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[2009] ZAGPPHC 154
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Vrey NO and Another v City of Tshwane Metropolitan Municipality (14985/09) [2009] ZAGPPHC 154 (11 December 2009)
IN THE HIGH COURT NORTH GAUTENG,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE NO:
14985/09
11 December
2009
In
the matter between:
JAN
DIRK VREY N.O
First
Applicant
LEONARA
VREY N.O
Second
Applicant
and
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
Respondent
JUDGMENT
Ismail
AJ:
[1]
The applicants approached this court on an urgent basis on the 19
February 2009. The respondent without conceding urgency
or the merits
gave an undertaking that the applicants electricity would be
reconnected. The parties agreed that they would allow
each other an
opportunity to file papers in order for the matter to be determined
on the normal opposed roll.
[2]
Mr and Mrs Vrey reside on a property at 275 Eben Roux Street,
Rietondale, Pretoria [The property]. The property is registered
into
the name of the Dirk Vrey Family Trust. The first and second
applicants are the trustees of the trust. The applicants occupy
the
property, however the trust entered into a contract with the
respondent for the service of electricity and water supply in
respect
of the property.
[3]
During 2007 problems arose in respect of the water account in respect
of the property. The applicants aver in their founding
affidavits
that these problems manifested after a new water meter was inserted
to register the water supply to the property.
[4]
The Financial Services Department of the respondent sent a letter to
the trust (annexure 22) dated 12 February 2008 demanding
payment of
the sum of R21 982,29 failing which the matter would be handed over
to their attorneys without further notification.
[5]
Between February 2008 and 23 October 2008 the first respondent's
attorneys, Hartzenberg Inc, wrote diverse letters to the City
Council
of Tshwane wherein they requested a breakdown of the amounts due and
also requesting that meetings be held with the applicants
in order to
resolve the dispute relating to the water account.
[6]
Notwithstanding these letter having been sent the applicant stated
that he also contacted one Nonelia an employee of the
respondent
questioning the meter reading in respect of the water usage for the
period 25 July 2007 up to 8 August 2007 which reading
indicated that
558 units of water used. He was given a reference number of
connection with this query, the number being 500210515.
[7]
The applicants seek a spoliation order against the respondent that
the respondent be prevented from cutting the power supply
to the
property as a result of any alleged arrear water payments due to the
respondent which may be due to it from time to time.
[8]
Mr Strydom acting on behalf of the respondent when he addressed the
court requested to know in whose name the application was
brought as
on the notice of motion the name of the applicant and his wife
appeared
nomine
officio
as trustees
of the trust, whereas in his replying affidavit he stated that he was
bringing the application in his personal capacity
and that notice of
amendment would be served on the respondent shortly thereafter. To
date of the hearing no notice of amendment
had been served. Adv van
der Merwe acting on behalf of the applicants informed the court that
he sought an amendment to the effect
that the applicants should be Mr
and Mrs Vrey in their personal capacities.
Mr
Strydom did not oppose the amendment and the amendment
was
accordingly granted.
[9]
The merits were argued on that basis. Mr van der Merwe submitted that
the respondent was not entitled to cut the electricity
to the
premises as the applicants created a dispute in terms of section 95
(f) and (g) of the Municipality Systems Act and that
the Municipality
had to have a mechanism in place in order for persons to question and
query debits due and in addition thereto
the respondent had to create
an appeal procedure.
[10]
Section 95 of the municipal Systems Act 32 of 2000 reads as follows:
"
Customer care and management.- in relation to the levying of rates
and other taxes by a municipality and the charging of
fees for
municipal services, a municipality must, within the financial and
administration capacity-
(a)
establish a
sound customer management system that aims to create a positive and
reciprocal relationship between persons liable for
these payments and
the municipality, and where applicable, a service provider;
(b)
....
(f)
provide
accessible mechanisms for those persons to query or verify accounts
and metered consumption, and appeal procedures which
allow such
persons to receive prompt redress for inaccurate accounts;
(g)
provide
accessible mechanisms for dealing with complaints from such persons,
together with prompt replies and corrective action
by the
municipality;
It
was submitted on behalf of the applicant that they created a dispute
regarding the water account and that the respondent was
obliged to
create a forum where this dispute could be ventilated.
Notwithstanding the applicants having reported this matter to
the
respondent through their attorney the issue was not addressed,
instead the respondent set out to cut the electricity supply
to the
premises. Mr van der Merwe submitted that this was clearly in
violation of the provisions of section 95 (f) and (g).
[11]
Mr Strydom on the other hand submitted that there was no agreement
between the applicants and the respondent and for that reason
there
was no case against the respondent. He referred to the matter of
Pretoria
Belastingbetaiersvereniging v City of Tshwane Metropolitan
Municipality
[unreported
judgment of Bertelsmann J in the North Gauteng High Court under case
number 48320/09] where the learned judge referred
to the decision of
Shoshanguve
Residents Joint Committee v Noordelike Pretoria Metropolitaanse
Substrukture
case
No 1034/2000 (T) (unreported) which was delivered on June 2000 by Van
der Westhuizen, J (then a member of this court) in which
he said
that,
"if the
real cause of action , (and in that case the electricity supply was
the cause of action just as it is here), is a matter
of contract
there can be no class action, it is correct that the contract between
the first respondent and members of the applicant
is governed by
several statutes, but so are virtually ail contracts. The mere fact
that contracts are governed by statutes does
not elevate the issues
between the parties to a constitutional issue.
Under
the circumstances the applicant has no
locus
standi
and while I
am convinced that the matter ought to be struck off the roll because
it is not urgent, I dismiss it with costs because
the applicant does
not have
locus
standi. "
[12]
In casu
Mr
Strydom enquired at the beginning of the matter as to who was
bringing the application. Whether it was the trust or the applicants
in their own capacities. This aspect was clarified by Mr van der
Merwe as stated above in para [5] of this judgment, namely that
the
application was brought by Mr Vrey in his personal capacity. What is
also interesting to note is that attorney Hartzenberg
wrote all the
letters to the respondent on behalf of the trust, [see pages 23 ;27;
29; 31; 33; 35; and 37]. The communications
from the respondent in
turn were addressed to the trust. This was clearly so because the
relationship which existed was between
the trust and the respondent
in so far as the supply of electricity and other services were
concerned.
[13]
The principle laid down in the
Pretoria
Belastingbetalers -vereniging
matter
supra being that no one may litigate on behalf of another, unless the
matter is a constitutional case.
[14]
The Constitutional Court in
Leon
Joseph & Others v The City of Johannesburg & Others
[2009]
ZACC 30
- was called upon to determine whether the applicants were
entitled to procedural fairness in the form of a notice and were
afforded
opportunity to make representations to the City of
Johannesburg before electricity supply would be terminated. The
question was
whether the disconnection of electricity was
procedurally unfair in terms of section 3 (2)(b) of The Promotion of
Administrative
Justice Act, 3 of 2000 (PAJA). In that matter the
applicants challenged the constitutionality of certain by-laws.
The
present matter is distinguishable as no constitutional challenge was
raised and in any event notice was given to the trust in
the form of
a letter of demand. The applicants were clearly aware of the dispute
between the respondent and the trust regarding
the water bill. The
applicants pegged their claim in this matter on the mandament van
spolie.
[15]
Mr Strydom referred to the matter of
Telkom
SA Ltd v Xsinet
2003
(5) SA 309
as authority that a mandament van spolie is not available
to a party where contractual rights
are
in issue. At paragraph
[13] of the
Xsinet
matter Jones AJA
stated:
"
[13].... Disconnection denied Xsinet access to the beneficial use of
its equipment, which, so the argument goes was an act
of spoliation.
There is no suggestion that Telkon interfered in any way with
Xsinet's physical possession of the equipment. There
is no evidence
that Xsinet was ever in possession of the mechanisms by which the
equipment was connected to the internet It is
not as if Telkom had
entered the premises and removed an item ofXsinets equipment in order
to effect disconnection. In these circumstances
it is in my opinion
both artificial and illogical to conclude on the facts before the
Court that Xsinet's use of the telephone,
lines, modems or electrical
impulses gave it 'possession
7
of the connection of its corporeal property to Telkom's system"
[16]
If the applicant had a
right to the mandament van spolie as a tenant of the trust than all
those persons living on the property,
in the case of a farm the farm
workers and on a residential property the domestic helper and
gardener if they resided on the premises.
These person would not be
able to rely on spoliation if the water or electricity was cut,
because the relationship between the
council and the person who
it
agreed to supply these
utilities is based on contract. The contract is binding inter parties
and not to the world
at
large.
[17]
In the
Leon Joseph
matter the tenants
paid their electricity contribution to the landlord. The landlord
failed to pay the bill to the respondent, who
in turn terminated the
electrical supply to the building. The constitutional court heard the
matter as a class action and ruled
that the council should have given
notice to the applicant's prior to severing the electricity supply.
In casu the applicants were
aware that the respondent sent a letter
of demand for the outstanding water bill as Mr Very was the trustee
of the trust and he
received the letter.
[18]
Malan AJA in
Firstrand
Ltd t/a Rand Merchant Bank v Scholtz NO
2008
(2) SA 503
(SCA) at para [16] p 512 I stated:
"These
rights, arising from contract, are not incidents of the possession or
control of their properties but were mere contractual
rights relating
to the use of the pipelines. The parties could just as well have
agreed that the appellants would convey water
to the respondents by
means of a fleet of water trucks. Neither the use of the pipeline nor
use of the fleet of trucks would have
been an incident of the
possession or control of the properties of the respondents."
See
also
Impala Water
Users Asssociation v Lourens NO and Others
2008
(2) SA 495
(SCA)
[19]
The facts of this case do not fall within the parameters of cases
such as
Naidoo v
Moodley
1982 (4) SA
82
(T);
Painter v
Strauss
1951 (3) SA
307
(O)
Froneman v
Habmore Timbers and Hardware (Pty) Ltd
1984
(3) SA 609
(W) referred to in the
Xsinet
matter.
[20]
I am of the view that the applicants have not made out a case that
they have locus standi nor that they are entitled to rely
on a
spoliation for the reasons referred to hereinbefore.
[21]
The application is accordingly dismissed with costs.
Ismail
AJ
For
the applicants: Adv L K vd Merwe instructed by Hartzenberg Inc,
Attorneys, Pretoria
For
The respondent: Adv T Strydom instructed by Moduka More
Attorneys,
Pretoria Judgment delivered: 11 December 2009.