SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2023/049538
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE 20 October 2025
SIGNATURE

In the matter between:

BIR INVESTMENTS (PTY) LIMITED

Applicant

And

THE CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY

Respondent



JUDGMENT


INTRODUCTION
1. The applicant is the owner of Erf 3[...], B[...] View, Extension 6,
situated at 1[...] D[...] Road, B[...] View, Extension 6. This property
has a glass manufacturing business operating thereon.

2. The applicant also previously owned Erf 3[...], B[...] View,
Extension 6, situated at 1[...] D[...] Road, B[...] View, Extension 6.

3. The respondent supplied electricity to both these properties through
three electrical meters with meter numbers ending 566, 582 and 877.
These old meters remained on the applicant’s 1[...] D[...] Road
property until 8 April 2016, but were disconnected earlier than that,
on the 23rd of March 2011.

4. The applicant’s municipal account in respect of its 1[...] D[...] Road
property was closed in August 2012 and the charges that reflected
thereon were then transferred to the applicant’s municipal account in
respect of its 1[...] D[...] Road property.

5. A dispute subsequently arose between the applicant and the
respondent on whether the respondent had billed the applicant
correctly in two respects, namely, whether the respondent had
utilised an incorrect opening balance and secondly, whether the
respondent had employed an incorrect tariff. This dispute arose as
early as 15 August 2014 and has persisted despite the respondent
“re-billing” the applicant’s account on several occasions that span a
period of several years, from 2014 to date.

6. The “re-billing” by the respondent gave rise to further disputes
relating to the incorrect calibration of meters and/or the failure to
connect meters but to nevertheless charge the applicant for
consumption of electricity.

7. These disputes have not been resolved despite the invocation of
Section 102(2) of the Local Government: Municipal Systems Act,
No. 23 of 2000 (“the Systems Act”).

8. The applicant accordingly sought recourse from the High Court and
launched an application in May of 2023 for the following relief:
“1. The respondent is ordered to comply with its statutory
obligations and to attend to the following with regard to the
various account numbers of the applicant detailed below
within 14 days of this Court Order being handed down:

1.1 Account number 5[...]:

1.1.1 The City attends to writing off all electricity
consumption charges billed to this account
which are older than 3 years as at the
date of the handing down of this Order, as
same have become prescribed.

1.1.2 Reversing any/all interest and legal fees
(or miscellaneous fees where these were
charged for legal work done or notices
sent out) from the applicant’s account in
respect of charges that stand to be
reversed from same account;

1.1.3 Furnishing the applicant with an adjusted
statement of account showing that the
above adjustments have been attended
to, with suitable notations appearing on
the face of the account such that it is
impossible for the applicant to check the
accuracy of the reconciliation conducted
therein; and

1.2 The City and its subsidiaries do not terminate /restrict
or threaten to terminate/restrict the supply of
electricity or water to the premises in respect of
disputed purported arrears on the municipal account
until this dispute has been resolved by the account
having been adjusted as aforesaid.”

9. The respondent’s opposition to the application is somewhat curious.
It does not offer any substantive defence to the applicant’s
complaints relating to incorrect opening balances, incorrect tariffs
and the other billing issues raised by the applicant. It in fact admits
that there is incorrect billing by it. 1 Instead, the respondent has
attacked the formulation of the relief that is sought by the applicant
and has argued that such relief should not be granted:
9.1. firstly, because it is incompetent;
9.2. secondly, because a dispute that has been ringfenced
under Section 102 of the Systems Act, results in
prescription not commencing to run as the respondent is
precluded thereunder from claiming the ringfenced
disputed amount;
9.3. thirdly, the applicant had failed to make out a case in its
founding affidavit insofar as the date on which prescription
commenced to run and the amount that is set to have
prescribed; and
9.4. fourthly the applicant ought to have sought an order
reviewing the respondent’s failure to have taken a decision
to resolve the disputes because such a failure constitutes
administrative action or lack thereof.

10. In Euphorivia (Pty) Limited t/a Galagher Estates v City of

1 See the respondent’s answering affidavit: pp11-42, para 83.

Johannesburg,2 the court stated the following:
“17. In the absence of special circumstances, considerations of
policy, practice and fairness require that the City is
saddled with the onus of proving the correctness of its
meters, the measurements of water consumption and
statements of account rendered pursuant thereto. It
cannot reasonably be expected from the consumer,
having raised a bona fide dispute concerning the services
delivered by the City, to pierce the municipal veil in order
to prove aspects that fall peculiarly within the knowledge
of and are controlled by the City … It accordingly raised a
bona fide dispute as to the City’s billing in regard to the
services, and the City bore the onus to prove the
correctness thereof.”

11. As this judgment has pointed out earlier, the respondent has failed to
do so. Instead, the respondent submitted that it did not know and
was therefore unclear as to what the disputes were.

12. In 39 Van der Merwe Street Hillbrow CC v City of Johannesburg
Metropolitan Municipality and Two Others 3 the court lay down the
requirements of what a dispute would entail and said the following in
this regard:
“1. There must be a dispute in the sense of a consumer on
the one hand and the municipality on the other advancing
irreconcilable contentions.

2. The dispute must be properly raised which would require
at least that it be properly communicated to the
appropriate authorities at the municipality and that this be
done in accordance with any mechanism and appeal

2 [2016] ZAGPPHC 548 (17 June 2016) at paras 10-17.
3 [A judgment of Acting Judge Dodson AJ handed down on 24 March 2023].

procedure provided in terms of Section 95(f) of the
Systems Act for the querying of accounts.

The dispute must relate to a specific amount or amounts or a
specific term or items on an account or accounts with the
colleary that it is insufficient to raise a dispute in general terms.

The consumer must put up enough facts to enable the
municipality to identify the disputed item or items and the basis
of the rate payer’s objection to them.

Finally, it must be apparent from the founding affidavit that the
aforegoing requirements have been met.”


13. Having regard to these requirements , there can be no doubt that a
dispute exists and that it was communicated to the respondent and
that the respondent knew and appreciated what that dis pute was.
The applicant had put up enough facts to enable the respondent to
identify the disputes and the basis upon which the applicant objected
to the billing made by the respondent.4

14. It is against this background that I now turn to deal with the
applicant’s claim that certain amounts had prescribed and that an
order to that effect be made.

PRESCRIPTION

15. The electricity charges that are disputed by the applicant are not
taxes. They are ordinary debts that extinctively prescribe after 3
years in terms of the Prescription Act, No. 68 of 1969.

4 See also: Body Corporate Croftdene Mall v Ethekwini Municipality [2012] 1 ALL
SA 1 (SCA).

16. It is common cause that the respondent has not instituted any action
to recover any of the amounts disputed by the applicant. It
nevertheless contended that none of the disputed amounts had
prescribed inter alia because:
16.1. it was prohibited by the Systems Act to institute action for
the recovery of those disputed amounts until a resolution
of those disputes had occurred. Consequently, so the
argument went, for so long as the dispute remained in
extent, the issue of prescription did not arise.

17. This argument was dealt with in Tarica and Another v City of
Johannesburg.5

18. In that matter, Mahon AJ concluded that the respondent’s argument
that it was precluded by its internal policies to issue summons on
disputed debts was without merit. The learned acting judge held that
the Prescription Act applied independently of internal policies or
administrative practices of municipalities. Those policies and
practices did not, so it was held, have the effect of overriding the
Prescription Act.

19. In his judgment for leave to appeal 6, Mahon AJ was called upon to
address a further defence raised by the respondent, namely that in
terms of the Systems Act, the respondent was precluded from
issuing summons and thus prescription could not have begun to run
for so long as the disputes raised by the applicant in that matter had
remained unresolved. The learned acting judge concluded that the
Systems Act did not have the effect of interrupting prescription.


5 Unreported judgement of Mahon AJ handed down on 27 January 2025 [2024]
ZAGPGHC 1261 (6 December 2024) and rejected.
6 Unreported judgment of Mahon AJ handed down on 25 August 2025.

20. Section 102 of the Systems Act provides that a municipality may
undertake a number of steps in relation to its municipal accounts
including the implementation of debt collection and credit control
measures in relation to any arrears on any municipal account.
Subsection (2) however prescribes that 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.

21. It is this subsection that the respondent argues has the effect of
preventing prescription from commencing to run.

22. Section 102 is part of chapter 9 of the Systems Act. That chapter
regulates the credit control and debt collection mechanisms that a
municipality must implement. Thus for example, section 95 under
that chapter imposes an obligation on a municipality to amongst
others establish a management system and mechanisms to address
the use of services by consumers. It includes the obligation to
provide accurate and reliable metering systems and to ensure that
consumers receive regular and accurate accounts that indic ate the
basis for calculating any amounts due.

23. Section 96 in turn imposes an obligation on a municipality to collect
all money that is due and payable to it, subject to the remaining
provisions of the Systems Act and any other applicable legislation.
For that purpose, a municipality is required to adopt, maintain and
implement a credit control and debt collection policy. Section 97 in
turn regulates what the debt collection policy must provide for.

24. The respondent’s debt collection policy which was approved by its
Municipal Council on 31 August 2022, contemplates a series of credit
control or debt collection mechanisms ranging from the conclusion of

acknowledgement of debts, telephone calls and messages,
disconnection of services and ultimately legal action.

25. The municipality’s recourse to legal action only arises in terms of its
debt collection policy after all other attempts to collect the debt due to
it has failed.

26. Insofar as disputes accounts are concerned, its policy provides for a
mechanism by which such disputes are to be attended to and
resolved but reserves for the consumer the right under section 34 of
the Constitution to have such dispute resolved before a court.
Significantly, even when a dispute has been raised by a consumer,
the policy contemplates that the consumer’s query be accompanied
by payment at least of the total amount outstanding on the account in
dispute. But perhaps more importantly, the policy provides that the
respondent’s City Manager may suspend any debt collection action
pending the outcome of any query or investigation.7

27. Thus having regard to the above, the question is whether the
provisions of section 102 of the Systems Act read with the
respondent’s policy have the effect of preventing prescription from
running.

28. The policy does not appear to accord with the respondent’s
interpretation of section 102(2) of the Systems Act. That is because
the policy appears to confer a discretion on the City manager to
suspend any debt collection which would include the issuance of
summons to collect a debt pending the outcome of any query or
dispute raised by a consumer. It does not suggest to the contrary,
that all debt collection action is as a matter of fact suspended or
prohibited in terms of section 102(2) of the Systems Act as now

7 See paragraph 16.10 of the Credit Control and Debt Collection Policy.

submitted by the respondent.

29. Neither section 102(2) of the Systems Act nor the respondent’s policy
prohibit legal action to be taken when a dispute has been raised and
not resolved. The section is cast as being inapplicable where there is
a dispute rather than stating that no action may be taken by a
municipality when there is a dispute. This is not surprising given that
the applicability of subsection (1) is limited to a dispute concerning a
specific amount claimed by the municipality from the person referred
to in that subsection.

30. The section cannot be interpreted as prohibiting the municipality from
ever instituting legal action to recover arrear amounts that may have
been disputed and which remain unresolved despite the process
contemplated by its own policy. That policy it should be recalled,
requires such disputes to be attended to within 90 days of the query
being lodged. The suggestion thus that the respondent is prevented
from instituting action indefinitely for so long as the dispute remains
unresolved is commercially insensible and results in an absurd
outcome that a municipality is barred from ever claiming amounts
which it contends are due to it as a result of a query that a consumer
claims has not been resolved.

31. This interpretation is moreover consistent with what Yacoob AJ found
in Argent Industrial Investment (Pty) Limited v Ekurhuleni
Metropolitan Municipality8 to the effect that the respondent may not
ignore its constitutional duties (which would include debt collection
and thus legal action) indefinitely by sitting back and failing to take
the necessary steps to collect that which it claims is due to it.

32. In addition, the respondent conflates when its debt became due with

8 An unreported judgment handed down on 13 February 2017 under case
number 17808/2016.

when the completion of prescription is delayed in certain
circumstances. The debt is due when the relevant services were
consumed by the applicant or at least when it received a tax invoice
or account claiming the amount due and the date on which such
amount had to be paid. At best for the respondent, what section
102(2) of the Systems Act does is to delay the completion of
prescription whilst the debt is the subject of a dispute raised by the
applicant. But section 13 of the Prescription Act does not
contemplate the delaying of prescription as a result of the existence
of a dispute contemplated by section 102(2) of the Systems Act.

33. It follows that the Systems Act does not have the effect of either
preventing prescription from running or delaying the completion of
prescription.

34. The respondent , recognising that this may be the result, then
submitted that prescription had in fact been interrupted because the
applicant continued to make payment of its monthly accounts thereby
admitting liability and thus interrupting prescription as contemplated
by section 14 of the Prescription Act. This argument was likewise
raised in Tarica and rejected . The payment by the applicant of its
monthly accounts does not constitute an admission of liability in
respect of amounts that have been disputed by it and which have
been ringfenced pursuant to Section 102(2) of the Systems Act. Nor
does that accord with what the respondent’s policy contemplates in
relation to disputed accounts. It falls to reason that this defence too
must be rejected.

35. In light of my conclusion that the respondent’s submissions that
prescription could not have commenced because it had been
precluded from instituting action or that the applicant had admitted
liability by making monthly payments, are rejected, there can be no

other impediment to the declaratory order sought by the applicant . In
this regard, Mahon AJ expressed reservations that by providing for
the date to be the date of the order, the respondent may be deprived
of raising any further defences to any amounts being claimed
between the date of the notice of motion and the date of the order.

36. The applicant has demonstrated that erroneous amounts have been
charged by the respondent. The respondent in part , accepts that.
The respondent however says that it cannot determine the exact
amount which the applicant claims has prescribed. That is a rather
curious submission given that the respondent would know what
amounts it c harged the applicant and what ha s been disputed in
terms of the applicant’s founding and replying affidavits.

37. The declaratory order sought by the applicant is that amounts older
than 3 years as at the date of this judgment have prescribed. The
dates on which the services were rendered and the tax invoices
generated by the respondent are known and have been identified by
the applicant in its founding affidavit. The earliest query arose in April
2014 relating to the incorrect billing of electricity and tariffs since
March 2011. Despite numerous re -bills, the queries remained
unresolved. A new meter was installed in April 2021 and according to
the applicant, thereafter correctly reflected the electricity
consumption by the applicant. The amount that the applicant
contends had prescribed at the time of the preparation of the
application, was an amount of R8,726,121.00. The respondent did
not attempt to dispute this amount or indicate in what respects it may
have been incorrect. It is common cause that the respondent has not
instituted legal action to recover that amount. It would therefore
follow that at the very least, such amount has prescribed and that a
declaratory order to that effect should be made. The applicant
however contends for a broader declaratory order in order to

overcome the practical difficulty of having to amend its notice of
motion every month to keep it up to date with the changing amount
that would prescribe each month . The respondent on the other hand
contends that the relief sought by the applicant does not identify a
specific amount and consequently it would be inappropriate to grant
such broad relief.

38. During the course of argument, Mr Sithole who appeared for the
respondent, requested a further opportunity to provide further written
submissions on whether this court may pare down the relief sought
by the applicant. Mr Sithole submitted in this regard, that acting
judges (as opposed to permanent judges) had the tendency to enter
into the fray and adopt a more sympathetic approach towards
consumers thereby presumably misdirecting themselves. I granted
Mr Sithole the opportunity to furnish con cise submissions after the
hearing and consequently also allowed the applicant to respond
thereto.

39. Further submissions were received from both Mr Sithole and Mr
Paige-Green. They were 12 pages each and certainly not concise. In
some respects they contained repetitions of what had already been
argued or raised in written submissions before the court. Mr Sithole’s
supplementary submissions in particular reiterated his oral
submission but went further to insinuate that should this court come
to the assistance of the applicant, it would result in an exceedance of
jurisdiction. Mr Sithole accordingly suggeste d that this court refer the
matter back to the respondent to deal with.

40. There is no justifiable basis for this matter to be referred back to the
respondent. The respondent had ample opportunity to address the
applicant’s queries and dispute. It failed to do so. It would also
undermine the respondent’s own policy that permits an aggrieved

consumer such as the applicant to ventilate its dispute in a court
pursuant to its section 34 Constitutional rights. In any event, little
purpose would be served in referring the matter back to the
respondent in circumstances where what is now being sought is a
declaration that amounts charged by the respondent have
prescribed.

41. Mr Sithole’s supplementary submissions also referred to further case
authorities and urged this court to engage with them in light of the
relief sought by the applicant. They were a repetition of all the
authorities that had been referred to and considered by Mahon AJ in
Tarica supra and which the learned acting judge distinguished and
found inapposite. This court has similarly engaged with those
authorities and endorses the conclusions and the reasons advanced
by Mahon AJ in that regard.

42. As pointed out earlier, the applicant is entitled at the very least to a
declaratory order that the amount of R 8,726,121.00 as at the date of
its application, had prescribed. The question is whether or not it
would be entitled to a declaratory order that amounts older than 3
years from the date of this order have prescribed. In light of the fact
that there is no dispute in relation to those amounts, and that no legal
action has been instituted by the respondent, there is no reason why
such an order cannot be granted. Such an order would include at the
very least, the amount of R8,726,121.00.

43. It would follow upon such a declarator y order that the respondent
would have to reverse all interest, legal fees and other miscellaneous
fees that were charged by it in respect of account number: 5[...] in
respect of those charges that relate to amounts older than 3 years as
at the date of this judgment.

44. Likewise, it would follow that the respondent would have to provide
the applicant with an adjusted account reflecting the reversal of the
amounts that had prescribed and the interest and/or other fees levied
in respect thereof.

45. Finally, it would follow from the above findings, that the respondent
may not terminate or threaten to terminate /restrict the supply of
electricity or water to the applicant’s property in respect of account
number: 5[...] in relation to the amounts that have been declared to
have prescribed.

ORDER
46. In the result, I make the following order:
46.1. the electricity consumption charges billed by the
respondent on account number 5[...] that are older than 3
years as at the date of this order (inclusive of the amount
of R8,726,121.00) have prescribed;
46.2. the respondent is ordered, within 14 days of this order, in
respect of account number: 5[...] to:
46.2.1. write off the electricity consumption charges
billed to such account that are older than 3
years as at the date of this order;
46.2.2. reverse any and all interest and legal fees or
miscellaneous fees on such account in respect
of the electricity consumption charges that had
been billed and which were older than 3 years
as at the date of the handing down of this order;
46.2.3. furnish the applicant with an adjusted statement
of account reflecting the adjustments to be
made in 46.1.1 and 46.1.2 above with suitable
notations appearing on the face of the account
in order to enable the applicant to check the

accuracy of the reconciliation and adjustment
made by the respondent.
46.3. the respondent is interdicted from terminating, restricting
and/or threatening to terminate or restrict the supply of
electricity or water to the applicant’s property being Erf
3[...], B[...] View, Extension 6, located at 1[...] D[...] Road,
B[...] View, Extension 6 in respect of the amounts that
have prescribed and which the respondent has been
ordered to write off in terms of prayer 46.1 above.
46.4. the respondent is to pay the costs of this application on a
party and party scale, scale C.9


M A CHOHAN

ACTING JUDGE OF THE GAUTENG LOCAL DIVISION

20 October 2025




DATE OF HEARING: 07 October 2025




DATE OF JUDGMENT: 20 October 2025

9 The applicant sought costs on the attorney and client scale principally because of the fact
that the dispute had been ongoing since 2014 and despite various attempts made by it, the
respondent was uncooperative. There is considerable merit and justification for the scale of
costs being sought by the applicant. I have nevertheless, in the exercise of my discretion,
considered that it would be fair and reasonable to order costs on the party and party scale
but on scale C.

APPEARANCES:


FOR THE APPLICANT: Adv. T. Paige-Green
Instructed by: HBGSchindlers Attorneys






FOR THE RESPONDENT: Adv. E. Sithole
Instructed by: Ramushu Mashile Twala Inc.
Attorneys