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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2021/26601
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
________________________________
DATE SIGNATURE
In the matter between:
DAVID SURTEES WEBSTER N.O.
First Applicant
IAIN CAMEROON FRASER N.O. Second Applicant
PATRICK JOSEPH AYLING N.O.
Third Applicant
CHARLES ANTHONY SANER N.O.
Fourth Applicant
NEIL URGUHART GARDEN N.O.
Fifth Applicant
MMETJIE PATIENCE NAVES- SHONGWE N.O.
Sixth Applicant
KEITH ROBERT DE BUYS N.O.
Seventh Applicant
PAUL ANTHONY CARTER N.O.
Eighth Applicant
LEONARD IAN SEGAL N.O.
Ninth Applicant
Page 2 of 24
CHRISTIAAN CORNELIUS BESTER N.O.
Tenth Applicant
GRAHAM JOHN BROKENSHIRE N.O.
Eleventh Applicant
and
THE CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Respondent
JUDGMENT
Introduction [1] The applicants were all trustees of the R A Welfare Development Trust (Trust
Number: I […]), a trust duly established in terms of the Trust Property Control Act
1. In
this judgment I will refer to the applicants as the “Trustees”.
[2] Central to this application is a letter (the “appeal letter”) written by attorneys
for the Trustees to the respondent (the “City”) on 19 January 2021. The letter is
attached to the founding affidavit as “WP16”.
[3] The letter constitutes an appeal in terms of section 16.5 of the City’s Credit
Control and Debt Collection Policy . This section provides that if a dispute logged or
declared has not been resolved to the satisfaction of a customer, the customer may
appeal the decision made or failure to make a decision to the City Manager ( inter
alia) in terms of section 62 of the Local Government: Municipal Systems Act2 (the
“Act”)
1 No. 57 of 1988
2 No 32 of 2000
Page 3 of 24
[4] The City Manager did not respond to this letter and the Trust ees now apply to
court in this application for resolution of their disputes with the City.
The dispute [5] The appeal letter addresses a dispute between the Trustees and the City
regarding the billing for electricity at a property (portion 136 of Erf 6[ …] R[…] 6[…]-
I[…] (known as E […] L[…])) (the “property”) owned by the Trustees .
[6] The dispute dates back to July 2010, with issues arising from incorrect meter
readings and rebilling attempts by the City.
[7] The appeal letter was headed -
…
APPEAL IN TERMS OF SECTION 16.5 OF THE CITY OF JOHANNESBURG'S CREDIT CONTROL AND DEBT COLLECTION POLICY
was address ed to -
The City of Johannesburg Metropolitan Municipality Attention: The Legal and Contracts Unit
and went on to record that -
4. On or about 26 October 2020 we sent a written complaint, in relation to
the below mentioned issues on our Client's behalf, in terms of section 16.2 of the City's Credit Control and Debt Collection Policy. The 21 (Twenty -One) day
time period within which the City should have resolved same has also come to an end.
5. Our Client finds the City's failure to resolve the dispute as
unsatisfactory. In light of the City's failure to resolve the dispute set out below, our Client therefore declares a dispute in terms of section 16.5 of the City's Credit Control and Debt Collection Policy.
Page 4 of 24
[8] The appeal letter then goes on to set out in detail, the basis upon which the
Trust ees dispute the City’s account s.
[9] Despite t his letter constituting an appeal in terms of s ection 16.5 of the City’s
Credit Control a nd Debt Collection Policy , neither the City nor the City Manager
answer ed this letter.
The legislative framework and the rights and obligations of the Trustees and the City
[10] The legislative framework and the right s and obligations of customers and
municipalities were dealt with by the learned Fisher J, in Body Corporate of Willow
and Aloe Grove v City of Johannesburg and another
3.
[11] I summarise th is judgment as it applies in the current proceedings -
a. the Act seeks to facilitate a user -friendly process of dispute resolution
which accords with constitutional precepts of fairness ;
b. it was the Trustees ’ obligation to formulate their complaint sensibly so
that the basis on which it disputes an account is understandable;
c. it was the City’s obligation to engage efficiently and intelligently with the
complaint with the object of coming to a determination which either resolves it
or allows for further engagement with it in accordance with the legislation ;
d. the City should have i nform ed the Trustees , in writing, of its decision.
The written information provided to the Trustees should have had cogency
and should have been directed to the dispute at hand;
e. the court’s function is not to resolve the dispute. Its function is to see to
it that the parties’ respective rights are fairly accommodated within the City’s
internal procedures and the law ;
f. to order the City to rectify the account (or to prescribe to the City how
to do so) would amount to an impermissible incursion into the contract of the
parties. From an administrative perspective it would be an impermissible
interference with decisions to be taken by the City ;
3 2023 JDR 4762 (GJ)
Page 5 of 24
g. it is now compulsory for an aggrieved party to exhaust the relevant
internal remedies unless (in certain limited circumstances) exempted from
doing so. Any review process, of necessity, entail s an inquiry into whether the
internal remedies available to the customer in terms of the legislative scheme
have been exhausted;
h. ultimately, the appeal process under section 62 of the Act will yield an
administrative decision which may in due course be subject to a judicial review ;
i. thus, a court may order that the internal remedies be employed. Whilst
these remedies are being exhausted in good faith, the structure of the customer/municipality agreement is such that there can be no lawful termination of services.
Application of the legislative framework to these proceedings
[12] Applying these principles to the current proceedings I make the following
observations -
a. the Trust ees have complied with their obligation to formulate their
complaint sensibly so that the basis upon which they dispute the City’s
account s, is understandable;
b. the City’s has not engaged efficiently and intelligently with the
complaint with the object of coming to a determination which either resolves it or allows for further engagement with it in accordance with the legislation ;
c. the City or the City Manager has apparently not made a decision but if
one or other of them has, they have not informed the Trustees , in writing, of
their decision.
Relief available in these circumstances
[13] As outlined above, the court’s function is not to resolve the dispute. Its
function is to see to it that the parties’ respective rights are fairly accommodated within the City’s internal procedures and the law . It is the court’s function to ensure
that the internal remedies be employed and are followed.
Page 6 of 24
[14] These internal remedies entail the lodging of an appeal in accordance with the
City’s by -laws - which the Trust ees have done - and it is the City Manager’s
obligation to engage efficiently and intelligently with the complaint and then inform
the Trustees , in writing, of its decision - which the City Manager has not done.
[15] It follows therefore that this court should order the City to procure that its City
Manager respond to the appeal letter , to engage efficiently and intelligently with the
Trust ees’ complaint and then inform the Trustees , in writing, of the City Manager’s
decision.
Relief sought by the Trustees
[16] The relief sought by the Trustees is to require the City to comply with its
statutory obligations and the Trust ees request an order giving specific direction to
the City as to how the City should comply with these obligations.
[17] As I have found, t he Trust ees are entitled to an order requiring the City to
comply with its statutory obligations, to wit, to an order that the City procure that its
City Manager respond to the appeal letter.
[18] As regards the charges for electricity which the City includes in accounts to
the Trust ees, the Trust ees request an order (in summary) that the City –
a. revers e all electricity charges on the Account 221096029 from 2 June
2010 to 7 May 2013;
b. attend to rebilling the Account 221096029;
c. revers e all charges as billed in the March 2017 invoice and rebill;
d. revers e any/all interest, VAT and legal fees that stand to be reversed
from account number 2[ …] from June 2010 to date;
e. furnish the Trustees with an adjusted statement of account showing
that the above adjustments have been attended to.
[19] In my opinion, for this court to make such an order would be an impermissible
interference with decisions to be taken by the Cit y and would amount to an
impermissible incursion into the contract between the parties.
Page 7 of 24
Outline of the litigation
[20] As I have stated above, in the circumstances of this dispute, it is not the
court’s function, at this stage, to resolve the dispute between the parties. In order to
give context to this litigation and particularly to give context to the points in limine
raised by the parties (which are dealt with below), it is useful to summarize broadly
what occurred -
a. the City historically billed the Trustees for their electricity consumption
based on meter number 2[ …] ("the Old Meter") ;
b. meter number 2[ …] was replaced by the City by meter number 9[ …]
("the New Meter") on 7 June 2013;
c. the Old Meter's daily average consumption was approximately five
times the daily average consumption of the New Meter;
d. the Trust ees’ position is that when a meter has become faulty and is
not giving accurate readings, and a new meter is installed, then the daily average consumption of the new and correctly functioning meter should be used to replace the incorrect data of the faulty meter and thus calculate the
charges which should have been levied. This is done in accordance with the
City's Electricity By -Laws and the industry standards;
e. the Trustees initially proposed three different methods of calculation to
arrive at an amount either due to or by the City or by or to the Trustees . In
their replying affidavit the Trustees accepted the New Meter’s readings as
being correct;
f. if the method outlined in clause [20]d is applied, using the New Meter ’s
average daily consumption applied over the period that the Old Meter was being used to record average daily consumption, then the City overcharged
the Trustees by an amount of R21,629,949.85.
g. the Trustees made multiple attempts to resolve the issue, including
logging queries and sending written complaints . The City failed to resolve the
dispute within the specified time periods or at all;
h. the Trust ees have been paying the City the current charges in
accordance with the New Meter’s readings. There is no dispute with regard to
Page 8 of 24
the current charges, but rather only the charges that were billed using the
readings from the Old Meter;
[21] The history of the proceedings before this court may be summarised as follows
-
a. this application was served on the City on 4 June 2021 and the City
delivered a notice of intention to oppose on 10 June 2021;
b. when the City failed to deliver the answering affidavit, the application was set down on the unopposed roll on 5 October 2022;
c. on 5 October 2022, the matter was removed from the roll with the City to pay the wasted costs. The matter was removed in order for the parties to
attempt settlement ;
d. the parties were unable to reach agreement on settlement and the matter was again set down on the unopposed roll for 21 February 2023;
e. the City delivered its answering affidavit on 20 February 2023. The answering affidavit includes an “application for condonation”;
f. given the opposition and the late filing of the answering affidavit, on 21 February 2023 Wanless AJ postponed the matter to 23 February 2023 for
submissions from both parties ;
g. on 23 February 2023, both parties (having delivered practice notes and referred to various case law) made submissions in respect of condonation of the late delivery of the answering affidavit, as well as costs ;
h. on 23 February 2023, Wanless AJ granted an order directing that the
application be removed from the unopposed roll , the matter shall be dealt
with in the ordinary course, with the City to pay the wasted costs ;
i. on 8 March 2023, the Trust ees delivered their replying affidavit ;
j. in February 2023 the City served a pretermination notice and the Trustees
engaged with the C ity regarding a resolution of the issue;
k. the City agreed that electricity supply would not be terminated before 30
June 2023;
l. on 16 August 2023 the City t erminated electricity supply to the property
with no additional notice and the Trustees instituted urgent proceedings
against the City to have the electricity supply restored;
Page 9 of 24
m. the matter came before Yacoob J on 18 August 2023 who granted an
order inter alia to the effect that -
i. the disconnection of electricity supply to the property on 16 August
2023 was unlawful;
ii. the City was ordered to restore the electricity supply to the property
within 2 hours of the order being handed down;
iii. the Trust ees were directed to remain up to date with payment of the
current charges for account number 2[ …] in accordance with what
was billed as current charges on the City 's invoices in respect of the
property;
iv. for as long as the Trust ees remained up to date with payments of the
current charges, the City was interdicted from disconnecting /
terminating, or causing or instructing the disconnection / termination
of the electricity or water supply of the property, for any reason
whatsoever, at any time after the handing down of the order;
v. in the event that the Trustees did not pay the current amount on a
monthly basis and in terms of what was invoiced as the current
amount on the City's invoices, then the City must serve a new
pretermination notice in respect of the property before terminating
services supplying the property;
vi. any termination in respect of the historical debt was interdicted
pending finalisation of the dispute under case number 2[ …] (the
current matter);
n. on 15 September 2023, the Trustees delivered their Heads of Argument.
The City failed to deliver its Heads of Argument within the prescribed time
period, and the Trustees therefore brought an application to compel
delivery ;
o. the Trustees applied for a date for hearing the application to compel and
were assigned 19 February 2024. The matter was removed from the roll of 19 February 2024;
p. on 19 March 2024, the City served an application to supplement its
papers. This was not opposed by the Trustees ;
q. on 18 April 2024, the Trustees served their supplementary replying
affidavit ;
Page 10 of 24
r. the Trustees served their heads of argument for these proceedings on 20
August 2024;
s. the City served its heads of argument on 16 February 2025 (2 days before
this hearing);
t. the hearing of this matter was set down for hearing on 18 February 2025
and took place on that day.
Condonation for the late filing of the City’s answering affidavit
[22] The answering affidavit was delivered on 20 February 2023 and it is common
cause that it was delivered many months late. The City did not apply formal ly for
condonation but did make some submissions in this regard in the answering affidavit
itself. The City made no attempt to comply with the provisions of Rule 27.
[23] The Constitutional Court
4 has held that –
It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court's indulgence. It must show sufficient cause. This requires a party to give a full
explanation for the non- compliance with the rules or court's directions. Of
great significance, the explanation must be reasonable enough to excuse the
default.
[24] While condonation may be granted even in the absence of a substantive
application
5, the City’s submissions in support of its application for condonation fall
far short of these requirements.
[25] The standard for considering an application for condonation revolves around
the concept of "interests of justice." This concept is flexible and cannot be precisely defined. It encompasses several factors, including the extent and cause of the delay and the reasonableness of the explanation for the delay. Ultimately, determining
what is in the interests of justice requires considering all relevant factors, though it is
4 Grootboom v National Prosecuting Authority [2013] ZACC 37; 2014 (2) SA 68 (CC)
5 McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (W)
Page 11 of 24
not necessarily limited to those mentioned. The specific circumstances of each case
will dictate which factors are pertinent6.
[26] In this matter, I take into account that the Trust ees have had an opportunity to
and have dealt comprehensively with the answering affidavit in their replying affidavit
as well as in their heads of argument. I also take into account that if I were to refuse
condonation this may result in further delays to the finalisation of this matter which
has already been unacceptably delayed.
[27] I therefore condone the late filing by the City of the answering affidavit.
[28] The City is not an ordinary litigant. It is an organ of state . Section 165(4) of
our Constitution
7 instructs organs of state to assist courts to ensure the courts’
accessibility and effectiveness.
[29] As stated in Grootboom v the National Prosecuting Authority
8 –
One gets the impression that we have reached a stage where litigants and lawyers disregard the rules and directions issued by the court with
monotonous regularity. In many instances very flimsy explanations are
proffered. In others there is no explanation at all. The prejudice caused to the
court is self -evident. A message must be sent to litigants that the rules and
the court's directions cannot be disregarded with impunity
[30] The conduct of the City’s representatives in this litigation bears a striking
similarity to their conduct described in Millu v City of Johannesburg Metropolitan
Municipality and another
9. But here there has been an intervening judgment of
Wanless AJ on 23 February 2023 and the City in this case, is not in defiance of any
court order . The Trustees in their heads of argument state that Wanless AJ made no
finding in respect of whether or not the late filing of the answering affidavit is
6 Grootboom v National Prosecuting Authority above
7 Constitution of the Republic of South Africa, 1996
8 2013] ZACC 37; 2014 (2) SA 68 (CC)
9 2024 JDR 1329 (GJ)
Page 12 of 24
condoned or whether an application for condonation by the City in that respect is
necessary. The City does not deal with this aspect.
[31] Nevertheless , the City and its representatives have inexcusably disregard ed
the rules of court and I am therefore minded to grant a punitive order for costs
against the City on this basis alone.
Condonation for the late filing of the City’s heads of argument
[32] The Trust ees filed their heads of argument and practice note for these
proceedings on 20 August 2024 and t he City filed its heads of argument and practice
note on 16 February 2025 (2 days before th e hearing) .
[33] In terms of the Practice Manual for this division, the City should have
delivered its heads of argument and a practice note within 10 days from 20 August 2024 being 3 September 2024.
[34] In the City’s heads of argument counsel submits –
At the outset, I wish to point out that these heads are delivered late due to the administrative issues caused by the change of attorneys dealing with the matter in the Municipality’s attorneys of record and the Municipality together with its representatives profusely apologise for the inconvenience caused
[35] In this regard, what I have said in paragraph [30] above is pertinent. It is
difficult to understand why an administrative issue caused by the change of attorneys dealing with the matter in the Municipality’s attorneys of record could cause a delay of more than 5 months to the filing of these heads. No other explanation i s put
forward.
[36] The City and its representatives have inexcusably disregarded the terms of
the Practice Manual .
City’s supplementary answering affidavit
Page 13 of 24
[37] The City applied to file a supplementary answering affidavit in order,
according to the City, to introduce “ facts … m aterial and relevant and necessary to
be disclosed in order for this honourable court to be able to adjudicate the issues in
the present matter ”.
[38] The “material and relevant” facts which the City introduces relate -
a. firstly, to the previous proceedings before and an order of Yacoob J which
I have referred to above; and
b. secondly , to the ‘fact’ that Yacoob J advised the Trustees to change the
name of the City’s account for the property .
[39] The rest of the affidavit consists of argument or repeats what has been dealt
with before by the City in its answering affidavit .
[40] As regards the first issue, t he City quotes from the order –
for as long as the Applicants remain up to date with payment of the current
charges , the Respondent is hereby interdicted from disconnecting the
services
[41] Having quoted from the order, the City states –
It follows therefore that the Court accepted that the billing on the current meter discussed above is correct and that the Applicant accepted the outcomes of the court and they are currently paying as billed by the Municipality
[42] The City then goes on to submit -
It follows therefore that there is not cogent ground in law on why the Applicant should not be ordered to pay the full amount on the same charges billed on
actual reading of the consumption of electricity in the same meter number
and
Judge Yacoob … then ordered the Applicants to pay the full amount.
[43] These submissions are patently incorrect. Yacoob J ordered that the
Trustees pay the current charges on the account and not the full amount .
Page 14 of 24
[44] As regards the second issue relating to Yacoob J’s so-called advice that the
Trustees change the name on the City’s account for the property, this is also patently
incorrect.
[45] The only mention of the name on the account in the judgment is in the first
paragraph of that judgment . The learned judge gave no advice n or even mentioned
changing the name on the account. In the first paragraph the learned judge stated –
The applicants of (sic) a trustees of a trust which is consuming electricity
provided by the respondents although the account the with (sic) the
respondents is not in the name of the trust, a court dispute is pending between the parties dealing with amounts which have been debited on the account, is pending before this Court
[46] There is no mention of the actual name on the account at all in the order
issued.
[47] As an aside on the issue of the name on the account, the City is adamant that
it is up to the Trustees to have the name on the account changed. If the consumer
agreement , as alleged by the City , is in the name of Elphin Lodge Rand Aid
Association (which is just a name and not a legal person), then it would be sensible
for the City to have the obligation to initiate a process to correct the name on the account rather than the Trustees being obliged to do so. It is not clear why the City
says it is the Trust ees’ obligation to have the name changed. If the consumer
account was being transferred from one person to another (and not just a change in name), then in that case would seem sensible for the consumer taking over the
account, to take the initiative in this regard. This is not the situation here.
City’s submissions – locus standi
[48] The City alleges in its answering affidavit that the Trust ees do not have l ocus
standi to bring this application. Their reason for saying so is that the account number
2[…] is in the name of Elphin Lodge Rand Aid Association ( which for convenience I
will abbreviate to "ELRAA"). The deponent t o the founding affidavit has explained
Page 15 of 24
that Rand Aid is the founding donor of the t rust and that Elphin Lodge is the name of
the building.
[49] The City goes on to say that it is evident that the Trust ees appear to be the
owner of the p roperty, but, the consumer agreement was concluded between the
ELRAA and the City and not the Trust ees.
[50] The City goes on to conclude that, on the common cause facts provided in the
founding affidavit, the Trust ees do not have the necessary locus standi , to bring the
present application relying on the consumer agreement concluded between the
ELRAA and the City.
[51] This is a very strange submission. It is not disputed that ELRAA is the
combination of the name of the building and the name of the founder of the t rust.
ELRAA is neither a juristic nor a natural person. The City does not attach a copy of
the consumer agreement to support its argument and no explanation is given as to
why it i s not attached. If the alleged “consumer agreement” exists, the counter -party
to that agreement would, according to the City, be a non- existent person. And
ELRAA, as neither a juristic nor a natural person could certainly not institute any
legal proceedings of any nature.
[52] In any event, the Trust ees do not rely on the consumer agreement for locus
standi . The Trust ees are the owner of the property and, as such, are liable to the
City
10 for services provided to the property.
[53] The City referred, in its Heads of Argument , to Tarica and Another v City of
Johannesburg Metropolitan Municipality
11. In that case Mahon AJ held that a
municipality has the right to recover outstanding amounts from a property owner
even if the account is held in the name of another party . In such a case the property
10 Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v
Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC,
Local Government and Housing, Gauteng, and Others (KwaZulu- Natal Law Society and
Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC) ; PA Pearson (Pty) Ltd v
Ethekwini Municipality and Others 2017 (6) SA 82 (SCA)
11 (2023/044543) [2025] ZAGPJHC 46 (27 January 2025)
Page 16 of 24
owner must then have the right to defend any proceedings brought by a municipality
and must necessarily have the locus standi to do so. It does not matter that the
account is held in a different name to that of the property owner.
[54] The Trust ees thus have a direct and substantial interest in the right s and
obligations which are the subject of this litigation12 and ha ve locus standi to institute
these proceedings .
City’s submissions – prescription
[55] In paragraphs 24 and 25 of the answering affidavit, the City states –
24. On the Applicants deponent of the founding affidavit own version, the
present meter is clearly reading properly, and it has been doing so, since the
date of installation, save to note that the meter reads less than the meter which was on the property from 2010 to 2013.
25. From the above, it follows therefore that:
25.1 in respect of the electricity supply services, not only is the Municipality
by-laws provide for a period of 36 months,
25.1.1 but the Prescription Act No 68 of 19 69, ("the Prescription Act") is
applicable, thus, the Applicants cannot demand any correction on the electricity billing for a period more than 36 months.
25.2 In respect of the interdict, the Applicants make out no case
whatsoever, there is no basis, upon which this Honourable Court could grant a competent order preventing the Municipality from implementing its own by -
laws.
[56] It is not at all clear what these paragraphs mean. For example, it is not clear
which by -laws the City is referring to when it says they “ provide for a period of 36
months ”.
[57] In argument the City submitted –
12 Kommissaries van Binnelandse Inkomste v Van de Heever 1990 (3) SA 1051 (SCA)
Page 17 of 24
46.3 That in any event, even if there was an error which is denied, the
Municipality cannot reverse any services beyond three years or 36 months.
46.3.1 In terms of the Prescription Act No 68 of 19 69, (“the Prescription Act”)
is applicable, thus, the Applicants cannot demand any correction on the electricity billing for a period more than 36 months.
46.4 In the event where there is an error in relation to the calibration, then the Municipality may not go back 6 months, in this regard, the Municipality relies on
46.4.1 section 9(7) Greater Johannesburg Metropolitan Council Notice 1610 of 1999 provides that:
“When it appears that a consumer has not been charged or incorrectly charged for electricity due to the application of an incorrect charge or on any other grounds other than inaccuracy of a meter, the council shall conduct such investigations, enquiries and tests as it deems necessary and shall, if satisfied that the consumer should have been charged or has been incorrectly charged, adjust the account according: Provided that no such adjustment shall be made in respect of a period in excess of 6 months prior to the date on which the incorrect charge was observed or the council was notified of such
incorrect charge by the consumer. Where such consumer is found to have been correctly charged, the consumer shall be charged the cost of conducting such investigations, enquiries and tests.”
47. In reply to the above contentions above, the Applicants contend that:
47.1 The Applicants place no answer or response to the prescription contention and 47.2 In respect of section 9 (7) the Applicant contends that the section is not applicable as the Applicant’s case is based on the accuracy of the meter. [Para 65 of Reply].
[58] The Trust ees’ response quoted by the City in paragraph 47 above is clearly
correct. This section 9(7) does not apply because the Trust ees’ case is that the Old
Meter was inaccurate. The City goes on to argue -
48. In respect of prescription, this Court in a similar matter of Douglas and Another v City Of Johannesburg and Others (2021/36955) [2023] ZAGPJHC
Page 18 of 24
1263 (6 November 2023) relying on the Supreme Court of Appeal judgment
found that:
“[73] The effect of the upholding of the prescription plea is that all the claims for the reversal of charges emanating from a period before July 2018 have prescribed. The further effect of this would be that a portion of the claim made in prayer 1.1 in the amount of R125,682.30 has prescribed; the claim made
for the reversal of duplicate property rates charges in prayer 1.2 has prescribed; the claim to reverse all property rates charges according to prayer 1.5 has prescribed; the reversal of all duplicate refuse charges according to prayer 1.6 has prescribed; the claim for the reversal of all water availability and sewerage availability charges according to prayer 1.7 has partially prescribed; the interest claim according to prayer 1.8 has partially prescribed; the claim for the reversal of all property rates charges according to prayer 1.10 has prescribed; the claim for the reversal of all duplicate refuse charges according to prayer 1.11 has prescribed; the claim for the reversal of all water availability and sewerage availability charges according to prayer 1.12 has partially prescribed and the claim for interest according to prayer 1.13 has partially prescribed.”
49. It follows therefore that in respect of the electricity supplied by the Municipality to the Applicants property, the claim thereto is subject to the three year prescription period.
[59] In the case of Douglas and Another v City o f Johannesburg, the learned judge
Strydo m J found –
…
[64] In my view, what is claimed amounts to a debt for purposes of section
11 of the Prescription Act. A reversal of an amount on an account here will either reduce the amount payable or extinguish the debt if the account was in arrears or, if fully paid up, would leave a credit. This, in my view, amounts to a claim for the payment of money.
[60] The Douglas case is distinguishable because t he learned judge in that case
found that the relief claimed amounted to a claim for the payment of money by the
municipality to the owners of a property .
Page 19 of 24
[61] In this matter , there is no claim by the Trust ees for payment of money from
the City. On the contrary, the City claims that the Trust ees owe it money for
electricity charges . These charges have been disputed by the Trust ees which they
resist by demanding proper accounting from the City . The claim for a proper account
is not a debt under the Prescription Act and cannot prescribe. If anything, it is the
City’s claim against the Trust ees for payment of money which has prescribed13.
City’s submission – interdict
[62] As regards the City’s submissions i n respect of the interdict, it is said that the
Trust ees make out no case and there is no basis upon which this Honourable Court
could grant a competent order preventing the m unicipality from implementing its own
by-laws. As I understand it, t he Trust ees do not ask for an order preventing the City
from implementing its own by -laws. On the contrary, the Trust ees ask for an order
that the City comply with its by -laws.
[63] If, by this submission, it is meant that the Trust ees are attempting to prevent
the City from collecting money due to it, that , in my view, is not correct. The Trust ees
state that they are complying with Yacoob J’s order (see paragraph [21]l above) that
they remain up to date with payment of the current charges for account number 2[ …]
in accordance with what is billed as current charges on the City's invoices in respect of the property. The City does not deny that the Trust ees keep up to date with the
payment of the current charges
14.
[64] It is correct that the Trust ees are not paying the amounts claimed by the City
for electricity consumed as measured by the Old Meter. This the Trust ees are
entitled to do because they have disputed the charges based on the Old Meter
13 see Tarica and Another v City of Johannesburg Metropolitan Municipality above and Jordaan
and Others v City of Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC)
14 The City says in its Heads of Argument (paragraph 6.1.1) that Yacoob J found that the Trust
is to pay the full amount on the tax invoice issued by the City. That is not correct. Yacoob J
ordered the Trust to remain up to date with payment of the current charges for account number
2[…] in accordance with what is billed as current charges on the City's invoices,
Page 20 of 24
readings . Section 102 of the Local Government: Municipal Systems Act15 specifically
prohibits a municipality from implement ing any debt collection and credit control
measures where there is a dispute between the municipality and any person liable
for payments to the municipality.
Trust’s submissions – deponent’s authority to depose
[65] The Trust ees make the following submission regarding the authority of the
deponent to the City's Answering Affidavit -
a. the deponent to this affidavit was Mr Tuwani Ngwana who stated that
he is employed as a Legal Advisor in the City's Legal Department ;
b. the deponent claim ed that he is authorised to depose to the Founding
Affidavit on behalf of the City, yet he fail ed to attach proof of that fact , or a
resolution directing and empowering him with this authority ;
c. the City is a municipality, established in terms of the Local
Government: Municipal Systems Act, No. 32 of 2000, and as such, the
governing figure behind a municipality is its municipal council, which performs
its actions through the municipal manager ;
d. the deponent is neither the municipal manager, nor shown to be a
member of the municipal council, and as such, he has no authority to depose
to the answering affidavit that the City's a pplication rests upon. The answering
affidavit is fatally flawed from the outset and should be dismissed outright for
lack of authorisation.
[66] In Ganes v Telecom Namibia Ltd
16 it was held –
… it is irrelevant whether [the deponent] had been authorised to depose to the
founding affidavit. The deponent to an affidavit in motion proceedings need
not be authorised by the party concerned to depose to the affidavit. It is the
institution of the proceedings and the prosecution thereof which must be
authorised. In the present case the proceedings were instituted and prosecuted by a firm of attorneys purporting to act on behalf of the
15 No. 32 of 2000
16 2004 (3) SA 615 (SCA)
Page 21 of 24
respondent. In an affidavit filed together with the notice of motion a Mr Kurz
stated that he was a director in the firm of attorneys acting on behalf of the respondent and that such firm of attorneys was duly appointed to represent the respondent. That statement has not been challenged by the appellants. It must, therefore, be accepted that the institution of the proceedings was duly authorised. In any event, Rule 7 provides a procedure to be followed by a respondent who wishes to challenge the authority of an attorney who instituted motion proceedings on behalf of an applicant.
[67] The Trust ees’ submission that, because the deponent was not authorised to
depose the answering affidavit, the City's defence (which rested on that affidavit ) is
fatally flawed , is, in my view, not correct. In short , the deponent to an affidavit does
not need to be authorised to depose to an affidavit.
[68] What does need to be authorised i s the City’s opposition to the Trust ees’
application. There is no resolution attached to the affidavit authorising the deponent
to oppose the application, but the City’s attorneys did file a notice of intention to oppose on behalf of the City. In this notice the attorneys state that the City gives
notice of its intention to oppose the matter and appoints the address of the attorneys
as the address and email at which it will accept service of all legal documents in this matter.
[69] In my opinion then, the authority to oppose the Trust ees’ application rested
with the City’s attorneys, who did oppose the application on the City’s behalf. If the
Trustees wished to challenge that authority, they should have used the procedure
provided in Rule 7 to do so. The Trustees did not do so with the result that the City’s
opposition and the deponent’s answering affidavit (condonation having been
granted) are, in my opinion, properly before this court.
Costs
[70] I have already dealt with the City ’s cavalier attitude to the rules of court in
paragraphs [28] to [30] above. In my view that alone is sufficient to justify a punitive
Page 22 of 24
order as to costs. Added to that must be the City’s late filing of its heads of
argument.
[71] The City is an organ of state. As was stated by Sutherland DJP in Millu v City
of Johannesburg Metropolitan Municipality and another17 -
… Organs of state are expected to behave honourably. Apparently, the City expects that it can at the same time disrespect the fundamentals of the litigation system and continue with impunity to participate in that litigation system to protect its rights. Such behaviour cannot be tolerated precisely because it is calculated to abuse the process of the court.
[72] The supine attitude of the City in not responding to correspondence and not
resolving this dispute expeditiously is who lly unacceptable. The City did not
investigate the Trust ees’ query on the account and did not provide the Trust ees with
a written decision . As was stated by de Villiers AJ
18 -
There is no doubt that a municipality has a higher duty as a litigant. It has a duty to address the real issues raised by a ratepayer, honestly, fairly, and properly.
[73] I therefore will order that the City pays the Trust ees’ costs of this application
as between attorney and client.
Order
A. The respondent is ordered -
a. in compliance with section 62 of the Local Government: Municipal
Systems Act N o. 32 of 2000 to procure that the respondent’s City Manager -
i.consider the appeal lodged by the applicant, such appeal being contained in
the document dated 19 January 2021 and attached as annexure WP16 to the applicant’s founding affidavit ;
ii. confirm, vary or revoke the decision;
17 above
18 Jordaan and Others v City of Tshwane Metropolitan Municipality and Others 2017 (6) SA 287
(CC)
Page 23 of 24
iii.commence with the appeal within six weeks of the date of handing down this
judgment ;
iv.decide the appeal within a reasonable period ; and
v.notify the applicant in writing of his or her decision;
b. based on the decision of the City Manager, the respondent shall revise
the applicant’s statement of account and shall deliver to the applicant an
adjusted statement of account with suitable notations and explanations such
that it is possible for the a pplicant to check that the City Manager’s decision
has been correctly incorporated into the statement .
B. Should the applicant s -
a. dispute the decision of the City Manager under paragraph A(a) ; or
b. dispute the statement of account provided by the respondent under
paragraph A(b) ;
c. consider that either the respondent or the City Manager have otherwise
failed to comply with the orders made under paragraph A above;
the applicant s are given leave to apply to this court on the same papers duly
supplemented (if necessary ) –
i.to review the City Manager’s decision in terms of the Promotion of
Administrative Justice Act or in terms of any other applicable law;
ii. to correct the statement of account provided by the respondent ;
iii.to apply for appropriate relief should the respondent be found to have failed to
comply with the order s made under paragraph A above.
C. The order of Yacoob J made on 18 August 2023 under case number
081420/2023 shall remain of full force and effect provided that, for the
purposes paragraph 8 of that order, the dispute under case number 2021-
26601 (being these proceedings) , shall only be regarded as finalised –
a. when and if the applicant s notify the respondent in writing that they
regard these proceedings as finalised; or
b. if the respondent has complied with paragraphs A(a) and A(b) of this
order and the applicant s have failed to initiate , review or other proceedings
under paragraph B of this order within 21 days of delivery by the respondent
of the adjusted statement of account under paragraph A(b) of this order ; or
c. if the applicants have initiated review or other proceedings under
paragraph B of this order within the 21 day period, when final judgment, not
Page 24 of 24
subject to appeal or further appeal , has been delivered in such review or other
proceedings.
D. The respondent is to pay the costs of this application as between
attorney and client .
A MITCHELL
Acting Judge of the High Court
This judgment is handed down electronically by circulation to the parties or their legal representatives by email, by uploading it to the electronic file of this matter on Caselines, and by publication of the judgment to the South African Legal Information Institute. The date for hand- down is deemed to be 7 April 2025.
HEARD ON: 18 February 2025
DECIDED ON: 7 April 2025
For Applicant s: Adv. L de Wet
083 987 6501
dewet.litigation@gmail.com
Attorneys
HBGSchindlers Attorneys
gohl@hbgschindlers.com
011 568 8532
For Respondent: Adv. Emmanuel Sithole
076 1629 605
esithole@law.co.za
Attorneys
Madhlopa & Thenga Inc.
lucky@madhlopathenga.co.za
087 135 5672