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[2015] ZAGPPHC 566
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Laas and Another v City of Tshwane Metropolitan Municipality (24259/13) [2015] ZAGPPHC 566 (24 July 2015)
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Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH
AFRICA]
CASE
NUMBER: 24259 / 13
DATE:
24/7/2015
In the matter between:
DAWID BENJAMIN
LAAS
FIRST APPLICANT
WESBRIX
(PTY)
LTD
SECOND RESPONDENT
And
CITY OF THSHWANE
METROPOLITAN RESPONDENT
MUNICIPALITY
J
U
DG
MENT
MAVUNDLA,
J.
[1]
The applicant had obtained the following order:
"l.
The respondent is
interdicted from disconnecting the electricity service on
the
property known as Plaas K [.......], JR District, Pretoria for the
arrears electricity account in the amount of R3, 354, 940.
88, until
the action
under
case number 4082
I
2013 for the arrears has been
finalised.
2
That the Respondent is entitled to implement its credit control and
debt collection measures on
any amount outstanding after the
institution of the summons under case number 4082
I
2013.
3.
A
rule nisi
with return date being 29 August 2014, calling on
the Respondent to show cause if any why the order in paragraph
1should not be
made final.
4.
Costs reserved for determination by the Court on the return date."
[2] On the 13 November
2014 this Court discharged the aforesaid
rule nisi
issued
against the respondent and ordered that the applicant pays the costs
of the application. The reasons for this order are set
herein below.
[3] It has since come to
the Court's attention that the order of costs was made against a
single applicant, whereas there were two
applicants. The order as
to costs is
therefore vague and remains uncertain. The order as to costs as
it stands, needs to be
amended
so
as
to
make
it
practically
implementable.
Therefore,
the
order
in respect
of costs
is
mero
motu
[1]
varied
to
read
as follows:
"The
applicants are jointly and severally, the one paying
the other
to be absolved ordered to pay the cost of the application."
[4]
The rule
nisi
had
been extended on several occasions
before the
matter came before this
Court,
for
the
consideration
of
whether
the
rule
nisi
should
be
made
final
or
discharged. For a party to succeed in having a final order granted,
he must satisfy the Court that he / she/ it has a clear right
[2]
,
an actual injury was committed; and has no
alternative
remedy.
In the
matter
of
Oasis
Group
Holdings
(Pty)
Ltd
and
another
v
Bray
2006
(4) ALL SA
1
83
(C) at
1
91
para[
1
6]
Dlodlo J
held that
"if the relief sought is interim
in form
but
final
in
substance,
the
applicant
must
prove
the
requirements
for the grant of a final
interdict and questions such as balance of convenience do not arise.
For a final interdict the applicant
must establish a clear right or
definite right. It needs to be borne in mind that a final interdict
can be granted in application
proceedings only if the facts as stated
by the respondent together with the admitted facts in the applicant's
affidavits justify
such an order, as stated in the
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)."
[5] In
the matter
of
Wormald
NO and Others v Kambule
[3]
Maya AJA as
she then was, held that:
"[5] There having
been no request for a referral of such dispute for hearing of oral
evidence and these being motion proceedings,
the final relief which
is sought by the appellants should be granted if the facts alleged by
the appellant that are not denied
by the respondent, together with
the facts asserted by the respondent, justify such an order.
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C."
[6] In the
matter
of
Rademan
v
Moqhaka
Municipality
and
Others
[4]
it was
held that
a
municipality
is entitled
without
a
court
order
to
disconnect
the
electricity
supply
of
residents
who
refuse
or fail to
pay their
rates and
taxes,
and
it may do
so even where the
electricity accounts of such residents
are not in
area to ensure regular payment of fees
for the municipal services rendered.
[7]
In casu
it is common cause that the electricity was
supplied by the respondent to the property of the applicants,
initially through account
number [.......] registered in the name of
the first applicant. The arrears under this account accumulated to an
amount of R2,
948 110, 12.
[8]
According to the respondent during the 20 January 2012 certain
illegal activities occurred relating to the service account of
the
applicants. The names of the applicants were illegally removed from
the service account number [....... ] and substituted by
the names of
an entity called Chicken Traders. Simultaneously with the changing of
the names on account […….], a
new service account was
fraudulently opened in respect of the applicants' premises under
account no [………..]
in the name of the second
applicant. In this regard, the new account was opened by using the
Computer System of one
Asnath Mokalapa,
an employee of
the respondent, who was on leave at the time. All this occurred
immediately after the respondent had issued a notice
of intention to
disconnect the electricity supply to the relevant premises under
account number [……….].
[9]
In
casu
it is not disputed by the applicants that the account in respect
of relevant property is in arrears, in a staggering amount of R385,
845. 00. It is common cause that the applicants are running business
on the premises, and are therefore benefiting commercially
out of the
electricity supply. It is not denied that the respondent have a duty
to provide electricity. Equally so too, it is not
disputed that the
applicants, as the consumers, have a reciprocal duty to pay for the
electricity supplied to the premises by the
respondent.
[10]
In
the
matter
of
Real
People
v
City of Johannesburg
[5]
the
Full
Bench
confirmed
the
decision
of
Masipa J,
who
held
that
s49
(1) of the
Local
Government
Ordinance
renders the
owner
of property
liable for
all charges
in respect
of consumption for water and electricity and that in as much as there
is a
duty
on
the
respondent
to
provide
electricity
and
water
services
there
is
a
reciprocal duty on owners
of
properties to ensure that the
relevant
local legislation is complied with. The owner should not merely sit
back and regard it as
being
not
his
responsibility,
merely
because
he did
not enter
into a
consumer
agreement
with
the
respondent.
The
owner
bears
the
risk
in
the
property
and
remains
responsible
for
payment
of
outstanding
consumption. When
the
property
is
sold,
the
owner
will
be
held
liable
for
all
outstanding
consumption
charges and
clearance certificate will not be provided by the local authority
until such charges have been paid.
[11] In my view, the
applicants, as stated in their heads of argument seek a final order.
They have not persuaded this Court that
they have a real right,
entitling them to the confirmation of the
rule nisi.
On the
other hand the respondent has a right and duty to ensure that arrears
are paid.
In
casu,
there is even a
suggestion of devious efforts to avoid payment of the arrears, either
by the first applicant or second applicant
or both. In such
circumstances, the Courts in the exercise of their discretion should
refrain in abetting with such conduct.
[12]
In
my
view,
the
confirmation of
the
rule
nisi
would
have
the
effect of
a
final
order,
thus
depriving
the
respondent
of
its
substantive
right to
collect
the
outstanding
arrears
referred
to
herein above;
vide
Contract
Forwarding
(
Pty)
Ltd
v
Chesterfin.
[6]
[13] When the
rule
nisi
was issued; the costs were reserved for
determination by this Court. It is trite that the cost follow the
event. The respondent
having been successful in opposing the
confirmation of the
rule
nisi,
it stands
to reason that the costs must be borne by the applicants.
[14] It is for the
aforesaid reasons that, in the exercise of its discretion, this Court
swayed against confirming, but rather inclined
towards the discharge
of the
rule nisi
with costs.
[15] In the result the
order as amended shall reads as follows:
"1.
That the
rule
nisi
is discharged.
2.
That the applicants are jointly and severally, the one paying the
other to be absolved ordered to pay the cost of the application."
______________________
N.M
MAVUNDLA
JUDGE
OF THE HIGH COURT
HEARD ON THE:
13/ 11/2004
DATE
OF JUDGMENT: 24 /07/ 2015
APPLICANT'S
ADV: ADV I. N. KRUGER
INSTRUCTED
BY: MARAIS ATTORNEYS
RESPONDET'S
ADV: ADV M GWALA
INSTRUCTED
BY: ANDILE SETH ATTORNEYS
[1]
Vide
Firestone South Africa {Pty) Ltd v Genticuro A.G.
1
977(4)
SA 298 (AD) at 306H;
Mostert
NO v Old Mutual
Life
Assurance
CO
(SA)
Ltd
2002
(1)
SA
82
(SCA) at 860.
[2]
Zokufa
v
Comuscan
2011
(1) SA at 279 (ECM) para 37.
[3]
2006 (3) SA 562
(SCA) at 566H-I.
[4]
2012 (2) SA 387
(SCA) at 390 par[lO] etc.
[5]
2011(5) SA 8 (GSJ
).
[6]
(Pty) Ltd
2003
(2) SA
253.