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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 DIVISION, JOHANNESBURG
CASE NO: 2024-007135
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
3 November 2025
In the matter between:
TRGK INVESTMENTS (PTY) LIMITED Applicant
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
Respondent
This Order is made an Order of Court by the Judge whose name is reflected herein, duly
stamped by the Registrar of the Court and is submitted electronically to the Parties / their
legal representatives by email. This Order is further uploaded to the electronic file of this
matter on Caselines/CourtOnline by the Judge’s secretary. The date of this order is deemed
to be 3 November 2025.
___________________________________________________________________
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J U D G M E N T
LIEBENBERG AJ:
INTRODUCTION
[1] This is yet another chapter in the tumultuous relationship between the applicant
and the respondent . The applicant is the registered owner of immovable
property within the area of jurisdiction of the respondent, the City of
Johannesburg Metropolitan Municipality (“the CoJ”) . The applicant holds an
account with the CoJ in respect of rates, taxes and other imposts, as well as
the costs of water and electricity consumption. Similar to so many other
customers of the CoJ , the applicant has had endless challenges in receiving
accurate and proper accounts from the CoJ.
[2] The source of the applicant’s discontent is five different invoices raised by the
CoJ during the period May to July 2017, when the latter purported to reverse all
previous charges in respect of the applicant’s property and re- bill the applicant
for the period December 2012 to July 2017 and demanding payment of
R 4 136 356.65. This amount is in respect of property rates, charges for
consumption of water and electricity , and interest . Th ese particular invoices
gave rise to a dispute being declared by the applicant during or about August
2017.
[3] When, during July 2018, the water supply to the applicant’s property was
disconnected, the applicant’s representative sent an email to the CoJ,
confirming the existence of the unresolved dispute and the bases for the
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dispute. The applicant received no reply to its email, nor was the dispute
resolved.
[4] Despite the existing dispute, the CoJ disconnected electricity supply to the
applicant’s property during August 2019. As a result of this disconnection, the
applicant launched a bifurcated application out of this Court . Part A thereof,
being for urgent relief , was heard on 3 September 2019, and resulted in the
reconnection of services.
[5] Part B of that application was postponed, and, after failed attempts to reach
middle ground, was enrolled for hearing by the applicant . The matter
eventually came before Wright J who granted on order on 11 May 202 1 (“the
Wright order”). The Wright order provided inter alia:
1. The Respondent is ordered to apply the business and commercial
category in its valuation roll 2013 in levying property rates against [the
applicant’s property] for the period 1 July 2015 to 20 June 2018.
2. The Respondent is ordered to apply the business and commercial
category in its valuation roll 2018 in levying property rates against [the
applicant’s property] for the period 1 July 2018 to implementation of
replacement valuation roll pertaining to the property.
3. The Respondent is directed to deliver a duly vouched and accurate
account (“the revised account”) in respect of Municipal Services
(municipal account number …) to [the applicant’s property] to the
Applicant within 10 (Ten) days from date of this order.
4. The Applicant shall lodge any objections to the revised account in writing
within 5 (Five) days from the date of delivery if [sic] the revised account;
5. The Respondent shall deliver its response to the Applicant’s objections
to the revised account within 5 (Five) days from the date of delivery of
the Applicant’s objections.
…
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[6] By November 2021, the CoJ corrected its accounts in relation to the property
rates and interest of those amounts previously levied incorrectly. In relation to
municipal services, the CoJ did not deliver the revised account within 10 days
or any time thereafter.
[7] Consequently, the applicant launched a contempt of court application, and
obtained, on 7 June 2022 on an unopposed basis, an order granted by Twala J
in the following terms:
1. The First Respondent [ the CoJ] is in contempt of paragraph 3 the Court
Order granted by the Honourable Judge Wr ight on 11 May 2021, under
case number 30248/2018 in the above Honourable Court; in that it failed
and/or refused to deliver a duly vouched and accurate account in
respect of Municipal Services (municipal account number …) to [the
applicant’s property] the Applicant within 10 (Ten) days from the date of
the order granted on 11 May 2021;
2. The Respondents [the CoJ and the Municipal Manager ] are directed to
forthwith provide a duly vouched and accurate account in respect of
Municipal Services (municipal account number …), to [the applicant’s
property] by:
2.1. Reversing all interest charges levied on municipal account
number […];
2.2. Accurately re-billing the water and sanitation charges from 7
September 2012 to date and providing proof of same in relation to
municipal account number […]; and
2.3. Accurately re-billing electricity charges from 1 December 2012 to
date and providing proof of same in relation to municipal account
number […];
2.4. Providing the applican t with source documents relating to the re-
billing of the account.
3. If the Court order granted by the Honourable Justice Wright on 11 May
2021, under case number 30248/2019 is not fully complied with w ithin
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10 (ten) calendar days, the [City] will be fined the sum of R 25 000.00
(Twenty-Five Thousand Rand) per day until the Court Order has been
complied with; …
[underlining added]
(“the Twala order”)
[8] On 25 August 2022 Twala J varied paragraph 3 of his order by the deletion of
the underlined portion reflected above.
[9] Attempts to reach agreement, including convening a meeting between the
parties and their legal representatives came to naught , until 22 September
2023 when the CoJ’s former attorneys provided part of the vouched account
referred to in both the Wright and Twala orders.
[10] This application was launched on 25 January 2024 for an order in the following
terms:
1. Declaring that all unpaid electrical charges, water charges and interest
and/or penalties on such charges levied by the respondent in respect of
the [the applicant’s property] situated at […] ("the property") on account
number […] ("the account') for the period prior to 30 April 2017, have
become prescribed in terms of the Prescription Act, Act 68 of 1969 ("the
Prescription Act");
2. Directing the respondent to reverse all unpaid electrical charges, water
charges and interest and/or penalties on such charges levied by the
respondent on the account in respect of the property for the period prior
to 30 April 2017.
[11] The present application was marred by several delays caused by the CoJ ’s
failure to adhere to the Rules of Court and the practice directives of this
Division. It was some 18 months after this application was launched that it was
heard on the opposed motion roll.
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CONDONATION
[12] At the hearing, the first order of business was the CoJ ’s interlocutory
application for condonation for the late filing of its answering affidavit, which the
applicant opposed. Having heard argument, this Court dismissed the
interlocutory application, intimating that reasons will follow, and the Court
directed that the matter is to be argued on the founding affidavit only. These
are the reasons for the order so granted.
[13] The CoJ’s non-compliance with the Rules of Court must be gauged against the
following uncontroverted facts:
a. The present application was served on the CoJ ’s representatives by the
sheriff of the court on 31 January 2024.
b. Out of courtesy, the applicant’s attorneys directed an email to Mr Louw of
the CoJ ’s then-attorneys of record ( “M & R”) on 21 February 2024
confirming that M & R had been invited to CourtOnline and affording the
CoJ time until 8 March 2024 to file its answering affidavit.
c. In his email of 26 February 2024, Mr Louw advised that M & R it did not
have instruction from the CoJ regarding this application and would advise
the in-house legal advisors of the matter. M & R requested a copy of the
application via email. The applicant’s attorneys obliged the next day.
d. When no word was received from the CoJ or M & R , the applicant caused
the matter to be enrolled in the unopposed motion court roll of 13 June
2024.
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e. On 15 May 2024, Ms Kagiso of Ncube Inc telephoned the applicant’s
attorneys regarding the matter. On the same day, the CoJ ’s notice of
intention to oppose the application was delivered, that is some four months
after service of the application on the CoJ.
f. On Thursday 6 June 2024, being a day after the answering affidavit was
due for service, the CoJ’s attorneys requested a copy of annexure “PS10” to
the founding affidavit , notwithstanding the entire application with all the
annexures thereto having been uploaded on CourtOnline, and it previously
having been emailed to M & R . Nonetheless, t he applicant’s attorneys
dispatched a copy of the annexure on Monday, 10 June 2024.
g. In the face of the CoJ ’s opposition, the application was removed from the
unopposed motion roll of 13 June 2024.
h. Still, the CoJ’s answering affidavit was not delivered.
i. By notice served on 4 September 2024, the application was again enrolled
on the unopposed motion roll for 16 September 2024.
j. Just after 8:00 on the morning of 16 September 2024, the CoJ’s attorney
dispatched an unsigned version of the answering affidavit.
k. It was only at 9:50 on the morning of 16 September 2024, and unbeknownst
to the applicant’s counsel and the Court, that the CoJ’s answering affidavit
together with an application for condonation, was served.
l. There was no appearance for the CoJ at hearing on 16 September 2024,
and the Court granted the order sought. By all accounts, the presiding
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judge insisted on an affidavit from the CoJ’s attorneys to explain the late
filing of the answering affidavit and the non- appearance in his Court at
10:00 on 16 September 2024. Such an affidavit was filed on 17 September
2024.
m. Subsequently, and by agreement between the parties, the order of 16
September 2024 was recalled on 18 September 2024, and replaced with an
order removing the application for the unopposed roll.
[14] Rule 27 of the Uniform Rules of Court deals with the extension of time periods,
the removal of bar and condonation. Both subrules (1) and (3) require that
‘good cause’ be shown. The subrules afford a court a wide discretion which
must be exercised in the interests of justice. 1 Condonation is not merely for the
asking. A party seeking condonation must make out a case entitling it to a
court's indulgence. This includes showing sufficient cause and providing a full
and reasonable explanation for the non- compliance with the rules or a court's
directions.2
[15] Litigants cannot disregard the court rules with impunity. 3 When a litigant
realises that it had not complied with the rules, it must make application for
condonation without delay, otherwise it will have to explain, not only the
reasons for the non- compliance, but also the reasons for the delay in seeking
condonation.
4
1 Grootboom v National Prosecuting Authority and another 2014 (2) SA 68 (CC) at para 22
(“Grootboom”).
2 Grootboom above at para 23.
3 See eThekwini Municipality v Ingonyama Trust 2013 (5) BCLR 497 (CC) ([2013] ZACC 7 );
Grootboom above at para 37.
4 Mulaudzi v Old Mutual Life Assurance Co (South Africa) Ltd and Others 2017 (6) SA 90 (SCA) at
[26]
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[16] In exercising its discretion, a court must consider weighty factors including the
degree of non- compliance, the explanation for such non- compliance, the
importance of the matter, and defaulting party’s prospects of success on the
merits.5 It is not a mechanical process, but one involving the balancing of
more often than not, competing factors.6 For non-compliance with court rules
prejudices not only other litigants involved but also the administration of
justice.7
[17] The CoJ served its answering affidavit incorporating its application for
condonation some nine months after service of the application, and four months
after delivery of its intention to defend. The explanation proffered for this delay
is tenuous and lacklustre at best. Given the paucity of the allegations in
support of the application for condonation, the full extent thereof is quoted
below:
78. As indicated above, the Municipality is an organ of state and it is
entrusted with the critical obligation towards the residents of its
jurisdiction.
79. The Municipality and its representatives appreciate the need to comply
with the rule of this honourable court.
80. Further to the above, the relief sought in the present application is of
great importance and that the Municipality contents [sic] that it is would
not serve the interest of justice if the applicant's application was to
proceed with on an unopposed basis.
81. As indicated above, upon receipt of the applicant's application, which on
its own is voluminous and deals with the historical meters and issues
5 See Ferris and another v FirstRand Bank Ltd 2014 (3) SA 39 (CC) para 10; Federated Employers
Fire & General Insurance Company Limited & another v McKenzie 1969 (3) SA 360 (A) at 362F -
G; Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and
others [2013] 2 All SA 251 (SCA) para 11.
6 See Valor IT v Premier, North West Province and Others 2021 (1) SA 42 (SCA) at para 38.
7 Grootboom above at paras 32 – 34.
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which goes as far back as 2012 and to this extent the Municipality's
representatives deemed it appreciate [sic] in order to avoid litigation to
inter alia:
81.1 consult with the Municipality representatives from different relevant
departments which include the billing and the CoJ power officials;
81.2 invite and meet with the applicant and its representatives in order to
explain the factual basis of the account which happened between
the parties.
82. The parties and their representative met and discussed the issue of the
meters and it was appreciated by the applicant and its representatives
that there is incorrect billing on any of the invoices submitted.
83. The point of law to be debated in this application is very critical in that
the applicant does not seek any remedial prayer against the alleged
incorrect billing, in fact, the applicant accepts that it is liable to the
Municipality but claims that the outstanding amount has prescribed.
84. I am advised that it would be in the interest of justice for this honourable
court to permit the filing of this affidavit and also consider the contents
and evidence attached to it.
85. The relief sought in the notice of motion are serious and if granted they
will have divesting and adverse impact on the Municipality's endeavour
to collect revenue and this will negatively affect the service delivery.
86. I therefore plead that in the interest of justice this affidavit stands to be
admitted.
87. I am further advised that the interest of justice and fairness would not
be served in the event where the applicant's application is heard in
absence of the Municipality's affidavit and that the applicant would not
be prejudiced by the granting of the condonation for many reasons,
such as, that the applicant continues to enjoy the services and the
granting of the condonation would not change the status or the position
of the applicant.
88. In addition to the above, it is worth mentioning that the current
of the applicant.
88. In addition to the above, it is worth mentioning that the current
Municipality's representatives came in as a result of the former
attorneys failure to oppose the present application and they took every
possible step to provide this Court with the facts and evidence in
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opposing the drastic relief sought by the Applicant in its notice of
motion.
89. I therefore plead for the condonation to be granted as fully set out in the
notice of motion.
[18] The CoJ made no attempt to explain, fully or otherwise, the reasons for its
non-compliance with the Rules of Court and proffered no basis upon which this
Court could find that the excuse proffered is reasonable in the circumstances.
a. It gives no details of the date of alleged meetings held with “ Municipality
representatives”.
b. There is no indication of the alleged meeting between the parties and their
representatives. This must be gauged against the facts proffered by the
applicant, not only in its answering affidavit to the condonation application,
but the founding affidavit in the main application, that the only such meeting
between the parties occurred prior to the institution of this application.
c. There is also no explanation for the contradictory allegations in paragrap h
88 of the affidavit (quoted above) and the contents of M & R’s letter of 26
February 2024 recording that M & R did not have any instructions from the
CoJ regarding the present application.
[19] The uncontroverted facts referred to above together with the paucity of the
explanatory facts the CoJ proffered accentuate the perception that the CoJ
acted with impunity in utter disdain for the Rules of Court.
[20] As to the CoJ ’s defence to the relief sought , the answering affidavit is replete
with extensive quotations from legislation, its own bylaws and various
judgments but scant on factual allegations to gainsay the applicant’s allegations
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of the CoJ’s disregard of the rights of its consumer, the applicant, and orders of
this Court. In sum, the answering affidavit did not lay a factual foundation for
the CoJ’s supposed defence.
[21] To add insult to injury, the CoJ’s contempt of Court, its rules, and its practice
directives extended to its failure to file its heads of argument timeously. This is
demonstrated by the following facts:
a. On 12 August 2025, the applicant sought and obtained an order compelling
the CoJ to deliver its practice note, heads of argument, list of authorities and
chronology within five days from service of the order.
b. Under cover of an email dated 12 August 2025, the applicant’s attorneys
dispatched a copy of the (unsigned) order granted that day. The duly
signed and uploaded order was served via email on 29 August 2025.
c. It was only at 21:34 on Thursday, 4 September 2025 at the CoJ ’s heads of
argument were uploaded onto the electronic case file. Needless to say, the
CoJ’s representatives did not cooperate in facilitating the compilation of joint
practice note, as mandated by the practice directives of this Court.
[22] During argument, Mr Sithole, who appeared for the CoJ , repeatedly called for
condonation to be granted as the matter is of “ great importance” to his client,
and to do so in the interests of justice.
[23] A prayer for condonation to be granted on the basis of the interests of justice
cannot and does not exist in a vacuum. The interests of justice involves
balancing the rights, responsibilities, and interests of both parties as well as the
administration of justice. The ultimate determination is case -dependant, and
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requires due regard being had to all relevant facts and circumstances of the
particular case. Nonetheless it remains incumbent on the CoJ to make out a
proper case for the indulgence it seeks.
[24] Had the CoJ regarded the matter so important, one would have expected it to
take all reasonable steps timeously to obtain a proper ventilation of the issues.
This, the CoJ did not do. Accordingly , the application for condonation was
refused. Further, t here is no cogent reason why costs in respect of the
interlocutory application should not follow the result.
THE APPLICANT’S CASE
The impugned invoices
[25] The applicant’s query was aimed at rates, taxes, and water and electricity
consumption charges raised in five different, jumbled and unintelligible invoices
dispatched during the period May to July 2017. These objectionable invoices
are:
a. In respect of May 2017, the invoice dated 25 May 2027 reflecting an amount
of R 28 537.65 due and payable on 25 May 2017. Yet , it includes to debits
in respect of property rates dating back to November 2013, in an aggregate
of R 1 506 590.36. In respect of water and sanitation, over a reading period
of 1 707 days, between 7 September 2012 and 10 May 2017, the CoJ
raised debits and passed credits in an aggregate of R 4 513 319.27.
Additionally, cleaning levies and surcharges were raised, resulting in
“Current Charges” of R 6 130 081.57
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b. The invoice dated 20 June 2017, for June 2017, reflecting a payment of
R 31 680.05, and recording the amount due as - R 3 467 650.12. The
invoice includes five different credits having been passed in respect of
electricity consumption, with no refence to the period of s uch consumption,
together with a credit in respect of VAT.
c. The invoice dated 22 June 2017, but in respect of March 2017, depicts an
amount of R 3 654 040.89 as due for payment on 22 June 2017. The
invoices related only electricity consumption charges, based on estimated
readings over a period of 1 553 days between 1 December 2012 and 2 May
2017, and a 2% surcharge on business charges, resulting in “ Current
Charges” of R 7 361 219.85
d. The invoice dated 1 July 2017, also for June 2017, depicts an amount of
R 4 136 356.65 as due for payment on 17 July 2017. The invoice reflects
an amount of R 3 705 295.59 as being 30 days past due date. It details only
electricity consumption charges, based on partly actual , partly estimated
readings over a reading period of 92 days between 3 March and 2 June
2017, and a 2% surcharge on business charges, resulting in “ Current
Charges” the amounting to R 426 461.38.
e. The invoice dated 6 July 2017, for July 2017, shows “Current Charges” which
include property rates, water and sanitation charges, a city cleaning levy,
and a 2% surcharge on business services, amount ing to R 97 774.54. Yet,
the amount outstanding is R 4 233 823.21 which was payable on 21 July
2017.
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[26] Faced with these different invoices the applicant, with the assistance of an
agent, lodged a dispute with the CoJ and received a reference number. At the
time, the CoJ was threatening the applicant with disconnecting its water and
electricity supply and attempted to force the applicant to provide the CoJ with
an acknowledgement of debt. Refusing to provide such a document, the
applicant made two payments of R 351 997.56, without prejudice and in good
faith, one on 28 October 2017 and the second on 20 December 2017. These
payments were made to the hope of preventing continued threats of
disconnection. In addition to these two payments , the applicant continued to
make payments monthly in amounts equal to the “Current Charges” reflected
on the CoJ’s subsequent invoices.
[27] The bases for the applicant’s dispute include that:
a. The applicant had paid in full the invoices previously dispatched by the CoJ,
because those invoices correctly reflected that a part of the applicant’s
property was vacant, and another portion had been used for warehousing.
b. Subsequently, the portions of the property have been used as part of the
manufacturing business, rendering the “back charge” and recalculation of
the estimated consumption charges on the previously unused portions
incorrect.
c. The charges recalculated between 2012 and 2016 have become prescribed.
d. The additional payments made by the applicant were made as a gesture of
good intent which had not been reciprocated by the CoJ.
e. Despite several reports of a leaking water meter, it was yet to be repaired.
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f. The applicant was yet to received calculations or explanations to its query.
The 2019 application
[28] The CoJ dragged its proverbial feet in resolving the dispute, and despite the
existing dispute, either threated to or in fact disconnected municipal ser vices to
the applicant’s property . Th is led to the applicant launching a bifurcated
application in August 2019 under case number 30248/2019. Part A thereof was
heard in the urgent court on 2 September 2019, and the CoJ was ordered to
reconnect electricity supply to the applicant’s property.
[29] In a letter dated 30 September 2019, M & R recorded the CoJ’s proposal for the
parties to resolve the matter amicably by convening a meeting, once the CoJ
had obtained the necessary documentation. The proposed meeting was
eventually convened on 11 March 2020, but no settlement could be reached.
Accordingly, the applicant caused Part B of the application to be set down for
hearing on 24 March 2020. Because of correspondence from M & R,
conveying the CoJ’s wish to resolve the dispute amicably and its continued
attempts to obtain necessary documentation , the matter was removed f rom the
roll.
[30] Then the CO VID-19 pandemic and resultant national lockdown struck. By
November 2021, the CoJ still had not reacted to correspondence from the
applicant’s attorneys. Accordingly, Part B was enrolled from hearing on 11 May
2021 when the Wright order was granted. The Wright order addressed both
property rates to be raised in accordance with the correct category on the
relevant valuation rolls, as well as the delivery of a revised account in respect of
municipal services.
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The contempt application
[31] Ostensibly, the Wright order galvanised the CoJ into adjusting the property
rates levied on the applicant’s property, in accordance with the correct valuation
rolls, and only in November 2021 passing a credit in respect of interest charged
on the incorrect property rates. Yet, despite numerous demands to comply with
the Wright order, the CoJ failed to deliver duly vouched and accurate accounts.
[32] The CoJ’s failure gave rise to the Twala order of 7 June 2022, in terms whereof
the CoJ was convicted of contempt of court, sentenc ed to payment of a fine,
and again direct ed delivery of an accurate account with specific reference t o
the items in dispute and the relevant time period, including by reversing all
interest charges, accurately re- billing the water and sanitation charges from 7
September 2012, the electricity charges from 1 December 2012, and providing
the applicant source documents. Pertinently, the Twala order was granted on
an unopposed basis.
[33] It was only some 15 months after the Twala order , and under cover of M & R’s
letter dated 22 September 2023, that the CoJ provided the source documents
related to the re- billing of the applicant’s electricity account as per the May
2017 invoice. The source documents included:
a. A commissioning sheet dated 26 May 2016, confirming the installation of a
new electricity meter at the applicant’s property. Apparently, the new meter
was necessitated by the fact that the previous meter had not been
registering all the consumption because the “CT ratio ” had not been
programmed accurately.
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b. A spreadsheet containing the data used to re -bill the account, based on
readings obtained from the old meter before it was reprogrammed and after
it was reprogrammed with the correct “CT ratio”.
c. The spreadsheet also reflected that the applicant was underbilled between
30 April 2014 and 30 April 2017, and it reflected the CoJ’s actual reading
sheet prior to re- programming of the electricity meter and the new reading
sheet used to re-bill the applicant.
[34] In respect of the applicant’s query regarding its water consumption, M & R
relayed their instructions that Joburg Water had attended at the applicant’s
property and advised that the applicant must apply for a new water connection
through the City's revenue department. M & R undertook to elaborate further on
the CoJ’s findings upon receipt of its site inspection report.
[35] The letter concluded “…the query on your client's electricity account is deemed
to be resolved ln terms of Section 11(5) of the CoJ’s Credit Control a nd Debt
Collection Bylaw and therefore, the amounts due is payable within a period of
21 days.”
[36] This application followed in January 2024.
THE LEGISLATIVE FRAMEWORK IN RESPECT THE COJ AND ITS
CONSUMERS
[37] The CoJ is a municipality established in terms of the Constitution and derives
its powers to impose fees, charges, rates and other municipal taxes from
section 229(1)(a) of the Constitution.
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The Municipal Systems Act
[38] The Local Government: Municipal System’s Act8 (“the Systems Act”) envisages
a number of different policies which a municipality, such as the CoJ, must adopt
and implement, including by the adoption of bylaws.
[39] Part 1 of Chapter 8 (being sections 74 to 75A) of the Systems Act caters for the
adoption and implement ation of a tariff policy on the levying of fees for
municipal services,9 which policy must compl y with the provisions of the
System’s Act, and for the adoption of bylaws to give effect to such tariff policy
and to enforce such policy.
[40] Chapter 9 (comprising section 95 to 104) of the Systems Act regulates credit
control and debt collection measures by a municipality.
[41] By virtue of section 95, in relation to the levying of rates and other taxes by a
municipality and the charging of fees for municipal services, a municipality must
within its financial and administrative capacity inter alia:
(c) take reasonable steps to ensure that users of services are informed of
the costs involved in service provision, the reasons for the payment of
service fees, and the manner in which monies raised from the service are
utilised;
(d) where the consumption of services has to be measured, take
reasonable steps to ensure that the consumption by individual users of
services is measured through accurate and verifiable metering systems;
8 Act 32 of 2000.
9 “Municipal service” being defined in section 1 as “a service that a municipality in terms of its powers
and functions provides or may provide to or for the benefit of the local community irrespective of
whether - (a) such a service is provided, or to be provided, by the municipality through an internal
mechanism contemplated in section 76 or by engaging an external mechanism contemplated in
section 76; and (b) fees, charges or tariffs are levied in respect of such a service or not”.
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(e) ensure that persons liable for payments, receive regular and accurate
accounts that indicate the basis for calculating the amounts due;
(f) provide accessible mechanisms for those persons to query or verify
accounts and metered consumption, and appeal procedures which allow
such persons to receive prompt redress for inaccurate accounts;
(g) provide accessible mechanisms for dealing with complaints from such
persons, together with prompt replies and corrective action by the
municipality;
(h) provide mechanisms to monitor the response time and efficiency in
complying with paragraph (g) …
[underlining added]
[42] Section 96 mandates a municipality to collect all money that is due and payable
to it, subject to the Systems Act and any other applicable legislation. For this
purpose, it must adopt, maintain and implement a credit control and debt
collection policy which is consistent with its rates and tariff policies , and which
complies with the provisions of the Act. The contents of a municipality’s credit
control and debt collection policy are prescribed in section 97 of the Act . Such
policy must provide for debt collection procedures and mechanisms ,10 interest
on arrears, where appropriate, 11 extensions of time for payment of accounts ,12
and the termination of services or the restriction of the provision of services
when payments are in arrears.13
[43] Section 102 of the Systems Act, dealing with accounts, stipulates:
(1) A municipality may-
…
10 Section 97(1)(b).
11 Section 97(1)(e).
12 Section 97(1)(f).
13 Section 97(1)(g).
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(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.
(2) 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.
[44] In Body Corporate of Croftdene Mall v eThekwini Municipality 14 the Supreme
Court of Appeal held that s ection 102(2) of the Systems Act requires that the
dispute must relate to a specific amount claimed by the municipality. Thus,
when raising a dispute, a customer, such as the applicant, 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 customer’s objection thereto. If an
item is properly identified and a dispute properly raised, then debt collection
and credit control measures cannot be implemented in relation to that item. But
such measures could be implemented in respect of 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.
[45] Ultimately, the Systems Act requires that disputes in relation to specific charges
on a municipal account must be dealt with through a co- operative structure
which places obligations on both the customer and the municipality . It affords
the customer procedural fairness, which includes an internal appeal mechanism
provided for in section 62.
15
The CoJ’s relevant Bylaws
14 2012 (4) SA 169 (SCA) at para 22.
15 Body Corporate of Willow and Aloe Grove v City of Johannesburg and Another [2023] ZAGPJHC
1451 (11 December 2023) at para 19 (“Willow and Aloe Grove”).
22
[46] To ascertain whether the applicant’s complaints fall within the ambit of section
102(2), it is necessary to investigate the provisions of the CoJ’s Bylaws.
[47] Even prior to the promulgation of the Systems Act, the CoJ had adopted
various Bylaws also in relation to credit control and debt collections, electricity,
and water services , which Bylaws have been amended from time to time. As
the applicant’s dispute with the CoJ arose during or about July/August 2017,
the applicable Bylaws are:
a. The Credit Control and Debt Collection Bylaws of 2004 (“the Credit Control
Bylaws”);
b. The Greater Johannesburg Metropolitan Electricity Bylaws of 1999 (“the
Electricity Bylaws”); and
c. The Water Services Bylaws of 2003 (“the Water Bylaws”).
The Credit Control Bylaws
[48] Chapter 3 of the Credit Control Bylaws regulates matters of account
administration.
[49] In terms of s ection 10, which deals with account administration, the CoJ must
endeavour to ensure inter alia accurate metering of consumption at fixed
intervals with the minimum delay; accurate and up- to-date information in
accounts; accurate monthly accounts with the application of the appropriate
and correct prescribed fees, rates and other related amounts due and
payable; and the timely dispatch of accounts.
23
[50] Section 11 pertains to queries and complaints in respect of account s, and
provides inter alia that:
(3) If a query or complaint contemplated in subsection (1), is lodged –
(a) before the due date for payment specified in the account concerned,
an amount at least equal to the average amount that was due and
payable in respect of rates or the municipal service concerned, as
specified in the accounts for the preceding three months which are
not in dispute, must be paid by the customer concerned before or on
such due date; or
(b) after the due date for payment specified in the account concerned,
such query or complaint must if the full amount in dispute has not
been paid, be accompanied by at least the amount contemplated in
paragraph (a); and
(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.
11(4) An authorised official must register the query or complaint and
provide the customer with a reference number.
11(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.
[underlining added]
24
[51] By virtue of section 12(1), a customer may lodge an appeal against the decision
made in terms of section 11(5)(b) by giving written notice of the appeal and
reasons to the chief executive officer of the service provider concerned, within
21 days of the date of notification of the decision.
[52] Section 14 affords the CoJ methods, in addition to normal civil legal processes ,
to secure payment of any arrears . These methods include the termination or
restriction of municipal services.
[53] By virtue of section 20(2) , the CoJ is entitled to levy interest on overdue
accounts.
The Electricity Bylaws
[54] Section 9 of the Electricity Bylaws deal with accounts, and provide inter alia
that:
(2) The council may, during any meter reading period, render to the
consumers a provisional account in respect of any part of such period
which part shall as close as practically possible be a period of thirty days
and the amount of which account shall be determined as provided in
subsection (4) and shall as soon as possible after the meter reading at
the end of such period render to the consumer an account based on the
actual measured consumption and demand during that period, giving
credit to the consumer for any sum paid by him on a provisional account
as aforesaid.
…
(4) The amount of a provisional account referred to in subsection (2)
shall be determined by the council by reference to such previous
consumption on the same premises as would in its opinion constitute a
reasonable guide to the quantity of electricity consumed over the period
covered by the provisional account: Provided that where there has been
no such previous consumption, the council shall determine the amount
25
of the said account by reference to such consumption on other similar
premises which, in its opinion, affords reasonable guidance.
(5) A consumer's decision to dispute an account shall not entitle him to
defer payment beyond the due date stipulated in the account.
…
(7) When it appears that a consumer has not been charged or incorrectly
charged for electricity due to the application of an incorrect charge or on
any other grounds other than inaccuracy of a meter, the council shall
conduct such investigations, enquiries and tests as it deems necessary
and shall, if satisfied that the consumer should have been charged or
has been incorrectly charged, adjust the account according: Provided
that no such adjustment shall be made in respect of a period in excess
of 6 months prior to the date on which the incorrect charge was
observed or the council was notified of such incorrect charge by the
consumer. Where such consumer is found to have been correctly
charged, the consumer shall be charged the cost of conducting such
investigations, enquiries and tests.
[underlining added]
[55] Matters concerning the reading of meters are stipulated in section 10, and the
testing of meters are dealt with in section 12.
[56] Section 14(1) allows the CoJ to disconnect the supply of electricity, wi thout
notice, where any charges due are in arrears.
The Water Bylaws
[57] Sections 8 and 9 of the Water Bylaws contain provisions relating to payment for
water services at the prescribed fee for the particular water services provided,
and for the rendering of accounts , as well as the adjustment of accounts in the
event of a meter being defective.
26
[58] Those sections dealing relating to queries and complaints about water accounts
were deleted by the Credit Control Bylaws of 2004.
THE PRESCRIPTION ACT, 68 OF 1969
[59] The applicant’s case is not premised on the provisions of the CoJ ’s Bylaws.
The relief it seeks is squarely founded on the provisions of the Prescription Act ,
which is pertinently referred to in the Notice of Motion and in its founding
affidavit and addressed in its heads of argument.
[60] Because prescription raises questions of both fact and law , an applicant must
properly raise it in its founding affidavit and traverse the factual substratum of
its claim of prescription.
16
[61] Accordingly, in motion proceedings, it necessitates the applicant, who bears the
onus, to properly raise prescription in its founding affidavit , setting out the
requisite evidence in support of its claim . If it is patent that the period of
prescription has lapsed, the applicant will have a complete defence to CoJ’s
claims. Yet should the CoJ raise interruption of prescription or a delay in the
completion thereof, it bears the onus of proof on this score.17
[62] The parties are agreed that different periods of prescription apply to the
different categories of charges levied by a municipality:18
16 Njongi v MEC, Department of Welfare, Eastern Cape 2008 (4) SA 237 (CC) at para 36 and the
authorities quoted in fn 47.
17 ABSA Bank Bpk v De Villiers 2001 (1) SA 481 (SCA).
18 Section 10, 11 and 12 of the Prescription Act; Jordaan and Others v Tshwane Metropolitan
Municipality and Others 2017 (6) SA 287 (CC) para 25; City of Johannesburg v Scholtz 2010 (1) SA
316 (W); Argent Industrial Investment (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2017 (3) SA
146 (GJ); Buttertum Property Letting (Pty) Ltd v Dihlabeng Local Municipality [2016] 4 All SA 895
(FB) para 39; AMA Casa Props 129 (Pty) Ltd v The CoJ of Johannesburg and Others (32217/2019)
[2021]
ZAGPJHC 661 (9 November 2021).
27
a. In respect of property rates, sewer and refuse charges, being a type of tax,
a 30-year period applies.
b. In respect of water, electricity and gas consumption charges, a three- year
period of prescription applies.
[63] The running of prescription commences when the “ debt” is due.19 The correct
approach to be taken in determining w hen a “ debt is due” remains as
enunciated in Farocean Marine (Pty) Ltd v Minister of Trade and Industry as
follows:20
Prescription commences to run “as soon as the debt is due” (s 12(1)). Although
the “date on which a debt arises usually coincides with the date on which it
becomes due” this need not always be the case. The question is thus when the
debt the respondent seeks to recover arose and when it became due. A money
debt is “due” when there is a “liquidated monetary obligation presently claimable
by the creditor for which an action could presently be brought against the
debtor. Stated differently, the debt must be one in respect of which the debtor is
under an obligation to pay immediately.
[64] According to section 9 of the Credit Control Bylaws, the final date for payment
must be contained in the accounts rendered by the CoJ to its customers.
[65] Thus, prima facie, the CoJ’s claims in respect of water consumption charges of
R 4 513 319.75 for the “reading period” 7 September 2012 to 10 May 2017,
reflected in its invoice dated 25 May 2017, which was due for payment on 25
May 2017 prescribed at midnight on 24 May 2020.
19 Section 12(1) of the Prescription Act.
20 2007 (2) SA (SCA) 334 at para 12. See also Nature’s Choice Farms (Pty) Ltd v Ekurhuleni
Metropolitan Municipality [2020] 3 All SA 57 (SCA) at para 41 (“Nature’s Choice”).
28
[66] Similarly, at face value the claim of R 7 221 745.47 in respect of electricity
consumption charges for the reading period 1 December 2012 to 2 March
2016, reflected in the invoice dated 22 June 2017, being the same date for
payment, prescribed at midnight on 21 June 2020.
THE APPLICANT’S SUBMISSIONS
[67] Relying on Nature’s Choice, 21 the applicant argued that prescription of the
CoJ’s claim commenced runn ing when the CoJ gained knowledge of the
erroneous readings on the meters , in May 2016, when it tested and installed a
new meter , or, at the latest when it issu ed its invoice dated 24 May 2017
seeking immediate payment from the applicant.
[68] In Nature’s Choice Farms (Pty) Ltd v Ekurhuleni Metropolitan Municipality 22 the
plaintiff sought a declarator that it was not indebted to the municipality for water
usage, contending that the claim had become prescribed and unenforceable,
not relying on the Prescription Act, but based on provisions in the municipality’s
schedules of tariffs for water,
23 which form part of the broader legislative
framework under the Systems Act and has the force of a bylaw .24 Although
the facts in the present matter are markedly distinguishable from those in
Nature’s Choice, the Supreme Court of Appeal restated and reconfirmed the
approach enunciated in Farocean Marine for determining when a debt is due.25
[69] In relation to any alleged interruption of prescription, t he applicant submitted
that the two payments it made in the second half of 2017 did not constitute an
21 Id.
22 Nature’s Choice Footnote 17 above.
23 Id at paras 20-21.
24 Id at para 28.
25 Id at para 41.
29
acknowledgement of indebtedness as envisaged by section 14(1) of the
Prescription Act, as holistically viewed and in its proper contents, those
payments were never intended to be an acknowledgement of indebtedness.26
But even if those payments were taken to have interrupted prescription, then by
December 2020, being three years later, the CoJ’s claims in respect of the
consumption charges would have prescribed.27
[70] In response to any suggestion that the applicant’s continued payments of the
monthly “ Current Charges” reflected on the CoJ’s invoices, it was submitted
that such payments were made pursuant to the Bylaws , which oblige a
customer to 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. ” Accordingly, so the
argument went, the applicant’s payments cannot be allocated at the CoJ’s will
to the “oldest debt”, as these payments were made with the clear intention that
they are made only in respect of the “ Current Charges ” and not the disputed
amounts.
[71] In paragraphs 71 to 79 of its heads of argument, the applicant addressed any
reliance the CoJ may place on section 102(2) of the Systems Act as
constituting a prohibition against the CoJ collecting any amount which the
application has disputed. The applicant also submitted that section 13 of the
26 Petzer v Radford (Pty) Ltd [1953] 4 All SA 311 (N) ; Madibeng Local Municipality v Public
Investment Corporation Ltd (955/2019) [2020] ZASCA 157 (30 November 2020) para [28] ; Investec
Bank Ltd v Erf 436 Elandspoort (Pty) Ltd and Others 2021 (1) SA 28 (SCA).
27 In terms of section 14(2) of the Prescription Act.
30
Prescription Act, regulating the delay in completion of prescription in certain
circumstances, does not apply to the matter at hand.
[72] During argument, Mr Du Plessis SC, for the applicant , contended that section
102(2) of the Systems Act found no application to his client’s case, as the
dispute it raised did not concern a “specific amount” . Also, it was submitted
that the provisions of the section relate to enforcement mechanisms only ,
whereas prescription does not fall within the ambit of the section.
THE COJ’S SUBMISSIONS
[73] Condonation for the late filing of the answering affidavit having been refused,
the CoJ’s arguments in both its heads of argument and at the hearing, were
confined to the case made out in the founding affidavit, and points of law arising
therefrom.
[74] The CoJ argued that the declaratory order sought would have the effect of:
a. Setting aside the Twala order alternatively constitute a contradiction of that
order, which obliges the CoJ to reverse and to rebill the applicant “ from
2012 to date”.
b. Undermining the principle of law that a single judge cannot rule on the same
issue ruled on by another judge. For as long as the Twala order remains
extant, it must be complied with, and this Court cannot interfere with the
procedure of the resolution of the dispute between the parties; and
c. Undermining the binding nature of the section 102 of the Systems Act, and
by the Bylaws and policies enacted by the CoJ . Contending that the
31
applicant’s dispute raised in 2017 remains unresolved, it was argued that
the applicant seeks an order to avoid paying the amount due and payable to
the CoJ for services consumed, by having such amount declared to have
prescribed.
d. This Court acting outside its jurisdiction and going against judgments of this
Division and others. Relying in Willow and Aloe Grove,
28 the CoJ argued
that until such time that it had concluded its processes in resolving the
dispute between the parties, this Court has no power to interfere.
[75] It was also contended that the declaratory relief sought seeks to ignore the
Twala order and intends to do away with the obligations entrusted to the CoJ to
rebill the account.
[76] In part [G] of its heads of argument, the CoJ , and with reference to City of
Tshwane Metropolitan Municipality v Glofurn (Pty) Ltd,
29 argued that it was
precluded by section 102(2) of the Systems Act from implementing its debt
collection and credit control measures, including the institution of legal
proceedings, for as long as the dispute remained unresolved.
SUPPLEMENTARY SUBMISSIONS
[77] As the intersection between section 102(2) of the Systems Act and section
13(1) of the Prescription Act constitutes a point of law which is apparent from
the founding affidavit, this “court is not only entitled, but is in fact also
obliged, mero motu , to raise the point of law and require the parties to deal
therewith. Otherwise, the result would be a decision premised on an incorrect
28 Id.
29 [2024] ZASCA 101 (19 June 2024). Also see City of Johannesburg Metropolitan Municipality v Mir-
Air Prop (Pty) Ltd [2024] ZAGPJHC 977 (1 October 2024).
32
application of the law. That would infringe the principle of legality .”30
Accordingly, the Court pertinently raised during argument , with both with Mr Du
Plessis and Mr Sithole, the question whether section 102(2) of the Systems Act
constituted a “superior force including any law ” as contemplated in section
13(1)(a) of the Prescription Act , which would delay the completion of
prescription pending resolution of the dispute raised by the applicant.
[78] At the hearing, Mr Du Plessis restated the submission that the applicant’s case
that the charges had become prescribed, does not fall within the ambit of the
section 102(2).
[79] Similarly, Mr Sithole persisted with the argument contained in his heads of
argument, that the dispute raised by the applicant in 2017 was yet to be
resolved; and the M & R’s letter of 22 September 2023 did not amount to a final
resolution of the dispute. The Court’s cynical enquiry about how long the CoJ’s
investigation was still to last, was met by obfuscation and avoidance.
[80] Additionally, the CoJ submitted, without reference to any authorities, that
because the dispute is yet to be resolved, the amount is not “due”, and it is only
once a debt is claimable that prescription commences running.
[81] Not entirely satisfied, I requested both counsel to prepare supplementary
submissions on the interplay between section 102(2) of the Systems Act and
section 13(1)(a) of the Prescription Act. Both parties’ further submissions were
received and considered.
30 Cusa v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC) at para 68.
33
The applicant’s further submissions
[82] In its supplementary submissions the applicant contended that, for a finding
that section 102(2) of the Systems Act is applicable, there had to be a finding
on the facts that there was a dispute between the applicant and the respondent
concerning a specific amount claimed by the CoJ, which would prevent the CoJ
in law from issuing a summons to interrupt the running of prescription and that
the debt has therefore not become prescribed.
a. Firstly, relying on Tarica and another v City of Johannesburg Metropolitan
Municipality
31 and with reference to Croftdene, 32 it was contended that the
applicant’s “dispute” did not meet the criteria of the existence of a dispute.
b. Secondly, it was submitted that the CoJ’s continued threats to and
disconnection of the municipal services to the applicant’s property after
2017 evidenced that the CoJ never considered there to be a dispute for
purposes of section 102(2) . These disconnections and threats resulted in
the applications launched by the applicant to protect its interests.
c. Thirdly, whilst m aintaining its position that section 102(2) finds no
application, it was argued, relying on Tarica, that the provisions of section
102(2) do not constitute an impediment as envisaged by section 13(1)(a) of
the Prescription Act. It was also submitted that , in so far as the Systems
Act makes not reference to the Prescription Act, the former does not
influence the latter.
31 2025 JDR 0410 (GJ).
32 Id.
34
d. In the final instance, the applicant contended that section 13 of the
Prescription Act envisages a type of impediment that makes it objectively
impossible for the creditor to take steps to interrupt prescription.
[83] In the alternative, the applicant argued that, on the respondent’s version ex
facie the letter of M & R dated 22 September 2023, the dispute had been
resolved with dispatch of the letter . Although the applicant still did not agree
with the calculations set out in the l etter, this did not amount to the existence of
a “dispute” for purposes of section 102(2) . Consequently, the alleged
impediment ceased to exist on 22 September 2023, and the running of
prescription was completed on 23 September 2024.
The CoJ’s further submissions
[84] The CoJ ’s supplementary submissions were couched in belligerent and
disrespectful language, with unnecessary veiled threats against this Court,
whom it accused of making out a case for the applicant and raising the
provisions of section 13 (1) of the Prescription Act mero motu, thereby seeking
to decide the matter on facts not pleaded by the applicant. T hese accusations
are without factual foundation, as reference had been made to both section
102(2) of the Systems Act as well as section 13(1) of the Prescription Act in the
heads of argument filed by the parties.
[85] The CoJ contended that, on a proper reading of the founding affidavit, the
applicant did not accept that the dispute had been resolved by 22 September
2023, “but the Court appears to accept that the dispute between the parties
was resolved … in order to invoke the provisions of section 13 (1) of the
35
Prescription Act.” This being so, the applicant was obliged to invoke the internal
appeal process provided for in section 12 of the Credit Control Bylaws.
ANALYSIS
[86] Respectfully, I disagree with the reasoning of Mahon AJ i n Tarica in respect of
the interplay between the Prescription Act and the Systems Act , and the effect
of section 102(2) on prescription.
[87] Mahon AJ held 33 that the CoJ’s Credit Control and Debt Collection P olicy34 did
not prevent the CoJ from issuing summons on disputed debts . Undoubtedly
correct, he held that “[t]he legislative framework is clear that prescription
operates independently of internal policies or administration practices of
municipalities.” However, I differ from him when he held that “while the City
may choose to adopt procedures for managing disputes through its Credit
Control and Debt Collection Policy, these procedures do not have the effect of
overriding or suspending the statutory requirements of the Prescription Act.”
[88] By virtue of section 16(1) of the Prescription Act, t he provisions of Chapter III of
thereof, dealing with the prescription of debts, apply to any debt arising of the
commencement of the Act, save in so far as they are inconsistent with the
provisions of any Act of Parliament which prescribes a specified period within
which a claim is to be made or an action is to be instituted in respect of a debt
or imposes conditions on the institution of an action for the recovery of a debt .
Thus, in so far as the Systems Act contains no provisions relative to
33 Tarica above at paras 76 to 78.
34 It is not evident form the judgment whether the Court referred to the 2005 or 2022 Credit Control
Policy.
36
prescription, the provisions of Chapter III of the Prescription Act are relevant to
the issues for determination.
[89] The CoJ’s Credit Control Bylaws and 2022 Credit Control and Debt Collection
Policy are subservient to the provisions of the Systems Act. Although t he
Systems Act does not define what “debt collection mechanisms” entail, on a
purposive interpretation of the phrase, I am satisfied that such mechanisms
include normal civil legal proceedings.
[90] I am satisfied that each of the CoJ’s invoices dated 22 June 2017 and 1 July
2017 reflect a liquidated amount , each of which, in accordance with the Credit
Control Bylaws, was due for payment by the applicant on the date stipulated in
each of the invoices , being 22 June and 17 July 2017 respectively . Therefore,
prescription commenced running on these dates for payment.
[91] As the invoices related to both property rates and taxes and consumptions
charges, different periods of prescription were applicable.
[92] On the evidence presented, it is manifest that t he dispute raised by the
applicant in July/August 2017 related to all the amounts in respect of property
rates and taxes, the amounts levied in respect of estimated electricity
consumption, the amounts in respect of water consumption, as well as the
interest charges debited. The impugned items were adequately and properly
identified as were the applicant’s objections thereto, thereby enabling the CoJ
to ascertain the disputed items and the reasons for the dispute, as is required
by the provisions of section 102(2) and held in Croftdene.
37
[93] Thus, pending resolution of the dispute, the CoJ was legally barred from
implementing its credit control and debt collections processes, including
disconnecting services and/or instituting legal action, whether in respect of the
property rates and taxes or the consumption charges . It also became
incumbent on the CoJ to provide redress to the applicant promptly and
efficiently, as mandated by the inter alia section 95(g) of Systems Act , and the
provisions of its own Bylaws.
[94] It is because the CoJ implemented debt collections measures in the form of the
termination of services, in contravention of section 102(2) that litigation was
instituted, and the Wright order was granted.
[95] The amounts erroneously levied in respect of property rates having been
corrected, what remained were the disputes related to the water and electricity
consumption charges. These remaining issues formed part of the existing
dispute and were the subject matter of the Twala order. For as long as the se
issues remained unsolved, the legal impediment created by section 102(2)
endured, and the CoJ remained impeded from adopting any debt collecting
measures, including the service of process. Had the CoJ issued process to
recover the alleged debt, pending resolution of the dispute, its claims may very
well have been met by a plea in abatement or similar objection.35
[96] It has been held that the word “impediment” used in section 13(1)(i ) “should not
been taken too literally or interpreted as meaning an absolute bar to the
institution of legal proceedings… ” but rather that it “ covers a wide spectrum of
situations ranging from those in which it would not be possible in law for the
35 As in Glofurn and Mir-Air Prop above.
38
creditor to sue to those in which it might be difficult or awkward, but not
impossible, to sue. In short, the impediments range from the absolute to the
relative.”
36
[97] I am satisfied that the legal impediment created by section 102(2) of the
Systems Act constitutes a “ superior force including any law ” as envisaged by
section 13(1)(a) of the Prescription Act, which prevented the CoJ from
interrupting the running of prescription by the service of process claiming
payment from the applicant.
37 On the face of it, the impediment thus created is
absolute, but I express no finding on this score.
[98] The CoJ’s argument that the Twala order mandated the applicant to invoke an
internal appeal, effectively giv ing rise to a “new” cause of action the applicant
had to invoke, is not supported by a proper interpretation of either the Wright
order or Twala order. Both orders were aimed at directing the CoJ to perform its
obligations imposed by the Systems Act and its own Bylaws . These obligations
include those created by:
a. Section 95 of the Systems Act to render accurate accounts to consumers, to
allow consumers to receive prompt redress for inaccurate accounts , and to
provide prompt replies and corrective action to dissatisfied consumers; and
b. Section 11(5) of the Credit Control Bylaws mandating the CoJ to investigate
a customer’s query or complaint within 14 days or as soon as possible after
36 ABP 4×4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd [1999] 3 All SA 405 (A) ; 1999 (3) SA 924
(SCA) at para 11.
37 By virtue of section 15(1) of the Prescription Act “[t]he running of prescription shall, subject to the
provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the
creditor claims payment of the debt.”
39
the query or complaint was received; and to inform the customer of its
decision as soon as possible after conclusion of the investigation.
c. Section 9(7) of the Electricity Bylaws, which disallows the CoJ from making
adjustments to its accounts in respect of incorrect electricity charges in
respect of a period in excess of 6 months prior to the date on which the CoJ
observed the incorrect charge.
38
[99] In this, the CoJ spectacularly failed its obligations.
[100] It was only under cover of the letter of 22 September 2023 that the CoJ
complied, in part, with the Twala order . The letter recorded the basis for the
rebilling of electricity consumption charges in July 2017 and the CoJ’s finding
that no mistakes had been made at the time . The CoJ made it clear that it
regarded the dispute in respect of electricity consumption charges as having
been resolved and demanded payment of the amount due.
[101] Accordingly, it does not behove the CoJ to contend that the dispute in relation
to the electricity consumption charges remained unresolved in the face of the
contents of the letter from its then-attorneys. I am satisfied that the CoJ’s
demand for payment of the amount due in respect of the electricity
consumption charges did not create a new “debt” but heralded the end of the
impediment created by the provisions of section 102(2) of the Systems Act , in
38 In this regard, the CoJ must be taken to have observed the incorrect charge when it installed a new
electricity meter at the applicant’s property in May 2016.
40
so far as the applicant appeared to have acquiesced with the information
provided.39
[102] The “debt” in respect of electricity consumption charges became due at the
latest 17 July 2017, on which date prescription commenced running. The
dispute raised by the applicant did not suspension or interruption of prescription
but it had the effect of delaying the completion of prescription. Accordingly, and
by virtue of section 13(1)(a) of the Prescription Act, the CoJ’s claim for
electricity consumption charges prescribed one year after the disputes was
resolved, being at midnight on 22 September 2024.
[103] By contrast, the letter of 22 September 2023 noted that the dispute in relation to
the water consumption charges remained unresolved and the impediment
created by section 102(2) of the Systems Act persists . As unsatisfactory as it
may be, for as long as the dispute remains unresolved, the CoJ cannot lawfully
invoke any debt collection or credit control measures in respect of these
charges.
[104] Ultimately, the applicant is entitled to the declaratory order it seeks but only in
respect of electricity consumption charges , interest and/or penalties on such
charges.
COSTS
[105] Although only partially successful, given the CoJ’s contemptuous and persistent
disregard of its obligations in terms of the Systems Act and its own Bylaws,
39 The applicant did not invoke its right to lodge an appeal within 21 days from the date of the
decision recorded in the letter of 22 September 2023, as it was entitled to do by virtue of the Credit
Control Bylaws.
41
there is no reasonable basis to deprive the applicant i ts costs. A punitive order
is also appropriate in the circumstances.
[106] Although only Mr Du Plessis appeared for the applicant at the hearing, he and a
junior counsel authored both the heads of argument and the further
submissions. The issues for determination involved novel legal aspects, not
previously the subject of any authorities the parties or this Court could find. As
such, the costs of two counsel, where so employed, are allowed.
ORDER
[107] In the result, the following order is made:
1. The interlocutory application for condonation for the late filing of the
respondent’s answering affidavit is dismissed.
2. It is declared that all unpaid electrical charges and interest and/or
penalties on such electrical charges levied by the respondent in respect
of the Remaining Extent of Erf 8[ …], K […] Township situated at 2[ …]
T[…] Road, K[…] (“the property") on account number 5[…] (“the account”)
for the period prior to 30 April 2017, have become prescribed in terms of
the Prescription Act, 68 of 1969.
3. The respondent is directed to reverse all unpaid electrical charges and
interest and/or penalties on such electrical charges levied by the
respondent on the account in respect of the property for the period prior
to 30 April 2017.
42
4. The respondent to pay the costs of the interlocutory application for
condonation as well as the main application, on a scale as between
attorney and client including the costs of two counsel where so employed.
__________________________________
SARITA LIEBENBERG
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Date of Hearing: 8 September 2025
Date of Judgment: 3 November 2025
For the Applicant: Adv D T v R Du Plessis SC and WA De Beer
Instructed by Ellis Coll Attorneys.
For the Respondent: Adv E N Sithole Instructed by Ncube Inc.