Spartan Caselaw

BC of Willow and Aloe Grove v City of Johannesburg [2023] 41604-20 (GJ)

MUNICIPALITY – Accounts and charges – Disputes

Legislative scheme relating to credit control and dispute resolution in municipalities creates contractual relationship – Customer to frame query or dispute in accessible manner – Municipality obliged to engage efficiently and intelligently with dispute with object of coming to resolution and to inform customer in writing of its decision with cogency – Court not to interfere in determination of dispute – Appeal process under section 62 will yield final administrative decision which may be subject to a judicial review – Local Government: Municipal Systems Act 32 of 2000.

Facts: In the application against the City of Johannesburg there have been errors in the accounting dating back to November 2014. The account is in respect of municipal charges for services provided by the municipality to the applicant’s commercial property in Johannesburg known as Houghton Estate Office Park. In the case against Mogale City Municipality the dispute relates to electricity, water and sanitation charges for services to the applicant’s residential property in Krugersdorp for a period spanning July 2013 to January 2019. Electricity supply to the property was disconnected in 2021 and has remained disconnected.

Application: Both cases represent typical applications brought against municipalities in our courts relating to municipal accounts. Generally, what is sought is that there be an order compelling the reconnection of services which have been disconnected or the interference by the court in the municipality’s accounting and other debt collection processes.

Discussion: The Local Government: Municipal Systems Act 32 of 2000 requires that disputes in relation to specific charges on a municipal account must be dealt with through a co-operative structure which places obligations on both the customer and the municipality and which affords to the customer procedural fairness. This includes an internal appeal mechanism. There is no provision for resorting to court for the resolution of disputes in the context of this structure. The dispute with the City of Johannesburg resulted in over R1,6 million being paid to restore services and the matter has devolved to a level of an intractable mess. The court is prevailed upon to apply an accounting of its own. In the second case it appeared that the dispute was resolved in a professional and fair manner by the Mogale Municipality. The applicant’s delinquency continued and the electricity supply was again disconnected. The municipality offered to enter into an arrangement with the applicant in relation to a payment plan, provided she signed an acknowledgment of debt for the arrears. But the applicant rejected this accommodation. The electricity has remained disconnected.

Findings: The legislative scheme relating to credit control and dispute resolution in municipalities creates a contractual relationship. A customer is obliged under the contract to frame the query or dispute in a manner that is accessible. The municipality is obliged to engage efficiently and intelligently with the dispute with the object of coming to its resolution. The municipality must inform the customer, in writing, of its decision. The written information provided to the customer under the by-laws must have cogency. The dispute must be engaged with by both parties in good faith and on the basis that there is method and reason brought to bear on an identified issue or issues. The legislative scheme provides that while this process is unfolding in terms of the scheme there can be no debt collection measures taken relating to the amount in dispute, including termination or disconnection of municipal services.

The courts: The relationship between customer and the municipality is contractual but also has administrative and statutory components. Were a court to interfere in the determination of the dispute, this would amount to an impermissible incursion into the contract of the parties. From an administrative perspective, such intervention would amount to an impermissible interference with decisions which are to be taken by the municipality under the legislative scheme. The appeal process under section 62 of the Act will yield a final administrative decision which may be subject to a judicial review. Any review process would have to engage sensibly with the administrative failings of the municipality and would, of necessity, entail an inquiry into whether the internal remedies available to the customer in terms of the legislative scheme have been exhausted.

Order: In the first case, the application is dismissed. The respondents are to comply with section 11(5) of the by-laws of the City of Johannesburg relating to complaints in respect of accounts by informing the applicant, in writing, of the municipality’s decision with reference to the adjustments to the applicant’s account such that it is made intelligibly clear why each of the adjustments were affected and how the final determination of the amount owing to the municipality has been reached. In the second case, the application is dismissed.

FISHER J

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Prince Mbonisi v President of RSA [2023] 19891-22 (GP)

CUSTOMARY – Traditional leadership – Kingship

Allegation that identification of person as king not done in terms of customary laws and customs – President erred in law in performing an evaluative function regarding what he deemed to be “the evidence” – Investigative committee is statutory body created to perform such evaluative function – Mediation panel was not such an investigative committee – President erred in law in not having followed peremptive provisions of Act – Recognition by President of Prince Misuzulu as Isilo of the Zulu Nation was unlawful and invalid and the recognition decision is set aside – Traditional and Khoi-San Leadership Act 3 of 2019, ss 8(4) and 8(5).

Facts: The succession to the throne of the AmaZulu Kingship was precipitated by the passing of the late Isilo His Majesty King Goodwill Zwelithini KaBhekuzulu in 2021. Members of the Royal Family convened during which meeting King Misuzulu was identified as the new King of the AmaZulu. It is alleged that approximately 130 people attended this meeting. There are substantial factual disputes raised by Princes Mbonisi and Simakade in their papers as to whether that meeting complied with the prescripts of Zulu custom and the Traditional and Khoi-San Leadership Act 3 of 2019 (the Leadership Act).

Application: The applicants brought two review applications. The first was whether the incumbent king, King Misuzulu Ka Zwelithini Zulu, has been appointed as king in terms of Zulu custom and the second was whether the President had correctly recognised the present king in terms of the Leadership Act. In respect of the first question Madondo AJP had already pronounced in related litigation that King Misizulu is the rightful heir to the throne. Even if that decision is being attacked, this court cannot sit as a court of appeal and that decision is regarded as res iudicata.

Discussion: The late Princess Thembizulu Ndlovu directed a letter to the President disputing the nomination and identification of King Misuzulu. This dispute was lodged in terms of sections 8 and 12 of the Leadership Act. The Mediation Panel conducted extensive investigations and produced a report spanning 43 pages. Section 8(4) of the Act provides for the procedure to be followed by the President where there is evidence or an allegation that the identification of a person as a king or queen was not done in terms of customary laws and customs. It appears that the President at least partially appreciated the applicability of section 8(4) as he refers to it in his answering affidavit. Having correctly identified the applicable section, the President however did not follow it. Although the attempt at mediation, being the route followed by the Minister in appointing the ad hoc Mediation Panel, was a laudable one, it was not one contemplated in the Leadership Act.

Findings: The President erred in law in performing an evaluative function regarding what he deemed to be “the evidence”. The Leadership Act clearly contemplates that an investigative committee is the statutory body created to perform such evaluative function. The Mediation Panel was not such an investigative committee. The President therefore erred in law in not having followed the peremptive provisions of the Leadership Act. This renders his recognition decision susceptible to review. The decision by the President to recognize King Misuzulu is reviewable in terms of the provisions of section 6(2)(d) of the Promotion of Administrative Justice Act 3 of 2000 in that he had failed to comply with mandatory procedures in the empowering provisions of the Leadership Act, in particular sections 8(4) and 8(5).

Order: It is declared that the recognition by the President of Prince Misuzulu as Isilo of the Zulu Nation was unlawful and invalid and the recognition decision is set aside. The matter of the recognition of the lsilo of the AmaZulu is remitted to the President who is directed to act in terms of sections 8(4) and 8(5) of the Leadership Act and to appoint an investigative committee as contemplated in that Act to conduct an investigation and to provide a report in respect of allegations that the identification of Prince Misuzulu was not done in terms of customary laws and customs.

DAVIS J

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BG Bojosinyane & Assoc v Sheriff: Smith [2023] ZASCA 174

CIVIL PROCEDURE – Service of processes – Sheriff’s fees

Sheriff not entitled to demand payment up front for fees and charges contemplated, but yet to be incurred, for service and execution of court processes – Returns of service may not be withheld by sheriff pending payment being made of fees and charges reflected therein for service and execution of court processes – Magistrates’ Court Act 32 of 1944 and Rules.

Facts: The appellant, BG Bojosinyane and Associates, is a firm of attorneys that had issues with the sheriff. The complaint was that the sheriff demanded exorbitant fees from the appellant before he would effect service of any civil process sued out by the firm, which conduct is contrary to the procedure laid down by the Magistrates’ Courts Rules of Court, Magistrates’ Courts Act 32 of 1944, Uniform Rules and the Sheriff’s Act 90 of 1986. This resulted in unnecessary and uncalled for arguments and disputes which inevitably lead to excessive delay to serve the firm’s documents or process, or at times such documents are not being served at all.

Appeal: The High Court found that the appellant had a clear right to have processes of court served without any avoidable or unreasonable delay. It however dismissed the application for a mandatory interdict on the basis that the appellant had not established an imminent threat of irreparable harm, and that it had not established that it had no satisfactory alternative remedy.

Discussion: Whether, unless excused by an authorisation granted by a magistrate in terms of section 14(7) of the Magistrates’ Court Act, a sheriff is entitled to refuse to serve or execute a court process unless a deposit in respect of the sheriff’s fees and charges relating thereto is paid upfront, allied to which is whether once the process is served or executed, a sheriff is entitled to withhold the return of service until payment of his fees and charges specified therein have been paid; whether a mandatory interdict to give effect to the determination of these issues should have been granted; that the brief synopsis of the facts in the four cases relied upon by the appellant demonstrates that the demands for upfront payment in each instance resulted in delays, to varying degrees, before the court process was served or executed; and that the appellant complained that these delays were contrary to the requirement that processes must be served or executed without unreasonable delay.

Findings: Both the Magistrates’ Court and the Office of the Sheriff are creatures of statute. The legislative framework does not provide that a sheriff may demand payment of a deposit upfront. The sheriff is not entitled to demand payment up front for fees and charges contemplated, but yet to be incurred, for the service and execution of court processes. Similarly, returns of service may not be withheld by him pending payment being made of the fees and charges reflected therein for the service and execution of court processes. The service and execution of court processes has indeed been described as “the cornerstone of our legal system”. It is in the interests of the administration of justice that our courts operate efficiently and without unreasonable or avoidable delays. The sheriff’s stated intention to continue insisting on payment from the appellant before rendering any service or executing court processes emanating from the appellant confirms not only an injury in law which the appellant has suffered in the past, but also an ongoing injury which is reasonably apprehended and feared to occur again in the future.

Order: The appeal is upheld. The order of the High Court is replaced with an order that, unless authorised by a magistrate in terms of section 14(7) of the Magistrates’ Court Act, the sheriff is directed to effect service and to execute any court process emanating from the office of the applicant without any unreasonable delay. The sheriff is interdicted from requiring payment of any part of his fees or charges in respect of the service or execution of a court process before serving and executing such process. After the service or execution of any court process the sheriff is directed, without delay and without first requiring prior payment of any part of his fees and charges relating thereto, to return to the applicant and to the court concerned whatever he has done by virtue of such process, specifying his fees and charges on the original and all copies of the returns of service.

KOEN AJA (MATOJANE JA, WEINER JA and CHETTY AJA concurring)

MAKGOKA JA from para [38] agreeing with the order, however, preferring a more linear route.

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ABOUT SPARTAN CASE LAW

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Spartan Case Law

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