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2024
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[2024] ZAFSHC 322
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Highlands CC v Matjhabeng Local Municipality (6835/2023) [2024] ZAFSHC 322 (19 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: 6835/2023
In
the matter between
HIGHLANDS
COURT CC
APPLICANT
and
MATJHABENG
LOCAL MUNICIPALITY
RESPONDENT
Neutral
citation: Highlands Court CC v Matjhabeng Local Municipality
Coram:
Chesiwe J
Heard:
Heard on 16 May 2024
Delivered:
This judgment was handed down in open court and
electronically by circulation to the parties’ representatives
by email and
released to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 19 September 2024.
Summary:
Dispute
with the Municipality in terms of
Section 102
of the
Local
Government: Municipal Systems Act, 32 of 2000
– Municipality’s
unlawful installation of bulk electricity meter - Impermissible
charges on the electricity bill -
Unlawful
disconnection of the individual electricity meters.
ORDER
1.
The Respondent is ordered to immediately
remove the bulk electricity meter it installed at the building known
as Highland Court,
84 Highland Avenue, Virginia and at the same time
(so as to ensure that there is no interruption in the supply of
electricity to
the building), reconnect the electricity supply to
each separate and individual unit in the building through the
existing separate
individual electricity meters assigned to each
unit.
2.
The Respondent to henceforth, and with
effect from the date of this order, raise charges for the supply of
electricity through each
of the separate individual electricity
meters according to the residential tariff which was applicable at
the time that the Respondent
disconnected the electricity supply to
the separate and individual units on the property through the
separate and individual electricity
meters assigned to each unit;
3.
The Respondent to pay the costs of this
application on a party and party Scale C.
JUDGMENT
Chesiwe J
Introduction
[1]
The Applicant launched an application in
which it seeks the removal of the bulk electricity meters and the
reconnection of the separate
and individual supply of electricity to
units in a building of flats. The application is opposed.
[2]
The relief sought is as follows:
“
1.
That Respondent be ordered to immediately remove the bulk electricity
meter it installed at the building
known as Highlands Court, 84
Highlands Avenue, Virginia (“the property”) and at the
same time (so as to ensure that
there is no interruption in the
supply of electricity to the building), reconnect the electricity
supply to each separate and individual
unit in the building through
the existing separate individual meters assigned to each unit;
2.
The Respondent be ordered to henceforth, and with effect from the
date of this order, raise charges
for the supply of electricity
through each of the separate individual electricity meters according
to the residential tariff which
was applicable at the time that the
Respondent disconnected the electricity supply to the separate and
individual units on the
property through the separate and individual
electricity meters assigned to each unit;
3.
The Respondent be ordered to reverse all bulk meter charges debited
against the Applicant’s
account with the Respondent of the
supply of electricity to the property since the installation of the
bulk electricity meter;
4.That such further
and/or alternative relief as the above Honourable Court deems meet,
be granted, and;
5.
That the Respondent pay the costs of this on the scale as between
attorney and client.”
[3]
Before the commencement of oral arguments,
prayer 3 of the notice of motion was abandoned by the Applicant and
would therefore not
be dealt with. Issues for determination by this
Court are whether the disconnection of the individual electricity
meters were unlawful
and whether the installation of the bulk
electricity meters was unlawful.
Background
[4]
The Applicant is the owner of all the
sectional title units in a building since 1984. The Applicant had
separate electricity meters
installed in all the sectional title
units. The electricity was billed and charged by the Applicant
according to residential tariffs.
This remained the position until
November 2017 when the Respondent disconnected the electricity supply
through the individual electricity
meters to each separate unit and
installed a bulk electricity meter.
[5]
Since
the installation of the bulk electricity meter, the Applicant found
it difficult to allocate the total charges for electricity
supplied
by the Applicant via the bulk electricity meter by way of pro-rata
allocations to each separate unit. Further that,
the billing
and the items and charges raised on the bills submitted by the
Respondent for electricity supplied via the bulk electricity
meter.
[1]
[6]
The
Applicant proceeded to raise the dispute with the Respondent by
sending a letter to the Municipal Manager on 13 July 2023, but
with
no success.
[2]
The Applicant
denied any knowledge as to how and who gave consent to the
installation of the bulk meter. Applicant alleged that
the Respondent
therefore entered the premises without consent and installed the bulk
electricity meter unlawfully.
[7]
Counsel
on behalf of the Applicant in oral argument as well as in the written
heads of argument submitted that the Respondent disconnected
the
individual meters without consent. The Respondent was however, unable
to show evidence or records for the application to remove
the
individual meters and install the bulk electricity meter. Counsel
further submitted that the deponent of the Respondent’s
opposing
affidavit
cannot confirm the fact as it is hearsay since the deponent was not
employed during the period the bulk electricity meter
was installed.
Further that the individual metering is more beneficial to the
Respondent.
[3]
The Applicant
has been struggling for the past years to resolve the dispute with
the Respondent nor does the Respondent have a
policy on dispute
resolution. Counsel further indicated that the Applicant has
abandoned prayer 3 that the bulk tariffs be written
off.
[8]
Counsel on behalf of the Respondent
submitted that the Applicant waited for five (5) years before
approaching court and it is unacceptable.
Counsel said the Respondent
denies that it entered the premises unlawfully to install the bulk
meters. Counsel denied that there
was forceful entry to the premises
and if there was forceful entry, the Applicant should have approached
the police to lay criminal
charges against the Respondent. Counsel
further submitted that the Respondent is an organ of state, that it
has its own authority
and regulation when dealing with the
installation of electricity meters.
[9]
The Applicants in the founding affidavit
contends that the Respondent’s unlawful conduct in installing
the bulk electricity
meter and refusing to install the separate
electricity meters in the units has been the Applicant’s
objection since this
installation. The Applicant had lodge several
complaints in respect of the bulk meter system, but these were not
attended to. The
Respondent has provided the Applicant with
inaccurate and incorrect accounts.
[10]
The
Respondent in its
opposing
affidavit
contends that the bulk meter was installed on the request of the
Applicant. The Respondent gave details of the application
in which a
client makes the application for the changing of the metering system
and if the application is approved, the individual
meters would be
removed and the bulk metering system installed. The Respondent
indicates that the Applicant’s representative
made such an
application during November 2017.
[4]
[11]
The
Respondent stated that the records of such an application are no
longer available and the municipality official who received
the
application is no longer in the employment of the Respondent.
[5]
Thus, the record of the application is not available. The Respondent
further contends that the Applicant waited for six (6) years
before
taking any action with regard to the installed bulk meter system.
[12]
Counsel for the Applicant submitted that
Plascon-Evans rule is applicable as the facts stated by the
Respondent together with the
Applicants affidavit which are admitted
or denied. The Court is therefore entitled to reject it on the
papers.
[13]
It
is trite that an Applicant in motion proceedings must make out the
evidence to use in support of its affidavit that it filed
with the
notice of motion and is not permitted to supplement it in the
replying affidavit, nor make out a case in the replying
affidavit.
[6]
[14]
In
National
Director of Public Prosecutions v Zuma
[7]
, the Court said motion
proceedings were designed for the resolution of legal disputes based
on common facts.
[15]
Dispute do arise in motion applications
whether minor or substantial, as a result f the Uniform Rules guide
litigants in order to
determine the facts upon which disputes of fact
are determined.
[16]
The Respondent’s version consists of
denials and are palpably implausible and clearly untenable and the
Court ought to reject
it merely on the papers.
[17]
Section
84 of the Local Government Municipal Systems Act
[8]
,
(the Systems Act) provides as follows:
“
(1)
A district municipality has the following functions and powers:
(a)…
(b)…
(c
Bulk supply of electricity, which includes
for the purposes of such supply, the transmission, distribution and,
where applicable,
the generation of electricity
.”
[18]
The Respondent on its own version, could
not substantiate this evidence that an application was made by the
Applicant to remove
the individual metering and install the bulk
metering system. The Applicant denied having applied for the bulk
system. The Respondent
cannot rely on speculation and probabilities
that the Applicant may have applied. Even if the Applicant had
applied, the Respondent
ought to keep a record of such an
application. The explanation that the official that may have received
the application is no longer
in the employment of the Respondent is
not acceptable more so with technological advancements. The
Respondent could easily trace
the official to enquire about the
application and make a request to be furnished with an affidavit that
could explain what happened
to the application.
[19]
The Respondent filed a draft Credit Control
and Debt Collection Policy (Policy 2023/2024) which policy could not
assist this Court
as it is a draft. In any event, the draft deals
with debt control and debt collection. The Applicant has abandoned
the prayer on
the debt account for the electricity supply.
[20]
The
Applicant further raised an issue with the Respondent having entered
its property unlawfully and without consent. Section 101
of the
Municipal System Act
[9]
provides as follows:
“
101
Municipality’s rights of access to premises
The
occupier of premises in a municipality must give an authorised
representative of the municipality or of a service provider access
at
all reasonable hours to the premises in order to read, inspect,
install or repair any meter or service connection for reticulation,
or to disconnect, stop or restrict the provision of any service
.”
[21]
The Applicant denied giving the Respondent
access to the property. In a letter dated 13 July 2023, the following
is noted:
“
6.
Our client did not consent to the installation said bulk meter, …
9. Our client has
approached the municipality personally in this regard, but the
municipality officials failed and/or refused to
assist to resolve
these disputes and to provide assistance.”
[22]
The Applicant’s founding affidavit,
at paragraph 7.5, states as follows:
“…
approximately
November 2017, when the Respondent, without the Applicant’s
consent and without having any power or authority
to do so,
disconnected the electricity supply through the individual
electricity meters to each separate unit and installed a bulk
electricity meter. (bulk electricity meter).”
[23]
Indeed, the Applicant’s evidence is
that it did not apply for the installation of the bulk electricity
system. Even if Section
101 provides that
the
occupier of a premises must
(my
emphasis), give an authorised representative permission to enter the
premises, the Applicant denies ever giving such permission.
The
Respondent’s situation worsened by not having any evidence with
regard to the application nor on how entry was gained
t the premises.
[24]
Further, the Applicant had attempted to
have the matter resolved, but to no avail. Section 73 of the
Municipal Systems Act provides
that municipality services must be
equitable and accessible. In this instance, it appears that the
Applicant had no access to the
services of the Respondent as the
officials were not willing to assist with the dispute.
[25]
Therefore,
the Applicant ought to be granted the relief sought. Respondent
failed to resolve the complaint of the Applicant as per
the annexed
letters citing non assistance with the request to have the bulk
electricity meter removed and the reconnection of the
individual
electricity meters situated at the premises in respect of each unit.
[10]
Costs
[26]
The general rule is that costs follow the
event.
Order
1.
The Respondent is ordered to immediately
remove the bulk electricity meter it installed at the building known
as Highland Court,
84 Highland Avenue, Virginia and at the same time
(so as to ensure that there is no interruption in the supply of
electricity to
the building), reconnect the electricity supply to
each separate and individual unit in the building through the
existing separate
individual electricity meters assigned to each
unit;
2.
The Respondent to henceforth, and with
effect from the date of this order, raise charges for the supply of
electricity through each
of the separate individual electricity
meters according to the residential tariff which was applicable at
the time that the Respondent
disconnected the electricity supply to
the separate and individual units on the property through the
separate and individual electricity
meters assigned to each unit;
3.
The Respondent to pay the costs of this
application on a party and party Scale C.
S.
CHESIWE, J
Appearances
For
the Applicant:
Adv.
M C Louw
Instructed
by:
Noordmans
Attorneys.
Bloemfontein
For
the First and Second Respondents:
Adv.
N Nyezi
Instructed
by:
Mahlokonya
Attorneys
Bloemfontein
[1]
Founding
Affidavit, page 11 at para 8.3
[2]
Annexure
“FA2”, page 22
[3]
Answering
Affidavit, page 38 at para 2.3
[4]
Ibid,
38
[5]
Answering
Affidavit, page 39 at para 2.8
[6]
(See
Minister
of Land Affairs and Agriculture and Others v D & F Wevell Trust
and Others
2008
(2) SA 184
(SCA) at 200 C-E)
[7]
2009
(2) SA 277 (SCA),
[8]
Act
117 of 1998
[9]
Act
32
of 2000
[10]
Annexure
“FA2” and “FA3”, pages 21 – 27.