De Witt v Margate TLC

• Jurisdiction: South Africa
• Judge: Gyanda J, Ndlovu J
• Judgment Date: 20 October 2008
• Docket Number: AR186/07
• Court: Natal Provincial Division
• Hearing Date: 22 September 2008
• Citation: 2009 JDR 0090 (N)

Gyanda J:

[1]

The Appellant (the Defendant in the Court a quo) in this matter was sued in the Magistrate's Court, Port Shepstone by the Respondent (the Plaintiff in the Court a quo) in respect of certain sewerage contributions due to the Plaintiff by the Defendant in the sum of ninety thousand and twenty rand, [R90 020-00]. The matter was defended and after evidence was led, the Court a quo granted Judgment in favour of the Plaintiff for the payment of the sum of ninety thousand and twenty rand [90 020-00] together with costs thereon. It is this Judgment against which the Appellant now appeals.

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Gyanda J

[2]

The facts, briefly, were that the Respondent had provided sewerage facilities in respect of a development of some twenty one units on a plot within its jurisdiction referred to as Lot 3100 Margate. The Respondent contended that in view of the Provincial Regulations relating to charges for the sewerage facilities, the Appellant was liable to pay a fee referred to as a "sewerage contribution" calculated as prescribed in the Regulations in the Provincial Gazette. In consequence of these Regulations, the Appellant acknowledged liability in a document referred to as Annexure "A" at page 285 of the indexed bundle for payment of these sewerage contributions, on the 26th May 1997, in the amount of eighty two thousand six hundred rand, [R82 600-00].

[3]

The Appellant's appeal was based on a threefold attack;

(a)

He contended, in the first place, that the undertaking referred to in the pleadings was completed by him in his capacity as an agent or representative of a close corporation which was the registered owner of the property namely, G M Retailers No. 43 CC. He submitted, therefore, that any action against him could not succeed as, throughout his negotiations with the Respondent they were made fully aware that he was doing so in a representative capacity and not in his personal capacity.

(b)

Secondly, that in any event, and even if it were to be found that he was personally liable for the payment of the sewerage contributions, then in as

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Gyanda J

much as these contributions fell to be paid at the time of the connection of the sewerage facilities which was on or about the 26th May 1997, when he signed the undertaking referring to or, at the latest on or about the 15th April 1997 when he paid the sewer connection fees in the sum of four thousand seven hundred and eighty eight rand, [R4 788-00], and the sewer was connected, then in those circumstances the Plaintiff's claim against him had prescribed in terms of the provisions of the Prescription Act, No. 68 of 1969 by the time summons had been served upon him, on or about the 20th June 2000 which was more than three [3] years from the date that these payments were due.

(c)

Thirdly, that in any event, he was not liable for the payment of sewerage contributions in as much as these contributions were only payable in respect of a brand new development on "Virgin" property that had not been developed before, as envisaged in the regulations and not a development such as his which was, albeit a new development, but was erected on a property upon which there had previously been a hotel and other dwellings in respect of which sewerage facilities were already in place.

[4]

The first two of these issues were dealt with in limine in the Court a quo after having heard evidence from the Appellant, Mr De Witt upon whom the onus in respect of these two issues lay. The Court having heard the evidence of Mr De

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Gyanda J

Witt in this regard ruled that the claim of that Mr De Witt had not conveyed to the Respondents that he was acting in a personal capacity. Both these issues arise from the provisions of the undertaking referred to as Exhibit "A".

[5]

It is perhaps convenient to deal firstly with the issue of prescription as, during Argument and based on the provisions of Regulation 12(a)(v) of the Provincial Notice - Sewerage Regulations, Mr De Wet, who appeared for the Appellant, conceded that although the undertaking to pay the sewerage contribution was dated the 26th May 1997, that in terms of the provisions of Regulation 12(a)(v), it was clear that the payment was only due, owing and payable when the development or project had been completed, in this regard, the Regulation reads:-

"12 PROCEDURE RELATING TO A NEW PROJECT

(a)

An owner wishing to establish a new project shall in writing,

(iii)

State the quota which he desires the authority to accept from the project on completion, (my emphasis), which in the case of flats, hotels, boarding establishments, cluster housing and camps shall be arrived at as set out in sub-regulation (e);

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Gyanda J

(v)

Make application, in terms...