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2024
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[2024] ZAKZPHC 118
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Body Corporate of Green Meadow Country Estate v Ethekwini Municiplity (AR331/2023) [2024] ZAKZPHC 118 (29 November 2024)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
Appeal Case no: AR331/2023
In the matter between:
BODY CORPORATE OF GREEN MEADOW
COUNTRY ESTATE
APPELLANT
and
ETHEKWINI MUNICIPLITY
RESPONDENT
JUDGMENT
Olsen J (Steyn J & Bramdhew AJ
concurring):
[1]
The appellant is the body corporate of a
residential sectional title scheme known as Green Meadow Country
Estate. It launched an
application against the respondent, the
Ethekwini Municipality, for orders:
(a)
crediting its water account with a sum
of R694 008.04;
(b)
directing the respondent in future to
charge the appellant for water under a tariff structure based on the
average use of water
per household on the estate;
(c)
directing that the applicant’s
water account should be credited with an amount based on the
proposition that each of the households
in the scheme was entitled to
six kilolitres of water per month without charge, a benefit which had
to the date of the application
been denied by the respondent.
[2]
The application was dismissed. This
appeal against the dismissal of the application lies with the leave
of the court
a quo
(Mathenjwa AJ).
[3]
The founding papers reveal very little
about the nature and circumstances of the residential estate. We know
no more that this.
(a)
There are 90 residential units.
(b)
In 2019 the appellant opened an account
with the respondent for the supply of water to the estate to be
measured at a single bulk
meter through which all water eventually
reaching the residential units would pass. (Nothing in the founding
papers is said about
the contract concluded at the time between the
respondent and appellant; if it was in writing the document has not
been produced.)
(c)
By the time the application was launched
in November 2020 the appellant’s arrears on its water account
amounted to about R500
000.00.
[4]
The respondent’s charging regime
for a domestic or residential water supply has its complexities. But
the essential feature
of it, which would distinguish it from for
instance a supply of water for commercial purposes, is the
application of a sliding
scale tariff. The tariff is structured on a
per household basis. The first 200 litres of water supplied to a
household per day
are charged at the lowest tariff (R23.42 per
kilolitre at the time the application was launched). Consumption in
excess of 1500
litres per day is charged at the highest tariff which
at the time was about 270% of the lowest tariff. Three other
intermediate
tariffs were applied to water consumption between 200
and 1500 litres per day.
[5]
Although the subject was not debated in
the papers before the court, it does seem clear that the use of a
sliding tariff is aimed
at discouraging the excessive use of water
for domestic purposes. A single tariff calculated to provide the same
overall return
to the municipality for its supplies of domestic water
would not have the same effect.
[6]
Much of the founding affidavit is taken
up with the contention that each of the households in Green Meadow
Country Estate is entitled
to six kilolitres of water per month
without payment. We say no more about that as the contention was
abandoned before the court
a quo and has not been resurrected in any
form.
[7]
The second of the two contentions
advanced in the founding papers was not stated with clarity at all.
However it seems to be this
: “the tariff that has been used to
charge Green Meadow has been based on the total consumption of water
spread across 90
households as opposed to the average usage of each
household”. Later in the same affidavit it is contended that a
schedule
attached to the affidavit tabulates “what the
applicant ought to have been charged had the respondent billed it in
accordance
with the prevailing legislation, and in accordance with
the applicable tariff…”. The founding affidavit does not
identify
the “prevailing legislation” and neither does it
identify the “applicable tariff”. It is in essence devoid
of any reference to any law which may justify the contention that the
tariff upon which the appellant (i.e. the Body Corporate)
is charged
is not one sanctioned by law.
[8]
There is no reason to say anything more
about the second of the two grounds upon which a case was sought to
be made out in the founding
papers. It is recorded in the judgment
that at the hearing the appellant abandoned its second ground of
objection to what it was
charged. It raised instead a new contention,
namely that the appellant ought to have been charged for all water
passing through
its bulk meter at the flat rate applicable to
commercial premises. That contention was not raised in the founding
papers, nor indeed
in the appellants replying affidavit. It was
something new for which no factual foundation had been laid at all.
It was not the
case the respondent was called upon to meet. On that
basis the court
a quo
dismissed the application.
[9]
In the application for leave to appeal
the appellant for the first time referred to certain provisions of
the respondent’s
Water and Sanitation Policy which, it argued,
illustrated the point that the appellant should not be regarded as a
domestic consumer,
and should be regarded as a commercial consumer.
In his judgment on the application for leave to appeal the learned
Acting Judge
considered those arguments and rejected them. I have no
hesitation in recording my view that his decision in that regard was
correct.
He recorded that he was not persuaded that there was “any
merit in the grounds of appeal and submissions advanced in support
thereof”. He nevertheless granted leave to appeal, as I
understand it upon the basis that as specific provisions of the
policy had now been identified, the dispute became one of
interpretation of them, a matter upon which an appeal court may
differ
with him. In my respectful view the learned Judge erred in
that regard. Nothing had in fact changed in the case. The respondent
was never called upon to meet a case that its policy ordained that
the appellant should be regarded as a commercial user of water.
There
are still no facts before the court which could possibly support such
a conclusion. The application had been properly dismissed.
[10]
Nothing said in argument before us
contradicts what has been said thus far in this judgment. Counsel who
appeared for the appellant
suggested (and I put it no higher) that
perhaps we could express our views on how the water consumed on the
sectional title development
might properly be priced, and leave it to
the parties to take the matter on from there, perhaps with the
assistance of some sort
of declaratory order. It is not the role of a
court to furnish opinions. That is certainly not the role of an
appeal court. Our
role is to determine whether the judgment of the
court
a quo
was correct. In this case it undoubtedly was.
[11]
Nevertheless one or two observations may
not go amiss.
[12]
No case was sought to be made that the
respondent’s charging regime for domestic water is
unconstitutional.
[13]
The respondent charges the appellant as
a single user of a domestic water supply. In the result, the
application of the sliding
tariff for domestic water brings about
that most of the water, almost all of it in fact, which passes
through the single bulk meter
is charged at the highest rate on the
sliding scale. On the face of it that is unfair on the owners of each
of the 90 sectional
title units. If they each had their own meters,
and accordingly their own water accounts with the respondent, they
would each get
their full quota of water at the various lower tariffs
on the sliding scale. But the solution which appears to have been
offered
in the second abandoned ground for relief set out in the
founding papers is not only unsupported by a reference to any law,
nor
indeed to the policy, but is also unlikely itself to be fair. We
do not know whether each of the dwellings constituting each unit
is
exactly the same as all the others. That seems unlikely. Larger ones
are likely to consume more water than smaller ones. A solution
which
involves the respondent billing the appellant on the basis that
quantities of water allowed at each of the lower tariff levels
will
be multiplied by 90 would be an arbitrary solution for that reason,
and also for the reason that it would benefit those units
at which
more water is consumed than others.
[14]
The respondent’s water policy in
effect proposes an alternative solution as it allows for the
installation of individual meters
for each unit at the roadside.
However the applicant would have to meet the bill for the
installations, whereafter the respondent
would be obliged to read
those meters and charge accordingly; ie there would be 90 accounts.
[15]
The following order is made.
The appeal is
dismissed with costs.
_____________________
Olsen J
_______________________
Steyn J
______________________
Bramdhew AJ
Case
Information:
Judgment
reserved: 8
November 2024
Judgment
delivered: 29
November 2024
For
Appellant:
M Tucker
Instructed
by:
Peacock Liebenberg &
Dickson Inc
Ref: Brian/MAT26410
Email:
mhleli@pldinc.co.za
brian@pldinc.co.za
For
Respondent:
N Ntuli
Instructed
by:
Luthuli
Sithole Attorneys
Ref: E00591/TS/NM
Email:
mpendulo@luthulisithole.co.za
lindokuhle.nene@luthulisithole.co.za