About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 235
|
|
Matjhabeng Local Municipality v Rustic Stone and Slab CC (4845/2023) [2024] ZAFSHC 235 (18 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
Case No: 4845/2023
In
the matter between:
MATJHABENG
LOCAL MUNICIPALITY
Applicant
and
RUSTIC
STONE AND SLAB CC
Respondent
REG
NR: 2006/056279/23
HEARD
ON:
18 APRIL 2024
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
5
AUGUST 2024
[1] On 14
September 2023, the respondent, as the plaintiff in the action,
issued a summons against the applicant, as
the defendant, for the
payment of R83 062.00, which the applicant paid in protest to
secure a clearance certificate for the
transfer of immovable
property. The applicant was of the view that the said amount, which
referred to services or fees due to the
respondent, was not payable
as the claim had prescribed.
[2]
On 2 November 2023, I granted a default judgment against the
applicant because it failed to file a notice
of intent to defend
despite being served with a summons. The applicant wishes to rescind
this judgment in accordance with the provisions
of Rule 42(1)(a) of
the Uniform Rules of Court. The Rule provides that
the court
may, in addition to any other powers it may have,
mero
motu
or upon the application of any party affected, rescind
or vary an order or judgment erroneously sought or erroneously
granted
in the absence of any party affected thereby.
[3]
The applicant’s main contentions are that the
respondent failed to properly plead prescription in its particulars
of claim and the application for default judgment. It was contended
that the affidavit in support of the default judgment failed
to
allege when the prescription began to run and the date of its
completion. It merely stated that the respondent sought to recover
the amount that had prescribed for the services that were rendered
from 17 May 2007 to 23 August 2013.
[1]
The default judgment, based on the above, was erroneously granted.
[2]
[4]
The applicant contended, furthermore, that the clearance
figures that were furnished in terms of section 118(1)
of the Systems
Act reflected amounts for municipal service fees, surcharges on fees,
property rates, and other municipal taxes,
levies, and duties during
the two years preceding the date of the application for the
certificate. The non-disclosure by the respondent
that a portion of
the clearance figures constituted rates and taxes, which would only
prescribe after 30 years, and that El Toro
Trucking was the debtor,
resulted in the court granting the default judgment.
[3]
This submission is misplaced as will be shown below.
[5]
In its affidavit in support of the default judgment, the
respondent set out the nature and extent of its claim
against the
applicant and attached proof of payment of R90 235.78. This
amount included R83 062.92 that was owed by a
previous tenant,
known as “El Toro Trucking,” for the period of 2007/04/17
to 2013/08/2. Attached to the affidavit
were two copies of the
municipal clearance figures with an extract of the arrear period, the
latter showing the periods and amounts
due to the applicant by the
respondent and El Toro in respect of stand 000[…].
[6]
The municipal clearance figures
[4]
indicated an owner’s account, number 111[…], that
reflected two subtotals of R6 427.15 and R83 062.92. The latter
amount was styled “
Huurder
Bedrae
”
or tenant fees while the former was titled “
Totaal
Eienaarsrekening”
.
The total amount payable (including administration and clearance
certificate fees) was R90 235.78. The tenant fees were reflected
in the application for default judgment
[5]
as referring to account 120[…]for the period 17/04/2007 and
26/08/2013 that related to EL Toro. It is undisputed that both
accounts had a bearing to stand 000[…], owned by the
respondent.
[7]
In the founding affidavit, the applicant stated that, in
terms of
section 11(d)
of the
Prescription Act 68 of 1969
, the
general rule is that a debt prescribed after three years.
[6]
In addition,
section 11(a)(iii)
of the Act provided that
any
debt in respect of any taxation imposed or levied by or under any law
shall prescribe after 30 years.
[7]
Rates charges only prescribed after 30 years.
[8]
However, the applicant was of the view that the clearance figures
issued to the respondent were part levies and part service fees
[9]
for the two years preceding its application for a clearance
certificate.
[10]
[8]
According to the applicant, the clearance figures issued
to the respondent had not prescribed, and it was within
its rights to
claim them. Even if it were found that some of the charges had
prescribed, the whole debt had not, as the respondent
was issued
figures for the two years preceding its application for a clearance
certificate.
[11]
[9]
The applicant’s case is clear: It sought
reimbursement of the amount the tenant owed from 2007 to 2013.
In
Jordaan
v City of Tshwane Metropolitan Municipality
,
[12]
the Constitutional Court held that section 118(3) of the Systems
Act was limited by prescription to municipal taxes going
back 30
years and that the prescription period with regard to other municipal
charges is limited to three years. The amount owed
by the tenant,
which represented the R83 062.92 paid by the respondent, was
unenforceable as charges, unlike rates and taxes,
had a prescription
period of three years. Alternatively, the applicant did not show that
the amount represented rates and taxes.
[13]
[10]
The applicant’s contention that the judgment was erroneously
granted is without substance: "
The
court would not have granted the judgment because the applicable
prescription period in respect of some of the judgment award
is 30
years.”
[14]
There
was no error in granting the default judgment. The applicant’s
rescission application in terms of Rule 42(1)(a) is misplaced.
[11] It is trite that the
successful party is entitled to the costs. On 4 April 2024, the
application, which was placed on the unopposed
roll, was postponed to
enable the applicant to file a replying affidavit. It is only fair
that it should bear the costs of that
postponement.
[12] In the result, the
following order issues:
Order:
The rescission
application is dismissed with costs which shall include the costs of
postponement on 4 April 2024.
MHLAMBI, J
On
behalf of the applicants:
Adv.
K Motselebane
Instructed
by:
Mhlokonya
Attorneys
No.
53 Kellner Street
Westdene
Bloemfontein
On
behalf of the respondent:
Adv.
MCM Pieterse
Instructed
by:
Kruger
Venter Attorneys
66A
Kellner Street
Westdene
Bloemfontein
[1]
Paras
14-16 of the applicant’s heads of argument.
[2]
Para
34 of the founding affidavit.
[3]
Paras
18-20 of the applicant’s heads of argument.
[4]
Annexure
“DA 2” to the default judgment.
[5]
Annexure
“D3”.
[6]
Para
45.
[7]
Para
47.
[8]
Para
49.
[9]
Para
48.
[10]
Para
46.
[11]
Para
51.
[12]
2017
6 SA 287
(CC) para 25.
[13]
AMA
Casa Props 129 (Pty) Ltd v City of Johannesburg and Others
(32217/2019)
[2021] ZAGPJHC 661 (9 November 2021);
Buttertum
Property Letting (Pty) Ltd v Dihlabeng Local Municipality
[2016]
4 All SA 895
(FB) at para 39.
[14]
Applicant’s
heads of argument.