Eli & LA Sheepskin Products (Pty) Ltd v Lesedi Local Municipality and Others (15658/15) [2015] ZAGPPHC 680 (18 September 2015)

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

OFFICE OF THE CHIEF JUSTICE

(GAUTENG DIVISION, PRETORIA)

18/9/2015

CASE NO: 15658/15

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

IN THE MATTER BETWEEN

ELI & LA SHEEPSKIN PRODUCTS (PTY) LTD

Applicant

and

LESEDI LOCAL MUNICIPALITY

First Respondent

AYANDA MAKHAYA

Second Respondent

PAUL TSELE

Third Respondent

SINDI ZUKANI

Fourth Respondent

JUDGMENT

LEGODI J

HEARD ON: 09 SEPTEMBER 2015

JUDGMENT HANDED DOWN: 18 SEPTEMBER 2014

[1] The main dispute in this case is whether Lesedi Local Municipality (the first respondent) is entitled to disconnect services to the applicant (Eli & La Sheepskin Products (PTY) Ltd) despite a dispute been declared in terms of section 102(2) of the Municipal Systems Act. The section reads as follows:

(1) A municipal may-

(a) Consolidate any separate accounts of persons liable for payments to the municipality;

(b) Credit a payment by such a person against any account of that person; and

(c) Implement any of the debt 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 anv specific amount claimed by the municipality from that person;

(3) …”

[2] It is common cause in this case that the Municipality designed and issues a consolidated account for each consumer of its services. In each account to a consumer, specific amounts for specific services are charged and reflected in the statement, in the present case including what the applicant refers to in its papers and letter of 29 July 2013 as ‘effluent charges’.

[3] I find it necessary to deal with the letter of 29 July 2013 at the onset as it was contended on the applicant’s behalf that it triggered the provisions of subsection (2) quoted above and that the Municipality was therefore not entitled to disconnect the electricity for non-payment of the account issued by the Municipality. The first two paragraphs of the letter read as follows:

“Further to my visit to your Municipal Offices and a meeting with your Mr. Star Moholobela to enquire as to how the effluent charges are billed, as well as proof of such charges, during which meeting I was told that I “do not understand the result of such analysis and that it was too difficult for me to comprehend”. When pressed on such reports, whether I would be able to understand them or not I was told that I was “looking for a fight.”

Since then we have not had an explanation or proof as to how these levies are billed, we are suspecting further payments on the effluent charges until the following requests have been met, and we demand from Municipality”.

[4] There can be no question that this was declaration of a dispute. The Municipality did not respond to the letter. Instead, on the 19 February 2015, it disconnected electricity supply to the applicant. This was despite several letters to the Municipality wherein the applicant called on the Municipality to take steps to resolve the issue. In the meantime, the applicant continued to pay for other services, except for the removal of waste/refuse and or dumping thereof, which is also the subject of a dispute between the parties. The charges on the latter services are disputed on the basis that the Municipality does not render such services to the applicant. I do not find it necessary to deal with the latter dispute.

[5] The effluent charges are indicated on the consolidated statement issued by the Municipality as Industrial - Water Consumption. Just brief information to it: The applicant conducts a tannery business which includes manufacturing of a certain consumer products namely; paint rollers, motor vehicle seat covers and slippers. It specializes in the tanning of sheep skins. Its business premises is also connected to the Municipality’s sewage system and all industrial effluent from the tanning process is discharged into the Municipality’s sewage system. During April 2013, the applicant noted that there was a sharp increase in the charges levied by the Municipality for the discharge of its industrial effluent. The charges at any issued statement are not less than R5000.00.

[6] Coming back to the issue at hand, at the start of oral argument by counsel on behalf of the Municipality, a suggestion was that the letter of the 29 July 2015 quoted in paragraph 3 of this judgment did constitute a dispute. I could not agree with this submission. The second paragraph of the letter is clear. There will be no payment of the account if you do not attend to the dispute.

[7] The next point argued by counsel on behalf of the Municipality was there can be no reliance on subsection (2) because of what was said in the case of Body Corporate Croftden Mall v Ethekweni Municipality (6 03/2010) [201O] ZA SCA 188 (10 October 2011) wherein Maja JA in paragraph 22 of relevance, stated:

“[22] It is, in my view, of importance that section 102(2) of the Systems Act requires that the dispute relate to a “specific amount” claimed by the Municipality”.

[8] In each statement issued to the applicant, a specific amount for effluent charges is indicated and therefor there can be no question that the dispute is about the ‘specific amount’. Maya JA further in paragraph 22 indicated that the requirement for a dispute over specific amount is to prevent a ratepayer from delaying payment of an account by raising a dispute in general terms. That is not the case in the present matter. I think reliance on subsection (2) is also to bring the Municipality to the table when a dispute arises. That is, to prevent the Municipality to resort to its powers in terms of subsection (1) in the face of a subsection (2) dispute.

[9] In prayers 2, 3, 4, 5 and 6 of the notice of motion a relief sought is framed as follows:

1. …

2. Declaring that the first respondent acted in contravention of section 102(2) of the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000) by disconnecting the electrical supply to the applicants business premises on portion […] of Erf […], Extension […], Heidelberg, Registration Division IF, Gauteng situated at […], Heidelberg, Extension […], Gauteng Province;

3. That the first respondent forthwith reconnect the electricity supply to the applicant’s business premises on portion […] of Erf […], Extension […], Heidelberg, Registration Division IR, Gauteng situated at […], Heidelberg, Extension […], Gauteng Province;

4. In the event that the first respondent fails to adhere to prayer 2, that the sheriff for the district of Lesedi (Heidelberg, Gauteng) be authorised to see to it that the electricity supply to portion […] of Erf […], Extension […], Heidelberg, Registration Division IR, Gauteng situated at […], Heidelberg, Extension […], Gauteng Province is reconnected;

5. The first, second and fourth respondents are hereby interdicted to interfere with the supply of municipal seNices pertaining to portion […] of Erf […], Extension […], Heidelberg, Registration Division IR, Gauteng situated at […], Heidelberg, Extension […], Gauteng Province, pending the final resolution of the dispute instituted by the applicant on 29 July 2013;

6. Ordering the second, third and fourth respondents to pay the cost of this applications de bonis propriis, the one paying the others to be absolved; alternatively ordering the first respondent to pay the cost of the applicant:”

[10] I think prayers 3 and 4 had fallen by the way side. There was reconnection of electricity and that is still the position. Prayers 2 and 5 might still be relevant. Prayer 2 in my view, should be pending the relief sought in prayer 4. I however, do not think that if the dispute cannot be resolved to the satisfaction of the applicant that would disentitle the Municipality from claiming payment of whatever is owed to it by the applicant including the disputed amount.

[11] As regards costs, there can be no basis to make order for costs as stated in prayer 6. Ordinary costs order on a party and party scale should be appropriate.

[12] Consequently an order is hereby made in terms of prayers 2 and 5 of the notice of motion quoted in paragraph 9 of this judgment, and the first respondent to pay the costs of the application.

____________________

M F LEGODI

JUDGE OF THE HIGH COURT

FOR THE APPLICANT: ADV JHA SAUNDERS

INSTRUCTED BY:

JORDAANS INC.

C/O H E SMALMAN ATTORNEYS

876 Pretorius Street

Arcadia, PRETORIA

TEL: 016 349 6001/012 342 4241

REF: TON1/P Steyn

FOR THE RESPONDENTS: ADV M. BODLANI

INSTRUCTED BY:

MADLANGA & PARTNERS INC.

C/O NGENO & MTETO ATTORNEYS

425 Standard Bank

Church Square, PRETORIA

TEL: 011 447 3720/012 323 0154

REF: GOM/LLM & OTHERS/307/15