SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2024-031003
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
6 OCTOBER 2025
In the matter between:
DIMENSION DATA (PTY) LTD Applicant
and
CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY Respondent
Coram: B R Kahn AJ
Heard: 9 and 12 June 2025
Supplementary submissions: 19 and 25 June 2025
Delivered: 6 October 2025
JUDGMENT
B R KAHN AJ
1 If Helen of Troy was the face that launched a thousand ships, then the law of
prescription is what has launched almost as many lawsuits. This is one such
lawsuit.
Use of specific words in context
2
2 I refer in this judgment to:
2.1 the ‘respondent’ and on occasions in referring to the respondent, to the
‘City’. I intend when referring to the respondent, to refer to it in the
context of this application and this judgment, but where I refer to the
City, I intend to refer to the respondent but outside the context of the
role it plays in this application but rather the role it plays within the life
of the City of Johannesburg Metropolitan Municipality;
2.2 the disputed amount ( R29 958 512,89 excluding VAT and interest but
with interest and depending on when calculated, now exceeding some
R50 000 000,00) which the respondent is claiming from the applicant
and which it resists because, so the applicant says, it has prescribed
as the disputed claim (but which is variously described in the
application papers as the ‘ disputed claim’, the ‘ disputed amount’ and
the ‘disputed debt’); and
2.3 the applicant’s challenge to the disputed claim as the ‘complaint’ in
order to maintain consistency with the wording in s 11(5)(a) of the
Credit Control and Debt Collection By -laws (the ‘ By-laws’), even
though the applicant’s complaint could perhaps be better categorised
as a challenge or denial of liability.
Introduction
3
3.1 This is an opposed application in which the applicant (a private South
African company – the consumer) asserts as against the City of
Johannesburg (an organ of State and a supplier of electricity in this
instance and the respondent in this matter) that the disputed claim has
prescribed, whereas the respondent says that this is not so and that, to
use the respondent’s counsel’s terminology, it is very much alive, due,
owing and claimable.
3.2 There is ancillary relief claimed by the applicant in which it seeks an
order directing the respondent to reconcile and correct the applicant’s
3
municipal account number: 2[…] (the ‘municipal account’) by reversing
the charges forming the subject matter of the disputed claim as well as
interest, legal fees, disconnection / reconnection fees and
miscellaneous fees that relate thereto that have been debited to the
municipal account.
Urgent interdict
4
4.1
4.1.1 In the early part of 2024, the parties were involved in an
urgent application in which the applicant sought and was
granted on 6 March 2024, an interim interdict against the
respondent, which, inter alia, prohibited the respondent from
terminating the supply of services to the applicant’s
property, namely e rf 2 […], Rosebank Township,
Johannesburg, being [ …] K[…] Avenue, Rosebank,
Johannesburg (the ‘ Johannesburg property’) which the
respondent had threatened via a pre- termination notice
pending the finalisation of this application.
4.1.2 The merits of that application need not be considered by
me, but the order granted (which I will call the ‘urgent order’)
plays a role in this application and so it is as well I refer to it
at this early stage in the judgment
.
4.2 Whilst it is not necessary for me to quote the whole of the urgent order,
in summary it provided for the following:
4.2.1 pending the final determination of an application to be
instituted by the applicant (which is this opposed application
which came before me) the respondent was interdicted from
terminating the power supply to the Johannesburg property;
4
4.2.2 the applicant was entitled, if it so wished, to institute an
application against the respondent in which the applicant
will seek an order in the following terms, inter alia:
4.2.2.1 declaring the disputed claim has prescribed
through the effluxion of time;
4.2.2.2 that the respondent reconciles the municipal
account; and
4.2.2.3 costs of suit including the reserved costs of the
urgent application.
Background context – chronology of events
5 As is the case in almost all, if not all, disputes that are to be adjudicated
upon, to understand and evaluate the issues, the background facts and
chronology of events are necessary . The chronology referred to by me
excludes certain non- material events which, in my view, do not add to or
detract from an understanding of the background facts or context.
6
6.1 Prior to 1 June 2018 (see paragraph 7.1.1 hereunder), t he applicant
and the respondent concluded a consumer agreement whereby the
respondent supplied and measured the consumed electricity to the
applicant under, in this particular instance, consumer account number:
2[…] – ie, the m unicipal account – relating to the Johannesburg
property.
6.2 Because the respondent is an organ of State, the agreement
concluded between the parties is contractual and administrative in
nature.
7
5
7.1 On 21 January 2019, the respondent advised the applicant (via a letter
of that date) that:
7.1.1 it had, on 1 June 2018, conducted an audit and site
investigation at the Johannesburg property and discovered
that the electricity meter was programmed incorrectly and
as a result thereof, corrected the programming; and
7.1.2 as a result of the corrected programming and having
analysed the billing data on the electricity meter on 7
November 2018, it, the respondent, determined the amount
of electricity back charges owed by the applicant to it for the
period 1 June 2015 up until the end of May 2018 to be an
amount of R29 958 512,89 (excluding VAT).
7.2
7.2.1 This amount is the capital component of the disputed claim.
7.2.2 The applicant has taken the position (and told me) that I can
assume, for the purposes of the relief claimed by it, that the
disputed claim was, at some stage, owed by it , even though
there is reference by the applicant to the disputed claim
being in respect of alleged (My emphasis) back charges.
(This conflict does not need to be addressed – let alone
resolved – by me, given the applicant’s position as to what I
can assume for the purposes of this judgment).
8
8.1 On 28 January 2019, s even days after receipt of the respondent’s
notification on 21 January 2019 of its claim (ie, the claim which,
because of the applicant’s response thereto, became what is now
called the ‘disputed claim ’), the applicant’s attorneys replied to the
respondent’s letter of 21 January 2019 and denied liability for the
disputed claim (thereby obviously taking issue therewith) and on 27
6
March 2019 addressed a letter to the respondent setting out the
grounds on which the applicant challenged the disputed claim.
8.2
8.2.1 However, prior to 27 March 2019 (and it would seem initially
unbeknown to the applicant ), the respondent generated an
invoice dated 15 March 2019 addressed to ‘ Internet
Solutions Dimension Data (Pty) Ltd ’, that incorporate d the
disputed claim as part of its accounting narrative (line items)
and claimed that the due date for payment of such invoice
was 1 April 2019 (the ‘15/03/2019 invoice’)..
8.2.2 Even though it does not emerge from the papers
themselves, my own research via the website of the
Commission for Intellectual Property and Companies
(known as CIPC) , reveals that there is no such legal entity
as ‘Internet Solutions Dimension Data’, but it would appear
that Internet Solutions is a division of the applicant. It is
however clear that the 15/09/2019 invoice was intended for
the applicant. Whilst nothing turns thereon, it as well that, to
that the extent that the addressee on the 15/03/2019 invoice
does not exist (at least prima facie), I should note that there
is no dispute between the parties that same was and
remains intended for the applicant. This is common cause.
8.3
8.3.1 The applicant however only received a copy of the
15/03/2019 invoice, incorporating the disputed claim on 15
April 2019 and on 23 April 2019 – some eight days later –
the applicant telephonically lodge d a query / complaint with
the respondent pursuant to the provisions of s 11(1) of the
By-laws (the ‘complaint’).
8.3.2 S 11(1) of the By-laws reads as follows:
7
‘A customer may lodge a query or complaint in respect of
the accuracy of any amount due and payable in terms of
an account rendered to him or her in terms of these By -
laws’.
8.3.3 As will emerge from later in this judgment, for s 11(1) to be
triggered (so to speak), it is not sufficient for a customer
(such as for example the applicant) to simply deny liability
by way of a bald assertion; the denial of liability must satisfy
the requirements identified in the Croftdene Mall v Ethekwini
Municipality
1 judgment which I refer more fully to in
paragraph 42 hereunder, which makes it clear that a
ratepayer (for example, the applicant in this instance) is
required to furnish facts which would adequately enable the
Municipality (the respondent in this matter) to ascertain or
identify the disputed item or items and the basis for the
ratepayer’s objection thereto.
8.4
8.4.1 It is common cause that the applicant has satisfied the legal
requirement relative to its complaint being lodged and that
the respondent becom e obliged by law to investigate and
report the outcome of its investigations to the applicant.
8.4.2 What is not common cause however is the effect and legal
consequence of the way in which the respondent
investigated (or on the applicant’s version, did not timeously
investigate) the complaint.
9 On 14 May 2019, the applicant’s attorney sent a letter to the respondent in
which it advise d the respondent of the complaint; essentially confirming that
the applicant had lodged a complaint.
1 (603/2010) [2011] ZASCA 188; [2012] 1 All SA 1 (SCA)
8
10 On 20 May 2019, the respondent addressed an email to the applicant’s
attorneys advising that the applicant’s “query” (as the respondent puts it) was
still in process and had been “escalated”, to use the respondent’s language.
11
11.1 On 22 May 2019, the applicant’s attorneys (not being aware of the
response of 20 May 2019 to its letter of 14 May 2019) advised the
respondent in writing (via email) that it would lodge an appeal; it would
appear that the respondent’s email of 20 May 2019 and applicant’s
attorneys’ email of 22 May 2019, ‘crossed each other in the post’ – to
use language of what is probably a bygone era – but once the
applicant’s attorneys had received the respondent’s email of 20 May
2019, it addressed a letter to the respondent on 28 May 2019 in which
it advised that the applicant will not lodge an appeal, but will await the
respondent’s decision – that is to say the decision in relation to the
complaint which, in terms of the respondent’s email of 20 May 2019,
had been escalated.
11.2 The papers do not make it clear as to what the applicant would appeal
against and by extension, what appeal it would no longer lodge, but I
am satisfied that nothing turns thereon.
12 Certain of the events that follow the respondent’s email of 22 May 2019,
addressed to the applicant’s attorneys take the form of various demands by
the respondent through what appear s to be initially a debt collection agency
called Revenue Consulting (Pty) Ltd (‘Revco’) and thereafter two firms of
attorneys, and play an important role in this judgment as appears hereafter.
13
13.1 On 15 and 21 November 2019, Revco , address ed emails to the
applicant demanding payment of the disputed claim , to which the
applicant’s attorneys responded on 22 November 2019 setting out the
history of the matter and den ied that the applicant was liable therefor
9
and allege d further that the demand for payment is in breach of the
relevant By-laws which, says the applicant, bind the respondent.
13.2 What follows is a period of silence – at least until 3 March 2020 when
Revco advised the applicant’s attorney that the account was to be
pended – whatever that may mean in the context of the then ongoing
issues between applicant and respondent.
14
14.1 Notwithstanding Rev co’s advises to the applicant’s attorney that the
account was to be pended, on 21 April 2021 (by which time the
complaint had not yet been addressed by the respondent) , a law firm
acting on behalf of the respondent, namely Dali Matlana and Partners,
enters the picture and addressed a demand to the applicant for
payment of the disputed claim.
14.2 The applicant’s attorneys responded thereto on 23 April 2021 and not
surprisingly re-asserted the applicant’s position which is that it denie d
liability for the disputed claim.
15
15.1 I interrupt the sequential narrative of events by pointing out that on the
applicant’s version, the disputed claim became prescribed on 2 April
2022. The basis therefor, so the applicant argues , is that the
respondent’s demand for payment of the 15/03/2019 invoice (that
incorporated the disputed claim ), was to be paid by 1 April 2019 and
so, on the applicant’s version, the respondent actually knew its debtor,
actually knew the amount it claimed from the debtor, actually knew its
causa and in a nutshell, knew everything envisaged in s 12(3) of the
Prescription Act 68 of 1969 (the ‘Prescription Act’) to enable it to
institute proceedings against the respondent – and presumably (in
issuing the 15/03/2019 invoice and demanding payment by 1 April
2019) was satisfied that the disputed claim was due, owing and
payable.
10
15.2 It is as well that I refer at this stage to certain provisions contained in
the Prescription Act.
15.3
15.3.1 In terms of s 10(1) read with s 11(d) of the Prescription Act,
the period of prescription applicable to a debt is three years.
(That the disputed claim is a debt is common cause).
15.3.2 S 12 of the Prescription Act deals with the date on which
prescription begins to run, the relevant subsections of which
are the following:
15.3.2.1 s 12(1) provides as follows:
‘subject to the provisions of subsection (2), (3)
and (4), prescription shall commence as soon as
the debt is due’; and
15.3.2.2 s 12(3) provides as follows:
‘A debt shall not be deemed to be due until the
creditor has knowledge of the identity of the debtor
and of the facts from which the debt arises :
Provided that a creditor shall be deemed to have
such knowledge if he could have acquired it by
exercising reasonable care’.
16 Back to the sequential narrative. Following on the applicant’s attorneys’
response on 23 April 2021 (see paragraph 14.2 above) , there is silence
(once again but this time a prolonged silence) , from the respondent until 22
January 2024 when another law firm acting on behalf of the respondent –
namely Noko Maimela Inc., – addressed a letter to the applicant demanding
payment of the disputed claim.
11
17 Four days later, on 26 January 2024, the applicant’s attorney replied to Noko
Maimela Inc. and reiterated the applicant’s stance, namely that it denies
liability for the disputed claim and alleges, inter alia, that the disputed claim
had become prescribed.
18
18.1 On 16 February 2024, Noko Maimela Inc. responded to the applicant’s
attorney denying that the applicant can rely on prescription because,
according to the respondent, the disputed claim was interrupted by the
applicant making monthly payments of electricity consumption
charges.
18.2 It bears mention that the respondent’s attorneys do not assert any
other basis as to why the applicant cannot rely on prescription,
although I accept that if there is or was another basis which was not
referred to in the 16 February 2024 response, that omission does not
compromise the respondent’s ability to raise it at a later time such as,
for example, in these proceedings.
19
19.1 On 23 February 2024, the respondent addressed a pre- termination
notice to the applicant and demanded payment of the disputed claim
and threatened to terminate the supply of services to the applicant’s
property.
19.2 It was this threat that triggered the urgent application to which there is
reference in paragraph 4 above, and it is this urgent application that
resulted in the urgent order whereafter the applicant elected to institute
this application.
20 Between the period 23 February 2024 (when the respondent addressed the
pre-termination notice) and 3 April 2024 (the significance of this date
emerges from paragraph 21 hereunder) , the events and activities relating to
the urgent application play themselves out and the applicant launches this
12
application and also makes payment of the sum of R7 553 737.00 to the
respondent in terms of the urgent order.
21
21.1 On 3 April 2024, the respondent (via its newly appointed attorneys
Morata Mogokare Inc.) addressed an email to the applicant, advising it
that it had resolved the complaint that had been lodged by the
applicant some five years earlier and reiterated that the amount
claimed (and which is referred to as the disputed claim in this
judgment) is in fact due and owing and that the complaint ( re the
applicant’s challenge to the veracity of the disputed claim) had failed.
21.2 In fact, Morata Mogokare Inc. adopts a somewhat aggressive stance
and advised the applicant via a 9-page letter (that can be fairly
categorised as expansive and technical in motivating the respondent’s
decision), that:
21.2.1 the respondent intended ‘without further recourse to’ the
applicant, to take legal steps to claim the outstanding
amount (ie, the disputed claim) and;
21.2.2 furthermore (it would appear , ex abudante cautela) that the
contents of this written communication by Morata Mogokare
Inc. to the respondent (ie, the 9 page letter) does not in any
way seek to alter the respondent’s contention in its letter of
21 January 2019 which forms the basis of the respondent’s
claim (ie, the disputed claim).
22
22.1
22.1.1 True to its word t he following day – ie, 4 April 2024 – and
before the applicant would have had a chance to consider
the respondent’s position in respect of its – the applicant’s –
complaint and what stance / position it, the applicant, should
take in regard thereto, the respondent issued and served
13
summons against it under case number: 2024- 035895 in
which the respondent sues for payment of the disputed
claim, together with interest and costs.
22.1.2 That the issue and service of summons may have been
premature having regard to the provisions of s 11(5) of the
By-Laws, was not part of the applicant’s case and
consequently, I do not deal therewith, but for context, I
quote s 11(5) hereunder:
‘The Council must:
(a) investigate or cause the query or complaint to be
investigated within 14 days, or as soon as possible
after the query or complaint was received; and
(b) inform the customer, in writing, of its decision as
soon as possible after the conclusion of the
investigation, instructing that any amount found to be
due and payable must, subject to the provisions of
section 21, be paid within 21 days from the date on
which the customer is notified thereof, unless an
appeal is lodged within that period in terms of
subsection (6) or section 12’.
22.2
22.2.1 In fact I think it fair to say that the respondent (in the role of
plaintiff) had by 3 April 2024 already prepared the summons
(action) it intended to institute against the respondent (in the
role of defendant) relative to the disputed claim – thereby
brooking no dissent from the applicant and not affording the
applicant, should it have been so minded, the opportunity to
appeal (s 12 of the By -laws) the respondent’s determination
of the complaint , such was the newly found enthusiasm –
even robustness – to the respondent’s approach to the
14
disputed claim , a complaint that took the respondent five
years to resolve against the applicant.
22.2.2 The respondent clearly had no intention of waiting for any
possible appeal by the applicant or for that matter to allow
the applicant to even catch its breath, so to speak, and
perhaps engage the respondent in further discussion – such
was the respondent’s desire to institute action without delay.
23 The above then is the relevant background and factual matrix.
Issues to be decided
24 A joint practice note was filed in this matter, which defines the issues (some
of which however are a repeat of another albeit using different terminology)
to be decided as follows (my distilling thereof and my partial terminology):
24.1 whether the applicant, having lodged the complaint in accordance with
s 11(1) of the By -laws, is entitled in the circumstances and before the
complaint has been resolved to claim that the disputed claim has
prescribed;
24.2
24.2.1 whether the respondent is (was) precluded in terms of s
102(2) of the Local Government; Municipal Systems Act 32
of 2000 (the ‘Systems Act’) from claiming the disputed
claim;
24.2.2 the issue referred to in paragraph 24.2.1 above (which, as
emerged from the argument advanced by the respondent at
the hearing, can be fairly described as the main string to its
bow) is repeated in the combined practice note but using
different terminology. It is repeated thus; whether the
responded was precluded in terms of s 102(2) of the
15
Systems Act from implementing any of its debt collection
and credit control measures in relation to the disputed claim,
including serving legal process from 23 April 2019 to 3 April
2024 due to the lodgement of the complaint and whether
this alleged impediment interrupted the running of
prescription in terms of s 13(1) of the Prescription Act during
this period;
24.3 whether prescription can run whilst the respondent is precluded (if
indeed it is precluded – these words in brackets being inserted by me)
by s102(2) of the Systems Act from claiming the disputed claim;
24.4 whether the disputed claim which the respondent claims was due on 1
April 2019 had become prescribed by the effluxion of time in terms of
the Prescription Act;
24.5 whether an agreement was concluded between the parties to ‘pend the
claiming of the disputed amount until such time as the respondent
resolved the complaint’;
24.6 whether there are any foreseeable and material disputes of facts that
cannot be resolved on the papers;
24.7 whether the applicant’s monthly payments of its current electricity
consumption charges since April 2019 constitute a tacit
acknowledgement of liability and interrupted the running of prescription
in terms of s 14(1) of the Prescription Act;
24.8 whether the respondent is entitled in terms of its B y-laws or policy to
allocate the payment received from the applicant to the oldest debt;
and
24.9 whether the respondent can allocate payment from the applicant to the
disputed claim prior to the dispute being resolved.
16
25 It seems to me that a decision on one or other of the issues referred to above
will apply mutatis mutandis to some of the other issues , such is the seepage
between some of the identified issues.
Onus; who has what onus?
26 The starting point after the factual matrix has been identified, would be to
determine which party or parties bears what onus.
27 I think it fair to say that there was no dispute between the parties as to where
the onus lies and when it shift s (if, on the facts , it does shift) from the one
party to the other. This is so because the law in this regard is well settled, but
I nonetheless deal therewith hereunder given the common cause (or at very
lease indisputable) facts in this matter. I must also make this clear; there are
many judgments dealing with the onus in prescription matters and that I only
refer to a few does not mean I have not considered all those referred to me
by the parties.
28 A party claiming prescription bears a full onus to prove it. The Supreme Court
of Appeal (‘SCA’) in the judgment of McLeod v Kwayiya stated it thus:
‘This Court has repeatedly stated that a defendant bears the full evidentiary
burden to prove a plea of prescription, including the date on which a plaintiff
obtained actual or constructive knowledge of the debt. The burden shifts to
the plaintiff only if the defendant has established a prima facie case’.
2
‘less evidence will suffice to establish a prima facie case where the matter is
peculiarly within the knowledge of the opposite party than would under other
circumstances be required.’
3
but it must be noted that the SCA clarified that the burden which shifts to the
plaintiff is an evidentiary burden and not the burden of proof.
2 (365/12) [2013] ZASCA 28; 2013 (6) SA 1 at para 1
3 Union Government (Minister of Railways) v. Sykes, 1913 A.D. 156 at para 173
17
29 The law in this regard was reaffirmed by the SCA in Lancelot Stellenbosch
Mountain Retreat (Pty) Ltd v Gore N.O and O thers4 in which the court states
the following:
‘This is so because when a debtor raises the defence of prescription he
bears the full evidentiary burden to prove it. And that burden shifts to the
creditor only if the debtor has established a prima facie case. In that event, a
creditor bears the onus to allege and prove the interruption of prescription
through either an express or tacit acknowledgement or liability by the debtor ,
in terms of s 14 of the Prescription Act’.
5
30 The SCA in Jugwanth v MTN6 had the following to say:
‘It is settled law that a person invoking prescription bears a full onus to prove
it. In Gericke v Sack, Diemont AJ explained:
“[It] was the respondent, not the appellant, who raised the question of
prescription. It was the respondent who challenged the appellant on the issue
that the claim for damages was prescribed; this he did by way of a special
plea five months after the plea on the merits had been filed. The onus was
clearly on the respondent to establish this defence’”.
7
31 In Absa Bank Limited v de Villiers 8, the SCA held that on general principles
where it is clear that the prescriptive period has run its course, the defendant
has a complete defence and if the plaintiff relies on suspension or
postponement of prescription, there is a separate burden of proof that rests
on the plaintiff.
32 The law relating to onus – where it lay and who has what duty – is one of the
few (if not the only) legal issues in respect of which there was consensus
between the parties.
4 (108/2014) [2015] ZASCA 37
5 Ibid at para 10
6 [2021] ZASCA 114
7 Ibid at para 6
8 2001 (1) SA 481 (SCA)
18
Applicant’s position in regard to the disputed claim
33 The applicant contends that since 2 July 2018, the respondent has been
aware of the facts giving rise to the disputed claim and the identity of the
applicant and that by 7 November 2018 (when the respondent determined
the amount of back – or unbilled – charges following upon its discovery of the
incorrect programming of the electricity meter at the Johannesburg property),
at the latest, the respondent had acquired all of the necessary information
required of it to institute action for the disputed claim , but – at least as I
understand the applicant’s position – at worst for it; the invoice from the
respondent that included charges / line items in respect of the disputed claim
dated 15 March 2019 and which calls for payment by 1 April 2019 – ie, the
15/03/2019 invoice – is a clear indication that the respondent had satisfied
itself that the disputed claim (which was not yet the subject matter of a s
11(1) By-law complaint; that only occurred telephonically o n 23 April 2019)
was in fact due and owing.
34 The applicant furthermore avers that:
34.1 at no time prior to the service of the summons on 4 April 2024, did the
respondent serve any legal process on it in which it claimed payment
of the disputed claim as contemplated in s 15(1) of the Prescription
Act;
34.2 the service of summons was more than three years after the disputed
claim (which the applicant says, the court can assume is valid), would
34.3 have fallen due within the meaning of s 12 of the Prescription Act ,
which I quote (where applicable) hereunder;
34.4 there was nothing (including the provisions of s 13(1) of the
Prescription Act and of s 102(2) of the Systems Act) preventing the
City instituting action in respect of the disputed claim, thereby
interrupting prescription;
19
34.5 prima facie, and based on the demand for payment of the 15/03/2019
invoice by 1 April 2022, the disputed claim prescribed by the effluxion
of time by 2 April 2022 at the latest, pursuant to s 10(1) 9 read with s
11(d)10 of the Prescription Act;
34.6 the onus thus shifts from the applicant who has established – so the
applicant says – the prima facie prescription of the disputed claim to
the respondent to prove that either:
34.6.1 the completion of prescription in respect of the disputed
claim was delayed under the provisions of s 13 of the
Prescription Act; or
34.6.2 prescription in respect of the disputed claim was interrupted
by a tacit acknowledgment of liability by the applicant as
contemplated in s 14 of the Prescription Act.
The respondent’s defences to the applicant’s allegation of prescription
35 The respondent raises four defences to the applicant’s claim that the
disputed claim has prescribed which, in summary, are the following:
35.1 that it, the respondent, was prevented within the meaning
contemplated in s 13(1) of the Prescription Act, from interrupting the
running of prescription in respect of the disputed claim (which I will call
the ‘impediment defence’);
35.2 that there was an agreement between the parties to ‘pend the claiming
of the disputed amount’ until such time as the respondent resolved the
complaint (which I will call the ‘suspension defence’);
9 ‘Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by
prescription after the lapse of the period which in terms of the relevant law applies in respect of the
prescription of such debt’.
10 ‘Save where an Act of Parliament provides otherwise, three years in respect of any other debt’.
20
35.3 that there are foreseeable and material disputes of fact that cannot be
resolved on the papers ( which I will call the ‘factual dispute defence’);
and
35.4 that each payment by the applicant of its current electricity
consumption charges since April 2019, constituted a tacit
acknowledgement of liability and thus interrupted the running of
prescription in terms of s 14(1) of the Prescription Act ( which I will call
the ‘tacit acknowledgement defence’).
36 I expand on each of these defences hereunder and then deal with the
applicant’s rebuttal thereof.
The impediment defence
37
37.1 This defence – which I have called the impediment defence – is one in
which the respondent relies on the City’s Credit and Control Policy (the
‘Policy’) to collect revenue owed to it and s 102(2) of the Systems Act,
the latter of which prohibits the respondent from collecting the disputed
claim and enforcing or implementing its debt control collection
mechanisms whilst the complaint is pending.
37.2 S 102(2) of the Systems Act reads as follows:
‘Subsection (1) does not apply where there is a dispute between the
municipality and a person referred to in that subsection concerning any
specific amount claimed by the municipality from that person’.
37.3 The relevant portion of s 102(1) of the Systems Act reads as follows:
‘1) A municipality may –
a) …
b) …
21
c) implement any of the debt collection and credit control measures
provided for in this chapter in relation to any arrears on any of the
accounts of such a person’.
38 In amplification of the impediment defence, the respondent argues that:
38.1 the disputed claim would only ‘… become due and payable and
claimable …’ upon it resolving the complaint and if the complaint were
resolved against the applicant, then upon communicating that decision
to the applicant in writing and – so goes the respondent’s argument –
in the circumstances the disputed claim could not prescribe by the
effluxion of time before resolving the complaint, which was only done
on 3 April 2024.
38.2 on 3 April 2024, the respondent – having made a decision in regard to
the complaint – communicated that decision in writing to the applicant
and in the light thereof, the impediment that existed (as contended for
by the respondent) was now removed and the respondent was able to
pursue the disputed claim (example, institute action) together with
interest thereon and the respondent did so – the following day.
39 Without simplifying what appears to be the respondent’s primary or perhaps
most dominant argument in its favour and against the applicant’s position , it
says that the existence of s 102(2) of the Systems Act is a complete and
impenetrable wall preventing it from taking any steps to recover payment and
more particularly, the service of processes contemplated in s 15(1) of the
Prescription Act.
40 The question that clearly needs to be asked is whether s 102(2) constitutes
an impediment within the meaning of s 13(1)(a) of the Prescription Act, which
suspended (suspends) the operation of prescription and if so, when did that
impediment commence and then when did it cease to exist.
22
41 This impediment defence however needs to be seen in the context of s 11(3)
of the B y-laws. It is useful to quote part of the provisions of s 11 (3) which
reads as follows:
‘(3) if a query or complaint contemplated in subsection (1), is lodged –
(c) … before or after the due date for payment specified in the
account concerned, the customer concerned must pay the full amount
of any account, insofar as it relates to rates or the municipal service
concerned, rendered in respect of a subsequent period, before or on
the due date for payment specified in such account, except insofar as
that account may incorporate the amount in dispute’. (My emphasis).
42 The respondent’s counsel referred me to the judgment in Body Corporate
Croftdene Mall v eThekwini Municipality
11 (the ‘ Croftdene judgment’) which
counsel argues identifies what is meant by the word ‘dispute’ to be as
follows:
‘It is, in my view, of importance that s 102(1) of the Systems Act requires that
the dispute must relate to a ‘specific amount’ claimed by the municipality.
Quite obviously, its objective must be to prevent a ratepayer from delaying
payment of an account by raising a dispute in general terms. The ratepayer is
required to furnish facts that would adequately enable the municipality to
ascertain or identify the disputed item or items and the basis for the
ratepayer’s objection thereto. If an item is properly identified and a dispute
property raised, debt collection and credit control measures could not be
implemented in regard to that item because of the provisions of the
subsection. But the measures could be implemented in regard to the balance
in arrears; and they could be implemented in respect of the entire amount if
an item is not properly identified and a dispute in relation thereto is not
properly raised.’
11 Supra 2 at para 22
23
43 As I understand the respondent’s position, in referring me to the Croftdene
judgment, the respondent recognises that the dispute or challenge raised by
the applicant in relation to the disputed claim – ie, the complaint – was
properly identified and properly raised, with the result that it, the respondent,
was not entitled because of a legal impediment , to claim same whether in
whole or in part – at least until such time as it had determined the complaint
against the applicant and then, presumably, in accordance with its
determination.
44
44.1 The respondent, relying on the Croftdene judgment, as well as s
102(2) of the Systems Act and the B y-laws, asserts that until it had
responded definitively to the complaint – one way or the other – the
applicant was not obliged (assuming of course the complaint was
determined against it) to pay the disputed claim – and it, the
respondent, was not entitled by law to collect the disputed claim and
therefore prescription was effectively suspended.
44.2 In fact, the respondent goes somewhat further and says in relation to
the applicant’s criticism of its five- year delay in responding to the
complaint, that the applicant could (or should) have reviewed its failure
to take a decision given that it is settled law that the failure of an organ
of State to take a decision (ie, a non-event) amounts to a decision (ie,
a positive event) and is reviewable.
45 Continuing to expand and/or amplify its impediment defence, the respondent
says that this Court has no jurisdiction to resolve the dispute without it, the
respondent, first resolving same as provided for in the judgment of Body
Corporate of Willow and Aloe Grove v City of Johannesburg and Another
12.
(I deal more fully herewith later in this judgment; see paragraph 92 and
subsequent paragraphs).
46 In summary, it appears that the respondent’s impediment defence can be
stated thus:
12 [2023] ZAGPJHC 1451
24
46.1 it was precluded by s 102(2) of the Systems Act from serving legal
process to interrupt prescription until it determined (obviously against
the applicant – in whole or part) the complaint which had been lodged
by the applicant on 23 April 2019;
46.2 it was only when it determined the dispute on 3 April 2024 that the s
102(2) impediment ceased to exist with the result that prescription had
not, as contended for by the applicant, run its course.
Applicant’s response to the impediment defence
47 The applicant proffers three responses (as it calls them ) to the impediment
defence, namely:
47.1 firstly, properly interpreted, s 102(2) of the Systems Act:
47.1.1 does not preclude the institution of legal proceedings , and
none of the provisions of s 13(1)(a) of the Prescription Act
avail the respondent and therefore the impediment defence
must fail; and
47.1.2 is intended anyhow to safeguard consumers / customers of
the City (such as for example the applicant) from the
punitive / draconian measures ordinarily available to the City
whilst their disputes properly identified and lodged as
provided for in the Croftdene judgment (the complaint in this
instance) are being adjudicated and not to shield the
respondent from the running of prescription when it fails to
determine such disputes timeously;
47.2 secondly:
47.2.1 even if s 102(2) , properly interpreted, precludes the
institution of legal proceedings with the result that the
25
impediment as provided for in s 13 of the Prescription Act is
applicable, this cannot be relied upon by the respondent as
its failure to determine the complaint for five years, would
not be a recognised ground for the postponement or delay
of the prescriptive period; and
47.2.2 our law does not allow a creditor (the respondent in this
instance) to postpone (suspend) prescription by its own
actions – whether deliberate or otherwise;
47.3 thirdly: in any event, even if the two ‘ responses’ referred to in
paragraphs 47.1 and 47. 2 above do not succeed in refuting the
impediment defence, then the respondent’s conduct effectively
communicated its determination of the complaint (and by extension the
impediment claimed by the respondent ended, and that by the time
summons was served (4 April 2024) , prescription had already run its
course.
48 The applicant further asserts that there is a difference between commencing
an action to interrupt prescription (on the one hand) and proceeding with an
action already instituted and recovering the disputed claim (on the other
hand).
49 In support of the impediment defence, the respondent relies on the Croftdene
judgment, but the judgment does not address the question of prescription
and/or the respondent’s entitlement (or lack of entitlement) to institute action
to interrupt the running of prescription prior to it, the respondent, determining
a pending dispute properly lodged and which satisfies the observations made
by the learned Judge in Croftdene quoted in part in paragraph 42 above.
50 The applicant however relies heavily on two judgments, the one being Tarica
v City of Johannesburg Metropolitan City
13 (the ‘Tarica judgment’), a
judgment of this court in which the court found (in summary) as follows:
13 [2025] ZAGPJHC 46
26
50.1 Ms Tari ca has satisfied the requirements set out in Croftdene for a
‘valid dispute’ under s 102(2) of the Systems Act in relation to the
amount claimed from her by the respondent in this matter relative to
Ms Tarica’s municipal account;
50.2 in view of the fact that a valid dispute had been raised, s 102(2) of the
Systems Act became operative and prohibited the City from allocating
payments to the disputed charges;
50.3 the City was however obliged (if it wanted to interrupt prescription) to
institute legal proceedings before the completion of the period of
prescription (which, it must be said, is the applicant’s argument in this
matter);
50.4 the City’s argument that its policy precluded it from issuing summons
on disputed claims, thereby preventing the debts from prescribing, was
without merit. (It bears mention that in this matter – unlike Tarica – the
claims that are in issue for purposes of prescription, can be assumed
to have, at some stage – been owing);
50.5 prescription was governed by the Prescription Act and it operated
independently of internal policies or administrative practices of
municipalities;
50.6 consequently, whi lst the City chose to adopt procedures from
managing disputes through its credit control and debt collection policy,
those procedures did not have the effect of overriding or suspending
statutory requirements of the Prescription Act;
50.7 the purpose of the policy allowed for the suspension of certain credit
control actions, such as disconnections during the resolution of
disputes, was to safeguard customers from punitive measures whilst
their disputes were being adjudicated;
27
50.8 the right to suspend credit control measures was an internal
administrative remedy and did not equate to the legal interruption of a
debt’s prescription period;
50.9 the statutory framework for prescription continues to apply irrespective
as to the City’s internal mechanisms for dispute resolution; and
50.10 the running of prescription could not be altered by a creditor’s inaction
and the City’s decision not to pursue the disputed claim through legal
process did not negate the statutory operation of prescription.
51
51.1 The respondent argues that the Tarica judgment (which we are told is
subject to a pending application for leave to appeal) is clearly wrong
and that I should only consider it – at worst for the respondent –
persuasive, and at best for the respondent, not binding.
51.2 I am unpersuaded; whilst the Tarica judgment stands, I am bound
thereby, unless I can conclude that it is clearly wrong which I cannot.
52
52.1 The second judgment the applicant relies heavily upon is Uitenhage
Municipality v Molloy 14 (the ‘Uitenhage’ judgment) in which the
Supreme Court of Appeal – confronted with the question as to whether
section 30(3) of the previous employment Act precluded an employee,
who had not satisfied its conditions, from interrupting prescription
through the service of ‘any process, whereby the creditor claims
payment of the debt’ – held that it did not, and that the said section
which precluded such employee from ‘recovering’ any amount due
until the section’s pre-conditions were satisfied was not a bar to issuing
summons.
14 [1997] ZASCA 112
28
52.2 By way of analogy, the applicant submits that the respondent was not
precluded (ie, impeded) from issuing summons to interrupt prescription
until the complaint was resolved; it was simply barred from recovering
(by way of a judgment) the amount claimed by it in the court
proceedings.
53
53.1 In the alternate to its position in relying on the Tarica judgment (if it is
found that Tarica was clearly incorrect or clearly distinguishable and
that the primary reasoning in Uitenhage is not applicable), reliance is
placed by the applicant on the alternative reasoning in Uitenhage
where the SCA held that a creditor cannot, by failing to perform a
required act within its control, delay the due date of a debt or postpone
the running of prescription.
53.2 On this basis, even if s 102(2) of the Systems Act gave rise to an
impediment as contemplated in s 13(1)(a) of the Prescription Act, that
impediment ceased to exist 14 days after 23 April 2019, being the date
on which the applicant lodged its query (or if not within 14 days, then
as soon as possible thereafter) . Consequently, says the applicant, the
debt prescribed several years prior to the institution of action by the
City in April 2024.
54 The applicant continues its rebuttal of the impediment defence by referring to
the judgment of Joseph and others v City of Johannesburg
15 (‘Joseph’) in
which the Constitutional Court held that Municipalities are obliged to provide
electricity to residents in the area as a matter of public duty. It emphasises,
inter alia, that if debts are not paid to the respondent, it has a constitutional
duty to implement debt collection measures – as Jakoob J held ‘it is
important for unpaid municipal debt to be reduced for all legitimate means’
and that in a concurring judgment, Reagan J affirm that ‘there can be no
doubt that municipalities bear an important constitutional obligation and
statutory responsibility to take appropriate steps to ensure the efficient
recovery of debt’.
recovery of debt’.
15 [2009] ZACC 30
29
55 With that platform, the applicant asserts that the respondent’s position –
namely that it was precluded or barred as a result of what the applicant calls
its (the respondent’s ) own failure to determine the complaint for five years
from claiming payment of the disputed claim at any time prior to 3 April 2024
was – is unsustainable.
56 The respondent in further support of the impediment defence, relies on s
13(1) of the Prescription Act and on s 102(2) of the Systems Act, the latter of
which has been considered in a number of judgments.
57 It would be useful to refer to s 11(5) and (6) of the respondent’s By-laws,
which provide, inter alia, as follows:
‘(5) The Council must –
(a) investigate or cause the query or complaint to be investigated within 14
days, or as soon as possible after the query or complaint was
received; and
(b) inform the customer, in writing, of its decision as soon as possible after
conclusion of the investigation, instructing that any amount found to be
due and payable must, subject to the provisions of section 21, be paid
within 21 days from the date on which the customer is notified thereof,
unless an appeal is lodged within that period in terms of subsection (6)
or section 12.
(6) A customer may, subject to the provisions of section 12, lodge an
appeal with the City Manager in terms of section 62 of the Act against
a decision referred to in subsection (5) within 21 days of the date of the
notification of the decision’.
58 I am satisfied that the onus that the applicant had to prove a plea of
prescription has been satisfied and so, as provided in MacLeod and Lancelot
the burden now shifts to the respondent and I approach the impediment
30
defence against, inter alia, the backdrop of the above common cause facts
and the shifted onus.
59 It is common cause that the respondent failed to:
59.1 investigate (or at least complete its investigation) of the complaint
within the period provided for in s 11(5)(a) of the By -laws which
requires the City to investigate a query or complaint ‘within 14 days, or
as soon as possible after the query or complaint was received’ which,
in my view, is clearly indicative of the By -laws requiring prompt – even
urgent – attention.
59.2 advance any reason or explanation as to why it was not possible to
investigate the complaint within the aforesaid 14- day period, or to
tender any explanation whatsoever to enable this Court to understand
or perhaps even evaluate whether when it did – eventually – revert in
regard to the complaint on 3 April 2024 (some five years after the
complaint was first lodged) , the period between the lodging of the
complaint and the determination thereof, was ‘as soon as possible
after the query or complaint was received’ which recognises that
depending on the nature, extent and complexity of the complaint a
consumer / customer may lodge, that 14 days may in certain cases be
insufficient in the circumstances for the City to investigate the query or
complaint lodged by the consumer as provided for in s 11(5)(a) of the
By-laws and what in the circumstances of this particular matter would
have been reasonable and why the respondent might argue for that
position.
60
60.1 The respondent’s failure to explain what facts, circumstances or events
prevented it discharging its duty to investigate the complaint:-
60.1.1 initially within 14 days;
31
60.1.2 and if that was not possible, then as soon as possible
thereafter
is significant, more particularly given the fact that the By -law
recognises that whilst ideally the City should resolve the complaint
within 14 days, there may well be facts and circumstances that
preclude it doing so but then, it must do so ‘as soon as possible
thereafter’.
60.2 What is soon and what is possible (there is linkage between the two),
is of course something that is not within the applicant’s knowledge but
it certainly is within the respondent’s knowledge and yet the
respondent has chosen (and I do not think it unfair to say, deliberately)
to remain silent in this regard. This omission and its consequence are
dealt with more fully hereunder.
61
61.1 It seems to me that the City’s position seems to be that,
notwithstanding the requirements imposed upon it by s 11(5)(a) of the
By-laws, it can nonetheless take as long as it wants to investigate any
query, challenge or complaint that satisfies the 39 van der Merwe
judgment (ie, clearly specified and identified amount) and where that
time extends beyond the three year prescription period – indeed
extends, I suppose in theory, for years thereafter – the City can,
without tendering any explanation as to what precluded it resolving the
complaint if not within 14 days, then ‘as soon as possible thereafter’
avoid the consequences of prescription.
61.2
61.2.1 I think not – certainly not without a sufficiently cogent reason
(that satisfies the Prescription Act at least and perhaps even
the Systems Act ) as to what appears to be an inordinate
delay and then certainly not without affording the applicant
an opportunity of dealing therewith.
32
61.2.2 The City is after all an organ of State; it has responsibilities
that differ from those of a private individual. It surely cannot
suffice for the City to delay for an inordinate (and
unexplained) period of time and then rely without further ado
on s 102(2) of the Systems Act to shield it from a claim (or
risk) of prescription.
61.3 In this instance, there are no facts or circumstances presented to the
Court to support the discharge by the respondent of the onus which
shifted to it after the applicant had established, prima facie,
prescription.
62 The applicant asserts that there was no legal impediment to the respondent
launching proceedings to recover the disputed claim after the expiry of the 14
day period (that is to say after 7 May 2019) or even after the expiry of a
reasonable period beyond the 14 day period and believes that its assertion in
this regard is supported by s 25 of the By -laws that provide that the City’s
failure, inter alia, to comply with the provisions of its own By -laws ‘does not in
any way affect the liability of any person to pay any amount due and payable
to the Council as contemplated by these By -laws nor the Council’s right to
recover such amount ’. Conversely – at least as I understand the applicant’s
position – this failure does not in any way affect the period of prescription
running against the City.
63 The applicant also relies on the judgment of Dodson AJ in 39 van der Merwe
Street, Hillbrow CC
16, that a customer of the respondent could ‘perpetuate a
dispute indefinitely by simply ensuring that it does not agree to any assertion
by the City as to the extent to the customer’s indebtedness in respect of
particular amounts. On this basis, s 102(2) might become an indefinite shield
against the exercise of statutory power of disconnection, notwithstanding
continued non-payment’.
16 [2023] ZAGPJHC 963
33
64
64.1 The respondent argues (as I understand its argument) that it should be
permitted ( without any plausible explanation – indeed without any
explanation whatsoever) to simply not decide a complaint for an
indefinite period – (in theory why should the five year period in this
particular instance not, for example, be ten years in another matter or
even longer, thereby leaving the consumer in limbo) with impunity – ie,
without any prejudice to be suffered by it, the City.
64.2 The very idea and purpose of prescription (to bring matters within
certain timeframes to finality) and the requirement for the respondent
to investigate the complaint within fourteen days or ‘as soon as
possible after the query or complaint was received’ is, in my view, a
clear indication that the respondent cannot remain sanguine,
seemingly do nothing about the complaint for years on end and then,
without any explanation as to the reasons for what is clearly an
extraordinary delay, not suffer the consequences thereof.
65
65.1 It must also be borne in mind that the respondent caused two
demands for payment of the disputed claim to be made on the
following dates:
65.1.1 15 and 21 November 2019 – via Revco; and
65.1.2 21 April 2021 – via attorneys Dalli Matlana and Partners,
both dates after the lodging of the complaint (which was lodged on 19
January 2019) and of course after the 14 day period.
65.2 How then is a Court to interpret these two demands? The respondent
in its answering affidavit, makes no effort to explain away the demands
which, I think it fair to say, can only be interpreted to mean that the
respondent, having received the complaint, intended to convey to the
applicant (perhaps somewhat inelegantly and not necessarily in a
34
user-friendly fashion – but nonetheless in clear and unequivocal terms)
that it had considered the complaint (as it was enjoined to do in
accordance with its statutory and constitutional duty) as having n o
substance, that the complaint was unsuccessful (the disputed claim
stood) and that the applicant should make payment thereof.
66 It is surely indisputable that the respondent knew and was constantly alive to
the following:
66.1 its constitutional and statutory imperative to collect monies due and
owing to it;
66.2 the 14- day period provided for in s 11(5)(a) of the By -laws to
investigate the complaint;
66.3 that if it was not possible to complete its investigation of the complaint
within the 14- day period, then it should do so as soon as possible
thereafter; and
66.4 that any debt due to it (which would include the disputed claim ) would
ordinarily prescribe after three years,
and yet it took no steps whatsoever to interrupt prescription. In this regard,
the applicant contends that the respondent could and should have initiated
proceedings prior to the disputed claim prescribing and that the provisions of
s 15(2) of the Systems Act was no bar to it doing so. For this proposition, it
relies, inter alia, on the reported judgment of Uitenhage, the relevant portion
of which reads as follows:
‘The basic fallacy in the contention advanced on behalf of the respondent, is
that an employer’s debt arising from overtime work or work performed on
Sundays, and which is payable at the end of the month in which such work
was performed, nevertheless ceases to be “due” for the purposes of section
12(1) of the Prescription Act, merely because some procedural conditions
prescribed in section 30(3) have to be satisfied before that debt is
35
recoverable. If that contention was correct the employee concerned could
simply wait for up to twenty years before seeking to fulfil for the first time any
of the conditions specified in section 30(3) of the Employment Act. An
employer in the position of the appellant could, after the lapse of so many
years, find itself presented with a claim for work allegedly done on some
Sunday many years ago, without any effective means of counteracting such
allegations. Material witnesses might have died in the interim and no records
might be available to investigate the claims, because in terms of section
20(3) of the Employment Act an employer is only obliged to retain such
records for a period of three years’ and
‘A creditor against whose claim prescription commences to run, may protect
himself or herself from its consequences, by causing the interruption of
prescription in terms of section 15 of the Prescription Act through the service
of: “any process, whereby the creditor claims payment of the debt”’.
67 It seems to me that the respondent’s approach in regard to the impediment
defence is that it can take as long as it wants, without any explanation as to
the delays and with complete impunity (thanks to s 102(2) of the Systems
Act) to investigate a complaint and consumers (the applicant in this instance)
must simply hope that one day in the future, when and if a complaint is
determined against them (as in the case of the applicant in this matter) – they
still ha ve the necessary evidence (personnel, documents , witnesses,
institutional memory and whatever else a litigant would hope to have
available to them by way of arrows in their quiver ) to discharge an onus
and/or defeat a claim from the City so as to be victorious in litigation. This
seems to me to be the very antithesis of the purpose of prescription, as well
as the directive embodied in s 11(5)(a) of the By-laws (14 days or as soon as
possible thereafter).
68
68.1
possible thereafter).
68
68.1
68.1.1 The respondent asserts that it was always open to the
applicant to initiate review proceedings when it, the
respondent, had failed to make a decision in respect of the
36
complaint and it criticises the applicant for not having done
so.
68.1.2 This criticism is without foundation; there can be no duty on
a debtor to initiate any steps or do any act, matter or thing
that has the effect of benefitting a creditor so as to avoid a
debt becoming prescribed absent perhaps a specific legal
requirement – and there is no such legal requirement in this
matter.
68.2 To suggest or hold otherwise, would be to cast some or other onus or
responsibility on a debtor to act contrary to its own affairs and interests
(which in and of itself may have serious repercussions, including
breaching duties of good faith and other responsibilities to a range of
stakeholders) in favour of a third party (a creditor) to whom it owes no
duty or responsibility – and with whom it may be and probably in most
instances, will be, in a hostile or potentially hostile environment. Such
a proposition only needs to be articulated, to immediately appreciate
its fallacy.
68.3 In any event, and separate and distinct from the rejection of the
respondent’s assertion / position as referred to in paragraphs 68.1 and
68.2 when would the applicant (at least on the respondent’s version)
initiate review proceedings? Put another way, by when had the
respondent failed to make a decision? Three months after the expiry of
the 14 day period? six months? Two years? and so forth and so on. It
would be grossly unfair and unreasonable to leave a consumer in this
twilight world of uncertainty.
69
69.1 The respondent also relies on the content of the applicant’s attorneys’
letters of 28 May 2019 and 22 November 2019 as supportive of its
position that there is an interruption of prescription.
37
69.2 In the 28 May 2019 letter, the applicant’s attorneys informed the
respondent that it would not lodge an appeal as it would not adopt the
view that the respondent’s failure to respond to the applicant’s
complaint was deemed to be a refusal to address it and the written
decision was thus awaited in due course.
69.3
69.3.1 Whilst I cannot glean from the papers what the applicant
would have been appealing against, I do not believe the
existence of this letter – whatever it may or may not mean
or convey to the respondent – constitutes an impediment to
the respondent instituting proceedings if it wished to
interrupt prescription.
69.3.2 There was nothing to prevent the respondent, when the
prescription clock was nearing the bewitching hour, to
advise the applicant that the complaint was still being
investigated (ideally with some reason for the delay – if only
as a courtesy to a customer / consumer,) and that it, the
respondent, intended to institute action in respect of the
disputed claim for the sole purpose of interrupting
prescription but that having served whatever court
proceedings interrupted prescription (perhaps an action;
perhaps motion proceedings) , the dies would (or could by
agreement) be suspended pending the respondent’s
determination of the complaint. Such an approach would be
one that any customer / consumer faced with the position of
the applicant could not legitimately resist or object to – and
yet the respondent did nothing.
69.3.3 Even if a customer / consumer faced with such an approach
by the City were to be uncooperative, there is no reason
why the City should not, ex abudante cautela and if only to
protect its own position, cause court proceedings (action or
38
motion proceedings) to be instituted and served and to deal
with any objection by the customer / consumer thereafter.
That, to my mind, would be a responsible safety -first
approach to the matter.
69.4 On 22 November 2019, the applicant’s attorneys reminded the
respondent that the complaint was still pending and that the demand
for payment by Revco was premature.
70 These two letters simply identified the applicant’s assessment of its position
and how it viewed matters. It was for the respondent to determine whether
the applicant’s assessment was right or wrong and in any event in my view,
neither letter could be interpreted to constitute an interruption of prescription,
nor did it present the respondent with any benefit it could somehow rely upon
to advance or protect its position.
71
71.1 Does s 13(1) of the Prescription and s 102(2) of the Systems Act –
properly interpreted – allow the City to take as long as it wants – in this
case five years, but ostensibly if the respondent’s argument is to be
taken to its logical conclusion – any period of time – to investigate the
complaint and short of review proceedings, the consumer must tolerate
the delay together with all the actual and potential prejudice it may
suffer?
71.2 My view is that to afford these sections relied upon by the respondent
their literal meaning (or at least a meaning as contended for by the
respondent) would give rise ‘to an in justice or incongruity or absurdity
that is at odds with the purpose of the statute’ quoting the
Constitutional Court in Independent Institution of Education (Pty) Ltd v
KwaZulu Natal Law Society and others
17.
71.3 In this judgment the Constitutional Court has said the following on the
purposive interpretation of statute:
17 [2019] ZACC 47 at paras 1 and 2
39
‘[1] It would be a woeful misrepresentation of the true character for
constitutional democracy to resolve any legal issue of
consequence without due deference to the pre- eminent or
overarching role of our Constitution.
[2] The interpretive exercise is no exception. For, section 39( 2) of
the Constitution dictates that ‘when interpreting any legislation …
every court, tribunal, or forum must promote the spirit, purport
and objects of the Bill of Rights’. Meaning, every opportunity
courts have to interpret legislation, must be seen and utilised as
a platform for the promotion of the Bill of Rights by infusing its
central purpose into the very essence of the legislation itself.’
[18] To concretise this approach, the following must never be lost
sight of. First, a special meaning ascribed to a word or phrase in
a statute ordinarily applies to that statute alone. Second, even in
instances where that statute applies, the context might dictate
that the special meaning be departed from. Third, where the
application of the definition, even where the same statute in
which it is located applies, would give rise to an injustice or
incongruity or absurdity that is at odds with the purpose of the
statute, then the defined meaning would be inappropriate for use
and should therefore be ignored. Fourth, a definition of a word in
the one statute does not automatically or compulsory apply to the
same word in another statute. Fifth, a word or phrase is to be
given its ordinary meaning unless it is defined in the statute
where it is located. Sixth, where one of the meanings that could
be given to a word or expression in a statute, without straining
the language, ‘promotes the spirit, purport and objects of the Bill
of Rights’, then that is the meaning to be adopted even if it is at
odds with any other meaning in other statutes.
[38] it is a well-established canon of statutory construction that “ every
part of a statute should be construed so as to be consistent, so
40
far as possible, with every other part of that statute, and with
every other unrepealed statute enacted by the Legislature” .
Statutes dealing with the same subject matter, or which are in
pari materia, should be construed together and harmoniously.
The imperative has the effect of harmonising conflicts and
differences between statutes. The canon derives its force from
the presumption that the Legislature is consistent with itself. In
other words, that the Legislature knows and has in mind the
existing law when it passes new legislation, and frames new
legislation with reference to the existing law. Statutes relating to
the same subject matter should be read together because they
should be seen as part of a single harmonious legal system.
[41] the canon is consistent with a contextual approach to statutory
interpretation. It is now the trite that courts must properly
contextualise statutory provisions when ascribing meaning to the
words used therein. While maintaining that words should
generally be given their ordinary grammatical meaning, this Court
has long recognised that a contextual and purposive must be
applied to statutory interpretation. Courts must have due regard
to the context in which the words appear, even where the words
to be construed are clear and unambiguous’.
71.4
71.4.1 Guided by the aforesaid decision, I am confident that s
13(1) of the Prescription Act and s 102(2) of the Systems
Act do not afford the respondent the license or protection
(so to speak) that it claims ; it would be at least unjust,
probably incongruous and almost certainly absurd – if not all
three.
71.4.2 If it were otherwise, the prejudicial effect on a consumer /
defendant when faced with a claim years later (and the
possibility, if not certainty, of not being able to mount a
defence so that the battle between City and consumer
41
would be one that satisf ies our constitutional values of
fairness, equity and reasonableness) is clear.
72 I therefore find that:
72.1 the applicant has established a prima facie case of prescription and
discharged whatever onus it had in this regard;
72.2 the respondent has not discharged the evidentiary burden that shifted
to it thereafter; and
72.3 as a result thereof, the impediment defence raised by the respondent
is, in the circumstances of this particular matter, unsustainable.
The suspension defence
73
73.1 This defence – which I have called the suspension defence – is
premised on the existence of an agreement which the respondent
alleges was concluded between it and the applicant ‘to pend the claim
of the disputed amount until such time the respondent has resolved the
applicant’s dispute / query and notify the applicant in writing’. The
applicant disputes that such agreement was ever concluded.
73.2 The importance of this agreement (assuming it was concluded) could
not have escaped the respondent’s attention. It would, in and of itself,
effectively suspend prescription from , at very least , the date the
agreement was concluded (not identified by the respondent) until the
resolution of the complaint which, on the respondent’s version, would
be 3 April 2024 ( when its attorney addressed an email to the
applicant’s attorneys referred to in paragraph 21 above), and yet there
are no details whatsoever provided as to when and where this
agreement was concluded, who represented the parties in concluding
the agreement, was it written or oral (or perhaps a combination of
both), what were its terms and what were the surrounding
42
circumstances – what for example, led up to the conclusion of the
agreement? So many obvious questions that present themselves when
asserting the existence of an agreement of such significance and yet
no answers (or put another way, no information) are asserted /
tendered by the respondent.
74 Were such an important agreement concluded. it seems inconceivable that
the respondent (in whose favour that agreement would have been
concluded) would not have addressed a letter to the applicant’s attorneys
confirming the existence of such an agreement and its terms.
75 When searching for details about the agreement (not to be confused with the
allegation of the existence of an agreement), all one finds is … nothing.
76 Given the significance of such an agreement (if it had been concluded), and
the absence of even the barest information relating thereto (and bearing in
mind that the respondent would have the onus to establish the existence of
such an agreement), I have no hesitation in finding that the respondent’s
assertion that such an agreement was concluded is implausible I reject it
completely.
The factual dispute defence
77
77.1 Prior to addressing the factual dispute defence, I must remain
cognisant of the Plascon-Evans rule (Plascon-Evans Paints Ltd v van
Riebeeck Paints (Pty) Ltd
18), which guides a court’s approach where
there is an argument (usually, if not always, advanced by a respondent
in motion proceedings – and on occasions by a court itself ) that an
irreconcilable dispute of fact exists, which precludes a court in motion
proceedings from making a determination when final relief is sought.
18 [1984] 2 All SA 366 (A)
43
77.2 This rule has become so entrenched in South African law and has
been quoted and followed on so many occasions that it almost seems
unnecessary to refer thereto but having said that, it is as well that I
quote same, which I do hereunder:
‘… where there is a dispute as to the facts a final interdict should only
be granted in notice of motion proceedings if the facts as stated by the
respondent together with the admitted facts in the applicant’s affidavits
justify such an order…
Where it is clear that facts, though not formally admitted, cannot be
denied, they must be regarded as admitted’.
78 The respondent asserts relative to the factual dispute defence that the
following questions are to be addressed by the Court in this application and
can only be answered by evidence led by witnesses and therefore, says the
respondent, the matter cannot be disposed of on motion proceedings . The
questions are, according to the respondent (framed b y me based on the
respondent’s heads of argument), whether:
78.1 the respondent was entitled to claim the disputed claim or was
prohibited from claiming same whilst the complaint was pending;
78.2 the disputed claim ‘can be deemed to have prescribed’ without the
applicant agreeing that the amount was due and payable and that the
respondent could claim it;
78.3 the applicant has accepted the outcome of its query as provided by the
respondent;
78.4 the By -law and the a dministrative law finding that the failure of the
respondent taking the decision is a reviewable decision are settled in
law; and
78.5 this Court can accept that from 2019 to March 2024, the disputed claim
was due and payable prior to the respondent resolving the complaint.
44
79 Even if I accept that the disputes (or questions) identified in paragraph 78
above (which I have extracted and collated from the respondent’s heads of
argument) are correctly and fairly identified, in my view, none of them prevent
my deciding this matter on application for final relief given what are the
common cause facts , as well as facts which, though not formally admitted,
cannot be denied.
80 In addition to the common cause facts, there are three significant common
cause omissions that I have had regard to, namely:
80.1 in relation to the suspension defence, evidence relevant to the
agreement asserted by the respondent is not only sparce, but non -
existent;
80.2 in relation to the impediment defence, the respondent has failed to
tender any explanation – let alone a plausible explanation – as to why,
in spite of s 11(2) of the By-laws requiring any dispute (the complaint in
this matter) being determined speedily (14 days or as soon as
possible), it took five years to deal therewith and when, on 3 April
2024, its attorney advises the applicant of the outcome of the
investigation (ie, the decision in relation to the complaint), it repeats –
parrotlike – its, the respondent’s, initial finding; and
80.3 the respondent instituted action more than three years after it had the
necessary information to formulate a cause of acti on in respect of the
disputed claim.
81 My approach to the framing by the respondent of what it alleges are disputes
of facts, is set forth hereunder:
81.1 whether the respondent was entitled to claim the disputed claim prior
to prescription arising in the ordinary course is a matter of law , but
there are common cause facts that do not present uncertainty as
envisaged by the Plascon-Evans rule. I have dealt with this above;
45
81.2
81.2.1 in regard to the question as to whether the disputed claim
can be deemed to have prescribed without the applicant
agreeing that the amount was due and payable and that the
respondent could claim it, suggests that until such time as
the applicant consents or allows the respondent to institute
action against it, the respondent is precluded from instituting
action.
81.2.2 Such a proposition, besides not being a dispute of fact, only
needs to be articulated to appreciate that it cannot be a
sound legal proposition and in any event is, I believe,
incorrectly framed as a dispute of fact;
81.3
81.3.1 the question as to whether the applicant has accepted the
outcome of its complaint as provided for by the respondent,
is also incorrectly framed as a dispute of fact. There has
been no suggestion by the respondent in its answering
affidavit that once it had determined the complaint, the
applicant is obliged to either accept the determination or
reject it and in the latter circumstances, presumably
exercise some or other right following upon the
respondent’s determination of the complaint against it prior
to the respondent being entitled to initiate proceedings
against the applicant.
81.3.2 Once again, to the extent that the respondent frames this as
a dispute of fact, it cannot be so categorised and in any
event, does not appear from the papers at all – let alone
appearing in the papers as a dispute of fact;
81.4
46
81.4.1 the framing of the question ‘the By -law and the
administrative law finding that the failure of the of the
respondent taking a decision is a reviewable decision are
settled in law ’ is (if to be viewed through the prism of an
alleged dispute of fact) incomprehensible. Where the
respondent fails to take a decision in circumstances where it
has an obligation to do so, such conduct is a reviewable
decision and is a well settled legal cause of action (even
trite law) and once again is not a dispute of fact.
81.4.2 I cannot, even in the most generous approach to the
respondent, identify what is the dispute of fact contended for
by it that requires evidence. I have in any event found, as a
matter of law, that there was no obligation on the applicant
to review the respondent’s failure to make a decision on the
complaint. Where the dispute lies in relation to the
respondent’s delay for five years, I know not. There is in fact
none. Once again, the respondent incorrectly frames this
question (whatever the question may be) as a dispute of
fact. To the extent that I can glean a question and/or a
dispute, it is not one that precludes my making a final
decision on motion;
81.5 as to whether this Court can accept that from 2019 to March 2024, the
disputed claim was due and payable before the respondent resolved
the dispute is, in my view, once again, a matter of law – not fact and
certainly not a disputed fact. It is the legal conclusion that is subject to
dispute, not the objective facts which give rise to the competing
arguments. If however I am wrong in this regard, and it is a factual
situation that requires a determination, then it seems to me there are
common cause facts as well as facts that are sufficiently uncontentious
which allow a determination in motion proceedings.
47
82 Consequently, I find that there are no disputes of fact (or unanswered
questions on the respondent’s approach to the matter) that prevent me
deciding this matter by way of motion proceedings.
The tacit acknowledgement defence
83 Prior to dealing with the tacit acknowledgement defence, I must of course
have regard to the law relating thereto and how courts have pronounced on
this area of law which has happened on many occasions. I start by referring
to Petzer v Radford (Pty) Ltd
19, in which the Full Court held that:
‘To interrupt prescription, an acknowledgement by the debtor must amount to
an admission that the debt is in existence and that he is liable therefor’.
84 In Cape Town Municipality v Allie NO
20 (the ‘Allie judgment’) which dealt with
s 14(1) of the Prescription Act when dealing with the question as to whether a
debtor had made a tacit acknowledgment of liability, states as follows:
‘… Full weight must be given to the Legislature use of the word ‘tacit’ in s
14(1) of the Act. In other words, one must have regard not only to the
debtor’s words, but also to his conduct, on one’s quest for an
acknowledgement of liability. That, in turn, opens the door to various
possibilities. One may have a case in which the act of the debtor, which is
said to be an acknowledgement of liability, is plain and unambiguous. His
prior conduct would then be academic. On the other hand, one may have a
case where the particular act or conduct which is said to be an
acknowledgement of liability is not as plain and unambiguous. In that event, I
see no reason why it should be regarded in vacuo and without taking into
account the conduct of the debtor which preceded it. If the preceding conduct
throws light upon the interpretation which should be accorded to the later act
or conduct which is said to be an acknowledgment of liability, it would be
wrong to insist upon the later act or conduct being viewed in isolation…
19 1953 (4) SA 314 (N) at 317
20 1981 (2) SA 1 (C) at 5G-H
48
Thirdly, the test is objective. What did the debtor’s conduct convey
outwardly?
…
Fourthly, while silence or mere passivity on the part of the debtor will not
ordinarily amount to an acknowledgement of liability, this will not always be
so. If the circumstances create a duty to speak and the debtor remains silent,
I think that a tacit acknowledgement of liability may rightly be said to arise …’
85 The Court in Allie recognised that the establishment of a tacit
acknowledgement of liability depended on a conspectus of all the relevant
facts. It stated further:
‘… it is conceivable that there may be circumstances in which it would not be
correct to infer an acknowledgment of liability for a balance from the making
of a payment simply because, objectively regarded, it is a part payment.
There may be something in prior dealings between the parties, or the prior or
contemporaneous conduct of the debtor, which would negate such an
inference.’
86 In Agnew v Union and South West Africa
21, the Court held that determining
whether there was an acknowledgement of liability is a factual question
relating to the intention of the debtor.
87 In Scally v Feltra (Pty) Ltd
22, the Court held that the test for establishing a
tacit acknowledgment of liability should be approached no differently from the
test for proving a tacit contract, which requires the party alleging it to show,
on a preponderance of probabilities, unequivocal conduct which is capable of
no other reasonable interpretation that that the debtor intended to, and did in
fact, acknowledge liability.
88
21 1977 (1) SA 617 (A) at 622H-623C
22 [2019] ZAKZPHC 36 at para 13
49
88.1 Whilst there may be some criticism as to the manner in which the
respondent raised its tacit acknowledgement defence, it seems that its
argument is premised on the fact that prescription running on the
disputed claim was interrupted by the applicant paying for its current
monthly electricity consumption charges and for which the applicant
acknowledged liability – ie, electricity consumption charges which were
separate and distinct from the charges comprising the disputed claim.
88.2 Put another way; in making payment of certain amounts which were
not subject to dispute (and were not part of the complaint) , the
applicant was tacitly acknowledging that the amounts comprising the
disputed claim were, on some or other basis (which the respondent
does not explain), conceded by the applicant to be due and owing –
and by some (unexplained) leap of logic – no longer part of or subject
to the complaint, is simply unsustainable.
88.3 Also; what of s 11(3)(c) of the By -Laws, to which there is reference in
paragraph 41 above? This section makes clear that a consumer (the
applicant in this instance) has an obligation to make payment of a
municipal service account except for the amount that is subject to the
complaint. That is exactly what the applicant was doing – and the
respondent must surely have known that.
89 If one then applies the law as articulated by the above learned judges (with
which I respectfully agree) to the facts in this matter, the following is clear:
89.1 the accounts / debts paid by the applicant were debts that were
separate and distinct from any of the debts (causes of action)
constituting the disputed claim ; they also arose subsequent to the 31
May 2018, which is the end date of the period to which the disputed
claim arose;
89.2 the applicant was clearly making payment from time to time (as one
would expect a good corporate citizen to do) of its current consumption
in respect of electricity charges.
50
90 It seems to me therefore that the respondent cannot seriously contend that
the conduct of the applicant in discharging an admitted liability for electricity
consumed by it separate and distinct from debts comprising the disputed
claim (particularly against the backdrop of the correspondence consistently
addressed by the applicant’s attorneys, the interdict proceedings referred to
in paragraph 4 above and the urgent order) , can by any stretch of even the
most vivid or creative imagination, be construed as some sort of tacit
admission of liability.
91 This answer or rebuttal by the respondent must therefore fail ; a classic case
of a non-sequitur.
Intervention by the Court
92 The respondent also argues that because the application was issued on 20
March 2024, prior to the respondent having made known the outcome of its
investigations into the complaint (the latter of which occurred on 3 April
2024), this Court does not have authority or any power to intervene. For this
proposition the respondent relies on the judgment of Body Corporate of
Willow and Aloe Gro ve v City of Johannesburg and A nother (the ‘Willow
judgment’) in which the learned judge had the following to say in relation to
the nature of the relationship between the parties (that is to say the consumer
and the City) and the power of the Court to interfere with the agreement (that
is to say the Systems Act, the By- laws, the Policy and the Consumer
Agreement between the parties):
‘It is not unusual for the exasperated customers of municipalities the country
over to have to resort to the courts in a bid to resolve disputes. Regrettably,
this is often sought to be done without a consideration of the court’s function
and powers in the context of the relationship between municipalities and
citizens and the understanding that relief sought must comply with the legal
prescripts which govern this relationship.
23
23 Supra at para 1
51
[6] In this judgment I examine the legislative scheme which governs the
relationship between municipalities and their customers with reference
to debt recovery, credit control and dispute resolution. This
examination is done with the aim of clarifying the powers and function
of the court in this context.
24
[102] If there is a relationship of customer/service provider with the
municipality then the scheme must be shown to have been followed in
good faith. If an applicant is not a customer of the municipality (eg, a
tenant) he may approach the court on the basis that procedural
fairness is afforded not only to customers of the municipality but to any
person whose rights would be materially and adversely affected by the
termination of electricity supply or other service.
25
[105] Both applications fall to be dismissed because it is not competent for
an applicant to seek to circumvent the machinery of the legislative
scheme by resorting to court. An applicant may only seek that the
municipality comply with its obligations under the scheme. It cannot be
sought that the court supplants the municipality’s function.
26
[106] The dispute resolution machinery in the B y-Laws is not an optional
feature of the relationship which can be jettisoned in favour of
approaching a court when one or the other party becomes
dissatisfied’.
In conclusion, the court stated:
‘The relationship between customer and the municipality is contractual but
also has administrative and statutory components. Were a court to interfere
in the determination of the dispute, this would amount to an impermissible
incursion onto the contract of the parties. From an administrative perspective,
such intervention would amount to an impermissible interference with
24 At para 6
25 At para 102
26 At para 105
52
decisions which are to be taken by the municipality under the legislative
scheme’.
93
93.1 I do not however view this application and the relief sought as one
similar to that which the Court in the Willow judgment was dealing with.
This application does not require me to enter the arena to deal with the
complaint, such as whether for example the amount of the disputed
claim is correct or not . I am simply required to determine, whether,
based on the law as applied to the facts I can rely upon (and by
applying the Plascon-Evans rule), the respondent can sue for the
amounts comprising the disputed claim or whether its ability or right to
do so has prescribed. That I can do without entering the arena that the
Willow judgment warned against.
93.2 To the extent therefore that the respondent relies upon the Willow
judgment for support, it is distinguishable from this matter, and is of no
support to, or comfort for, the respondent’s cause / answer.
94 There is however another reason why I must reject the respondent’s
argument that the Willow judgment applies to this application and the relief
sought by the applicant and that is this; the urgent order allowed the
applicant, should it have so elected, to initiate this application and if the
respondent was of the view that it was legally impermissible for the applicant
to launch this application for relief relative to its claim of prescription, it was
open to the respondent to appeal at least this part of the urgent order – but it
did not.
Payment of the sum of R7 553 737.00
95 The urgent order compelled the applicant to make payment to the respondent
of an amount of R7 553 737,00, ‘which amount forms part of the subject
matter of the disputed amount and which payment is made without prejudice
to the applicant’s rights and without any admission of liability’.
53
96 It is part of the applicant’s claim in this application that the respondent be
ordered and directed to credit the municipal account with , inter alia, this
amount plus interest thereon at the prescribed rate.
97
97.1 I see no reason why the respondent, who has clearly received this
amount, should not be ordered to do so. T he fact that the respondent
may have queried (from whom, I know not) where the amount should
be allocated, is not a bar to granting the order. It, the respondent, was
actively involved in the interdict proceedings which resulted in the
urgent order and would presumably have full knowledge as to the facts
surrounding the payment and the very specific amount (not a round
amount) that the applicant was ordered to pay.
97.2 It is difficult to accept – and I do not accept – that the respondent is
unable to properly allocate the amount received by it , but assuming I
am wrong and there is some difficulty (which the respondent has not
identified), this is a difficulty that cannot be insurmountable and in any
event – however difficult it may be – the difficulty should not be visited
upon the applicant.
97.3 I would also think that allocating a very specific amount correctly to a
very specific indebtedness is basic accounting – something that I
believe I can assume is available inhouse to the respondent.
Order
98 The parties were required to tender the orders they proposed be made by the
court in this matter. Not surprisingly, they differed.
99 Having regard to what is stated above, the following order is granted:
99.1 departures from the Uniform Rules the terms of the order of court
dated 6 March 2024 under case number: 2024/023316 – that is to say
the urgent order – are hereby noted and condoned;
54
99.2 the respondent’s claim against the applicant in respect of electricity
back charges from 1 June 2025 until the end of May 2018 – ie, the
disputed claim – has prescribed through the effluxion of time;
99.3 the respondent is ordered and directed to reconcile and correct the
applicant’s electricity account number: 2[ …] (ie, the ‘municipal
account’) by reversing those charges which have prescribed (see
paragraph 99.2 above) as well as all consequential charges relating
thereto, such as interest, legal fees and disconnection / reconstruction
fees from the municipal account;
99.4 the respondent is ordered and directed to correctly credit the municipal
account by the amount of R7 553 737.00, which amount was paid by
the applicant to the respondent in terms of the urgent order;
99.5 the respondent shall, within ten days of the granting of this order,
furnish the applicant with a current updated and adjusted municipal
account reflecting the adjustments consequent upon the orders in
paragraph 99.3 and 99.4 above;
99.6 the reserved costs referred to in the urgent order (ie, the urgent
interdict referred to in paragraph 4 above) are to be paid by the
respondent on the party and party scale. (I explain the scale in
paragraph 100 hereunder);
99.7 the reserved costs of the applicant’s strike out application are to be
paid by the respondent on the attorney / client scale. (I explain the
scale in paragraph 101 hereunder); and
99.8 the costs of this application are to be paid by the respondent on the
party and party scale. (I explain the scale in paragraph 102
hereunder).
100
55
100.1 Insofar as the reserved costs in the urgent application are concerned,
the applicant contends that the respondent ought not to have opposed
same and that the defences (or purported defences as the applicant
calls them) raised by it were spurious.
100.2 Whilst there is in my view a strong argument to be had that at least
some of the defences raised by the respondent were completely
without foundation (and might – had those been the only defences
raised by the respondent – been worthy of an adverse cost order on an
attorney and client scale) , one cannot say the impediment defence
raised by the respondent had no prospect of success and was not
properly raised in this matter.
101 Insofar as the reserved costs in the applicant’s strike out application are
concerned, it is to be noted that the respondent was obliged to file its heads
or argument and practice note by 3 September 2024 but only did so on 6
May 2025 – some seven months later. That seven- month delay in complying
with a Court order is simply unacceptable in the absence of an exculpatory
explanation (and none has been proffered) and on that ground alone, a costs
order on the attorney and client scale has merit and is so ordered.
102 Insofar as this application is concerned, the applicant succeeded and for the
same reasons referred to in paragraph 100. 2 above, costs on the attorney
and client scale are in my view not merited , and costs on the party and party
scale are ordered.
103 All the costs orders – whether party and party or attorney / client – include
the costs of two counsel where so employed, and on scale C.
_______________________________
B R KAHN AJ
Judge of the High Court
Johannesburg
56
Counsel for the Applicant:
Advocate Anthony Michael SC
Advocate Gabriel Cross
Email: hemaligovind@evershedssutherland.co.za
Instructed by: Eversheds Sutherland (SA) Inc.
Counsel for Respondent:
Advocate Emmanuel Sithole SC
Advocate Ashanti Lifero
Email: mokgadi@mmogokareinc.co.za
Instructed by: Morata Mogokare Inc. c/o MMG
Attorneys