Wezel v Kimberley Municipality

• Jurisdiction: South Africa
• Citation: 1963 (1) SA 363 (GW)

Wezel v Kimberley Municipality
1963 (1) SA 363 (GW)

1963 (1) SA p363

Citation	1963 (1) SA 363 (GW)
Court	Griqualand-West Local Division
Judge	De Wet J
Heard	December 22, 1961
Judgment	February 16, 1962

Flynote : Sleutelwoorde

Municipality — Water regulations — Hidden leak — Charge E for portion of water which has leaked from pipes beyond municipality's water meter — Reasonableness of — Municipality entitled to refuse to continue supplying water until such charge paid by consumer.

Headnote : Kopnota

Neither regulation 36 of respondent Municipality's Water Regulations, which provides that water registered by the meter shall be the quantity F supplied but does not raise an irrebuttable presumption that the water so registered was the actual quantity supplied, nor regulation 39 which relieves the consumer from liability for payment of a stated proportion of water consumed as a result of a hidden leakage from pipes situate beyond the Municipality's water meter, for the maintenance of which the consumer is responsible, are unreasonable or ultra vires. A consumer is therefore not entitled to an interdict restraining the Municipality from refusing to supply the consumer with water until the G charge for water which has thus leaked away, as laid down by regulation 39, is paid.

Case Information

Return day of a rule nisi. The facts appear from the reasons for judgment.

W. Witepski, for the applicant.

N. Zietsman, for the respondent.

Cur. adv. vult. H

Postea (February 16th).

Judgment

De Wet, J.:

On the 23rd December, 1961, a rule nisi was issued by this Court calling upon respondent Municipality to show cause on the

1963 (1) SA p364

De Wet J

31st January, 1962, why pending an action for a declaratory order to the effect that applicant is not obliged to pay the sum of R59.32 in respect A of water registered by his water meter at 26 Warren Street, Kimberley, it should not be restrained from continuing to refuse to supply applicant with water at the aforesaid address unless the aforesaid sum be first paid and why it should not be ordered to continue the water supply to applicant at the aforesaid address. The respondent was further ordered to restore forthwith the supply of water to applicant's premises B at 26 Warren Street, Kimberley, and this order of Court was to operate as an interim interdict restraining respondent from refusing to supply water at the said premises. On the return day the confirmation of the rule was opposed by respondent contending that the rule should be discharged with costs.

It is apparent from applicant's petition that he has been and still is C carrying on a butchery business under the style or firm of 'De Beers Meat Supply' at 26 Warren Street, Kimberley, and that he is hiring the premises at the aforesaid address on which the butchery business is being carried on. Applicant alleges that the aforesaid premises were at all material times connected with the municipal water supply of the D respondent. From information received he verily believes that at some time prior to his occupation of the aforesaid premises the adjoining property, 28 Warren Street, which is presently supplied by respondent Municipality with water through a separate meter, was supplied with water by the same meter as the premises presently occupied by applicant, E who has no knowledge as to when the separate meter was installed at 28 Warren Street and the supply for that property severed from the supply for the premises presently occupied by him.

He alleges that during the period during which 28 Warren Street was supplied with water through the same meter as the premises presently occupied by him, such supply to 28 Warren Street was effected by means F of an underground metal pipe which branched off from the service pipe serving the premises presently occupied by applicant. When a separate meter was installed for 28 Warren Street the aforesaid branch pipe leading to 28 Warren Street was cut some little distance beyond the point where it branched off, leaving a stump or spur of a length of G approximately ten to fifteen feet, the exact length of which is unknown to applicant, which was sealed or plugged leaving a dead end filled with water. By leaving the aforesaid spur or stump in existence, the respondent, it is alleged, acted negligently and created the risk of the said spur or stump rusting through or opening up and of the water leaking from it on a considerable scale.

H During the period 10th February, 1961, to the 8th March, 1961, the aforesaid spur or stump did in fact develop a leak and the water meter installed on the premises presently occupied by applicant registered in respect of the said period a water consumption of 647,600 gallons, while, save for that period, the water consumption in respect of the said premises as registered by the said meter, was at all material times more or less 3,000 gallons, which quantity has been admitted by respondent Municipality to be the average monthly quantity consumed by applicant.

1963 (1) SA p365

De Wet J

Applicant alleges that respondent Municipality now claims from him and insists on the payment of the sum of R59.32 in respect of half of the wastage caused by the leak plus his average consumption per month, in terms of reg. 39 of the regulations governing the supply and use of A water framed by the respondent Municipality. He has, as he is entitled to do, refused and still refuses to pay for the water wasted as the result of the aforesaid leak, and the respondent Municipality on or about the 15th December, 1961, cut off the water supply of the aforesaid premises occupied by him.

B Applicant attached a copy of the regulations governing the supply and use of water framed by respondent Municipality and says that the aforesaid stump or spur was not during the period 10th February, 1961, to 8th March, 1961, used or intended to be used for or in connection with the supply of water by the respondent Municipality and did not form part of the 'service' (as defined) which, in terms of reg. 4, applicant C in his capacity as a consumer of water was obliged to provide, lay down or maintain, and alleges that he was under no duty to maintain the said spur or stump. He furthermore avers that the hidden defect which was the cause of the leakage was not in the 'service' (as defined) and that he is not obliged to make any payments in respect of the wasted water in terms of reg. 39. He had no knowledge of the existence of the said spur D or stump...