Smit and Another v The Mbombela Local Municipality (73670/2015) [2016] ZAGPPHC 650 (29 July 2016)

Smit and Another v The Mbombela Local Municipality (73670/2015) [2016] ZAGPPHC 650 (29 July 2016)

The court held that the current Solid Waste Bylaw, not the repealed Administrator's Notice, governs liability for refuse removal charges. Under the by-law, the body corporate of a sectional title scheme is the 'owner' and thus liable for municipal service charges. The first applicant, having paid the charges in error, is entitled to repayment as the respondent was unjustly enriched. The respondent may only levy a single monthly minimum refuse removal fee per structure, not per unit, subject to the maximum prescribed waste amount. Costs follow the result.

Citation
[2016] ZAGPPHC 650
Parties
Applicant: Stephanus Johannes Paulus Kruger Smit; Applicant: The Body Corporate of ELJO Gebou; Respondent: The Mbombela Local Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 July 2016
Case Number
73670/2015
Procedural Posture
Civil Application / First Instance
Outcome
Application granted. Declaratory orders issued in favour of the applicants. Repayment of R65,223.25 ordered. Costs awarded to applicants.
Judges
Van der Westhuizen
Legal Topics
Municipal by Laws, Sectional Title Liability, Unjust Enrichment, Declaratory Relief
Land and Property Civil Procedure Municipal by Laws Sectional Title Liability Unjust Enrichment Declaratory Relief

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Parties

Stephanus Johannes Paulus Kruger Smit

Applicant

The Body Corporate of ELJO Gebou

Applicant

The Mbombela Local Municipality

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the first applicant is liable for the respondent's service charges relating to refuse removal from the premises.
  2. 2 Whether the second applicant, as the body corporate, is the correct party liable for such charges under the applicable by-law.
  3. 3 Whether the first applicant is entitled to repayment of monies paid to the respondent for service charges.

Ratio Decidendi

The court held that the current Solid Waste Bylaw, not the repealed Administrator's Notice, governs liability for refuse removal charges. Under the by-law, the body corporate of a sectional title scheme is the 'owner' and thus liable for municipal service charges. The first applicant, having paid the charges in error, is entitled to repayment as the respondent was unjustly enriched. The respondent may only levy a single monthly minimum refuse removal fee per structure, not per unit, subject to the maximum prescribed waste amount. Costs follow the result.

Court Disposition

Application granted. Declaratory orders issued in favour of the applicants. Repayment of R65,223.25 ordered. Costs awarded to applicants.

Orders

  • It is declared that the first applicant is not liable for the respondent's service charges relating to the removal of business refuse from the premises situated at Erf 174, 15 Bell Street, Nelspruit.
  • It is declared that the second applicant is liable for the respondent's service charges relating to the removal of business refuse from the premises situated at Erf 174, 15 Bell Street, Nelspruit.