SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-044543
In the matter between:
ANTHEA VERITY TARICA First Applicant
KATHERINE ANNE GASCOIGNE N.O. Second Applicant
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIAPLITY
Respondent
JUDGMENT
This judgment is handed down electronically by circulation to the parties’ legal
representatives by email and by being uploaded to CaseLines. The date and time for
hand down is deemed to be 9 December 2024.
(1) REPORTABLE: NO
(2) O F INTEREST TO OTHER JUDGES: NO
(3) REVISED. NO
…………..………….............
SIGNATURE DATE 09 December 2024
2
MAHON AJ:
[1] In May 2023 the applicants launched urgent proceedings against the
respondent for an order for the reconnection of electricity services to the first
applicant’s property and an interim interdict preventing the respondent from
disconnecting or terminating any further services pending the finalisation of this
matter.
[2] The urgent matter became moot as the applicants were reconnected and the
matter was then transferred to the opposed motion roll after the respondent
proceeded to serve its answering affidavit, as well as a counterapplication.
[3] What remains for determination is the applicants ’ entitlement to the relief
sought under Part B of the notice of motion, and a determination of the counter -
application launched by the respondent.
[4] The respondent sought condonation for the late filing of its answering affidavit
and counterapplication. This was initially opposed by the applicants. However, at the
commencement of the hearing, the applicants indicated that they no longer opposed
the respondent’s application for condonation and nothing further need be said on
that score.
[5] The applicants now seek an order that the respondent take “… any and/or all
necessary actions…” to ensure that adjustments are made to an account in respect
of services provided by the respondent . The adjustments are said to include the
following:
[5.1] An account is to be opened in the name of the first applicant and all
charges from 5 May 2021 to date are to be transferred to such new
account;
[5.2] any prescribed amounts (in relation to electricity and water charges)
on municipal account number 4[…] (being all amounts older than
three years as at date of judgment, which are disputed, have not
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been paid, summonsed for and/or where no acknowledgment of
indebtedness has been made) are to be written off.
[6] As I indicated to the parties during the hearing, I have some difficulties with
the formulation of the relief which is sought by the applicant , inasmuch as it seeks to
effect charges which are three years older than date of judgment . If the date of
judgment is used as a reference point, then, at least notionally, the order could affect
charges in respect of which the respondent has not yet had an opportunity to raise
an answer to the question of prescription.
[7] What is clear, however, is that what the applicants seek is a n order directing
the respondent to open an account in the name of the first applicant and to transfer
all charges from the account which was held in the name of the first applicant’s late
husband to the first applicant ’s newly established account. What the applicant then
seeks is an order directing the respondent to write off any amounts which are
demonstrated to have become extinguished through prescription as at the date of
the notice of motion. The respondent has not suggested, in respect of these charges,
that the running of prescription was interrupted through the issue of a summons, an
acknowledgement of debt, or on any other basis. It does, however, dispute that the
debts have prescribed, a topic which I deal with more fully below.
[8] The respondent counter-applies for the following order:
[8.1] That the first applicant be ordered and directed to attend to
the First City of Johannesburg Metropolitan Municipality's offices upon the
service of this Counter Application within 5 days and complete all the
necessary documents and pay the necessary amounts as they may be
required in order to open a consumer account in her name.
[8.2] Granting a declaratory order to the effect that the services
consumed under the late first applicant 's Husband (Mr Jacques Tarica) under
the consumer account numbers: 4[ …] be declared to be services consumed
by the first applicant and that the first applicant is liable to the amounts under
the aforesaid accounts.
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[8.3] Alternative to the above, the charges or the amounts for the
consumed services under the account numbers 4[ …] be paid by the First and
second applicants jointly and severally one paying the other to be absolved.
[9] At its core, the case concerns the management of a municipal service account
for a residential property, allegations of billing irregularities, and the respondent's
decision to disconnect services due to non- payment. The dispute has unfolded
against a backdrop of contested charges, allegations of administrative failures, and
disagreements over legal entitlements to payment and service provision.
[10] The applicants assert that the municipal account for the property, registered in
the name of the deceased, has been improperly managed by the respondent. They
contend that the account was erroneously opened in the deceased’s name and that
the respondent continued billing on this account following his death in 2021 without
rectifying the associated errors. These errors include allegations of overbilling,
reliance on faulty or removed meters, and the continued accrual of charges for
services that were either disputed or allegedly not rendered. The applicants claim
that these issues were raised with the respondent as far back as 2014, but despite
repeated efforts to resolve the disputes, the errors remain unaddressed.
Furthermore, the applicants maintain that certain charges have become prescribed
and are thus unenforceable.
[11] The first applicant, who resides on the property, has also criticised the
respondent’s failure to open a new municipal account in her name despite her
attempts to regularise the situation. The applicants argue that the respondent’s
decision to disconnect services in May 2023, without adequately addressing the
disputes, was unlawful. In response to the disconnection, the applicants sought
urgent relief to restore services and prevent further terminations. They now seek a
court order directing the respondent to open a new account and to rectify the alleged
billing inaccuracies, and a finding that certain charges are unenforceable due to
prescription.
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[12] The respondent, on the other hand, argues that the applicants have failed to
fulfil their payment obligations since 2015, despite consuming municipal services
such as electricity and water. It asserts that the disconnection of electricity services
in May 2023 was a necessary enforcement measure in light of the applicants’
substantial arrears. The respondent contends that the applicants have not
adequately substantiated their claims of overbilling or shown that any charges are
subject to prescription. It maintains that the applicants are attempting to evade their
financial responsibilities by raising disputes that are either unfounded or improperly
framed.
[13] Additionally, the respondent asserts that the first applicant bears the
responsibility of regularising the municipal account following her husband’s passing.
It claims that she failed to take appropriate steps to open a new account in her name
and that any delays or administrative shortcomings on its part do not absolve her of
this obligation. The respondent further seeks to recover its costs and has counter -
applied for an order compelling the first applicant to open the account in accordance
with its requirements.
[14] The central issues in this case revolve around the proper administration of the
municipal account, the validity of the applicants’ disputes regarding billing, and the
extent to which the principle of prescription applies to the contested charges.
BACKGROUND
[15] The first applicant acquired the immovable property described as Erf 3[ …]
M[…] Extension 5, located at 2[…] K[…] Street, M[…] Extension […], Randburg ("the
property"), with transfer of ownership registered on 17 February 2004. At or around
the time of the transfer, the municipal account associated with the property was
erroneously opened in the name of the first applicant's late husband, Mr Jacques
Tarica, under account number 4[ …]. Although the parties blame each other for this
error, nothing turns on this.
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[16] The respondent continued to bill Mr Tarica on this account even after his
passing.
[17] The first applicant, who has resided on the property since its acquisition,
remained in occupation following the death of her husband on 5 May 2021.
[18] In December 2014, the first applicant raised a formal dispute with the City
after discovering that the municipal account reflected erroneous charges. These
inaccuracies were attributed to faulty or non- existent electricity and water meters
associated with the property. In particular, queries were lodged concerning electricity
meters with meter numbers 90800, 340231, and 338624 ("the old meters"), which
had been removed from the property in or around June or July 2014. Additionally,
the applicant disputed water consumption charges based on a malfunctioning water
meter with meter number C[…], which was subsequently removed and replaced with
a new water meter, numbered 3[…].
[19] The applicants‘ complain that , despite these issues being brought to the
respondent’s attention, the inaccuracies persisted, resulting in continued disputes
and unresolved grievances.
[20] Between July 2015 and August 2017, the respondent failed to issue any
invoices for electricity usage on the municipal account. This lapse was brought to the
respondent’s attention on 29 June 2015 and again on 21 April 2017. To address the
omission, the respondent issued a “ rebill” in September 2017. However, this rebill
purported to account for electricity consumption between 1 May 2014 and 2 June
2017 by relying on data from the old meters that had been removed in 2014.
[21] The rebill imposed a charge of R234,099.39 for electricity over the stated
period, equating to an average monthly charge of R5,852.48. The applicant s assert
that this amount was manifestly excessive in light of the household's typical usage.
The invoice for September 2017 reveals that the majority of the electricity charges
were applied to a single month, August 2017, which seemingly inflated the average
consumption. Moreover, the respondent’s total meter readings indicated that
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151,321.000 kWh of electricity should have been charged, yet the rebill incorrectly
reflected 186,370.000 kWh, a discrepancy of 35,000 kWh in excess of the actual
readings.
[22] This overbilling was promptly disputed, and a meeting was convened on 23
October 2017 between the late Mr Tarica, his legal representative, and a
representative of the respondent.
[23] The respondent failed to address or rectify the errors in the account. After Mr
Tarica’s death, notice of the estate's insolvency was served on the respondent on 14
October 2022, yet the respondent failed to lodge any claim against the estate.
[24] Subsequent to Mr Tarica’s initial queries, the respondent failed to resolve the
discrepancies on the account. Additional queries were lodged on 30 August 2021.
Thereafter, on 18 October 2021, the first applicant delivered a letter of demand to the
respondent in terms of section 16.2 of the City’s Credit Control and Debt Collection
Policy, with receipt acknowledged on 19 October 2021. A further letter of appeal,
pursuant to section 16.5 of the same policy, was delivered to the respondent on 19
November 2021.
[25] Despite these formal communications, the disputes remain unresolved. For
its part, the respondent continued to threaten the applicants with termination of
municipal services. On 5 May 2023, the respondent proceeded to terminate the
applicants’ electricity supply, necessitating urgent legal intervention under Part A of
this application. The services were subsequently restored, rendering Part A of the
application moot . The matter was initially set down but was not finalised, with the
respondent serving its counterapplication and answering affidavit only on 23 August
2023.
THE APPLICANTS’ CONTENTIONS
[26] The applicants' submissions in this matter focus on a series of disputes
surrounding the administration of their municipal account by the respondent. Central
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to their case is the assertion that the account, which was erroneously opened in the
name of the first applicant’s late husband, has been plagued by irregularities and
inaccuracies. The applicants contend that these issues, raised as early as 2014,
remain unresolved and continue to prejudice them as consumers of municipal
services.
[27] The applicants argue that the respondent has failed in its duty to ensure
accurate and transparent billing. They highlight several examples of this failure,
including charges based on faulty and removed meters and an allegedly inflated
rebill issued in 2017. This rebill encompassed the period from May 2014 to June
2017, but it relied on readings from meters that were no longer installed at the
property. The resultant charges, they argue, were unreasonably high for a residential
property, amounting to an average monthly electricity cost well beyond what was
plausible for the applicants' usage. Despite bringing these discrepancies to the
respondent’s attention, the applicants assert that the respondent has not rectified
them, leaving the account riddled with errors.
[28] A key aspect of the applicants’ submissions concerns the prescription of
charges. They argue that the respondent’s claims for certain amounts are barred
under the Prescription Act 68 of 1969, which limits the recovery of debts to a three-
year period. The applicants contend that the respondent’s failure to initiate legal
proceedings to recover arrears within this period renders these debts unenforceable.
They further maintain that the mere issuance of invoices or billing statements by the
respondent does not interrupt the running of prescription. Moreover, they assert that
their formal dispute over these charges, as provided for under section 102(2) of the
Municipal Systems Act 32 of 2000, precludes the respondent from enforcing or
reallocating payments towards disputed amounts.
[29] If the applicants’ contentions in regard to the question of prescription are
correct then the question of whether the first applicant was jointly or severally liable
with the deceased for the historical charges on the deceased’s account, need not be
resolved. In addition, it is not necessary for me to resolve the disputes relating to the
inaccuracies on the account. If the charges levied by the respondent were in relation
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to debts which have become prescribed, then the first applicant would not be liable
for those debts even if the respondent’s contentions in regard to her joint and several
liability and the accuracy of the billing were accepted as correct.
[30] The applicants also criticise the procedural conduct of the respondent,
alleging significant irregularities in its handling of the account and its approach to
resolving the dispute. The disconnection, they contend, was unlawful and
undertaken without compliance with the applicable by -laws and constitutional
requirements. This issue, too, does not need to be resolved for purposes of the relief
which is currently sought.
[31] Further, the applicants emphasise their right to have the account rectified and
properly administered. They seek an order compelling the respondent to open a new
account in the first applicant’s name and to rectify the alleged billing errors. This
includes removing prescribed charges and ensuring that future billing is based on
accurate readings and properly calibrated meters. Despite repeated attempts by the
first applicant to open a new account, they assert that the respondent has failed to
facilitate this process, compounding the administrative failures that underpin their
case.
[32] The applicants also argue that the respondent’s defence is inadequate. They
contend that the respondent’s reliance on general denials and its assertion of the
applicants’ liability for services consumed, fail to address the specific issues of
overbilling, prescription, and procedural non- compliance. Furthermore, they criticise
the respondent’s counterapplication, which seeks to compel the first applicant to
open a new account, as redundant given that this relief has already been sought by
the applicants themselves.
[33] Finally, the applicants highlight the prejudice they have suffered due to the
respondent’s inaction and procedural failures. They assert that the respondent’s
refusal to resolve the dispute has forced them into protracted litigation, placing both
financial and emotional burdens upon them. They argue that the respondent’s
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conduct has undermined their rights as consumers and has necessitated judicial
intervention to ensure lawful and fair administration of the municipal account.
THE RESPONDENT’S CASE
[34] The respondent maintains that the applicants have failed to meet their
financial obligations for municipal services consumed over several years and asserts
that its actions, including the disconnection of electricity services in May 2023, were
lawful and justified. The respondent’s submissions are rooted in its statutory and
contractual rights to recover charges for services rendered, as well as its
interpretation of the applicants’ conduct and claims.
[35] At the heart of the respondent’s case is the assertion that the applicants have
not paid for municipal services consumed at the property since 2015, despite being
beneficiaries of such services. It argues that the applicants’ failure to settle these
substantial arrears undermines their claim to the relief sought. The respondent
emphasises that the first applicant, as the current resident of the property, was
aware of her obligation to regularise the municipal account following the death of her
husband in 2021. It submits that the first applicant’s inaction in this regard is a
significant contributing factor to the current state of the account.
[36] The respondent also disputes the applicants’ claims of overbilling and
irregularities, maintaining that the charges reflected on the municipal account are
accurate and valid. It argues that the applicants have not provided sufficient
evidence to substantiate their allegations of erroneous billing or to demonstrate that
the disputed charges are based on faulty meters or other inaccuracies. Moreover,
the respondent asserts that it has acted in accordance with its by -laws and policies,
which include measures to address billing disputes and recover outstanding
amounts.
[37] On the issue of prescription, the respondent takes a firm stance, contending
that the applicants have not made out a valid case to show that any charges have
prescribed. It submits that the applicants bear the burden of proving that specific
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amounts fall outside the prescription period and that they have failed to discharge
this burden. The respondent also argues that the applicants’ conduct, including
partial payments and ongoing disputes, indicates an acknowledgment of the debt,
which would interrupt the running of prescription. Furthermore, it challenges the
application of section 102(2) of the Municipal Systems Act to the circumstances of
this case, asserting that the applicants’ disputes have not been properly raised or
communicated.
[38] The respondent defends its decision to disconnect the applicants’ electricity
supply, arguing that this action was necessary and proportionate in light of the
applicants’ prolonged non- payment. It submits that disconnection is an enforcement
mechanism provided for under municipal legislation and policies, which allows
municipalities to recover revenue for services rendered. The respondent denies that
the disconnection was unlawful or procedurally unfair, asserting that it followed due
process in implementing this measure.
[39] In response to the applicants’ claim for an order to compel the opening of a
new account, the respondent asserts that the first applicant has not demonstrated a
willingness to comply with the necessary requirements to facilitate such a process. It
argues that the responsibility for regularising the account, including the opening of a
new account in the first applicant’s name, lies squarely with her. The respondent
contends that it has provided the necessary mechanisms for this process and that
any delays are attributable to the first applicant’s inaction.
[40] The respondent’s submissions further challenge the applicants’ reliance on
alleged procedural irregularities. It asserts that any perceived delays or
administrative shortcomings do not absolve the applicants of their responsibility to
pay for services consumed. It maintains that its actions are consistent with its
mandate to deliver municipal services in a financially sustainable manner, which
includes enforcing payment from all consumers.
[41] In its counterapplication, the respondent seeks relief to compel the first
applicant to attend to its offices and complete the necessary formalities for opening a
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new municipal account. It argues that this step is essential for resolving the current
dispute and ensuring accurate billing going forward. The respondent also seeks
costs, contending that the applicants’ conduct and the procedural history of the
matter have necessitated its legal defence and counterapplication.
[42] In conclusion, the respondent frames its actions as lawful and reasonable,
grounded in its statutory authority and the applicants’ obligations as consumers. It
rejects the applicants’ claims of overbilling, maintaining that the applicants have not
made out a case for the relief sought. Instead, it positions itself as having acted in
accordance with the law, with its enforcement measures directed at ensuring
compliance and the recovery of unpaid charges. The respondent’s case rests on its
interpretation of the applicants’ conduct as evasive and on its legal entitlement to
pursue arrears and regularise the municipal account.
FURTHER SUBMISSIONS AFTER THE HEARING
[43] Subsequent to the hearing, both parties were invited by this court to provide
further written submissions on issues that arose from correspondence circulated
after the hearing. These submissions which were received on 30 September 2024
and 2 October 2024 respectively, have been duly considered in preparing this
judgment. The respondent submitted additional heads of argument seeking to
introduce further legal authorities and arguments, while the applicants responded,
raising procedural objections and addressing the substance of the respondent's new
contentions.
[44] The respondent, in its supplementary heads of argument, sought to rely on
additional legal authorities to bolster its position. It argued that the Constitutional
Court decision in Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (1)
SA 530 (CC) confirmed the validity of provisions that render property owners jointly
and severally liable for municipal service charges. The respondent emphasised that
these principles apply even where the property owner did not personally consume
the services but benefited from them through the occupation of the premises.
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[45] The respondent further referred to the Supreme Court of Appeal’s judgment
in P A Pearson (Pty) Ltd v eThekwini Municipality 2017 (6) SA 82 (SCA) , which
upheld a municipality’s right to recover outstanding amounts from property owners,
despite the account being held in the name of another party. It contended that these
authorities supported its position that the first applicant, as the property owner,
cannot evade liability for municipal debts associated with the property.
[46] Additionally, the respondent sought to introduce findings from a recent
judgment of Crutchfield J (the name of which was unfortunately not provided), which,
it claimed, affirmed the necessity for parties to exhaust internal remedies, such as
approaching the municipal ombudsman, before seeking judicial intervention. The
respondent also relied on its credit control and debt collection policy, which it argued
permitted it to act as it did in recovering outstanding debts. The respondent
maintained that the applicants failed to substantiate their claims of prescription or
procedural unfairness and insisted that its counterapplication to compel the first
applicant to formalise her account was both necessary and appropriate.
[47] In response, the applicants challenged the admissibility of the respondent’s
further submissions, asserting that they were improperly raised and amounted to an
ambush. They argued that the respondent should have included these materials in
its initial heads of argument, as allowing such submissions at this stage disrupted
procedural fairness and deprived the applicants of a fair opportunity to address them
in oral argument.
[48] On substance, the applicants contended that the respondent’s reliance
on Mkontwana and related cases was misplaced. They distinguished the factual and
legal issues in Mkontwana from those at hand, noting that the Constitutional Court’s
findings there primarily concerned joint liability in instances where property had been
sold, which was not the case here. The applicants also challenged the respondent’s
interpretation of other judgments, asserting that they had limited relevance to the
question of whether the charges in dispute had prescribed or whether the
respondent’s procedural conduct had been lawful.
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[49] The applicants reiterated their claims of procedural impropriety on the part of
the respondent, highlighting its failure to issue the requisite statutory notices or
properly address disputes raised in terms of section 102 of the Municipal Systems
Act. They further argued that any attempt to introduce new evidence or authorities at
this stage should be disregarded unless condonation was granted, which they
opposed on the grounds of prejudice and procedural fairness.
ANALYSIS
[50] It is a well- established principle in our law, and indeed a constitutional
obligation, that municipalities such as the respondent are required to provide
municipal services to residents, including the applicants, in exchange for reasonable
fees, charges, or tariffs levied for such services. This obligation is underscored by
the principle of fairness and accountability in municipal governance.
[51] There is no obligation on a resident, customer or ratepayer to pay the
municipality for a service that has not been rendered (Rademan v Moqhaka
Municipality 2013 (7) BCLR 791 (CC) at para 42).
[52] In the present matter, the municipal account remained in the name of the first
applicant’s late husband. Accordingly, he, and subsequently his estate, would have
borne liability for charges for services rendered up to the date of his death. The
respondent points out that the first applicant is jointly and severally liable for this debt
but, of course, this does not impact upon the question of prescription.
[53] The respondent bears the burden of proving the accuracy of the charges
levied on the account. Section 95 of t he Municipal Systems Act imposes specific
obligations on municipalities regarding the charging of municipal services. In
particular, municipalities must:
[53.1] Take reasonable steps to ensure that service consumption is
measured through accurate and verifiable metering systems;
[53.2] Provide regular and accurate accounts to individuals liable for
payment, indicating the basis for calculating the amounts due;
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[53.3] Establish accessible mechanisms for querying or verifying accounts
and metered consumption, coupled with appeal procedures allowing
for prompt redress of inaccuracies; and
[53.4] Implement accessible mechanisms for addressing complaints,
ensuring prompt responses and corrective action by the
municipality.
[54] Despite nearly a decade of attempts by the applicants to resolve the
persistent inaccuracies in their municipal account, the respondent has continued to
issue erroneous bills. The applicants have repeatedly identified these flaws, yet the
respondent has failed to rectify them, necessitating this application.
[55] It is evident from the constitutional and statutory framework that the applicants
possess a clear right to municipal services, which are provided reciprocally against
reasonable and lawful payment. This includes the respondent’s duty to investigate
and respond to any legitimate queries raised by the applicants, as well as to bill them
accurately and transparently. The respondent is only entitled to recover amounts that
are lawfully due for actual consumption, and not for estimated or fictitious charges
based on data from removed or faulty meters. Accurate billing, underpinned by
proper metering systems, is fundamental to the respondent’s obligations.
[56] The respondent bears the onus of proving the accuracy of the consumption
charges it levies. This entails demonstrating that the billed consumption is based on
verifiable and actual readings from meters that were correctly installed and remain
operational at the property. In this case, the respondent has failed to discharge this
burden.
[57] In Euphorbia (Pty) Ltd t/a Gallagher Estates v City of Johannesburg [2016]
ZAGPPHC 548 (17 June 2016) from [10] to [17], the court held that:
“[I]n the absence of special circumstances, considerations of policy, practice
and fairness require that the City is saddled with the onus of proving the
correctness of its meters, the measurements of water consumption and
statements of account rendered pursuant thereto. It cannot reasonably be
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expected from the consumer, having raised a bona fide dispute concerning
the services delivered by the City, to pierce the municipal veil in order to prove
aspects that fall peculiarly within the knowledge of and are controlled by the
City… It accordingly raised a bona fide dispute as to the City’s billing in regard
to the services, and the City bore the onus to prove the correctness thereof.”
[58] The applicants first raised a formal dispute regarding the inaccuracies in their
municipal account in December 2014. From this point onwards, section 102(2) of the
Municipal Systems Act became operative, prohibiting the respondent from allocating
payments to the disputed charges. Despite this statutory safeguard, the respondent
has failed to address the dispute adequately, perpetuating the billing inaccuracies
and acting contrary to its obligations.
[59] In September 2017, the respondent undertook a rebilling of the municipal
account for the period between May 2014 and June 2017. This rebill reflected an
average monthly electricity expense of approximately R5,852.48, an amount which
the applicants contend to be strikingly high given the occupants of the property
consisted of an elderly couple and their son.
[60] The respondent also attributed an extraordinarily high consumption of
186,370.00 kWh to a single month, August 2017. This figure is implausible for
residential use. Instead of distributing this anomalously high figure over the 37-month
billing period to establish a reasonable average, the respondent concentrated the
entire amount in one month. This bloated reading elevated the account into the
highest tariff bracket for that month, thereby inflating the charges even further.
[61] The improbability of the respondent's calculations is underscored by its own
data, which records a total electricity consumption of 151,321.000 kWh over the
entire 36- month period. Yet, for August 2017 alone, the respondent attributed
186,370.000 kWh to the property —exceeding the total consumption for three years
by some 35,000.00 kWh. This discrepancy is mathematically indefensible.
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[62] In response to the arrear charges, the applicants made a payment of
R384,266.80 on 12 May 2023 to settle “ non-prescribed” amounts and bring the
account as up to date as possible based on the first applicant’s perceived actual
usage. This payment was in respect of amount incurred subsequent to the
deceased’s death. The first applicant has continued to pay monthly charges that are
not in dispute, demonstrating good faith and a commitment to meeting her financial
obligations.
[63] The judgment in Body Corporate Croftdene Mall v eThekwini Municipality
[2012] 1 All SA 1 (SCA) emphasises that for a dispute to be valid, it must exist prior
to the implementation of credit control measures and must be properly raised, with
the specific facts of each case considered. The applicants submit that their disputes
with the respondent meet these criteria, as the inaccuracies in the account were
flagged and formally raised well before any enforcement actions were undertaken.
[64] The requirements for a valid dispute have been further clarified in the case
of 39 van der Merwe Street Hillbrow (Case No. 23/7784) handed down on 24 March
2023 where Acting Judge Dodson, drawing on the principles established in
the Croftdene judgment, outlined the following criteria:
[64.1] “There must be a dispute, in the sense of a consumer, on the one
hand, and the municipality on the other, advancing irreconcilable
contentions;
[64.2] The dispute must be properly raised, which would require, at least,
that it be properly communicated to the appropriate authorities at
the municipality and that this be done in accordance with any
mechanism and appeal procedure provided in terms of section 95(f)
of the Systems Act for the querying of accounts;
[64.3] The dispute must relate to a specific amount or amounts or a
specific item or items on an account or accounts, with the corollary
that it is insufficient to raise a dispute in general terms;
[64.4] The consumer must put up enough facts to enable the municipality
to identify the disputed item or items and the basis of the ratepayer’s
objection to them;
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[64.5] It must be apparent from the founding affidavit that the foregoing
requirements have been satisfied.”
[65] These principles underscore the need for precision, transparency, and
procedural compliance when disputes over municipal accounts are raised. They
serve to ensure that the municipality is adequately informed and positioned to
address the issues in contention.
[66] The applicants have satisfied all the requirements outlined for raising a valid
dispute under Section 102 of the Municipal Systems Act. Accordingly, a legitimate
and ongoing dispute exists concerning the municipal account.
[67] The applicants and the respondent remain in fundamental disagreement
regarding the accuracy of the electricity account. The dispute culminated in a letter of
appeal submitted on 19 November 2021 under the respondent’s internal procedures.
[68] The dispute specifically pertains to the incorrect installation and removal dates
of electricity meters, erroneous charges, and the inclusion of prescribed amounts.
While the precise figures in contention have varied over time, they are clearly
detailed in the founding affidavit and form the basis of the applicants’ objections.
[69] The applicants have consistently presented the relevant facts to the
respondent, beginning in December 2014 and continuing through the present
application. These submissions have provided the respondent with ample
opportunity to consider and address the disputes.
[70] The necessary factual and procedural elements establishing the dispute are
evident from the founding affidavit submitted in this matter.
[71] Through these actions, the applicants raised the dispute, leaving no doubt
that the requirements for a valid dispute under Section 102 have been met.
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[72] To require a consumer to identify an exact disputed amount may impose an
undue burden, particularly when such information often lies exclusively within the
municipality's knowledge. Consequently, the respondent cannot rely on the first
applicant’s demonstration of good faith—through her consistent payments of
undisputed amounts —to argue that no valid dispute exists. The applicants have
adhered to their obligation not to withhold all payments, and it is evident from the
invoices provided that the first applicant has regularly paid the current undisputed
monthly charges, albeit under protest.
[73] The contended requirement to specify an exact disputed amount is unduly
literal and impractical, as consumers may not always have the ability to precisely
quantify disputed amounts when the necessary information resides within the
municipality’s control. Such a standard would unfairly preclude consumers from
lodging valid disputes, especially when amounts may vary monthly, thereby creating
an unworkable situation where disputes would need to be re- lodged every billing
cycle.
[74] Instead, a dispute should be considered valid if it is reasonably ascertainable
and sufficiently specific, even if couched in broader terms. While this does not permit
vague or insubstantial complaints to be classified as disputes, an overly rigid or
legalistic approach would not be appropriate. In Sienaert Prop CC v City of
Johannesburg Metropolitan Municipality & Another (2021/31566) [2021] ZAGPJHC
490 (23 September 2021) , it was held that a genuine dispute of fact is sufficient to
constitute a valid dispute, as customers cannot reasonably be expected to have full
knowledge of the municipality’s internal workings.
PRESCRIPTION
[75] Given the existence of a dispute, and the operation of section 102 of the
Municipal Systems Act, the respondent is prohibited from allocating payments to the
oldest amounts first. This triggers the application of prescription, which is governed
by the Prescription Act No. 68 of 1969. A typical debt, unless specified otherwise in
legislation, prescribes after three years from the date the debt becomes due. In this
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case, charges for electricity services constitute a standard debt under the Act. The
respondent, as the prescription creditor, bears the onus to institute legal proceedings
before the completion of the prescription period. Once a debt prescribes, it is
extinguished and becomes legally unenforceable.
[76] The respondent’s argument that the City’s policy precludes it from issuing
summons on disputed debts, thereby preventing the debts from prescribing, is
without merit. A closer examination of the applicable legal principles and the
provisions of the policy reveals that this contention is legally unsustainable.
[77] Prescription is governed by the Prescription Act 68 of 1969, which stipulates
that debts prescribe three years after they become due, unless interrupted by
acknowledgment or the initiation of legal proceedings. The legislative framework is
clear that prescription operates independently of internal policies or administrative
practices of municipalities. Consequently, while the City may choose to adopt
procedures for managing disputes through its Credit Control and Debt Collection
Policy, these procedures do not have the effect of overriding or suspending the
statutory requirements of the Prescription Act.
[78] The City’s policy, as outlined in Section 16.10, allows for the suspension of
certain credit control actions, such as disconnections, during the resolution of
disputes. This is an administrative safeguard intended to protect customers from
punitive measures while their disputes are adjudicated. However, this suspension
does not extend to the interruption of prescription. The right to suspend credit control
measures is an internal administrative remedy and does not equate to the legal
interruption of a debt’s prescriptive period. The statutory framework for prescription
continues to apply irrespective of the City’s internal mechanisms for dispute
resolution.
[79] The argument that the City’s inability or unwillingness to issue summons on
disputed debts prevents prescription from running also disregards the respondent’s
statutory obligation to take reasonable steps to recover debts. Failure to act on
disputed debts in a timely manner cannot be used to indefinitely delay prescription.
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The running of prescription cannot be halted by a creditor’s inaction. A municipality’s
decision not to pursue disputed debts through legal action does not pause or negate
the statutory operation of prescription.
[80] Furthermore, the respondent’s argument overlooks the accountability that
municipalities bear for the proper management of debts. Even if the policy prohibits
the issuance of summons during the resolution of disputes, this does not absolve the
respondent from taking appropriate steps to preserve its claims within the
prescriptive period. The Prescription Act allows creditors to initiate legal proceedings
to interrupt prescription, and the respondent’s failure to do so reflects a procedural
choice rather than a legal impediment.
[81] In conclusion, the respondent’s reliance on the policy to argue that
prescription cannot apply to disputed debts is legally flawed. The Prescription Act
governs the operation of prescription, and the respondent’s administrative practices
do not alter or suspend its application. While the policy may provide administrative
mechanisms for managing disputes, these mechanisms do not have the force of law
to delay or interrupt prescription. The City’s failure to act on disputed debts within the
prescriptive period is a reflection of its own inaction and does not negate the
applicants’ reliance on the Prescription Act.
[82] Additionally, the right to request the reconsideration of a municipal account is
not subject to prescription. A municipal account, along with the right to receive it,
arises from section 95 of the Municipal Systems Act. This statutory provision creates
a legislative right, rather than a "debt" in the conventional sense, when a payee
seeks rectification of an account. A "debt," in its ordinary meaning, refers to
something owed, due, or a service to be rendered.
[83] In this matter, the applicants are not seeking to enforce a debt but are instead
requesting the rectification of an account. While the account itself may technically
qualify as a "debt" in terms of the reasoning in Makate v Vodacom (Pty) Ltd 2016 (4)
SA 121 (CC) , the relief sought by the applicants is distinguishable. The applicants’
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claim pertains to inaccuracies in the information contained within the account, which
requires correction—a matter over which the applicants have no control.
[84] The Makate decision addressed this distinction, stating:
“[92] However, in present circumstances it is not necessary to determine the
exact meaning of ‘debt’ as envisaged in section 10. This is because the claim
we are concerned with falls beyond the scope of the word as determined in
cases like Escom, which held that a debt is an obligation to pay money,
deliver goods or render services. Here the applicant did not ask to enforce
any of these obligations. … [93] To the extent that Desai went beyond what
was said in Escom, it was decided in error. There is nothing in Escom that
remotely suggests that ‘debt’ includes every obligation to do or refrain from
doing something apart from payment or delivery. It follows that the trial Court
attached an incorrect meaning to the word ‘debt.’ A debt contemplated in
section 10 of the Prescription Act does not cover the present claim. Therefore,
the section does not apply to the present claim, which did not prescribe.”
[85] The applicants are not equipped to ascertain the correctness of the
respondent’s invoices, as they lack access to the internal workings and calculations
underpinning the respondent’s billing system. While the applicants may raise a
dispute and allege inaccuracies, the respondent bears the burden of proving the
accuracy of its invoices.
[86] Should the applicants contest the billing, the respondent must substantiate its
claims of accuracy through a proper rectification process. This process must
incorporate all necessary adjustments, as the applicants lack the information
required to verify the respondent’s meter readings, calculations, and internal systems
that generate the invoices. It is only through such rectification that the respondent
can discharge its onus and address the applicants’ concerns adequately.
[87] The rectification of the municipal account involves far more than a simple
recalculation of a debt. It requires a comprehensive consideration of multiple factors,
including the applicable service or tariff, whether accurate meter readings were
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taken, whether the meters in question were functioning properly or correctly
calibrated, and whether the appropriate tariff was applied to the readings. This
complexity goes beyond a mere mathematical adjustment and necessitates a
detailed evaluation by the City.
[88] The responsibility for this rectification rests with the respondent, as the
applicants lack access to the full range of information necessary to verify the
account. The respondent must accurately account to the applicants, and the
applicants’ request for reconsideration of the account cannot prescribe, akin to the
principle that a claim for rectification itself does not prescribe. This is because such a
claim does not create any new obligation but seeks to correct an existing account.
[89] In this matter, the respondent’s rebilling has produced an account that
requires rectification not only through proof of various adjustments but also through a
holistic reassessment of the inaccuracies. This is not a simple mathematical
exercise, nor can the respondent rely on prescription to escape its obligation to
correct these errors.
[90] The commencement of the prescription period in this context must be tied to
either the date of consumption or, at the latest, the date when the monthly account
was rendered. The respondent cannot invoke its own failure to take the necessary
steps or to issue accurate bills as a basis to evade the operation of prescription.
[91] Since December 2014, the amounts in dispute have remained unresolved,
while the first applicant has consistently paid all non -disputed and non- prescribed
charges for which she is responsible. Any electricity charges older than three years
from the date of the notice of motion have prescribed and must be written off. The
respondent, therefore, has no legal entitlement to claim such amounts, and they
must be removed from the account.
[92] The applicants’ notice of motion provides for the writing off of all charges
associated with municipal account number 402834221 that are older than three
years as of the date of judgment. However, the papers do not account for charges
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incurred after the date of the notice of motion and this date must therefore be the
appropriate reference point.
[93] It has also been established that an acknowledgment of liability, limited solely
to undisputed amounts, does not constitute an interruption of prescription. For
prescription to be interrupted, an acknowledgment must unequivocally admit both the
existence of the debt and the debtor’s liability for the disputed amounts. A partial
acknowledgment, especially one that excludes certain amounts under dispute, does
not satisfy this requirement.
[94] The respondent’s assertion that the first applicant’s monthly payments
constitute an acknowledgment of liability and an interruption of prescription is
unfounded. As discussed earlier, payments made towards undisputed amounts
cannot be construed as an admission of liability for the entire account. The first
applicant has consistently paid non-disputed amounts, but this does not equate to an
interruption of prescription for charges that are contested.
[95] As a result, all electricity charges from May 2014 that have prescribed must
be written off, with any remaining amounts transferred to a new municipal account in
the name of the first applicant.
[96] The applicants do not seek to evade their lawful obligations or derive any
undue advantage. Their sole intention is to pay the amounts lawfully and accurately
owed to the respondent, free from the fear of unjust service terminations.
[97] The respondent bears a statutory duty to accurately account to its customers
for service charges. Customers have the right to request such accounts and, where
necessary, to compel the City to render accurate and transparent billing.
[98] In Friedshelf 837 (Pty) Ltd v City of Johannesburg Metropolitan Municipality &
Others [2015] JOL 31044 (GJ) the court criticised municipalities for failing to conduct
thorough investigations into billing disputes and instead resorting to threats of
service termination. The judgment held that the failure to perform these duties, or to
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complete investigations in a conscientious manner, is inconsistent with acceptable
standards under municipal by -laws. Municipalities owe consumers a duty to resolve
queries diligently, rather than adopting a disinterested or cursory approach.
[99] Similarly, in Canton Trading 95 (Pty) Ltd and Others v Buffalo City
Metropolitan Municipality [2014] ZALCJHB 260 (10 July 2014) , it was confirmed that
municipalities have a statutory obligation to account to ratepayers and service
consumers. Consumers may demand accounts and, if necessary, compel
municipalities to provide them.
[100] The applicants, having exhausted the City’s internal remedies over nearly a
decade without resolution, had no alternative but to bring this application. The rebill
undertaken by the City in September 2017 only exacerbated the pre- existing issues,
further compounding the inaccuracies and unresolved disputes.
[101] The contention that municipalities possess expertise while courts do not
should not diminish the authority of the judiciary in matters such as this. The
applicants in this case have provided evidence to demonstrate deficiencies in the
respondent’s billing processes and the applicability of prescription. The Court, as the
ultimate arbiter, is fully equipped to address these issues and render an informed
decision.
[102] The respondent’s failures are the reason that disputes of this nature come
before the Court. Referring the matter back to the very institution responsible for
creating the problem , as suggested by the respondent, is neither a viable solution
nor in the interests of justice. Such an approach would only perpetuate the cycle of
administrative inefficiency, leading to further delays and frustration for all parties
involved.
[103] Turning to the respondent’s counterapplication, the respondent seeks the
following orders:
[103.1] That the first applicant attend the respondent’s offices to open a
municipal account;
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[103.2] That the services consumed by the deceased be transferred to the
first applicant’s newly opened account;
[103.3] Alternatively, that the applicants be held jointly and severally liable
for the payment of those amounts; and
[103.4] That costs be awarded against the first applicant on a punitive
scale.
[104] With respect to the first prayer, the first applicant has indicated that she has
made numerous attempts to open a municipal account, but the respondent has
consistently refused to assist her.
[105] The respondent must assist the first applicant in opening a new account, as it
is legally required to do.
[106] Considering the respondent's second and third prayers, these claims are
inextricably linked to the argument on prescription discussed above. The charges in
question have prescribed, and the respondent is therefore barred from pursuing
them. The applicants have already pointed out that the respondent should have
initiated legal proceedings long ago by issuing summons or lodging a claim against
the deceased’s estate through the second applicant. Yet, the respondent failed to
take either course of action.
[107] As to the matter of costs, I see no reason why the costs should not follow the
result. In my view, a punitive costs order is not warranted and the complexity and
importance of the matter warrants the application of scale B.
[108] For these reasons, the following order is made:
1. The respondent is directed to open an account in the name of the first
applicant, in respect of the property described as Erf 3[ …] M[…] Extension
[…], located at 2[ …] K[…] Street, M […] Extension 5, Randburg ("the
property"), and the applicants and the respondent are directed to co- operate
with one another in order to facilitate the opening of such account;
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2. All debits and credits in respect of charges levied by the respondent in
relation to the property from 5 May 2021 to date are to be transferred to such
new account;
3. It is declared that all unpaid debts in respect of amounts charged by
the respondent in respect of the property , which became due on or before 4
May 2018, have become extinguished by prescription.
4. The respondent is directed to rectify the municipal account /s in relation
to the property by ensuring that t he amounts referred to in 3 above are
reflected as no longer owing.
5. The respondent’s counterapplication is dismissed with costs on scale
B.
6. The respondent is ordered to pay the costs of the applicants’
application, on scale B.
D MAHON
Acting Judge of the High Court
Johannesburg
Date of hearing: 22 August 2024
Supplementary submissions
received: 30 September 2024 and 2 October 2024
Date of judgment: 9 December 2024
APPEARANCES:
For the Applicant: Ad T Paige-Green
Instructed by: HBG Schindlers Attorneys
For the Respondent: Adv E Sithole
Instructed by: Madhlopa & Thenga Inc.