refers to a
right
to disconnect supply. It provides that the municipality has the
right to disconnect the electricity supply to any premises if the

person liable for payment for the supply fails to pay any charge due
to the municipality. A "person" is defined to include
a
customer, occupier or owner "who receives the beneficial use of
the electricity supply to a specific premise". Subsection
(4)
stipulates that the registered owner of a property remains liable
"for any electricity consumed on the premises".
Water
Supply By-Laws
(51)
The City of Tshwane Water Supply By-Laws were
published by Local Authority Notice 2267 in the Provincial Gazette
Extraordinary No
470 of 5 November 2003. It was contended that in
terms of these by-laws the municipality may, where water supply
services have
been discontinued in terms of the provisions of these
by-laws, restore the water supply services only when the applicable
charge
for the discontinuation and reconnection of the water supply
services has been paid.
(52)
These by-laws also make provision for an
application for water supply services which has to be approved by the
municipality. Section
7 refers to the payment for these services. It
provides that in respect of water supply services provided for any
premises, the
owner, occupier and customer are, in accordance with
the municipality's by-laws relating to credit control and debt
collection,
jointly and severally liable for the payment of all
applicable charges.
(53)
Section 9 permits the restriction and
discontinuation of water supply services. It provides in subsection
(1) that the engineer
may restrict or discontinue water supply
services if "the customer has failed to pay" the applicable
charges on the date
specified. Subsection (3) thereof provides that
the engineer may, where water supply services have been discontinued
in terms of
the provisions of these by-laws, restore the water supply
services only when the applicable charge for the discontinuation and
reconnection of the water supply services has been paid. Section 1O
makes provision for the restoration of water supply services
when a
customer enters into an agreement for the payment "of his or her
arrears", after the restriction or disconnection
of his or her
water supply services.
(54)
A "consumer" is defined as any end-user
who receives water supply services and a "customer" means a
person with
whom the municipality has concluded an agreement for the
provision of a municipal service. To the extent that the definition
of
"owner" is relevant, it means the person in whom, from
time to time, is vested the legal title to the premises.
Credit
Control and Debt Collection By-Laws
(55)
The Credit Control and Debt Collection By-Laws
were published by Local Authority Notice 226 in the Provincial
Gazette Extraordinary
No 44 of 27 February 2002. It was pointed out
that in terms of these by-laws the council shall reconnect the supply
of any of the
restricted or discontinued services only after the full
amount outstanding, including the costs of such disconnection and
reconnection
(if any) have been paid in full and any other condition
of the council as it may deem fit, have been complied with. It was
suggested,
as I understood the argument, that on a proper
construction of these by-laws the municipality has a right to refuse
the reconnection
of municipal services if the full amount outstanding
has not been paid and that this right of refusal is also applicable
to subsequent
owners.
(56)
These by-laws provide that no supply of services
shall be given unless and until application has been made, a service
agreement
has been entered into and a deposit as security as
determined by the council, has been paid. Section 5 deals with
"arrears
collection" . Subsection (2) thereof provides that
the council may restrict or disconnect the supply of municipal
services
to any premises "whenever a user of any service"
fails to make full payment on the due date. It further provides that

the council shall reconnect and/or restore the supply of services
"only after the full amount outstanding and due, including
the
costs of such disconnection and reconnection, if any, have been paid
in full". Subsection (4) makes provision for arrangements
to pay
outstanding amounts in consecutive instalments. It provides that "a
debtor may enter into a written agreement"
with the council to
repay any outstanding amount to the council under certain conditions.
(57)
In these by-laws a "user" is not
described, but a "customer" is defined to mean any occupier
of premises to
which the council has agreed to supply services, or if
there is no occupier, then the owner of the premises. To the extent
that
the definition of "owner" is relevant, it means the
person in whom from time to time is vested the legal title to the

premises.
Credit
Control and Debt Collection Policy
(58)
Reference was also made in the answering
affidavit to the first application (Chantelle Jordaan) to the
municipality's Credit Control
and Debt Collection Policy (annexure
"PP01", document "A"). In this policy document a
"client" is
defined to mean a consumer and/or debtor with
whom the municipality establishes a legal relationship through a
formal agreement
for the delivery of municipal services . A
"consumer" means a resident who makes use of the
municipality's services.
A "debtor" is defined to include,
insofar it is relevant, a person liable for payment of the account
and the owner referred
to in clause 5(2) of the Credit Control and
Debt Collection By­law. It also provides that an owner will be
jointly and severally
liable for municipal service charges "not
older than 90 days in respect of a premises occupied by a third
person, consumer
or debtor".
(59)
This policy also provides in clause 5.1 that
legal steps should be taken to collect arrears on all accounts that
are more than 90
days in arrears. Clause 5.3 deals with clearance
certificates. It provides, before any property can be transferred
from one owner
to another, that all outstanding amounts "associated
with the relevant property are payable" whereafter a certificate

in terms of section 118(1) of the Municipal Systems Act will be
issued.
(60)
It further provides that, notwithstanding
payments by the applicant of the outstanding amounts for the
preceding two years as provided
for in section 118(1), the clearance
certificate "will be withheld until the applicant or
transferring attorney, as the case
may be, has provided sufficient
security" to the effect that upon the day of registration of
transfer the outstanding amount
will be paid.
Solid
Waste By-Laws
(61)
The City of Tshwane also relied on certain Solid
Waste By-laws published by Local Authority Notices 1091 in the
Provincial Gazette
Extraordinary No 209 of 25 May 2005 and No 11O in
the Provincial Gazette No 6167 of 24 May 2005. In terms of these
by-laws the
municipality must provide or ensure a service for the
collection and removal of domestic waste from premises at the
applicable
tariff. It was contended that these by-laws declare the
owner jointly and severally liable with the consumer and that the
municipality
has the right to refuse municipal services to the
applicants or their successors in title when municipal debts in
respect of their
properties remain outstanding. It was further
submitted that this legislation permits the refusal to provide
services to a property
if municipal accounts are in arrears,
irrespective whether the debts were incurred by a current owner or a
predecessor in title.
(62)
Section 29 relates to charges. It provides in
subsection (1) that, except where otherwise provided for in these
by-laws, the owner
and the occupier of premises "in respect of
which services are rendered", are jointly and severally liable
to the municipality
for payment of these services. An "occupier"
is defined to mean (insofar it is relevant) any person, including the
owner,
"in actual occupation of the premises" without
regard to the title under which he or she occupies the premises. The
relevant
part of the definition of an "owner" refers to any
person who receives the rent or profits of the premises from any
tenant
or occupier of the premises or who would receive the rent or
profits if the premises were let, whether for his or her own account

or as an agent for any person entitled to the rent or profits.
Sanitation
By-Laws
(63)
The Sanitation By-Laws were published by Local
Authority Notice 1753 in the Provincial Gazette Extraordinary No 361
of 10 September
2003. Section 5 thereof provides that no person is
entitled to access to water services unless an application has been
made to
and approved by the municipality. Section 37 deals with
payment for sanitation services. It provides that the owner or
occupier
of any premises with whom an agreement for water services
has been entered into, is liable for payment of all sanitation
charges
in accordance with the municipality's by-laws relating to
credit control and debt collection. Section 38 stipulates that the
operation
and maintenance of on-site sanitation systems and all costs
pertaining to such operation and maintenance, remain the
responsibility
and liability of the owner of the premises.
(64)
Section 40 is concerned with the volume and
composition of industrial effluent. Subsection (7) thereof provides
that the occupier
of the property or, where charges are concerned,
the owner and occupier are jointly and severally liable for the
charges, but the
municipality shall in the first instance levy the
charge against the occupier. It also provides that the owner remains
liable for
all actions on his or her property. The "owner"
is defined (insofar it is relevant) to mean the person in whom from
time
to time is vested the legal title to the premises and/or a
person who receives the rent or profit from a tenant or occupier of
the premises.
Property
Rates By-Laws
(65)
The City of Tshwane also referred to the Property
Rate By-Laws promulgated in terms of
section 6(1)
of the
Local
Government: Municipal Property Rates Act, No 6 of 2004
and which came
into effect on 1 July 2008.
Section 3
deals with liability for rates.
In terms of subsection (1) thereof the levying of rates will be
effected in terms of the municipality's
rates policy as amended from
time to time. Subsection (4) thereof provides that if an amount due
for rates on property is unpaid
"by the owner of the property",
the municipality may recover the amount from the tenant, occupier of
the property or
the agent of the owner. The "owner" is
circumscribed to mean the owner as defined in section 1 of the
Municipal Property
Rates Act. In section 1 of that Act "owner"
is defined (insofar it is relevant) as the person in whose name
ownership
of the property is registered.
Property
Rates Policy
(66)
Reference was also made in the answering
affidavit to the second application (p 284, par 47.2.10) to a
property rates policy, a
copy of which is attached to the papers
(annexure "SS16"). The effective date is 1 July 2008 and
although an update was
confirmed by a council resolution on 24 June
2010, no amendment with regard to the issues in question was
effected.
(67)
This policy provides in clause 6.2.3 that rates
levied by the municipality on a property must be paid by the owner of
the property.
It further stipulates that rates will be levied monthly
and if an amount due for rates levied is unpaid by the owner of the
property,
the amount may be recovered from the tenant or occupier of
the property or from the agent of the owner. The "owner" is

defined by reference to the
Local Government: Municipal Property
Rates Act (see
par 65 above) .
Interpretation
and Conclusion
(68)
When interpreting these by-laws and policy
documents I should, as a first step, ascertain what the main issue
is. From the evidence
it appears to be twofold:
·
whether the municipality has the right to refuse
municipal services to a new or subsequent owner who has no connection
with any
of the outstanding municipal debts (historical debts) in
respect of the property concerned; and
·
whether the municipality has the right to demand
that all historical debts in respect of a property be paid before
entering into
a service agreement with a new or subsequent owner.
Counsel
for the municipality was unable to refer me to a provision in any of
these by-laws or policy documents dealing specifically
with these
issues as far as a subsequent owner is concerned. I was also unable
to find any. should therefore endeavour to find
an answer by means of
interpretation.
(69)
In
Manyasha v Minister of
Law and Order
[1998] ZASCA 112
;
1999 (2) SA 179
(SCA) at 185A-C
Smalberger JA said the following with regard to statutory
interpretation:
"It is trite that
the primary rule in the construction of statutory
provisions is to ascertain the intention of the
Legislature; in the present matter it is, more pertinently, the
intention of the
Rule­ maker that needs to be determined. One
seeks to achieve this, in the first instance, by giving the words of
the provision
under consideration the ordinary grammatical meaning
which their context dictates, unless to do so would lead to an
absurdity so
glaring that the Rulemaker could not have contemplated
it. "
In
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at 604 par 19 Wallis JA pointed out that from the
outset one considers the context and the language together, with
neither
predominating over the other. He also observed that this is
the approach that Courts in South Africa should now follow.
(70)
When considering the context I should take into
account that all the by-laws referred to above (as well as the policy
documents)
came into operation long after the date of commencement (4
February 1997) of the Constitution. The constitutional context is
therefore
important. It relates specifically to the supremacy of the
Constitution and the rule of law as entrenched in section 1 of the
Constitution.
The exercise of all public power must comply with the
Constitution, which is the supreme law, and the doctrine of legality,
which
is part of that law
(Pharmaceutical
Manufacturers ' Association of SA
&
Another: In re ex parte President of the
Republic of South Africa
&
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) par 20). This means that
if public power is exercised without legal authority that organ of
State is acting unlawfully.
(71)
Furthermore, a municipality has a constitutional
duty to ensure the provision of services. Section 152(1)(b) of the
Constitution
provides that it is an object of local government "to
ensure the provision of services to communities in a sustainable
manner".
Subsection (2) makes it obligatory for a municipality
to strive, within its financial and administrative capacity, to
achieve the
objects set out in subsection (1). Section 4(2) of the
Municipal Systems Act provides that the council of a municipality
must give
members of the local community equitable access to the
municipal services to which they are entitled.
(72)
In addition to the constitutional context, I also
have to take into account the general purpose of these by-laws and
policy documents.
It is to provide for and to regulate the supply of
municipal services to the community, to lay down tariffs and fees
payable for
these services and to ensure payment of municipal
accounts. Generally speaking, if a person responsible for payment
fails to pay,
a municipality would be entitled to refuse the supply
of services to that person
(Rademan v Moqhaka
Local Municipality
2013 (4) SA 225
(CC)).
However, the general purpose of these by-laws must be achieved within
the constitutional framework referred to above.
(73)
It appears, according to the ordinary grammatical
meaning of the language used in these by-laws and policy documents,
that the person
liable for payment of services rendered is the
customer, consumer, occupier or owner of the property, depending on
the wording
of the by-law concerned. There appears to be an
interrelationship between these persons as they are all linked to the
same property
as far as payment for services is concerned. Put
differently, they are all debtors liable for payment, either because
they received
the beneficial use of these services or, in the case of
the owner who is not also a consumer, by reason of the fact of
ownership
when these services are rendered.
(74)
This intention is clearly indicated, for
instance, when one takes into account the definition of "consumer"
read with
that of "person" in the Electricity Supply
By-Laws where specific reference is made to the consumer , occupier
or owner
"who receives the beneficial use" of the
electricity supplied to a specific premises. Another example is to be
found
in section 29(1) of the Solid Waste By-Laws where reference is
made to the owner and the occupier of premises "in respect of

which services are rendered". Any attempt to include a new or
subsequent owner who was not the occupier, customer, consumer
or the
owner when these services were rendered, would result in such a
person being held liable for payment in the absence of a
transaction
or underlying cause giving rise to liability.
(75)
This intention is also evident from the Credit
Control and Debt Collection Policy. There is no indication that the
definition of
"owner" also includes a successor in title
with regard to outstanding debts. No doubt, if the intention were
that the
supply of services to the new or subsequent owner may be
refused as long as there is a historical debt outstanding, this was
an
opportune moment to have included such a stipulation when
reference was made in clause 5.3 to the clearance certificates . The
fact of the matter is, there is no such provision.
(76)
The By-Laws and Property Rates Policy referred to
above also do not contain a provision, either expressly or by
necessary implication,
that a successor in title who is not a debtor
of the municipality with regard to the property concerned, shall be
liable for the
payment of historical debts. They refer, by
implication, to the person who is the consumer, customer, occupier or
owner of the
property when the debt was incurred. A new or subsequent
owner, who is not a debtor in this regard, can therefore not be held
liable
for the payment of these debts, neither should the
municipality be entitled to refuse the rendering of services to such
a person.
Doing so would mean that the municipality is not only
disregarding its constitutional duty to ensure the provision of
services
to a member of the community who is entitled thereto, but is
also exercising a public power without any legal authority.
(77)
It would also not serve the general purpose of
these by-laws to hold a person liable for the payment of historical
debts who is
not a debtor of the municipality. In the absence of an
agreement to that effect, a new or subsequent owner does not become a
co-debtor
with regard to the principal debt and is not liable for the
payment of historical debts incurred by previous owners or occupiers.

To hold otherwise would strain the language in order to read
something else into it which the Legislature could not have
contemplated.
I therefore conclude that the City of Tshwane has no
right to refuse the rendering of municipal services to a new or
subsequent
owner because of historical debts still outstanding with
regard to the property concerned, or to demand payment thereof before
entering into a service agreement for the rendering of services.
APPLICATIONS
AGAINST EKURHULENI MUNICIPALITY
Relief
claimed in the third application
(78)
As was pointed out above, on 18 February 2014 and
by agreement (without admission of liability) an order was granted in
favour of
Ms Livanos in the third application (case number
13040/2014) against the Ekurhuleni Municipality for the rendering of
municipal
services pending the finalisation of the other relief
claimed in Part B of that application. The other relief claimed in
Part B,
when reduced to its essential features, can for practical
purposes be regarded to fall into two main categories:
·
a declaratory order that the municipality is
obliged, upon request from a property owner or his or her duly
authorised representative,
to render municipal services within the
jurisdiction of the municipality where no debt exists in respect of
municipal services
between the municipality and such an owner; and
·
a declaratory order that the municipality is
precluded from claiming amounts from any consumer within its
jurisdiction who has no
debt relationship with the municipality
insofar as municipal service fees, surcharges on fees, property rates
and other municipal
taxes, levies and duties are concerned .
(79)
According to Ms Livanos she took transfer of her
property on 11 December 2013. She rented the property out to her
daughter, the
second applicant. When both these applicants
endeavoured to enter into a consumer agreement with the municipality,
it refused to
do so because of the outstanding historical debts
incurred by a former owner. On 4 February 2014 the electricity supply
to the
property was terminated. In support of the allegation that the
municipality refused to enter into a consumer agreement because of

outstanding historical debts, the first and second applicants rely,
inter alia,
on a note
dated 6 February 2014 which was made by an official of the
municipality. This note states "you must now make a new

arrangement to settle the old & new debt".
(80)
The fourth applicant, Clifton Dunes Investments
317 (Pty) Ltd became the registered owner of the property concerned
during November
2013 . On 26 November 2013 the fourth applicant
addressed a letter to the municipality in which it applied for a new
municipal
consumer agreement relating to this property. Subsequent to
this application a new consumer agreement was entered into. However,

on 11 February 2014 a disconnection notice was served. According to
the applicants the fourth applicant was threatened that its

electricity and water supply would be terminated if payment of a
previous outstanding debt was not effected.
(81)
The municipality's defence appears to be that as
a matter of policy it does not refuse to enter into consumer
agreements with new
owners of properties where a historical debt
exists. The allegation that the municipality refused to open a
consumer account as
alleged by the first and second applicants, is
therefore denied in the answering affidavit. It is asserted that on
15 January 2014
a rates account had been opened in respect of the
property and the first and second applicants were advised to approach
the correct
department and submit an affidavit pertaining to the
second applicant's marital status in order for a consumer account to
be opened,
which the second applicant failed to comply with. It is
further alleged that, had they complied with the aforementioned
requirement,
a consumer account would have been opened.
(82)
It was contended on behalf of the municipality
that this dispute is the result of two mutually destructive versions,
neither of
which is supported by the objective facts or the
probabilities arising from the affidavits. I cannot agree with this
submission.
The note by an official dated 6 February 2014 clearly
indicates that the applicants had to make new arrangements in order
to settle
the "old and new debt", referring to the
historical debt of the previous occupier and a new debt which accrued
after
transfer of the property had taken place. This note supports
the version of the applicants. Furthermore, why would an owner or
consumer who is in need of municipal services, refuse or neglect to
comply with a formal request? The explanation given by the
municipality in this regard is nonsensical. I therefore accept that
the outstanding historical debt was also a relevant consideration

taken into account by the municipality for refusing to open a
consumer account.
(83)
Reference was made by the municipality to its
electricity by-laws and credit control and debt collection policy.
This was not done
to justify a refusal to open a consumer account,
but to explain in general terms that the administrative core of the
municipality
are obliged to fulfil their functions in accordance with
the Municipal Systems Act, debt collecting policy and by­ laws.
It
was also emphasised that the municipality is not refusing to open
consumer accounts, provided that the applicant complies with certain

formal requirements. However, it has also been explained on behalf of
the municipality (by Mr Frank, the Executive Manager: Legal
and
Corporate Services in annexure "BRA6" par 30) that the
municipality holds a
sui generis
lien
over the property concerned in respect of an amount due "or any
historical debt regardless of the applicant's ownership
of the
property" which right is enforceable against "any person".
(84)
Taking into account these explanations, I am not
convinced that the policy of the municipality (i.e. not to refuse the
opening of
a consumer account when there are historical debts
outstanding) is consistently applied in practice. The applicant's
case, with
specific reference to the note dated 6 February 2014, is a
clear indication in this regard. Having regard to all these
considerations,
I am satisfied that there is a live and real issue
before me which is also of public importance. I therefore have to
consider it.
(85)
I have already concluded that section 118(3) of
the Municipal Systems Act is unconstitutional to the extent that it
also applies
to new or subsequent owners of the property concerned.
It was also pointed out that in terms of section 152(1)(b) of the
Constitution
it is an object of local government "to ensure the
provision of services to communities in a sustainable manner".
In
addition thereto , section 4(2) of the Municipal Systems Act
provides that the council of a municipality must give members of the

local community equitable access to the municipal services to which
they are entitled. I therefore conclude that the Ekurhuleni

Municipality has no right to refuse the rendering of municipal
services to a new or subsequent owner only because of historical

debts still outstanding with regard to the property concerned, or to
demand payment thereof before entering into a service agreement
for
the rendering of services.
Relief
claimed in the fourth application
(86)
The relief claimed in the fourth application
(Gemma Diamonds in case number 19552/2015) is not divided into a Part
A and Part B.
There is to a certain extent also an overlap between
the different kinds of relief sought, but they can for practical
purposes
be regarded to fall into two main categories, namely
interdictory and declaratory relief. They are essentially the
following:
·
an interdict restraining the municipality from
claiming from the first applicant the amount of R6 439 599.53 in
respect of historical
rates and taxes owed by Rietfontein General
Galvanisers in liquidation, the previous owner of Portion 40, Farm
Rietfontein 63 IR
situated at 4 Kraft Road, Germiston;
·
an interdict restraining the municipality from
claiming from the first applicant the amount of R6 728 240.48 in
respect of historical
municipal consumption charges owed by a
previous tenant of the previous owner of the aforesaid property;
·
ordering the municipality, on receipt of the
amount payable in terms of section 118(1)(b) of the Municipal Systems
Act (No 32 of
2000) in respect of the aforesaid property, to issue
the prescribed certificate in terms of section 118(1) of the Act;
·
declaring that the practice of the municipality
in holding new owners of properties liable for the historical debts
of previous
owners, or tenants of previous owners, to be
unconstitutional and invalid; and
·
declaring that the disconnection, suspension,
restriction or withdrawal of municipal services as defined in section
1 of the Municipal
Systems Act and/or the refusal to provide or
resume such services to a customer, where no debt exists in respect
of municipal services
between the municipality and the said customer
constitutes conduct that is un­ constitutional and invalid.
(87)
Gemma Diamonds bought an immovable property from
a company in liquidation, the sale having been accepted and approved
by the liquidators.
Transfer took place on 20 May 2010 after the
municipality had issued a clearance certificate in terms of section
118(1) of the
Municipal Systems Act. Gemma Diamonds confirmed to the
municipality that it did not require water and electricity to the
property
and that it would only be responsible for municipal rates
and basic services. On 2 September 2014 Gemma Diamonds requested the
municipality to confirm that it (account No 2606170700) is
responsible for municipal rates from date of registration and to
state
the amount that is due and owing by Gemma Diamonds. It also
stated that it was not responsible for payment of the previous
owner's
debts.
(88)
On 5 September 2014 the municipality confirmed
that Gemma Diamonds owed the municipality R132 859.78 for rates and
taxes. It also
confirmed that the previous owner of the property
concerned owed the municipality R6 439 599.53 and R2 879.77 for rates
and taxes.
(89)
Thereafter, having accepted an offer from a third
party to purchase the property, Gemma Diamonds applied for clearance
figures on
this property. On 11 December 2014 the municipality issued
clearance information in a document which consists of five pages
(annexure
"FA23" to the founding affidavit). Page 1 of this
document indicates that an amount of R180 828.72 and an amount of R6

736 657.19, totalling R6 917 685.91, are outstanding. The former
amount relates to Gemma Diamonds and the latter to the previous
owner
of the property. Gemma Diamonds maintains that this amount is owed by
a previous tenant of the former owner for "consumption
charges".
(90)
In its answering affidavit the municipality
denies that the said amount is for consumption charges and explains
that the amount
claimed consists of rates, taxes, refuse removal and
sanitary charges, all subject to a prescription period of 30 years.
It then
states that the municipality is entitled to, and will in
compliance with its statutory duties, where there is an on-sale by a
party
that bound itself in terms of the conditions of sale, claim all
arrears, including that of a previous owner whereto the new owner

bound itself in terms of such conditions of sale. It was then pointed
out that the first applicant bound itself for the payment
of all the
arrears in terms of clauses 5.3 and 5.4 of the agreement of sale
(annexure "FA 11" to the founding affidavit).
(91)
On a proper reading it appears that both these
clauses are qualified. They both provide that the purchaser (Gemma
Diamonds) shall
be responsible for the payment of all outstanding
rates, taxes and any other amounts, including arrear amounts, "that
are
necessary to obtain transfer of the property". It was
contended on behalf of the applicants that this qualification
exonerated
Gemma Diamonds from paying historical debts due to the
fact that it was only obliged to pay amounts that became due in
connection
with that property for municipal services, taxes and
property rates which would be required to obtain a clearance
certificate in
terms of section 118(1) of the Municipal Systems Act.
I agree with this submission. The inclusion of all other debts,
beyond the
two year period provided for in section 118(1), would
simply mean that one should disregard the said qualification for no
good
reason. The defence that Gemma Diamonds agreed to also pay
historical debts beyond the two year period is therefore without any

merit.
(92)
Even if I have misdirected myself in this regard,
there is another reason why the alleged entitlement to claim payment
of historical
debts is bad in law. According to the answering
affidavit the municipality would be entitled to claim payment of all
arrears "where
there is an on-sale by a party that bound itself
in terms of the conditions of sale" for the payment of those
debts. This
implies that the municipality is relying on a contract
for the benefit of third parties
(stipu/atio
a/teri),
as the municipality was not a party
to that agreement of sale. If the municipality wishes to rely on such
a contract, it must allege
and prove,
inter
a/ia,
acceptance of the benefit
(Jurgens
Eiendomsagente v Share
[1990] ZASCA 81
;
1990 (4) SA 664
(SCA)
at 673D). The acceptance must also have been communicated to the
party who undertook to make the payment (Gemma Diamonds).
It is
common cause that the agreement of sale was entered into prior to 20
May 2010 . There is no indication that any benefit flowing
from that
agreement was accepted by the municipality. On the contrary, on 5
September 2014 the municipality clearly distinguished
between two
separate debts, the one owing by Gemma Diamonds and the other by the
previous owner. It was approximately four years
later, during
December 2014, that these two debts were consolidated to reflect the
total amount of R6 917 685.91. That was done
after Gemma Diamonds had
informed the municipality on 2 September 2014 that it was not
responsible for the debts of the previous
owner. The defence of
entitlement based on an undertaking or an agreement can therefore not
succeed.
(93)
I therefore conclude that the Ekurhuleni
Municipality has no right to claim payment of historical debts (owed
by a previous owner
or other person responsible for the payment
thereof) from Gemma Diamonds in respect of the property concerned .
Having regard to
this conclusion, it is not necessary to consider the
other relief sought, i.e. an interdict restraining the municipality
to claim
these amounts or to compel the municipality to issue the
prescribed certificate in terms of section 118(1) of the Municipal
Systems
Act. A declaratory order will have the same effect as it also
addresses the essence of the dispute between the parties.
(94)
As far as the other relief is concerned
(declaring the disconnection or suspension of services to be
unconstitutional and invalid
where no debt exists in respect of
municipal services between the municipality and a new customer or
owner), it is also not necessary
to consider it. The new owner ·
(subsequent to Gemma Diamonds) is not a party to this litigation and
Gemma Diamonds (whilst
it is still the owner) does not require (as
indicated above) the usual municipal services, such as water and
electricity, to the
property.
The
Fifth Application
(95)
As indicated above, the applicants in case number
five (23826/2014) are not proceeding with their application and the
only issue
relates to costs. According to the applicants this was an
urgent application launched for the reconnection of electricity
supply
to the property belonging to the first and second applicants.
Consequent thereupon, an order was made by agreement in terms of
which the Ekurhuleni Municipality was ordered to reconnect and
re-establish the electricity supply to the properties. The costs
of
this application have been reserved.
(96)
According to the applicants the municipality
failed to reconnect the electricity supply as a result whereof the
applicants were
forced to bring another urgent application on 13 June
2014 . The costs relating to this application have also been
reserved. It
was contended on behalf of the applicants that there is
no reason why the municipality should not be ordered to pay the costs
of
both applications.
(97)
It was pointed out by counsel for the
municipality that this application purports to have been brought by
three corporate entities,
none of which has shown to have
locus
standi.
No resolution by either the first or
the second applicant, in terms of which a decision by each entity to
bring the application
is authorised, has been filed or attached to
the founding affidavit. It was also argued that the third applicant
is, at best, an
agent and as such lacks the requisite
locus
standi
to claim the relief sought in the
notice of motion on behalf of the first and second applicants .
Therefore, so it was argued, no
cause of action was disclosed in the
founding papers and therefore the applicants should not be granted
costs of these applications.
(98)
It was also pointed out on behalf of the
municipality that the second application brought on 13 June 2014
deals exclusively with
the allegation that the consent order granted
on 9 June 2014 was not obeyed by the municipality . This was disputed
by the municipality
in an answering affidavit by its attorneys of
record whereafter the matter was removed from the roll by an order of
the court.
(99)
When considering the issue of costs, I take into
account the usual rule that the successful party is entitled to his
costs unless
the Court for good reason, in the exercise of its
discretion, deprives him of these costs. In determining who is the
successful
party, the Court should look to the substance of the
judgment or order and not merely its form. Having regard to these
principles,
it appears to me that the applicants should be regarded
as the successful party in the first application where an order was
granted
in their favour on 9 June 2014, albeit by consent and
notwithstanding the defences raised by the municipality . As far as
the second
application is concerned, there appears to be no
successful party. I therefore conclude that, save for the costs of
the first application
which should be paid by the municipality, there
should be no order for costs with regard to all the other instances
where costs
have been reserved.
REMEDIES
(100)
The relief sought by the applicants fall into two
main categories, namely a constitutional and declaratory remedy. In
case number
four additional relief, namely interdictory relief is
also applied for. I have already indicated that the real issue is not
the
granting of an interdict, but the question whether the
municipality is entitled to claim payment of historical debts. By
means
of a declaration of rights the municipality will be compelled
to take appropriate steps as soon as possible to avoid or prevent
a
breach of that right
(Pretoria City Council v
Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC) par 968-D). As a
declaratory order will address the essence of the dispute between the
parties, the granting of an interdict
will be unnecessary and perhaps
even premature.
(101)
I also take into account that a declaration of
rights differs from a declaration of constitutional invalidity. The
purpose of the
former is limited to an order that will be binding on
the litigants, while the latter is binding on all
(National
Director of Public Prosecutions v Mohamed
2003
(4) SA 1
(CC) par 58). It would therefore not be competent , when a
declaration of rights is applied for, to include in the order a new
or subsequent owner who is not a party to the litigation. (Cf
Stadsraad van Randburg v Ludorf
1984
(3) SA 469
(WLD) at 477C-E) . This should also apply, in my view, to
applicants who litigate in a representative capacity and who are not
themselves involved or affected by the conduct or decision of the
other party, i.e. the municipality in these applications.
(102)
As far as the declaration of invalidity is
concerned, section 172(1)(a) of the Constitution provides that a
Court must declare that
any law or conduct that is inconsistent with
the Constitution is invalid to the extent of the inconsistency. This
requires a Court
to declare invalid only those parts of a law that
are unconstitutional. In
Coetzee v Government
of the Republic of South Africa
[1995] ZACC 7
;
1995 (4) SA
631
(CC), KriegIer J said the following in this regard (par 16):
"Although
severability in the context of constitutional law may offen require
special treatment, in the present case the trite
test can properly be
applied: if the good is not dependent on the bad and can be separated
from it, one gives effect to the good
that remains affer the
separation if it still gives effect to the main object of the
statute. The test has two parts: first, is
it possible to sever the
invalid provisions and, second, if so, is what remains giving effect
to the purpose of the legislative
scheme? "
(103)
To the extent that it is not possible textually
to sever the good from the bad in section 118(3) of the Municipal
Systems Act (without
rewriting the section), the appropriate remedy
would be an order analogous to the order made in
First
National Bank.
The appropriate remedy would
therefore be an order declaring the provisions of section 118(3) to
be constitutionally invalid to
the extent only that the security
provision "a charge upon the property" survives transfer of
ownership into the name
of a new or subsequent owner who is not a
debtor of the municipality with regard to debts incurred prior to
transfer. I have to
stress that this declaration of invalidity does
not affect the security provision with regard to municipal debts
incurred by the
owner, or by another person during the period of
his/her ownership, prior to transfer of the property into the name of
a new or
subsequent owner.
ORDER
The
following orders are accordingly made:
A.
Case No 7
4195/2013:
Chantelle Jordaan & Others v The City of
Tshwane Metropolitan Municipality & Others;
Case No 1
3039/2014:
New Ventures Consulting & Services (Pty)
Ltd & Others v City of Tshwane Metropolitan Municipality &
Others;
Case No 1
3040/2014:
Billie Ann Livanos & Others v The
Ekurhuleni Metropolitan Municipality & Others; and
Case No 1
9552/2015:
Gemma Diamonds (Pty) Ltd & Others v The
Ekurhuleni Metropolitan Municipality & Others:
(1)
The provisions of
section 118(3)
of the
Local
Government: Municipal Systems Act No 32 of 2000
are declared to be
constitutionally invalid to the extent only that the security
provision "a charge upon the property"
survives transfer of
ownership into the name of a new or subsequent owner who is not a
debtor of the municipality with regard to
municipal debts incurred
prior to such transfer;
(2)
This order must be brought to the attention of
the Registrar of this Court to enable him/her to comply with the
provisions of
Rule 16(1)
of the Rules of the Constitutional Court.
B.
Case No 74195/2013
:
Chantelle Jordaan & Others v The City of
Tshwane Metropolitan Municipality & Others:
(1)
Condonation for the filing of further affidavits
by all parties concerned, is granted;
(2)
It is declared that the City of Tshwane
Metropolitan Municipality:
(a)
is obliged, upon request from the first applicant
or his/her duly authorised representative, to render municipal
services within
the jurisdiction of the municipality and with regard
to the property concerned, where no debt exists in respect of
municipal services
between the municipality and the first applicant;
(b)
is not entitled to claim payment of outstanding
amounts from the first applicant in respect of the property
concerned, under circumstances
where the first applicant has no debt
relationship with the municipality insofar as municipal service fees,
surcharges on fees,
property rates and other municipal taxes, levies
and duties are concerned.
(3)
The City of Tshwane Metropolitan Municipality is
ordered to pay the applicants' costs of the application, including
the costs of
three counsel, two of which are to be taxed at the
senior counsel scale.
C.
Case No 13039/2014:
New
Ventures Consulting & Services (Pty) Ltd & Others v The City
of Tshwane Metropolitan Municipality & Others:
(1)
Condonation for the filing of further affidavits
by all parties concerned, is granted;
(2)
It is declared that the City of Tshwane
Metropolitan Municipality:
(a)
is obliged, upon request from the third to sixth
applicants, or their duly authorised representative, to render
municipal services
within the jurisdiction of the municipality and
with regard to the property concerned, where no debt exists in
respect of municipal
services between the municipality and the said
applicants;
(b)
is not entitled to claim payment of outstanding
amounts from the third to sixth applicants in respect of the property
concerned,
under circumstances where the third to sixth applicants
have no debt relationship with the municipality insofar as municipal
service
fees, surcharges on fees, property rates and other municipal
taxes, levies and duties are concerned.
(3)
The City of Tshwane Metropolitan Municipality is
ordered to pay the applicants' costs of the application, including
the costs of
three counsel, two of which are to be taxed at the
senior counsel scale.
D.
Case No 13040/2014
:
Billie Ann Livanos & Others v The
Ekurhuleni Metropolitan Municipality & Others:
(1)
Condonation for the filing of further affidavits
by all parties concerned, is granted;
(2)
It is declared that the Ekurhuleni Metropolitan
Municipality:
(a)
is obliged, upon request from the first, second
and fourth applicants or their duly authorised representative , to
render municipal
services within the jurisdiction of the municipality
and with regard to the property concerned, where no debt exists in
respect
of municipal services between the municipality and the first,
second and fourth applicants;
(b)
is not entitled to claim payment of outstanding
amounts from the first , second and fourth applicants in respect of
the property
concerned , under circumstances where the first, second
and fourth applicants have no debt relationship with the municipality
insofar
as municipal service fees, surcharges on fees, property rates
and other municipal taxes, levies and duties are concerned.
(3)
The Ekurhuleni Metropolitan Municipality is
ordered to pay the applicants' costs of the application, including
the costs of three
counsel, two of which are to be taxed at the
senior counsel scale.
E.
Case No 1
9552/2015:
Gemma Diamonds (Pty) Ltd & Others v The
Ekurhuleni Metropolitan Municipality & Others:
(1)
It is declared that the practice of the
Ekurhuleni Metropolitan Municipality in holding the first applicant
liable, with regard
to the property concerned, for the payment of
historical debts of previous owners , or tenants of previous owners,
is unlawful
and invalid;
(2)
The Ekurhuleni Metropolitan Municipality is
ordered to pay the applicants' costs of the application, including
the costs of three
counsel, two of which are to be taxed at the
senior counsel scale.
F.
Case No 23826/20 14
:
Oak Plant Rentals (Pty) Ltd & Others v
The Ekurhuleni Metropolitan Municipality:
(1)
The Ekurhuleni Metropolitan Municipality is
ordered to pay the costs of the applicants, including the costs
reserved on 9 June 2014,
such costs to also include the costs of
three counsel, two of which are to be taxed at the senior counsel
scale;
(2)
There shall be no order for costs with regard to
all other instances where costs have been reserved.
_________________________
D
S FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA
Date:
7 November 2016