Tortella Investments 144 (Pty) Limited v City of Johannesburg (49492/2017) [2019] ZAGPJHC 284 (8 August 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

CASE NO: 49492/2017

MAG.

In the matter between:

TORTELLO INVESTMENTS 144 (PTY) LIMITED

APPLICANT

AND

CITY OF JOHANNNESBURG

RESPONDENT

JUDGMENT

TWALA J

[1] In this opposed application, the applicant seeks an order against the respondent in the following terms:

1. The respondent is to explain fully, all entries, whether debts, credits, reversals, rebates, levies, ancillary charges, notice and penalty charges or tariff scales applied, relating to or arrived at, based on water or electricity consumed (“the entries”) as reflected in annexure “TN3” to the answering affidavit, insofar as same pertains to the period 3 years, prior to the granting of this order, by:

1.1 providing the applicant with the written reasons explaining each and every one of the entries, in annexure “TN3”, and

2. the respondent is to provide the applicant with job cards and vouchers evidencing the installation and removal of meters and the monthly individual meter readings of each of the respective meters reflected in annexure “TN3” to the answering affidavit, being water meters C-JJK2432, meter CTJK 1431, electricity meter number 80395603, electricity meter 851189827 and electricity meter 98368832.

3. It is declared that:

3.1 the respondent is not permitted to levy water and electricity consumption charges, pertaining to water and electricity consumed, at the property, being Erf 941 New Doornfontein, Johannesburg (“the property) where such consumption occurred more than 3 years prior to the granting of this order;

3.2 the respondent is ordered to reverse all charges relating to Water meters CTJK1431 and 140127986 and GKF4517, from inception to date;

3.3 the respondent is interdicted from rendering any charges for Water meters CTJK1431, GKF4517, AND 140127986;

4. the water and electricity consumption charges, pertaining to water and electricity consumed, at the property, more than 3 years prior to the granting of this order, has prescribed.

5. the respondent is to pay the costs of the application on the scale as between attorney and client.

[2] It is apposite at this stage to mention that the above prayers were embodied in an amended notice of motion which the applicant lodged after the respondent had filed its answering affidavit.

[3] On the 18th of October 2017 the applicant delivered a letter of complaint and demand to the respondent and on the 30th of October 2017 deposed to the affidavit instituting these proceedings. The application was served on the respondent on the 11th of January 2018. On the 5th of March 2018 the respondent filed its answering affidavit which had an attachment as “TN3” purporting to be a rebilled statement of account. It is this document which the applicant alleges necessitated the amendment of its notice of motion.

[4] On the 11th of July 2018 the applicant served the respondent with the notice of amendment of the notice of motion and the amended pages were filed on the 26th of July 2018. On the 11th September 2018 the applicant filed its replying affidavit.

[5] Counsel for the respondent submitted that the applicant cannot be allowed to plead a new case in reply since only 3 sets of affidavits are allowed in motion proceeding. This, so it is contended, is prejudicial to the respondent who does not have the right to reply thereto. Argued in the alternative was that, should the Court allow the amendment, then the respondent seeks an opportunity to file a further affidavit in answer to the case the applicant raised in reply.

[6] Counsel for the applicant contended that the respondent have had ample time to object to the amendment and have elect not to do so. The applicant, so the argument goes, first filed the notice of amendment and more than 10 days thereafter filed the amended pages and the respondent did not react within the 10 days prescribed by the rules. Even now, more than a year later, the respondent failed to bring a formal application seeking an order to file a further affidavit in answer to the claim of the applicant nor did it file a Rule 30 notice to strike out an irregular pleading.

[7] It was contended further by counsel for the applicant that, it is correct that only three sets of affidavits are allowed in motion proceedings. It is further trite that when a party raises a new matter in its answer, the other party has the right to reply to the new matter and can do so by making an application to Court. The respondent raised a new matter in its answering affidavit by annexing “TN3” which the applicant knew nothing about and the applicant had to respond thereto – hence the amendment of its notice of motion. The applicant has never received annexure “TN3” to the respondent’s answering affidavit and could not have expected or suspected that such a document exist when it launched its application.

[8] It is trite that a Court has the discretion to allow parties to raise fresh legal issues provided that does not cause irreparable prejudice to the other litigants. Where a party raises a new matter in the replying affidavit, the other party may apply to the Court for an opportunity to answer to the new matter raised in reply. However, the Court is required to exercise practical, common sense and a flexible approach in considering whether allegations made in reply need to be strike out. In this regard see Drift Supersand (Pty) Limited v Mogale City Local Municipality and Another; Case No:1185/2016 (SCA).

[9] I find myself in disagreement with the contentions of the respondent. It is on record that, in support of its case, the applicant attached statements of account from the respondent dating back to February 2017. The respondent did not respond to the letter of demand of the 9th of October 2017 but alleges to have produced a “rebilled” account statement in or around October 2017 which “rebilled” account statement was only attached to its answering affidavit on the 5th of March 2018. The respondent could not proffer any explanation why it could not respond to the letter of demand and furnish the rebilled account statement to the respondent between the periods 18th October 2017 and 11th January 2018. The irresistible conclusion is that the rebilled account statement was created after the demand was made. Thus, the applicant did not have it when it deposed to its founding affidavit instituting these proceedings. The applicant is therefore entitled to amend its papers to answer to the new matter brought in by the respondent in its answer. I therefore allow the amendment of the notice of motion.

[10] It is my respectful view that the respondent was never prejudiced by the amendment in this case. The applicant served the notice of amendment and allowed the dies provided by the rules to expire before it served the amended pages. Further, the applicant served its reply about 2 months later and the case came before this Court more than a year later. During this whole period the respondent has never attempted to file a further affidavit to answer to the replying affidavit filed by the applicant nor to bring a Rule 30 application to strike out the notice of amendment as an irregular proceeding nor bring an application in terms of Rule 28 to make a consequential adjustment to the documents it had file. It is therefore my view that the respondent has had the opportunity and sufficient time to attend to this matter but elected not to. I am therefore of the view that it is not in the interest of justice that this matter be postponed to allow the respondent an opportunity to file a further affidavit in answer to the case of the applicant as embodied in the amended notice of motion.

[11] I am unable to agree with counsel for the respondent that the application is premature since the deponent deposed to the affidavit before the expiration of the 14 day period prescribed by section 11 of the Credit Control and Debt Collection By-Laws, 2004 after receipt of the letter of demand. It is on record that, although the demand was made on the 18th of October 2017 and the affidavit deposed to on the 30th of October 2017, the respondent was only served with the application on the 11th of January 2018. I therefore hold the view that there was compliance with the provisions of s11 of the Credit Control and Debt Collection By-Laws and therefore the institution of these proceedings cannot be said to be premature.

[12] I do not agree with counsel for the respondent that the applicant did not follow the internal processes regarding its complaint. The applicant lodged its complaint on the 9th October 2017 and the deponent to the respondent’s affidavit was also copied with the letter of demand, but there was no response from the respondent. The deponent to the respondent’s affidavit does not deny receipt of the complaint and does not say why it was not attended to. Further, the respondent did not register the complaint as it was supposed to in terms of its internal processes. It is my respectful view therefore that it was not unreasonable of the applicant to seek the assistance of the Court where even the respondent flagrantly and blatantly disregard its own processes.

[13] The applicant has a right to proper and accurate billing for its municipal account and the respondent has a duty to do so and it has failed to execute that duty. In terms of s9 (7) of the Greater Johannesburg Metropolitan Electricity By-Laws the council shall investigate and adjust an account of the consumer if it appears that he had not been charged or had been incorrectly charged, 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.

[14] I am unable to disagree with counsel for the applicant that all the charges on the applicant’s statement of account which are more than 3 years old have become prescribed. The respondent has, in terms of its Credit Control and Debt Collection Policy, a duty to timeously render accurate accounts for the amount due and payable by a debtor and its failure to do so because it could not trace the meter on the property cannot be said to be a bar to the debt becoming prescribed. In this regard, see Argent Industrial Investment (Pty) Ltd v Ekurhuleni Metropolitan Municipality; Case No:17808/2016 (GJ)

[15] It is on record that there are a number of inaccuracies in the statement of account attached by the respondent to its answering affidavit which necessitated the applicant to seek to amend its notice of motion. I am of the view therefore that the applicant does not seek the debatement of the account but the full details as to what informed the billing of certain transaction on the statement of account. It is my respectful view therefore that the applicant is entitle to the relief as prayed for in the notice of motion.

[16] In the circumstances, I make the following order:

The draft order marked “X” as amended and annexed hereto is made an order of Court.

TWALA M L

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

Date of hearing: 29th July 2019

Date of Judgment: 08th August 2019

For the Applicant: Adv C Van Der Merwe

Instructed by: KG Tserkezis Inc

Tel: 011 886 0000

For the Respondents: Adv. PJ Kok

Instructed by: Nozuko Nxusani Inc

Tel: 011 838 7131