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[2015] ZAGPPHC 591
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Marius Blom & GC Germishuizen Inc v Tshwane Metropolitan Municipality Council (8/2011) [2015] ZAGPPHC 591 (22 May 2015)
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IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
22/5/15
Case number: 8/2011
In the matter between:-
MARIUS
BLOM
AND GC GERMISHUIZEN
IN
CORPORATED
PLAINTIFF
And:
TSHWANE METROPOLITAN
MUNICIPALITY
COUNCIL
DEFENDANT
Heard on 13th May 2015
Delivered on 22nd May
2015
JUDGMENT
NCONGWANE
A.J
1.
INTRODUCTION.
The plaintiff, Marius
Blom & G C Germishuizen Incorporated, is a firm of attorneys
conducting its business at […] D[…]
Street (as it then
was) Brooklyn, Pretoria (“the property or premises”),
sued the defendant for damages arising from
the defendant's cutting
of power supply to the business premises of the plaintiff. The
defendant defended the claim and filed its
plea.
2.
The pleadings are in two
(2) languages (i.e the particulars of claim and the plea are in
Afrikaans and English respectively). The
plaintiff's evidence was
tendered, presented and argued in English. Plaintiff's witness is
fully bilingual in English and Afrikaans
and this prompted me to give
the judgment in English.
3.
Mr C J Velgemoed appeared
for the plaintiff and Mr M.G Mashaba appeared for the defendant.
4.
I was
advised
by
both
counsel
at
the
commencement of
the
trial
that
the
defendant
has
conceded
the
issue
of
liability.
Counsel
for
the
defendant
qualified his
concession,
by
clarifying
that
the
defendant concedes
that
it
acted
illegally
by disconnecting the electricity power to the business premises of
the plaintiff on the 4th
May
2010 and reconnecting the supply on the 5th May 2010. I
only have
to
determine the issue
of
quantum.
THE
ISSUE TO BE DECIDED BY THE COURT.
5.
5.1.
Ex
facie
the particulars of claim, paragraph
4 thereof, plaintiff averse
that:
“
Op Dinsdag,
4
Mei
2010, het die
Verweerder
wederegtelik
en
in verbreking
van
‘n
diensooreenkoms
met die
Eiser,
die kragtoevoer
by
die Eiser
se
persele bekend as Duncanstraat 835,
Brooklyn, Pretoria, afgesny, wat
tot
gevolg,
gehad
het
dat
die
Eiser
geen
elektrisiteit
beskikbaar
gehad
het
op
die
persele nie”.
5.2. Paragraph 5 states:
“
Op 6 Mei 2010
het die Verweerder weer die kragtoevoer by die persele herstel.”
5.3. And
paragraph
6
averse that:
“
Die optrede van
de Verweerder was onregmatig, in verbreking van die diensooreenkoms
tussen die Eiser en die Verweerder en dit het
die reputasie en beeld
van die Eiser geskend by die Eiser se kliente, as mede die Eiser
persoonlik gekrenk in sy waardigheid.”
5.4. The defendant denied
all these averments. It is however, as mentioned above, common cause
that the supply of electricity to
the business premises of the
plaintiff was cut as is alleged in paragraph 4 of the particulars of
claim.
5.5. It is also common
cause that the plaintiff bears onus of establishing the facts upon
which it relies for the purpose of persuading
the court to order that
damages be granted in its favour.
5.6. This judgment seeks
to determine quantum of the plaintiff's loss of income and general
damages.
ANALYSI S OF
EVIDENCE AND APPLICABLE LEGAL PRINCIPLES.
6.
6.1. The
only
witness
who
testified
before
me
is
Mr
Marius
Blom
(“Blom”), a director of the plaintiff
and seems to be the controlling
mind of the
plaintiff. The defendant called no witnesses.
6.2. Blom a senior and a
very experienced
attorney
of this court,
has
been
practising
as
an
attorney
since
January
1978
and
has an extensive
knowledge in liquor licence work.
6.3. He previously worked
for three (3) different firms of attorneys in Pretoria and in 2010
practiced under the name and style
of the plaintiff. His co-director
is Mr Germishuizen. He is a senior partner of the firm and has ten
(10) to fifteen (15) cases
that have been reported in the law
reports. He considers himself knowledgeable on liquor licence
litigation.
6.4. Blom purchased the
property in 1995 and applied for rezoning for
office
rights. The
rezoning
application
has not
been finalized
by
the defendant
and
the property
is zoned for
residential purposes in terms of the
defendant's town
planning
scheme.
In 2007
after
coming
into
operation
of
the
Local
Government:
Municipal Property
Rates
Act
No
6
of
2004,
he
received
a
bill
from
the defendant
that
showed
a
surcharge
of
about
R80
000.00.
This
amount was
in respect of
penalty charges
imposed
by the defendant for “non-permitted use”
of the premises.
6.5. It seems
to
me,
after
perusing
the
e-mails
exchanged
on
pages
63 to
71
of
the
trial
bundle
handed
up
in
concurrence, by
the
parties
and
to
which
I was
referred
during
the
trial,
that
plaintiff
received
a
statement
from
the
defendant
in
March
2010,
which
indicated that the
property
is being used
illegally and accordingly that
a
penalty in
the
form of
increased
rates
and
taxes
were
imposed
retrospectively,
resulting
in
an
outstanding
amount
of
more than
R80
000.00
imposed by the
defendant.
6.6. In the
e-mail
of
the
4th
May
2010
written
by
Blom,
he
inter
alia,
mentions:
“
1. We Marius
Blom and GC Germishuizen Incorporated have
a
service agreement with the Tshwane Municipality in
terms of
which
electricity
and
water is
supplied
to
us
at […]
D
[…]
Street,
Brooklyn,
Pretoria
being
Portion
1
of Erf […] Brooklyn.
2. The account is
fully paid up.
3.
The
registered
owner
is Kawari Bellegings
CC.
4. In
March
2010
we
received
a
statement
which
indicated
that
the
municipality
is
of
the
opinion
that
the property is
being
used
illegally
and
accordingly
that a
penalty
in
the
form of increased
rates
and
taxes
are
being
imposed, respectively,
resulting
in the outstanding amount of more than R80
000.00.”
6.7. On page 64 of the
trial
bundle, the
same
letter
proceeds
amongst other
things,
in the following:
“
We cannot
see
how the Municipality
can cut electricity supply in respect of
a
fully paid
up
service
account.
There is
a
pending
dispute
in
respect
of
the
charges
of
rates
and
taxes
which is
paid
up,
up
to date,
in
respect
of
the
rates
previously applicable, and
we
believe
still
applicable.
As we
cannot
see
how
paid
up
services to
one
person
can
be
suspended because of an allege claim against another person and
seeing alleged arrears are in dispute, we believe
that cutting of our
power
simply is not only unreasonable but also illegally.”
The
writer
called
you
to
inform
you
that
we
intend
bringing
an urgent
application
against
the
municipality
for
spoliation
and/or
alternative relief but
you
Mr Nkosi kindly undertook to intervene.”
7.
7.1. Blom testified that
he communicated his displeasure caused by the disconnection of
electricity supply to an official of the
defendant whose name he
could not recall, but, who, from the trial bundle on page 65 appears
to be a certain Mr Nkosi (“Nkosi”).
Upon intervention by
Nkosi, reconnection occurred on the 6
th
May 2010, thus
obviating an urgent court application that had already been intimated
by Blom.
7.2. Blom further
testifies that he was crossed. He has been paying his account for 18
years. His complaint stemming from losing
power supply is legendary,
in that, computers and telephones were not functioning. His
staff was just sitting around and
had nothing to do. He also could
not do anything and although He is blind, on those two dates he felt
that he was as blind as a
bat without electricity. He used his office
for docex for Pretoria East. This meant that various attorneys came
to his office to
collect their docexed mail. On average per day, he
testifies that 30-40 people came to his office to collect the docexed
mail.
He had to explain to everybody who came and who could not use
the front door which was operated electronically, to go around the
back door to receive the mail by gaining access to his office from
the back door. He felt embarrassed by this. He gained an impression
that the people who came must have thought that he did not pay the
electricity account or he could not afford paying it. He testifies
that he explained to the people who came about this pending dispute
with the defendant.
7.3. He testified that he
has a reputation to pay his account timeously and he felt embarrassed
by this electric power cut. He confirms
that same was restored on the
6
th
May 2010.
7.4. It also emerged in
the course of his evidence that the dispute with the defendant ended
up in the SCA. Although this did not
come from the trial, it appears
that the said dispute was subsequently partially resolved by the
reported SCA judgment involving
the same parties before me in the
matter of
City of Tshwane
v Marius Blom and GC
Germishuizen
2011
(1)
SA 341
(SCA)
for purposes of this judgment, I need not to dwell much on the nature
of that dispute and its implications on the case before me.
8.
Be that
as
it
may,
Blom further
testified
that
his rate per hour for
his
professional fees
is
an amount of R1 500 plus VAT.
This
is the same for
his
partner
Mr
Gert Germishuizen.
He
handles
largely
litigation
on
liquor
licence
disputes
and
other
matters
on general
litigation
and
Mr
Germishuizen
who
was admitted
as
an attorney
in
1981 specialises
in
conveyancing
work.
9.
9.1. According
to Blom pages 51 and 53 of the trial bundle
reflect the
management
accounts
for
the
plaintiff's
business
in
respect
of
the months of January,
February
and March 2010. The accounts
were prepared by
himself assisted by his son. The first two items
of
the accounts on both pages 51 and 53 is the figures
extracted
from
Blom's
and
Germishuizen
fee
books.
He
also,
on
preparing the
accounts
went
through
the
bank
statements
and
the fees were calculated
from
the bank
statements
and
compared with those
extracted from the fee books. When engaged in this exercise,
he was avoiding giving the work to the auditors
to save costs
for
the
preliminary
arithmetical
calculations
that
could
be done
by
himself
and
his
son. Hence
this was
the
reason
the auditors were not
called as witnesses. To the best of his knowledge, the figures
on both page 51 ad 53 are correct.
9.2. On page 55 of the
trial bundle, Blom referred the court to the plaintiff's income
statement showing annual gross revenue for
fees of the plaintiff for
2010 in the sum of R4 424 481 without VAT. Under cross-examination,
his evidence is that the gross revenue
for 2010 is reflected in the
income statement was calculated by the auditors on the information
furnished by him as reflected from
the monthly management accounts.
The auditors follow their auditing principles and accounting policies
by testing those figures
as against the figures appearing in the
management accounts. In reply to a question raised by the court, Blom
testified that it
is unaccepted practice that the staff member has to
work for 21.6 in a month excluding weekends. From the management
accounts on
February 2010, the total gross income of the plaintiff is
the sum of R412 000.00 inclusive of VAT and for March 2010 is the sum
of R502 465.81 inclusive of VAT. Mr Velgemoed contended that average
for the month of February and March is the sum of R457 389.08
and
therefore contended that the daily fee written by the plaintiff is
the sum of R27 780.94.
9.3. He submits that the
figure is accurate since is the figure for the months that are just
before the cutting of the power to
the plaintiff's premises and
contends that the actual loss suffered for the 4th May and the 5th
May 2010 is the amount of R43 561.38.
9.4. He contends that the
best evidence rule should be applied.
9.5. It is my view that
the plaintiff has a duty to lead all the such evidence as would
permit the court to properly assess its
damages. In this regard, it
would have been appropriate for the plaintiff to place before this
court the management accounts for
the months of April and May 2010 to
put the court in a position it can properly assess the damages for
the 2 days in May 2010 and
establish the reliability of that evidence
as well as its probative value. There was no evidence tendered by the
plaintiff or any
submission made for reasons of its failure to place
the management accounts for April and May 2010 before court which
reasons would
perhaps have justified the compliance with the best
evidence rule.
9.6. Failure to produce
the production of the management accounts for April and May without
furnishing reasons creates evidential
problem for the plaintiff and
the quantum for the loss of income claimed and due to this, the court
is left only with the option
of having to consider the average annual
gross income as the available evidence in calculating the loss of
income for the two days
in May 2010.
9.7. In any event, it is
even doubtful to me if best evidence rule is applicable in the matter
before me. In
Welz and Another v
Hall and
Others
1996
(4)
SA
1073
(C)
at
1079
(C-E)
Conradie J described it as: ...
“…
a
rule
which
applies
nowadays
only
in
the
context
of
documents and
then
only when
the
content of
a
document is directly
in
issue.
It does
not
apply
where the document
serves
to
record
a
fact
capable
of
being
proved
outside
the
document.
It provides
that
the
original
of
a
document
is
the
best
evidence
of its contents. The rule is a very
ancient
one...
Under those
circumstances
Courts,
naturally,
insisted
upon
production
of
the original
document
as
being
the most
reliable
evidence
of its contents.
Nowadays,
a
court
can
be asked
to
permit
the use
of
a
copy if the
original
of
the
document is not available.”
9.8. In
S v Ngisi
1986
(2) SA 244
(E)
on page 246, after referring to
Mabena v
Braakpan Municipality (1) SA
176 T
a
t
180H to
1
81
D
and
R v
Zungu
1
953
(4)
SA
660
N()
at
6618-
6628
.
In both cases the court held “
the best
evidence
rule is
reiterated, which rule is to the effect
that the best evidence of the contents of
the
document
is
the
document
itself and
that
secondary evidence
as to the contents thereof, may only be adduced if it is established
that
the
document
itself
cannot
be
produced
for
some
such reason as its loss or destruction”
.
10.
In this
matter,
quite
clearly,
it
is
not
the
best evidence
that
was
placed
before
court in the form
of
the management
accounts for
only
February
and March in
order to prove
loss of income for the month of May 2010.
11.
During
argument,
Mr Velgemoed
submits
that plaintiff pursues also a
claim
for
general
damages
caused
by
defamation by
the
defendant
by
disconnecting
electricity
supply
to
the
premises
of
the
plaintiff,
so
the
argument
went,
the
conduct injured the reputation of the plaintiff.
12.
12.1. This claim was not
properly pleaded in the particulars of claim.
Mr
Mashaba
contended
that
plaintiff
has failed
to
set
out
the
exact
words
or
statement
used
as
proof
of
such
defamatory
conduct
by
the
defendant, Mr
Mashaba
contends
that
the
plaintiff
has failed to establish its case for defamation.
I agree with the
contention
but more importantly, this issue falls to be dealt with
as
part
of
the merits of
the
claim. At
the commencement of
trial, I
was
not
informed
whether defendant has
conceded
the
merits
for
defamation
as
well.
It is quite evident
from
Mr Mashaba
submission that he was bewildered that the plaintiff
introduces
this
claim
in the
hearing
for
quantum.
In
any
event,
it has not
been proved to me
that the plaintiff has met the test that is to be
applied
in
whether
an ordinary
reasonable
man having an
average intelligence
and
knowledge,
would have
found
the
defendant's
conduct to
have
been defamatory
under the
circumstances.
Accordingly,
I am
not
satisfied
that
plaintiff
has
discharged
its
onus in
this
regard
and I
find that a claim
for
defamation
has
no
merits.
At
the
very
least,
the
defendant
was ambushed
by
the
approach
to
have a
claim for
defamation
heard at the quantum stage of proceedings.
12.2. Turning to the
issue of loss of income it was contended on behalf of the defendant
that the supply of electricity power was
cut from reaching the
premises belonging to a third party, Kawari Bellegings CC and not to
the premises belonging to the plaintiff.
Mr Mashaba's contention
seems to be along the lines that the plaintiff's loss of income, is
not recoverable from the defendant
either contractually or
delictually. This argument defies the inescapable actual position
that the plaintiff is in occupation of
the premises and the cutting
of electricity, effectively affected the plaintiff and not Kawari
Bellegings CC.
13.
13.1. The SCA held in
Transnet Lts v Sechaba Photoscan (Pty) Ltd
2005 (1) SA 299
(SCA)
at 304- 305 para 16, Howie P:
“
the idea that
loss of profit is not recoverably in delict is not historically
founded. Indeed, the converse is the case. Moreover
it is commonly
the subject of an award of damages for loss of earning capacity in
personal injury cases. Why should it matter that
the injury is not
physical but economic, as long as the loss is one of earning
capacity?
Take the example of
the owner of a taxi that is negligently damaged. He has a claim for
the profit lost while the vehicle is out
of action. Can it make any
difference if, subject quantification, the delict is committed where
he has just bought the vehicle,
before commencing business? I think
not. No can it matter if the loss were caused by fraudulent conduct,
nor negligence. Clearly,
the loss would impair his earning capacity
and that is part of his patrimony. The claimant in the present case
is a company. Once
again, that can make no difference. Its patrimony
has been impaired by having the bargain that it was on the point of
acquiring
dishonestly snatched away.”
13.2. Before
me,
there
is
absolutely nothing in
principle
which
bars
recovery
of
damages
by
plaintiff,
for
loss
of
income.
It
is
therefore consequential
that
the
submission
made
on
behalf
of
the
defendant
has to
fail.
The
plaintiff
is entitled
to
be
placed
in
the
position
in
which
it was,
but for
the
unlawful
conduct,
depriving
plaintiff's benefit
of the supply of electricity.
CONCLUSION.
14.
14.1. In respect of the
aforementioned, the supply of the electricity to the premises of the
third party referred to above, generally
renders the owner as well as
the occupier or consumer liable in terms of the by-laws for
non-compliance with the obligations or
other requirements imposed
upon them under and in terms of the by- laws of the defendant.
14.2. In this regard,
Blom's evidence was largely not challenged under cross-examination
and there is no argument having been advanced
to attack the facts
emanating from his evidence. I am therefore satisfied that it is
justified in awarding damages in favour of
the plaintiff on the
average amount per month as per plaintiff's financial statement for
2010. I find plaintiff to have suffered
loss for the 4th May 2010 and
5th May 2010 as calculated hereunder:
Annual income as per
l/S
...................
R4
424 481.00
…
..............................................................................
12
…
..................................................................
=
R368
706.85
…
..........................................................................
21
days
…
......................................................
=
R
17 557.
46 (daily fees
lost)
The summons was
issued for the amount of R150
000 for damages from this
court, with interest. There is
no claim for VAT from the particulars of claim. And there was no
evidence as to whether I should
grant the amount claimed with V AT
and I was not addressed on the legal basis for entitling plaintiff to
claim VAT over and above
the amount of the award. The figures
submitted during trial were not inclusive of VAT I conclude that
plaintiff has not made out
a case why it must succeed on payment of
VAT.
14.3. It has not been
shown to me by way of cogent reasons why plaintiff instituted an
action in the High Court where the monetary
value clearly fell within
the jurisdiction of the Magistrate Court. In an absence of such
cogent reasons, I shall grant costs in
favour of the plaintiff as if
the matter was dealt with in the Magistrate Court.
15.
Accordingly I make the
following order:
15.1. That the defendant
is ordered to pay the plaintiff a sum of R35 114.92.
15.2. Interest on the
said amount on the applicable rate from date of this order.
15.3. That the
plaintiff's claim for general damages arising from defamation is
dismissed.
15.4. That the
defendant
pays
the
plaintiff's
costs
on
the
Magistrates' Court scale
of party and party.
_____________________
NCONGWANE AJ
ACTING JUDGE OF THE HIGH
COURT
Advocate for
Plaintiff: Adv
C.J Welgemoed
Attorney: Marius
Blom & G C Germishuizen Inc
Duncan
Street 835
Brooklyn,
Pretoria
Advocate for
Defendant: Adv
M G Mashaba
Attorney: Tsebane
Molaba Inc
179
Bosman Street
Suite
211-216, 2
nd
Floor
Charter
House Building
Pretoria