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[2014] ZAGPPHC 212
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Van Rooyen v City of Tshwane Metropolitan Municipality (9793/13) [2014] ZAGPPHC 212 (27 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 9793/13
DATE:
26 MARCH 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
AM
VAN ROOYEN
…
…………………………………………………
Applicant
and
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
……………………………………………………
Respondent
JUDGMENT
Tuchten
J
:
1
The applicant lives in Erasmusrand,
Pretoria. He receives services, including a water supply, from the
respondent (“the City”).
He has always paid what he has
been charged for the services supplied to him. But in September and
again in October 2010, he received
accounts for water way in excess
of anything he had previously had to pay.
2
While the applicant’s monthly
average account for water services since he started receiving
services in 2010 was some R900
per month, the accounts for water for
September and October 2010 were R7 004,57 and R4 920,47 respectively.
When the applicant
got the September account, he thought there must
be something wrong. He went to the City’s offices and filled in
and signed
a form. This form was an application by the applicant for
his water meter to be tested. The form reflects that the applicant
agreed
to pay for the test.
3
The
request that the meter be tested was made against the background of
by-law 24 of the City’s Water By-Laws (“the
By-Laws”)
[1]
which gives a customer the right to have his meter tested if he has
“reason to believe” that his meter might be defective.
He
must pay for the test unless the meter is shown to be defective, by
virtue of under- or over-registration, in which case the
City must
pay for the test. Then, under by-law 24(5)(b), the City must
...
determine the water supply services for which the customer is to be
charged on the basis set out in section 27.
4
“Actual consumption” is
defined in by-law 1 as the measured consumption of any customer. But
there is nothing in the
By-Laws that renders a customer liable to pay
for the “actual consumption”. By-law 7 renders the owner,
occupier and
customer jointly and severally liable for
...
all water services consumed in respect of the premises.
5
There is no definition of “consumed”
in the By-Laws. The ordinary meaning of the term is therefore
applicable. This
means that the persons named are liable for water
which actually flows from the City’s pipeline through the meter
applicable
to the premises or, if there is no meter, the water which
actually reaches such premises.
6
By-law 8 provides that in certain
circumstances and after notice in terms of by-law 50, the City may
take certain coercive action
if
...
the customer has ... failed to comply with the provisions of these
by-laws ...; or... failed to pay any ... charges due and
payable by
him ... .
7
At the risk of repetition, I must stress
that a customer only fails to comply with the By-Laws in relation to
payment of amounts
for which he was billed if he fails to pay for
water supply services
...
consumed
in respect of the premises.
8
The meter was duly tested. The result of
the test, obtained in November 2010, was that the meter was
defective. But it was defective,
at least when it was tested, in
favour of the applicant. At the time the meter was tested, it would
have under-registered the amount
of water consumed by the applicant.
A report to this effect by Acquametron Verilab CC, a service provider
to the City, to this
effect was presented to the City. The report
reflects that the date of rejection of the meter was 28 November
2010. There is also
a handwritten note on the report reading “METER
FAILED: UNDER-REGISTRATION.
9
The applicant then sent an email to the
City’s customer care centre. It is undated but must have been
sent before 7 March
2012, the date of a letter from the applicant’s
attorney to the City, under cover of which a copy of this email was
transmitted
to the City. In this email, the applicant records his
contention that he did not owe the amount billed because the meter
was faulty.
On a fair reading of the correspondence, in context, the
essence of the applicant’s complaint was that the meter had
reflected
a flow of water to the applicant in excess of the actual
flow; in other words that the applicant had been charged for water
which
he had not received or, to use the term in the By-Laws, that he
had not consumed all the water billed. The applicant
proceeded
to assess himself for what he regarded as his probable consumption
for the two months in question and to pay these amounts
to the City.
10
The applicant sent another email to the
City dated 11 April 2011. In that email he made the point that the
meter was defective,
regardless of how it registered. The clear
implication of this email was that the applicant was disputing the
amount of water which
the City claimed he had consumed during the two
months in question. If the meter is defective, the applicant
reasoned, then one
cannot rely on the meter to establish consumption.
I find this reasoning persuasive.
11
In
a letter dated 20 June 2012,
[2]
the City responded to the applicant’s attorney in writing: the
City’s case was that the meter had “been tested
[3]
and
found to be accurate at the normal to high flows”. But the test
report attached to the papers does not say that. The report
says that
water was leaking round the lens of the meter and that the “accuracy
of the meter at Qmin flow rate failed to comply
with the requirements
of SANS 1529-1".
12
The
City’s case as further set out in this letter was that “initial
investigation found no reason for the increased
consumption other
than a possible internal leak”. The City recorded that it had
found no further grounds to support a credit.
13
The applicant proceeded to prepare a
schedule setting out what he paid for water from May 2010 to December
2012. The next highest
amount billed, leaving aside the two spikes of
which the applicant complains, was R2 386,21. In only three other
instances did
the applicant’s water account exceed R2 000. The
average over the period was, as I have said, about R900 per month.
14
The applicant, relying heavily on the
schedule of his payments that he had produced, was adamant: he had
not, he said, consumed
all the water billed him in the two months in
question.
15
The City was equally unmoved by the
applicant’s further representations. Its attitude was that it
had investigated the matter
and concluded that the applicant had
consumed all the water billed for the two months in question. It
threatened to use the coercive
machinery of the By-Laws against the
applicant. That machinery entitles the City in certain circumstances
to terminate or reduce
to water supply to a consumer or to allocate
amounts paid in respect of other services to the unpaid account.
16
The
applicant then moved this court urgently for interim relief. That
relief was granted in the form of a rule nisi pending the
determination of this application, prohibiting the City from
restricting or terminating the water supply to the applicant. I may
add that the applicant has continued to pay all amounts billed him
for services by the City. All that is in issue are the true
amounts
due for water consumed by the applicant during the two months in
issue.
17
In his notice of motion, the applicant
seeks an interim interdict to operate until the dispute declared by
the applicant with the
City has been determined by a court or other
appropriate tribunal. The fact that another court has granted the
applicant temporary
relief has no bearing on the enquiry which I mst
undertake.
18
This being an application for an interim
interdict, the following principles apply: Once a well grounded
apprehension of irreparable
harm is established, in the absence of an
adequate ordinary remedy, the court is vested with a discretion,
which will usually resolve
into a consideration of prospects of
success and the balance of convenience. The stronger the prospects of
success, the less need
for such balance to favour the applicant.
Conversely, the weaker the prospects of success, the greater the need
for the balance
of convenience to favour the applicant. Cipla Medipro
(Pty) Ltd vAventis Pharma SA and Related Appeal
2013 4 SA 579
SCA
para 40.
19
Counsel
for the City attacked the contention of the applicant that he had
prospects of success in the determination of the dispute
the
applicant alleges exists between the parties. The first basis is that
there no longer is a dispute. Counsel submitted that
the City was not
only a party to the dispute but had been vested by its By-Laws with
an administrative power to determine the dispute.
That determination,
counsel, submitted, had been made when the City rejected the
applicant’s claim that the meter was defective
in its letter
dated 20 June 2012. Counsel argued that the dispute was whether the
meter had malfunctioned. Once the City had determined
that there had
been a malfunction, but that this malfunction operated in favour of
the applicant, so ran the argument, the applicant
was faced with an
administrative decision that was valid
[4]
until it had been set aside.
20
I cannot agree that the By-Laws have
conferred any power on the City to adjudicate disputes with its water
consumers. By-law 7 obliges
a customer to pay for all water services
consumed in respect of the premises. To state the obvious: a customer
is not liable under
by-law
for any water service that has not
been consumed in respect of the property.
Consume
is not
defined; it therefore means, where the service is measured by a
device such as a meter, water that has
actually
flowed through
the measuring device. By-law 8(2)(b) empowers the City, after due
notice as provided for in the by-law, to terminate
the service if the
customer has “failed to comply with the provisions of these
by-laws" or “failed to pay any
tariffs or charges due and
payable ...”
21
A customer is not guilty of a failure to comply with the
By-Laws and does not fail to pay any tariffs or charges due and
payable
unless that customer has actually consumed the water for
which the City has billed him. To state, again, the obvious: the City
does not provide proof of consumption in a case such as the present
by asserting that the water in question has been consumed; proof
of
consumption is provided when it is demonstrated, on a balance of
probabilities, that the water in question has actually passed
through
the measuring device applicable to the premises in question, in the
present case the water meter dedicated to the measurement
of the flow
of water to the applicant’s premises.
22
By-law 27(1 )(a) provides that if the
meter is found to be defective (I emphasise again whether by reason
of over- or under-registration),
the City may estimate the amount of
water consumed. In such a case, by-law 27(1 )(a) provides that, if an
estimate is possible,
the estimate must be based
...
on the average monthly consumption of water on the premises served by
the measuring device during the three months prior to
the
registration of the defect.
23
As
a calculation of the average monthly consumption was perfectly
possible - the payment figures for the undisputed monthly bills
give
these data - the City should have proceeded to make the estimate. It
did not. The provisions of by-law 27(1 )(a) provide strong
support
for the conclusion that where the meter is defective as contemplated
by the By-Laws, the City cannot lawfully use the results
generated by
the defective meter to determine the amount owed by the customer
24
The
provisions of by-law 9 are similarly destructive of the contention of
counsel for the City that the City itself is empowered
to determine a
dispute with its customer. Under by-law 9, the City Engineer may
restrict or discontinue water supply services,
inter alia, where the
customer has “failed to pay the applicable charges”
[5]
or has “failed to comply with any other provisions of these
by-laws”.
[6]
At the
risk of stating, I hope for the last time, the obvious: the Engineer
is not empowered to exercise these powers where
he, or some other
functionary, believes that the customer has failed to pay the
applicable charges or believes that the customer
has otherwise failed
to comply with the By-Laws. The Engineer is only empowered to
exercise these powers (subject to notice where
required) where,
objectively, it is established that there has been a failure to pay
what is due or a breach of the By-Laws.
25
It
will be seen that I have reached these conclusions independently of
the provisions of the Local Government: Municipal Systems
Act, 32 of
2000 (“the Systems Act”). Under s 95(a), a municipality
must, In relation to the charging of fees for municipal
services,
establish a sound customer management system that aims to create a
positive and reciprocal relationship in relation to
persons liable
for these payments. Under s 96(a), a municipality must collect all
money that is due and payable to it. Section
98 empowers a
municipality to adopt by-laws to give effect to the municipality's
credit control and debt collection policy, its
implementation and
enforcement. Counsel for the applicant argued the case on the basis
that the By-Laws complied with the provisions
of s 98 and I shall
accept that they do. The contrary was not argued on behalf of the
respondent. Under s 100 the Municipal Manager
of the City must
collect money that is due and payable to the City.
26
I have discussed these
provisions of the Systems Act by way of background to a consideration
of the provisions of s 102 which provides,
in relevant part:
Accounts
(1)
A municipality may-
(a)
consolidate
any separate accounts of persons liable for payments to the
municipality:
(b)
credit
a payment by such a person against any account of that person; and
(c)
implement
any of the debt collection and credit control measures provided for
in this Chapter in relation to any arrears on
any of the accounts of
such a person.
(2)
Subsection
(1) does not apply where there is a dispute between the municipality
and a person referred to in that subsection concerning
any specific
amount claimed by the municipality from that person
,
[my emphasis]
27
These provisions of the Systems Act
establish two points of central importance to the present case:
firstly that municipalities
are empowered, and required, to collect
what is actually due to them, not what they merely assert is due to
them; and, secondly
that where there is a dispute between, say, a
customer and the City, the power to use the coercive powers in this
section (those
provided for in the Act and, in the present case, the
By-Laws) is suspended until the dispute has been resolved.
28
So the ultimate question, on this aspect of the case, is
whether on the facts a genuine, unresolved dispute exists between the
applicant
and the City. The following factors weigh with me:
28.1
The
discrepancies between the spikes in the two months in question
compared with actual billed amounts for water consumed in respect
of
the premises over a substantial period.
28.2
The
fact that the meter was faulty.
28.3
It
was suggested by counsel for the City that the applicant may be
deliberately untruthful or confused about the amount of water
concerned on his premises during the months in question. There is no
reason to suspect that the applicant is anything but an honest,
aggrieved citizen. He has paid all amounts which he maintains are due
to the City. He has even self-assessed, and paid, his liability
for
water actually consumed during the two months in question. It is
unlikely that
the applicant would go to the trouble and
expense of an opposed application in the High Court if he were not
bona fide
28.4
There
is no evidence to indicate that there was a leak internal to the
applicant’s premises.
28.5
The
probabilities, as they appear to me, are that either the meter
over-registered during the months in question or that the person
who
read the meter wrongly recorded the amount of water consumed.
29
There is, accordingly, on the probabilities, an unresolved
dispute in existence between the applicant and the City in relation
to
the quantities of water consumed in respect of the applicant’s
premises during the months of September and October 2010. The
harm
which the applicant fears is self-evident: that his water might be
cut off. By threatening to use its coercive powers in the
face of
this dispute, the City is acting in conflict with s 102(2) of the
Systems Act. The applicant has therefore established
the right
required for the grant of an interim interdict. There remains for
consideration the balance of convenience.
30
One of the coercive powers which the
City maintains it is, no doubt subject to notice, entitled to
exercise against the applicant
is the restriction or termination of
his water supply. Against that, if the City is ultimately proved
right in the dispute, the
City will have had to wait for its few
thousand rands but may well be entitled to interest on the
outstanding amounts.
31
At the other end of the coercive scale,
the City would, if not interdicted, be entitled to apply monies paid
by the applicant in
respect of, say, electricity, towards payment of
the City’s water supply claims for the two months in question.
I think that
to allow the City to reimburse itself in this manner in
the present circumstances would be an affront to the reasonable
person’s
sense of fairness. There is no reason why the
applicant should be out of pocket in advance of the determination of
the dispute.
If the determination of the dispute goes against the
applicant, there is every indication that he will be able to pay and
will
pay what he owes, with any interest awarded.
32
I
hold that the balance of convenience strongly favours the applicant.
It follows that an interim interdict should issue. I was
told from
the bar that the City, unlike eg Cape Town
[7]
,
has no dispute resolution mechanism to cater for this type of
dispute. The matter will therefore have to go to court. As the City
claims that what is due to it has not been paid, the City must
institute action for the recovery of these amounts and such interest
to which it may believe it is entitled.
33
I wish to make clear that I come to no
final conclusions on any of the issues with which I have dealt in
this judgment. I stress
this to ensure that the court which
determines the dispute is not in any way fettered by my findings
which are, of necessity, based
only on what the parties have put
before me and made in the context of interim relief. Other
evidentiary materials and other arguments
may perhaps be put before
the court which determines the dispute which persuade that court that
my findings are wrong or subject
to qualification.
34
In making this characterisation, I have
not overlooked the provisions of by-law 23 which deem the quantity of
water measured by
a measuring device to be, until the contrary is
proved, that which is measured by the device. Whether any reliance
can be placed
on the measurements of a device which, it is common
cause, was faulty, is for the court determining the dispute to
decide.
35
I make the following order:
1
The respondent (“the City”)
is hereby interdicted from disconnecting or restricting any municipal
services rendered
to the applicant at 378 Emus Erasmus Avenue
Erasmusrand Pretoria (“the premises”) and from otherwise
implementing any
of the debt collection and credit control measures
contemplated in
s 102
of the
Local Government: Municipal Systems Act,
32 of 2000
, pending the final determination of the dispute existing
between the applicant and the City in relation to the quantities of
water
consumed in respect of the premises during the months of
September and October 2010;
2
The City must serve a summons out of a
court of competent jurisdiction on the applicant within one month of
the date of this order
in which the City claims payment of the
amounts in dispute.
3
The costs of this application are
reserved for consideration by this court after the final
determination of the dispute; provided,
however, that if the City
does not issue summons as directed in paragraph 2 above, the
applicant may set the matter down in this
court on the present
papers, supplemented as he may be advised, for any final interdictory
relief that may be appropriate and for
costs.
NB
Tuchten
Judge
of the High Court
26
March 2014
[1]
City of Tshwane Metropolitan Municipality Water Supply By-Laws,
promulgated in a local authority notice on 5 November 2003 in
terms
of Premier’s Notice no. 6770 of 2000 as amended.
[2]
The officer who signed the letter recorded that he signed it on 10
July 2012.
[3]
A reference to the investigation by Acquametron.
[4]
Compare Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004 6 SA
222
SCA
[5]
By-law 9(1)(a)
[6]
By-law 9(1)(b)
[7]
See City of Cape Town v Strumpher
2012 4 SA 204
SCA para 14