City of Johannesburg v Scholtz

• Jurisdiction: South Africa
• Judge: Van Eeden AJ
• Judgment Date: 17 October 2008
• Citation: 2010 (1) SA 316 (W)
• Docket Number: 03/19589
• Court: Witwatersrand Local Division
• Counsel: AG Amiradakis for the plaintiff. EL Theron for the defendant.

Van Eeden AJ: F

[1] The plaintiff has sued for the payment of an amount of R130 654,57, together with interest calculated from 3 September 2003 to date of final payment. The plaintiff is the City of Johannesburg, represented by G Mr AG Amiradakis. The defendant is Mr DH Scholtz, represented by Mr E Theron. It is alleged that the amount is due and owing in respect of Erf 235 Westcliff Extension (hereinafter referred to as 'the property'). It is common cause that the defendant is the registered owner of the property and that the property is rateable property as defined in the Local Authorities Rating Ordinance 11 of 1977 (hereinafter referred to H as 'the Rating Ordinance').

[2] The plaintiff alleges that the amount is owed in respect of assessment rates, refuse removal and sewerage in terms of the plaintiff's Water Pollution Control Bylaws and the Refuse (Solid Waste) Bylaws. Though originally in dispute that these bylaws were duly made and promulgated I pursuant to and in accordance with the provisions of the Local Government Ordinance 17 of 1939 (hereinafter referred to as 'the Ordinance'), the defendant made this admission before the plaintiff closed its case. He did so by admitting para 3 of the declaration.

[3] Interest was originally claimed at 15,5% per annum, but the plaintiff J moved for an amendment, which was unopposed and consequently

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granted. Paragraph 9 and prayer (b) of the declaration were accordingly A amended on 6 October 2008 to reflect an interest rate of 14,5% per annum.

[4] The defendant's plea was delivered during June 2006. Instead of pleading to the plaintiff's declaration of February 2006, the plea was done in relation to the annex to the simple summons. Even after this B error was pointed out at a pre-trial conference, the defendant still did not rectify his plea. The result is that a number of documents have to be consulted to establish what the defendant's response is to the allegations contained in the declaration. This is because the plaintiff requested admissions in respect of the defective plea in its notice in terms of rule 37(4), and the defendant's response thereto is contained in its so-called C 'pre-trial list'.

[5] It hardly needs to be said that this is an unsatisfactory state of affairs and that the defendant has caused unnecessary inconvenience by persisting with the defective plea. At the pre-trial conference the D defendant admitted that he did not plead to paras 2 and 8 of the declaration. The contents of para 2 were subsequently admitted, but the defendant declined to admit the contents of para 8. Every allegation of fact in a declaration which is not stated in the plea to be denied or to be admitted, shall be deemed to be admitted in terms of rule 22(3). Mr Amiradakis, however, explained that he did not wish to rely on this E rule, and requested that I read the defendant's refusal to admit para 8 of the declaration as a denial thereof and as if denied in the plea. He explained that his client was prepared to condone this strange procedure, since it feared that the matter would otherwise not proceed. I acceded to Mr Amiradakis' request, since it is the duty of the court to determine F what the real issues between the parties are, and to decide the case on those issues.

[6] I have already referred to the admission that the defendant made in respect of the by-laws. The position accordingly is that the defendant admits paras 1, 2, 3, 4.1 and 4.2 of the declaration. Paragraphs G 4.3, 5, 6, 7, 8, 9 and 10 must be read to have been denied in the plea, except that the defendant conceded that the plaintiff made demand as alleged.

[7] The denials were made in the baldest manner possible. The defendant pleaded no facts upon which reliance would be placed, thereby limiting his defence to a simple denial of the allegations made by the H plaintiff. To make matters worse, the defendant declined to respond to requests for further particulars, stating that he chose not to limit the issues on the pleadings any further. The only bit of particularity that was furnished, was that compliance with s 26 of the Rating Ordinance was denied, and that the amounts were consequently not due and payable in terms of s 27(1). No further detail was given as to the alleged I non-compliance with s 26.

[8] The plaintiff handed up a bundle of documents marked exhibit A. This was done by consent, and although the status of the bundle was originally in dispute, during the plaintiff's opening address the defendant conceded the authenticity of the documents and that any copies included J

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A in exhibit A could be used. The correctness of the contents of the documents was not admitted.

[9] The plaintiff's action is based on four separate claims, and I deal with each of these in turn. First, outstanding assessment rates in terms of the Rating Ordinance are claimed. In short, it is alleged that in terms of B s 21 a local authority may levy a rate on rateable property. It will be recalled that it is common cause that the property, of which the defendant is the owner, is rateable property. In terms of s 26 the rate shall be payable on a day to be determined, which is known as the 'fixed day'. Every owner liable for the payment of the amount due for rates C shall pay such amount on or before the fixed day in terms of s 27.

[10] Secondly, sewerage charges are sued for in terms of s 141 of the Local Government Ordinance No 17 of 1939, already defined as 'the Ordinance'. This section should be read with ss 49 and 50 of the Ordinance. Section 143 of the Ordinance allows for the council to make D bylaws relating to sewerage. The Water Pollution Control Bylaws already referred to were promulgated in terms of this section.

[11] In the third instance, charges relating to the removal of refuse are being sued for. These charges arise out of the application of s 79(2) of the Ordinance. The Refuse (Solid Waste) Bylaws already referred to E were promulgated in terms of the powers created for the council by s 80 of the Ordinance.

[12] In the last instance interest on outstanding amounts are claimed. The claim is based on the provisions of s 50A of the Ordinance and its successors, including s 10G(7)(iii) of the Local Government Transition F Act 209 of 1993 (hereinafter referred to as the 'Transition Act'). [1]

[13] The plaintiff called a single witness, Ms Furick. She is employed as a legal specialist in the Legal and Revenue Department of the plaintiff. She has been so employed since 2004. She identified the documents contained in exhibit A as being documents under the control of the city G manager, and she keeps the documents in her custody. She identified the signature of Mr MAV Dlamini (Dlamini) on page 1 of exhibit A, which purports to be a certificate in terms of s 51 of the Ordinance and in terms of s 31 of the Rating Ordinance. Dlamini is the plaintiff's municipal manager. Mr Theron pointed to the obvious discrepancy, but I do not regard it as of any consequence.

H [14] On pages 13 and 14 she identified the plaintiff's valuation certificates in respect of the property. It reflects a valuation of the land in the amount of R220 000 from 1 July 1996 until 30 June 2008.

[15] Pages 15 - 133 constitute copies of monthly statements extracted I from the plaintiff's records relating to the assessment rates and other charges in respect of the property. Pages 15 - 44 reflect one format, and pages 45 to 133 reflect a different format. That is because of a change in

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the computer system utilised by the plaintiff. Page 15 reflects a take-on A balance in the amount of R21 620,52 as at 10 July 1997. This take-on balance comes from an earlier computer system, which is no longer accessible to the plaintiff. It is consequently impossible to establish how the amount is made up.

[16] She testified that any unpaid balance at the end of the month would B be carried forward to the next month, and that new charges would be added to the new monthly statement. The amount claimed is reflected on page 133. On some of the statements a 'current balance' in the amount of R152 456,74 is reflected. That is the balance at the time that the statements were printed off the plaintiff's computer system. C

[17] She testified that the plaintiff's records reflected that no payments were received since May 1997 in respect of assessment rates, sewerage and refuse-removal charges, or interest. The defendant did not dispute this.

[18] Pages 134 - 98 of exhibit A relate to the promulgated tariffs for D assessment rates. The assessment rate levied on land value is determined with reference to the value of the land and the tariff for the applicable period. She identified pages 199 - 244 as containing the plaintiff's promulgated tariffs for refuse charges and pages 245 - 91 as the promulgated tariffs for sewerage charges. Pages 292 and further dealt with the interest E that she said the plaintiff was entitled to charge on the outstanding amounts in issue. On exhibit A page 309 she identified a resolution adopted by the plaintiff, presumably on 7 March 2000. It determines that in terms of the provisions of s 10G(7)(b)(iii) of the Transition Act, read together with s 229(1) of the Constitution, the rate of interest to be F charged by the council on arrear assessment rate and service charges outstanding for more than 30 days be determined to be the prime lending rate charged from time to time by First National Bank, Johannesburg corporate branch, to its ordinary debtors. On pages 316 and 318 she identified that prime lending rate as being 14,5% on 3 September 2003, the date when summons was served on the defendant. G

[19] Ms Furick linked the amounts reflected on the statements to the supporting documents. For instance, she referred to exhibit A page 75 and identified that the plaintiff...