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document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2024-020546
(1)
REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
26 September 2025
In the matter between:
SS PROTEA ESTATES Applicant
and
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY First Respondent
CITY POWER (SOC) LTD Second Respondent
Date of Hearing: 1 September 2025
Date of Judgment: 26 September 2025
JUDGMENT
ESTERHUIZEN, AJ
NATURE OF APPLICATION
[1] T his is an application brought by the Applicant in which it seeks to compel the
First and Second Respondents to correctly bill the Applicant’s account and an
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interdict preventing the Respondents from terminating services to the
Applicant’s property based on the disputed billing.
POINTS IN LIMINE
[2] The First Respondent has raised a number of points in limine in its answering
affidavit and the Applicant similarly in its replying affidavit. It has been argued
that any one of these points in limine may be dispositive of the other part y’s
case.
[3] I deal first with the points in limine raised by the Applicant in reply.
[4] A reference to the Respondent in this judgment is a reference to the First
Respondent being the only party opposing the application. Where required
express reference is made to the Second Respondent.
[5] The Applicant did not persist with its first point in limine that the late filing of the
Respondent’s answering affidavit should not be condoned and thus nothing
further needs to be said about it.
The Applicant’s second point in limine in reply - deponent to the answering affidavit
has no personal knowledge.
[6] The Applicant argued that the deponent of the Respondent’s answering
affidavit, being the legal advisor employed in the Group Legal and Contracts
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Department of the Respondent , had no personal knowledge prior to the
matter being instituted. This is so, the Applicant argued, because:
[6.1] the deponent has no knowledge of the accounting on the accounts
and how it is being generated and applied;
[6.2] the Respondent’s answering affidavit contains no confirmatory
affidavits from any person with knowledge of the workings of the
accounting department;
[6.3] having no knowledge the deponent cannot be more than a conduit
and therefore the evidence presented is hearsay and should not be
considered in this matter;
[6.4] the deponent only has access to the system to view the disputed
material and that does not support an argument that he deals with the
systems on a daily basis nor does he deal with any accounting
processes.
[7] At the outset it is relevant to state that insofar as the Applicant argues that
evidence in relation to the Second Respondent must be struck out the
Applicant cannot succeed. This is so because an application to strike must be
brought in terms of rule 6(15) of the Uniform rules of Court which the
Applicant did not follow in this instance.
1
1 The applicant argued that :
4
[8] Notwithstanding this, where it is found that the deponent lacks the required
knowledge those allegations would constitute hearsay and thus be
inadmissible. The Applicant argued that the Respondent’s answering affidavit
in its entirety is hearsay.
[9] In argument the R espondent referred to Dean Gillian Rees v Investec Bank
Limited (330/13) [2014] ZASCA 38 (28 March 2012) for its argument that the
deponent need not have knowledge of all the allegations. In the Investec
judgment the Supreme Court of Appeal (“SCA”) considered the requirements
of a deponent having personal knowledge within the context of a summary
judgment application and in doing so held :
“[14] Ms Ackermann relied on the information at her disposal which
she obtained in the course of her duties as the bank’s recoveries
officer, to swear positively to the contents of her affidavit. It is
not in dispute that in the discharge of her duties as such she
would have had access to the documents in question and upon
a perusal of those documents she would acquire the necessary
knowledge of the facts to which she deposed in her affidavit on
behalf of Investec. Prior to the institution of the action Ms
Ackermann had been corresponding with the appellant’s
attorney in regard to the principal debtors’ delinquent accounts
and had also addressed letters of demand to them, receiving
letters in response which canvassed the appellants’ defences.
She could thus ‘swear positively to the facts’, ‘verify the cause of
action and the amount claimed’ and assert that in her opinion
the appellants did ‘not have a bona fide defence to the action’
and had entered an appearance to defend ‘solely for the
purposes of delay’. These factors show that the requirements
set out in Maharaj are met.
“It is made clear by the attorneys that they act only on behalf of the First
Respondent, and therefore any reference to the Second Respondent stands
to be struck out as hearsay evidence.”
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[15] The fact that Ms Ackermann did not sign the certificates of
indebtedness nor was present when the suretyship agreements
were concluded is of no moment. Nor should these be elevated
to essential requirements , the absence of which is fatal to the
respondent’s case. As stated in Maharaj, ‘undue formalism in
procedural matters is always to be eschewed’ and must give
way to commercial pragmatism. At the end of the day, whether
or not to grant summary judgment is a fact -based enquiry. Many
summary judgment applications are brought by financial
institutions and large corporations. First -hand knowledge of
every fact cannot and should not be required of the official who
deposes to the affidavit on behalf of such financial institutions
and large corporations. To insist on fi rst-hand knowledge is not
consistent with the principles espoused in Maharaj.
[16] The fact that leave to defend was granted in respect of Claim D
does not mean as was suggested in argument that Ms
Ackermann was untruthful and that her affidavit must be rejected
in its entirety. It is clear that Ms Ackermann acquired her
knowledge from documents under her control. She thus had the
requisite knowledge as required by rule 32(2). In making such a
finding Hutton AJ did not err.” (emphases added)
[10] In the Investec judgment the court also had regard to the particular facts and
how the deponent could have obtained sufficient knowledge to have deposed
to the affidavit. This is aligned with what was held in President of the Republic
of South Africa and others v M & G Media LTD 2012 (2) SA 50 (CC) where
the Constitutional Court (CC) concluded that more is required by a deponent
than the mere assertion that the information is within the deponent’s personal
knowledge. In this regard the CC held:
“[28] The Supreme Court of Appeal held that a deponent's assertion
that information is within his or her personal knowledge 'is of
little value without some indication, at least from the context , of
little value without some indication, at least from the context , of
how that knowledge was acquired'. I agree. An indication of how
the alleged knowledge was acquired is necessary to determine
the weight, if any, to be attached to the evidence set out in the
affidavit. The key question is whether the deponent would, in the
ordinary course of his or her duties or as a result of some other
capacity described in the affidavit, have had the opportunity to
acquire the information or knowledge alleged.
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[29] In Barclays National Bank Ltd v Love the court, in the context
of summary judgment, held that '(a)lthough it is not necessary
for the deponent to state reasons in the affidavit for his assertion
that the facts are within his own knowledge he should . . . at
least give some indication of his office or capacity which would
show an opportunity to have acquired personal knowledge of the
facts to which he deposes '. The principle articulated in Love is
sound. It is about how knowledge, practically speaking, is
acquired, and how a deponent lays the foundation for alleging
personal knowledge of certain facts . It acknowledges that laying
a foundation for personal knowledge of a fact cannot practically
require a deponent to produce a paper trail of every knowledge-
building action he or she has undertaken.
[30] While the principle that Love and its progeny articulate applies
generally in civil proceedings, the principle must be applied with
caution in access to information cases...”
2
[11] It is thus relevant for the deponent to at least s how how the knowledge was
acquired. In doing so it must be considered as to how the deponent lays the
foundation for alleging personal knowledge of certain facts and whether the
deponent would, in the ordinary course of his duties or as a result of some
other capacity described, have had the opportunity to acquire the information
or knowledge alleged.
[12] The Applicant relied on the judgment of S utherland DJP in Millu v City of
Johannesburg Metropolitan Municipality and Another (25039/2021) [2024]
ZAGPJHC 419 (18 March 2024) paras 29, 30 and 45 where this court
rebuked the C ity for their use of legal advisors to depose to affidavits on
matters they have no knowledge and specifically accounting related matters .
I do agree with counsel for the Respondent that t he relief sought in Millu was
2 See M&G media LTD v President of the Republic of South Africa and others 2013
(3) SA 591 (GNP) para 46 -47.
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for the striking out of the City’s defence for failure to comply with a court order
compelling the City to file its heads of argument. I t was an interlocutory
application in terms of Rule 30A(1)(b) for the striking out of the defence and
as such distinguishable from the current matter where the Applicant has not
brought an application to strike any portion of the Respondent’s affidavit.
[13] As evident from the Investec Bank supra the SCA held that first- hand
knowledge of every fact cannot and should not be required of an official who
deposes to an affidavit on behalf of a financial institution or a large
corporation. In his answering affidavit the deponent to the Respondent’s
affidavit says that:
“As Legal Advisor for the City of Johannesburg, I have access to the
SAP system through which I can open, view and interact with
customer accounts and analyse the debits and credits concerning
amounts owing for rates, taxes, water, electricity and other municipal
charges. My access to the SAP system also allows me access to
information regarding meter readings for water and electricity
consumption.” (Emphases added)
[14] The above formulation is no different to that which was the subject in the
Investec matter. The Applicant argued that it is because the deponent only
had access to the SAP system that he did not have the required knowledge. I
do agree with counsel for the R espondent that because the deponent’s
answer contains his understanding and analysis of the relevant invoices,
meter reading reports, account information, analysis of the Second
Respondent’s By-Laws and Policies, payment history report, chronology of
the account report and customer query reports it aligns with the requirements
as set out in the Investec Judgment. The deponent does not need to be the
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person who compiles the accounts or have knowledge of every singly process
followed to obtain he information. All of the reports relied on are accessible via
the SAP system.
[15] Notwithstanding this, it is still for the court to determine, having regard to the
evidence as a whole, 3 how much weight it places on the evidence proffered
and this is done in considering the relief being sought by the Applicant.
[16] In the circumstances the Applicant’s special plea stands to be dismissed.
I now turn to consider the Respondent’s various points in limine.
Respondent’s first and second points in limine - locus standi alternatively non-joinder
and no personal knowledge of deponent to the founding affidavit.
[17] The Respondent argues that the deponent to the Applicant’s founding affidavit
does not have any locus standi in so far as it relates to both the Protea
Metering (Pty) Ltd (“the metering company”) nor for the Applicant’s purported
claim on the metering account with number 2[ …] in the name of the metering
company (‘the metering account) . Alternatively, the Respondent argued, the
metering company should have been joined to the proceedings.
3 The Master v Slomowitz 1961 (1) SA 669 (T) at 672 where the court held:
“Such basis may also emerge from the papers as a whole. The mere omission in the
present case of an allegation that the facts are within the personal knowledge of the
applicant is not conclusive - the petition and annexures must be approached as a
whole.”
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[18] This is so, the Respondent argued, because the relationship between the
Respondent and the metering company is contractual and no third party,
including the Applicant , has any rights and/or obligations in respect thereof.
The Respondent is not a party to that agreement. The Applicant, which is the
body corporate for a residential estate has its own account with the
Respondent.
[19] The Applicant and the metering company had entered into a service level
agreement (“the SLA”) regulating its relationship, which agreement came to
an end due to the effluxion of time but which the Applicant argued is still being
continued on the same terms and conditions. If it has been continued on the
same terms, as being argued by the Applicant, then the terms thereof are
relevant. The relevant provisions of the SLA, attached by the Applicant to its
replying affidavit in support of the agreement, provide as follows:
“WHEREAS Protea undertakes to sell electricity for individual tenants
of units located in the building known as P rotea Estates and situated at
Erf 7 […], Erand Gardens Ext 70, Midrand (hereinafter referred to as
“the Property”);
AND WHEREAS the Property as represented by The Body Corporate,
owns, administers and controls fore mentioned property, appoints
Protea to take responsibility of the bulk electricity account.”
“3.1 The Body Corporate (at all times herein representing the
Property) herewith specifically authorizes Protea to enter the
Property to install and maintain electricity devices and water
metering devices, which devices have been inspected by Protea
and were found to be suitably, on the Property to enable Protea
to meter the amount of electricity and water consumed by
individual owners or tenants.
3.2 Protea is herewith further authorised by The Body Corporate
and The Body Corporate consents thereto that Protea shall be
entitled to sell fore mentioned electricity at a price as determined
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by the prevailing tariff structure of the CITY OF
JOHANNESBURG.
3.3 Protea shall therefore be entitled to invoice individual tenants for
the electricity so supplied to them and an authorised
representative / employee / sub -contractor of Protea shall be
entitled to all reasonable times enter the Property to :
3.3.1 take the readings on the electricity and water metering
devices;
3.3.2 replace or repair metering devices;
3.3.3 distribute invoices and notices and implement credit
control measures.
3.4 The Body Corporate acknowledges that Protea concludes, as
principal, a separate agreement with each individual tenant for
the sale and supply of electricity , which agreement is of a
reciprocal nature and Protea shall therefore be entitled to,
notwithstanding any other rights that Protea may have, suspend
the supply of electricity to an individual tenant who is in default
with payment for the service, water and electricity supplied to
him/her/it.”
[20] Relevant from the provisions of the agreement are :
[20.1] the metering company is a separate legal entity to that of the
Applicants, thus capable of suing and being sued in its own name;
[20.2] the metering company installs and maintains the electricity devices of
the individual unit holders of which the Applicant is the body
corporate;
[20.3] the metering company sells the electricity it receives from the
Respondent at a price as determined by the tariff structure of the
Second Respondent to the individual unit holders;
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[20.4] the metering company acts as principal in every agreement it
concludes with the individual unit holders;
[20.5] the metering company could suspend supply of the electricity,
implement credit control procedures to ensure payment to it and to
raise invoices in its own name and receive payment pursuant to its
supply of the electricity.
[21] When faced with the defence of locus standi in its answering affidavit the
Applicant was called upon to produce evidence that demonstrate its standing
or to bring a joinder. Instead, the Applicant’s only response is that:
“The Metering Company's account is for the electricity
consumption and meters on the property of the Applicant in
respect of the meters on the property of the service level
agreement (“SLA”) with the Metering Company….
The SLA has expired however, the Metering Company, and the
Applicant have been continuing on the same terms and
conditions as contained in the agreement.
Therefore, the Applicant denies that it does not have locus
standi”
[22] The established principles of locus standi was restated in Lebashe Financial
Services (Pty) Ltd V Prudential Authority and Others 2023 (2) SA 130 (SCA)
with reference to the established authorities the SCA held:
“[23] As I have said, Lebashe had been granted leave to intervene in
the liquidation applications by agreement and obtained leave
from the High Court to appeal to this court. That, however, did
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not relieve Lebashe of the duty to satisfy this court that it has
locus standi to obtain the relief that it seeks on appeal. That is
so for two main reasons. The first is that the respective tests are
not identical. Germane to the second, are the oft -repeated dicta
that the scarce resources of this court should not be expended
on deciding abstract or academic issues.
[24] As Harms JA said in Gross and Others v Pentz 1996 (4) SA 617
(A) ([1996] 4 All SA 63) at 632C:
'The question of locus standi is in a sense a procedural
matter, but it is also a matter of substance. It concerns
the sufficiency and directness of interest in the litigation in
order to be accepted as a litigating party.'
See also Sandton Civic Precinct (Pty) Ltd v City of Jhb and
Another 2009 (1) SA 317 (SCA) ([2009] 1 All SA 291; [2008]
ZASCA 104) para 19. Although there are no hard- and-fast rules
in this regard, the general rule is that a direct and existing
interest in the relief is required. A direct interest is one that is not
too far removed and an existing interest is one that is not
abstract, academic or hypothetical. See Cabinet of the
Transitional Government for the Territory of South West Africa v
Eins 1988 (3) SA 369 (A) at 388B – H; Jacobs en 'n Ander v
Waks en Andere 1992 (1) SA 521 (A) ([1991] ZASCA 152) at
534A – E; and Public Protector v Mail & Guardian Ltd and
Others 2011 (4) SA 420 (SCA) ([2011] ZASCA 108) para 29.
[25] The winding- up orders in respect of the insurers do not, of
course, operate against Lebashe. What then is Lebashe’s
interest in having the liquidation orders overturned? Lebashe is
a creditor of BIG. I accept that it is also the majority shareholder
of BIG, which holds the shares in the insurers. These were the
only factors referred to by counsel for Lebashe when this court
raised this issue during argument. On this basis, however,
Lebashe is only a creditor and shareholder of the holding
company of t he insurers. As such, there are no legal
company of t he insurers. As such, there are no legal
relationships between Lebashe and the insurers. Lebashe has
no rights to a preferred legal process of dealing with the
undisputed insolvency of the insurers, even though it may have
an indirect financial or commercial interest therein. In my view,
Lebashe’s interest is too indirect and insufficient to clothe it with
locus standi in the appeal.”(Emphases added)
[23] In this instance it means that if the metering company has a direct and
sufficient interest in the litigation to affirm its locus standi it must be a party .
The burden is on the person who alleges locus standi on behalf of another ‘to
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allege in its pleadings facts sufficient to show that it has locus standi to bring
an action ’4. Although a court must not be overly technical it can still not
bestow locus on a litigant where it has none.5
[24] The Applicant’s argument in support of its locus standi is simply because the
metering company is the reseller of electricity to the Applicant and thus it has
a claim . This is compounded, the Applicant argued, by the fact that the
Respondent elected to transfer the credit balance from the metering account
to the Applicant’s account, thus granting the Applicant locus standi by virtue of
this action. This argument does not assist the Applicant . If anything, the fact
that the metering company is a reseller of electricity supports the argument
that it is in fact an entity separate from the Applicant. The argument that the
credit balance was transferred is also of no assistance. On the Applicants own
version the credit balance was transferred from the developers account who
was the predecessor of the metering company. The developer is a party once
removed from the metering company and the credit transfer from the
developer does not bestow locus standi on the Applicant.
[25] The mere fact that the Applicant’s members may have an interest in the
outcome of the metering company’s reconciliation does not bestow locus on
them.
4 See See South African Municipal Workers Union National Medical Scheme
(SAMWUMed) v City of Ekurhuleni and others [2022] 4 All SA 878 (GJ) at para 80.
5 See See South African Municipal Workers Union National Medical Scheme supra at
para 79.
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[26] In this instance the Applicant fails in its onus to provide sufficient facts to
bestow it with locus . As stated, the A pplicant does not have a contract with
the Respondent regarding the metering account and, therefore, has no legal
standing to sue or be sued in relation thereto. Put differently if it was to be
assumed that a credit balance was held by the metering company in its
metering account and the metering company refused to transfer it to the
Applicant’s Account , the Applicant would not be able to unilaterally transfer
the credit balance but would have to institute action against the metering
company and will need to show a cause of action bestowing it with some right
to the credit balance. The Applicant has no right to deal with the metering
account nor to any credit balance held by it as it pleases.
[27] It is not possible from the pleadings to conclude that the Applicant has a
sufficient direct interest in managing the metering company’s account as it
pleases and without direct participation of the metering company. As such I
agree with the Respondent’s point in limine , in so far as it relates to the
Applicant’s locus standi in relation to the metering company. It is thus
concluded that the Applicant lacks the necessary locus standi in relation to the
metering company’s account and the metering company.
[28] Notwithstanding this there can also be no doubt that the metering company
should have been joined to these proceedings. Having raised the non- joinder
as an alternative to the locus point the Applicant simply elected to ignore it
and not deal with it at all. Therefore, if the Applicant had been able to show
that it had locus standi to act on behalf of the metering company and the
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metering account, which it had not, the Applicant would in any event have
come unstuck on the non- joinder argument in so far as it relates to the
metering company and the metering account.
[29] I turn now to the argument that the Applicant’s deponent lack the personal
knowledge to act on behalf of the Applicant in relation to its own metering
account no 9[...] (“the Applicant’s Account”).
[30] The deponent to the founding affidavit’s position is a trustee and he is also the
chairman of the Applicant, thus he has personal knowledge of the A pplicant’s
Account. He is also kept abreast of the Applicant’s Account . In terms of the
First Respondent’s Credit Control and Debt Collection Policy (“Credit Control
Policy”) the person liable for an account is, amongst others, ‘ the account
holder liable for payment of the municipal account.” In this instance it is
undoubtably the Applicant whom the deponent represents and the deponent
would, in the ordinary course of his duties and in his capacity of chairman of
the Applicant have had the opportunity to acquire the information and
knowledge alleged in the founding affidavit. Thus, Mr Singh has the requisite
personal knowledge in order to depose to the affidavit in so far as it relates to
the Applicant’s Account.
Applicants third point in limine – The applicant’s claim on the metering account has
prescribed.
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[31] Because the Applicant has no locus standi to claim on the metering company
or the metering account and because this issue is raised in relation to the
metering account it has become irrelevant and need not be considered
further.
Respondents fourth point in limine - non-compliance with statutory requirements.
[32] The Respondent argued that the Applicant has not alleged nor proven
compliance with the provisions of section 3 read with section 4 of the
Institution of Legal Proceedings Against Certain Organs of State Act 40 of
2000 (Institution Act).
[33] I agree with the A pplicant that the Respondent’s point in limine is misplaced
as it is reliant on the fact that the relief sought is a debt which it is not. Section
3 of the Institution Act requires the notice in respect of debts, and more
specifically damages claims, but the request for the rebilling of the Applicant’s
Account is not a debt and as such notice need not have been given.
6
[34] This point in limine is thus dismissed.
Respondents fifth point in limine - Has the A pplicant’s affidavit been properly
commissioned.
6 See Director General, Department of Public Works v Kovac Investments 2010 (6) SA 646
(GNP) at para 12 where it was held:
“Having found that the plaintiff's claim against the defendant is not for damages, I find
that the plaintiff's claim is not a 'debt' as defined in the Act, and therefore the
provisions of s 3 of the Act do not apply to the plaintiff's claim. I therefore find that the
exception based on the absence of jurisdiction must fail with costs.”
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[35] The First Respondent’s final point in limine is a purely technical error where
the commissioner who commissioned the founding affidavit has attested to a
confirmatory affidavit in this regard. The Respondent did not persist with this
point during argument, and correctly so, as it had no longer had any merit and
stands to be dismissed.
[36] Having dealt with the points – in limine I now turn to the relief sought by the
Applicant in so far as it has not been impacted by the points in limine raised.
Prior to doing so I deal first with the relevant background to this matter.
BACKGOUND
[37] The Applicant is the body corporate in respect of the property known as erf
7[…] Erand Gardens x 70 (“the property”). The property consists of 219
residential units.
[38] The property was initially developed by Quick Leap Investments (Pty) (“Quick
Leap”) Ltd and it was appointed as the reseller of electricity to the A pplicant.
Quick Leap appointed Protea Metering (Pty) Ltd (“metering company”) to be
the reseller as the development had concluded. The metering company
therefore became the main electricity account holder with account number
2[…] (“the metering account”). It is not disputed that the metering company
became the reseller of the electricity. The reseller agreement was concluded
between the Applicant and metering company and has been dealt with above.
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[39] The Respondent transferred the electricity usage to the Applicant’s Account
during 2018. From this date onwards the respondents for some inexplicable
reason, says the Applicant , charged the Applicant’s Account, for the
consumption of electricity on an electricity meter number 6[…], which meter is
nowhere to be found on the property (“phantom meter”) and therefore there
has never been a basis on which the Applicant could have been billed for it.
The Respondent in answer argues that this meter is now inactive which is not
denied by the Applicant. The Applicant’s claim is historical when the phantom
account was still being actively charged on the A pplicant’s Account. The
Applicant therefore argues that when considered with the fact that the
incorrect tariff was being billed all of the charges, on the phantom meter,
amount to double billing on the Applicant’s Account.
[40] The Applicant has made numerious attempts to get the Respondent to rebill
the Applicant’s Account to reflect the correc t amounts which exclude the
charges for the phantom meter, the estimates and the corrected tarrif without
success. It is for this reason that the Applicant instituted these proceedings.
[41] In considering the relief sought and seeing that the Applicant has requested
multiple orders it is best considered in relation to each prayer prayed for by
the Applicant in its noice of motion.
[42] Prayer 1: The Respondent is declared to have the onus to prove its charges
in relation to the electricity consumed on the property known as ERF 7[ …] RE
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OF ERAND GARDENS (“the property”) rendered by the First Respondent
under account number 9[...] (“the account”).
[42.1] This order is of no assistance as a declaration of onus is not
competent relief. In the present matter being motion proceedings, the
issue of onus does not arise. The Applicant is required to prove its
case on affidavit. The approach to the assessment of the evidence in
motion proceedings was summarised in National Director of Public
Prosecutions v Zuma (573/08) [2009] ZASCA 1 (12 Jan 2009) by the
SCA as follows:
“Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause
facts. Unless the circumstances are special, they cannot be
used to resolve factual issues because they are not designed to
determine probabilities. It is well established under the Plascon-
Evans rule that where in motion proceedings disputes of fact
arise on the affidavits, a final order can be granted only if the
facts averred in the applicant's (Mr Zuma's) affidavits, which
have been admitted by the respondent (the NDPP), together
with the facts alleged by the latter, justify such order. It may be
different if the respondent's version consists of bald or
uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, far-fetched, or so clearly untenable that the
Court is justified in rejecting them merely on the papers. The
Court below did not have regard to these propositions and
instead decided the case on probabilities without rejecting the
NDPP's version…. In motion proceedings the question of onus
does not arise and the approach set out in the preceding
paragraph governs irrespective of where the legal or evidential
onus lies…” (emphases added)7
7 Also see In MEDIA 24 Books (Pty) Ltd v Oxford University Press Southern Africa
(Pty) Ltd 2017(2) SA 1 (SCA) at p17 para 36.
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[42.2] Therefore to make an order in terms of prayer 1 would be in direct
conflict with the aforementioned judgment. This being so the relief
sought in prayer 1 of the notice of motion is refused.
[43] I turn now to deal with each sub- prayer as prayed for in prayer 2 of the
Applicant’s amended notice of motion.
[44] The reference to account in these prayers is a reference to the Applicant’s
Account only as is evident from the Applicant’s founding affidavit in which it
has been defined as such. 8
[45] Prayer 2.1.2.1: The Respondent is ordered to rebuild the account, in relation
to the consumption of electricity, by charging the Applicant for the
consumption of electricity based on the actual readings for the consumption of
electricity on the Applicant’s Account.
[45.1] The Second Respondent was required to charge the Applicant for
actual consumption of electricity on the property. The Second
Respondent ordinarily charges an estimate of consumption when
they do not obtain an actual reading of the electricity from the meter
8 At para 27 of the Founding affidavit is stated:
“27. The City renders an account with account number 9[ …] (“the
account”) for the consumption of electricity and other charges on the
property known as ERF 7[ …] RE OF ERAND GARDENS EXT. 70
physically located at 105 FORTEENTH STREET, ERAND GARDENS
EXT 70 (“the property”).”
21
installed on the property. This is done in terms of section 9.3 of the
Second Respondent’s Credit Control Policy which state:
“9.3 Where, for any reason whatsoever readings cannot be
obtained, interim readings (estimates) shall be utilised.
Interim readings will be based on the average monthly
consumption of services registered over the 12 preceding
months. As soon as an actual reading is obtained, the
account will be adjusted accordingly.”
9 (Own emphases)
[45.2] Evident from this is that as soon as the actual meter reading on the
property is obtained the account must be adjusted to reflect the actual
reading based on an annual tariff published by the Second
Respondent.
[45.3] What this however does not mean is that the consumer can simply
cease making payments of the estimate even if they are of the view
that it is wrong. This so because, firstly, the acount delivered is
deemed to be prima facie proof of the amount due
10 and secondly
9 An account is defined as:
“2.2. “Account” means a notification by means of a statement of account
held with the City by a customer who is liable for payments of any
amount to the City or any municipal service provider in respect of t he
following :
a. Electricity consumption based on a meter reading or estimated
consumption or availability fees;”
10 See Section 27 of the Respondent’s Credit Control Policy which states the following:
“Prima facie evidence of documentation
For the pruposes of the recovery of any amount due and payable to the
Council in terms of these By-laws –
(a) a copy of any relevant account; and
22
because section 10.9 of the Second Respondent’s Credit Control
Policy provides that:
“In the event of estimated accounts being rendered for any
reason, including delays in changing of meters or obtaining of
actual meter readings, the customer must pay and remains
liable for the payment of estimates charged to the account .”
(own emphases)
[45.4] The Applicant has been making payments based on the estimates
however the Applicant argued that the estimates being billed to the
Applicant’s Account was not based on the average billing of the
actual charges of the preceeding 12 months . This is so because of
the high number of consecutive estimate charges which were being
billed by the Respondent.
[45.5] In its answer the First Respondent attached a metering report for the
electricity meter charged on the A pplicant’s Account for the period
June 2021 until May 2024. Evident from this is that estimates were
being billed for the periods July 2021 – July 2023 and act uals from
July 2023 until April 2024. The Respondent argued that the Applicant
has been charged on the Applicant’s Account from December 2018.
The metering report provided however only commenced almost three
years later in 2021. There is thus no evidence as to how the charges
(b) an extract from the Council’s records relating to the quantity of
consumption or provision of any municipal service and the period of
provision of such service,
certified by an authorised official as being correct, constitute prima facie
evidence of the information contained in such documents.”
23
where being deteremined, whether on estimates or actuals and if on
estimates, whether it had been adjusted as required in terms of the
Second Respondent’s own Credit Control Policy , and if so, when
were these adjustments made on the Applicant’s Account.
[45.6] What is also not evident is whether the Respondent was making
estimates on actual meter readings in the preceding 12 months or
estimates upon estimates which is not what is provided for in section
9.3 of the Second Respondent’s Credit Control Policy. The wording of
this section is unambigious in that an estimate will be based on the
average monthly consumption of services registered over the 12
preceding months. This can only be a reference to the actual average
monthly consumption if not the section would have provided for
average monthly estimates to be used to deremine estimates , which
it does not.
[45.7] The relief being sought by the Applicant is thus no different to what
the Credit Control Policy requires the Respondents to do and that is
that at some point in time the estimates should be removed and the
Applicant’s Account adjusted to reflect the actual consumption of
electricity based on the actual electricity readings for each month
billed.
[46] Therefore the relief sought in this prayer must be granted.
24
[47] Prayer 2.1.2.2: The Respondent is ordered to rebuild the account, in relation
to the consumption of electricity, by removing all estimated charges on the
account in relation to the consumption of electricity on the property from
inception or where the Respondents cannot prove the consumption on the
property.
[47.1] The substance of this prayer has been discussed under prayer
2.1.2.1. above. The Applicant in this prayer is requesting the removal
of all estimates which should follow the relief granted in 2.1.2.1. and
where the Respondent is not able to provide actuals for a specific
period the Applicant cannot be billed for that period.
[47.2] The Applicant is correct in that it is the R espondent’s obligation to bill
its consumers which billing must be accurate. This requires that the
estimates must be replaced by actual readings at some point in time.
This is evidenced by the Credit Control Policy which requires that
estimates be replaced with actual readings. It is stating the obvious
as to why estimates must be replaced with actual readings. If not
either the consumer is paying more than required or the respondents
are collecting less than what they are entitled to.
[47.3] It is not for the consumer to prove the actual consumption on its
account and in any event the actual consumption falls within the
peculiar knowledge and is under the control of the respondents (See
25
Euphobia (Pty) Ltd t/a Gallagher Estates v City of Johannesburg
[2016] ZA GPPHC (17 June 2016)).
[47.4] Therefore, if the Respondent is unable to provide the actual
consumption for a particular monthly billing cycle it cannot rely on an
estimate for that cycle as that would not only be against its own
Credit Control Policy but it will not suffice as proof of the amount
claimed for that cycle.
[47.5] Therefore the relief in this prayer is granted.
[48] Prayer 2.1.2.3: The Respondents are ordered to rebuild the account, in
relation to the consumption of electricity, by applying the re- seller tariffs to the
account for 219 Units from 2017 to date.
[48.1] The Respondent, in its answering affidavit, argued that it is already
charging the Applicant’s account on the re- seller tariff and had been
doing so since 7 December 2018 when the metering account was
closed. The Applicant only replies with a bare denial. Therefore,
being a factual dispute and being motion proceedings , I must find in
favour of the Respondent pursuant to Plascon Evans.
[48.2] As already concluded the period prior to 7 December 2018 relates to
the metering account and the Applicant has no locus to claim it.
26
[48.3] In the circumstances this relief must be refused.
[49] Prayer 2.1.2.4 : The Respondent is ordered to rebuild the account, in relation
to the consumption of electricity, by removing the LPU business tariffs and
applying residential tariffs to the proved consumption charges from 2017 to
date.
[49.1] The Respondent pleaded that the Applicant is a Large Power User
(“LPU”) and explained how this wa s determined. The estate with its
219 units is described as a high -density residential development and
thus justifies the LPU rates. The Applicant’s argues that it is entitled
to residential tariffs being applied to the Applicant’s A ccount. The
Respondent is correct in arguing that consequently there exists a
factual dispute on the tariff to be applied.
[49.2] Therefore, being a factual dispute and the fact that the Applicant
elected to proceed with motion proceedings , and because there is no
reason to find that the Respondent’s version is so far -fetched or
clearly untenable that there is justif ication in rejecting it merely on the
papers, the Respondent’s version must be accepted.
[49.3] In the circumstances this relief must be refused.
27
[50] Prayer 2.1.2.5 : The Respondent is ordered to rebuild the account, in relation
to the consumption of electricity, by removing all charges for phantom meter
number […] for electricity consumption from the account.
[50.1] It is not disputed that the A pplicant’s Account had charges relating to
the phantom meter. It is also not disputed that the charges in relation
to the phantom meter ceased to be allocated to the Applicant’s
Account when closed by the Respondent , but those which had been
charged until then have not been removed.
[50.2] The Respondent admits that the phantom meter was a registered
device on the Applicants Account from December 2018 – June 2021.
Therefore, the Respondent argued the phantom meter was correctly
billed first to the metering account and thereafter to the Applicant’s
Account. This is however not supported by the evidence.
[50.3] In a query report prepared by the respondents dated
24 October 2023, they conclude that :
“Meter numbers 6[ …# [the phantom meter] was erroneously
linked to the account number above [Applicant’s Account] , the
correct meter was eventually linked 63192793 and reflect on the
account since August however the billing of the old meter was
not corrected it was estimating the monthly billing, was charged
on the incorrect meter and on estimations . The account needs
to be rebilled and without interest . The Meter is off line we
received download an (sic) check meter and the readings don’t
correspond.” (Own Emphases)
28
[50.4] The Respondent thus admit that the phantom account was
erroneously linked to the Applicant’s Account. Furthermore, no
evidence was made available which would support a conclusion that
the phantom meter , being billed on the A pplicant's Account, was
correctly done so.
[50.5] In so far as the Respondent argued that because the phantom
account was linked to the metering account therefore it should follow
that it must be allocated to the Applicant’s Account, does not assist
them in relation to the Applicant’s Account. When arguing the point in
limine on the Applicant’s locus standi to claim any relief relating to the
metering company or its account, it was the Respondent who argued
that the metering account and Applicant’s Accounts are unrelated and
distinct from each other. It cannot now argue the opposite that
because the phantom account was linked to the metering account it
follows that it must be linked to the Applicant’s Account.
[50.6] Had the phantom meter been installed on the Applicant’s site and had
they been liable to make payment then the question arises why it was
removed from the Applicant’s billing and more importantly why did the
Respondent’s own internal investigation conclude that it was
erroneously linked to the A pplicant’s Account. The only inference is
that the consumption billed on readings from the phantom meter were
never due to be allocated to the Applicant’s Account.
29
[50.7] Therefore, all and any refence to the phantom meter readings which
appeared on the Applicant’s Account at any point in time stands to be
removed from the A pplicant’s Account during the rebilling process.
This will include any related penalties and/or interest charges levied
pursuant to the phantom meter. The latter i s in any event what the
Respondent’s own internal report concluded should be done.
[51] Prayer 2.1.2.6: The Respondent is ordered to rebuild the account, in
relation to the consumption of electricity, by applying 30- day scales for
the rebilled accounts.
[51.1] That the electricity must be billed monthly on step tariffs is admitted
by the R espondent. In this regard the Respondent stated that
“[W]when the system calculates the charges, it splits the months into
thirty (30) or thirty -one (31) days as a standard and then applies the
tariff. There are three markers for calculating charges, which apply
depending on the use levels of a customer. The marker s also
determine whether a customer is a large power user. These markers
are:
“152.1 Kilowatt per hour (kWh) (based on actual use). The
Tariff, which is published annually, determines the use
thresholds that affect how a customer is charged for
actual use.
152.2 Reactive energy charge. This marker is based on how
far out of the use threshold a customer has gone,
irrespective of the category or zoning of the property,
and then determines the next applicable rate a
customer will be charged based on actual use.
30
152.3 The third marker is Apparent Power (kVa), which
determines the rate at which a customer consumes
electricity. Here, for example, customers A and B would
be consuming the same amount of electricity per
measured period, but customer A may be arriving at
that use level much quicker than customer B, so
customer A will be charged differently. This aspect of
the charges is also affected by things such as time of
day, time of month, time of year, etc.”
[51.2] No more needs to be said because the Respondent admits that the
system splits the months into 30 or 31 days and during each cycle
three markers are used, dependant on usage during that cycle, to bill
for that 30- or 31- days cycle. The Applicant is seeking no more than
compliance by the Respondent of what it has stated. Therefore, in the
rebilling proses the Respondent must split the total period into 30- or
31-day cycles and during each cycle determine the actual electrical
usage by applying its markers for each cycle.
[51.3] In the circumstances the Applicant is entitled to the relief sought in
terms of this prayer.
[52] Prayer 2.1.2.7: The Respondent is ordered to rebuild the account, in relation
to the consumption of electricity, by removing all penalty charges from the
account including interest charges and pre-termination fees.
[52.1] The Respondent argued because the Applicant’s account is in
arrears it is entitled to charge penalt y interest and any levies which
may arise pursuant to the issuing of the pre- termination notice. This
31
the Respondent can do in terms of section 15.1 of the Credit Control
Policy which provides that:
“15.1 Simple interest will be charged on all overdue accounts
from due date at the current prime rate which the City’s
banker charges its clients from time to time”
[52.2] However, the Respondent cannot pre -determine that interest is due
on an account which has not been billed correctly. Section 15.4 of the
Credit Control Policy provides:
“15.4 Interest on arrear debt will be raised for each month for
which such payment remains outstanding and part of the
month shall be deemed to be a month.”
[52.3] Interest can thus only be raised on each month for which such
payment remains outstanding. Before it can be argued that an
amount is outstanding, an amount must be in arrears and the latter
presupposes that the billing has been correctly done, which , as
already concluded, it has not been.
[52.4] Until the billing on the A pplicant’s Account has been rebilled in the
manner ordered herein no interest can justifiably be levied. If after the
rebilling has been completed and if there are any outstanding
amounts the Applicant must be provided the normal cycle, as it would
for any bill , to make payment of an amount due, and only if the
Applicant fails to do so will the R espondent be permitted to raise
interest. This can best be illustrated by the following : Assuming, that
32
following the rebill ordered herein, it is determined that the actual
reading for March 2021 is higher than what the estimate was which
the Applicant paid. The Respondent will then be required to allow the
Applicant the normal billing cycle to make payment, thus within 30
days, and only if it fails can interest be levied. The interest can then
not be levied from April 2021 but only from date of the rebilling. This
is obviously only applicable to the period of rebilling which is from
inception of the Appli cant’s Account in 2018 until date of issuing of
this application and not for any billing made thereafter. The Applicant
during argument indicated that currently the billing is correct and up
to date.
[52.5] Pre-termination charges will only be levied once such notice is
provided which will only be in “the event that the customer fails to pay
the full amount due on or before the due date, the unpaid amount is
deemed to be in arrears ” (section14.1.1 of the Credit Control Policy) .
Therefore, this relief cannot be granted as it is not known whether it
will arise and it can only follow if the Applicant fails to make timeous
payment after the rebilling has been completed. If the latter does
occur the Respondent is empowered to raise the said fee and the
Applicant cannot be protected against its own future default, if it was
to occur.
[53] Prayer 2.1.2.8: The Respondent is ordered to rebuild the account, in relation
to the consumption of electricity, by all credits due to the Applicant on the
33
developers account of 2[ …] in the amount of R699 096.38 be transferred to
the Applicant’s account.
[53.1] This amount has in the interim been transferred from Quick Leap to
the Applicant’s Account and therefore the Applicant did not persist
with this relief.
[54] Prayer 2.1.2.9: That all credits on the Applicant’s water account of 9[ …] be
transferred to the Applicant’s account as is described in prayer 1 above.
[54.1] The Respondent argued that this application is not related at all to
water charges. In fact, the Respondent argued, the relief sought
under the heading of prayer 2 is that “the Respondent is ordered to
rebuild the account, in relation to the consumption of electricity , by …
2.1.2.9.”
[54.2] I agree with the Respondent that the relief being requested is not
aligned with the Applicant’s own notice of motion.
11 Furthermore, no
case is made out as to why the credit balance is to be transferred,
when and how it was built up and who contributed to the buil d-up etc.
The Respondent is correct that there are simply insufficient
allegations to which an answer could be provided.
11 In Betlane v Shelly Court CC 2011 (1) SA 388 (CC) it is confirmed that:
“[29] It is trite that one ought to stand or fall by one’s notice of motion and
the averments made in one’s founding affidavit”
34
[54.3] There is thus simply no case made out for the relief claimed and it is
thus refused.
[55] Prayer 2.1.2.10: That the overbilling on the metering company’s account in
the sums of R 1 092 478.13 and R 1 995 908.91 be removed and/or credited
from the Applicant’s account.
[55.1] For the reasons already stated the Applicant does not have locus
standi to claim against the metering account and therefore this relief
is refused.
[56] Prayer 2.1.2.11: That the credit made to the metering company’s account of
2[…] reversals be credited to the Applicant’s account.
[56.1] For the reasons already stated the Applicant does not have locus
standi to claim against the metering account and therefore this relief
is refused.
[57] Prayer 2.1.2.12 That sewerage and sanitation be rebilled on multi -dwelling
tariff form inception to June 2020.
[57.1] The Applicant has not made out a case in support of this relief.
Making mention of a sewerage having been billed on two different
accounts is the only basis on which the Applicant seeks this relief. It
35
is trite that in motion proceedings the affidavits are the evidence in
support of the relief sought. The Applicant has woefully failed to
provide sufficient evidence for the relief sought and therefor it is
refused.
[58] Prayer 3: That the Respondents shall provide the Applicant with a rebuilt
account within twenty (20) business days from the granting of this order.
[58.1] There was no dispute raised regarding the period and therefore this
relief is granted in relation to the prayers granted in favour of the
Applicant.
[59] Prayer 4: That the Respondents are ordered to remove all prescribed
charges once the rebuilt account has been done.
[59.1] The relief sought requires the court to make an assumption on the
outcome of the rebilling and to make a finding on whether prescription
arises or not. Whether or not any fees have prescribed can only be
determined after the re- billing has been complete. The rebilling may
cause some defences to arise which are currently not known. It will
thus be premature to grant this relief in circumstances where the
outcome is not known.
36
[59.2] The consideration of this argument will thus be purely academic and
thus not necessary to consider at this stage. (See De Vries and
others v S [2012] 1 ALL SA 13 (SCA) at para 52).
[59.3] Therefore, this relief is refused.
[60] Prayer 5: That the Respondent is interdicted and restrained from terminating
the supply of basic municipal services to the property, based on disputed
amounts allegedly accruing during the period up until the date of this order.
[60.1] Both parties argued the requirements needed to grant an interdict. I
do not even need to consider those arguments because the relief
being sought in prayer 5 lacks specificity as to what is actually being
prayed for. All orders of court must be formulated in a clear manner
and be capable of execution. Inchoate and impermissibly vague
orders violate the rule of law, which is a founding principle of our
Constitution. In Minister of Water and Environmental Affairs v Kloof
Conservancy [2016] 1 All SA 676 (SCA) the SCA held:
“[14] An order or decision of a court binds all those to whom,
and all organs of State to which, it applies. All laws must
be written in a clear and accessible manner.
Impermissibly vague provisions violate the rule of law,
which is a founding principle of our Constitution. Orders
of court must comply with this standard. In Mazibuko NO
v Sisulu NO and others 2013 (6) SA 249 (CC) [also
reported at 2013 (11) BCLR 1297 (CC) – Ed], which
concerned the right of a Member of Parliament to move a
motion of no confidence in the President, the
Constitutional Court, in its consideration of a similarly
37
worded prayer to paragraph (c) of the order of the High
Court, stated (in paragraph 24) that:
“the prayer in the applicant’s notice of motion that
the Speaker personally take whatever steps are
necessary to vindicate the applicant’s
constitutional right, is so open-ended and vague as
to render the relief incompetent.”
[60.2] The Applicant is seeking an order interdicting the Respondent based
on disputed amounts accruing during the period. It is unclear
• w hat the ‘disputed amount’ has reference to;
• w hether, after the rebilling, the ‘ disputed amount’ would be
different to what it may be deemed to be now;
• w ho determines what the ‘disputed amount’ is and for how long
will it be disputed;
• d oes it cease to be disputed when the Applicant says so or
when the Respondent provides the rebilling. It cannot remain
disputed ad infinitum.
• d oes the term ‘ disputed amount’ refer to the estimates made by
the Respondent , the phantom meter allocations, the sewerage
or water readings or a combination thereof.
38
• if it is a combination of the tariffs what does it mean if the relief
to some of the tariffs is not granted, as is indeed the case.
• when reference is made to this period, which period is being
referred to, is it the period before or the period after the rebilling.
[60.3] This prayer is so open- ended and vague as to render the relief
incompetent and must thus be refused.
Because the Applicant has been partially successful on the main relief, the relief
claimed for in the alternative need not be considered.
COSTS
[61] The Applicant seeks that the Respondent be held liable on a punitive scale
due to their conduct in this matter. I agree that this case calls for a punitive
cost order when regard is had to the manner in which the Respondent’s
approached it. The Respondent from the outset failed to comply with the
Uniform Rules of Court. It commenced with the filing of its answering affidavit
the day before the matter was enrolled on the unopposed roll. Thereafter
when the pleadings were closed the Applicant filed its heads of argument in
December 2024. Instead of filing its heads within the time period provided for
to do so the Respondent filed its heads of argument 1 court day prior to the
hearing of this matter. Having been invited to provide its input on the Joint
Practice note instead of doing so the Respondent simply did nothing. These
39
actions or rather inactions of the Respondent are a complete abuse of the
court procedure and a punitive cost order is warranted.
Therefore, I make the following order:
ORDER
Points In Limine
1. Applicant’s Point in limine that the deponent to the a nswering affidavit has no
personal knowledge is dismissed.
2. The Respondent’s Point of Limine that the Applicant has no locus standi to
deal with the account of Protea Metering (Pty) Ltd (“the metering company”) is
upheld.
3. The Respondent’s Point of Limine that the deponent to the Applicant’s
founding affidavit has no personal knowledge is dismissed.
4. The Respondent’s Point of Limine that the Applicant has failed to comply with
precursor statutory requirements is dismissed.
5. The Respondent’s Point in Limine that the Applicant’s founding affidavit had
not been properly commissioned is dismissed.
40
Main Relief
1. The First Respondent is ordered to rebuild the Applicant’s Account no 9[...], in
relation to the consumption of electricity, by charging the Applicant for the
consumption of electricity based on the actual readings for the consumption of
electricity on the meter linked to the A pplicant’s Account from inception up to
the date of the issuing of this application.
2. The First Respondent is ordered to rebuild the Applicant’s Account no 9[...] by
removing all estimated charges on the A pplicant’s Account in relation to the
consumption of electricity on the property from inception up to the date of the
issuing of this application.
3. The First Respondent is ordered to rebuild the Applicant’s Account no 9[...] by
removing all charges for phantom meter number 6[ …]for electricity
consumption from the Applicant’s Account no 9[...].
4. The First Respondent is ordered to rebuild the A pplicant’s Account no 9[...]
applying the step tariffs for the rebilled accounts from inception up to the date
of the issuing of this application.
5. The First Respondent is ordered to rebuild the Applicant’s Account no 9[...], in
relation to the consumption of electricity, by removing all penalty charges from
the Applicant’s Account including interest charges from inception up to the
date of the issuing of this application.
41
6. The First Respondent is to provide the Applicant with a rebuilt account within
twenty (20) business days from the granting of this order.
7. The First Respondent is ordered to pay the costs of this application on a scale
as between attorney-and-client.
_________________________________
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant:
For the Respondent:
Adv M Rodrigues
Instructed by
TNS Incorporated
Adv L Mokwena
Instructed by
Patel Inc Attorneys