Judge says the city has persisted with a practise a previous judge called 'a manifestation of the city’s reckless attitude'. Picture: iStock
A punitive cost order has been issued against the City of Johannesburg (CoJ) and City Power in a Johannesburg High Court billing dispute judgment.
Acting Judge Gian Louw also criticised CoJ legal advisor Tuwani Ngwana for continuing to submit affidavits in support of the CoJ in billing disputes and electricity disconnections when he has no personal knowledge of the accounting.
In a judgment handed down last week, Judge Louw said the CoJ and City Power should be interdicted and restrained from terminating the supply of services to the Geranium Mansions Sectional Title Scheme property pending the resolution of the disputes in the main application already before the court.
Louw said the nature of the relief is not final, and granting such relief will not result in the CoJ and City Power “forfeiting a single cent of what applicant [Geranium Mansions] might owe”.
ALSO READ: City Power to pursue criminal charges against alleged mini-substation hijacker
Section 102 of the Local Government Municipal Systems Act provides, among other things, that a municipality may implement any of the debt control measures provided for in the act in relation to any arrears on a person’s accounts. However, this does not apply when there is a dispute with the municipality that has been properly raised concerning any specific amount claimed by a municipality from that person.
Louw said that in his view there is clearly a dispute between the parties, and the dispute has been properly raised.
He added that a punitive cost order against the CoJ and City Power is justified in light of his finding that the termination of the electricity supply to the property on 5 December 2024 was unlawful.
ALSO READ: City of Joburg’s hypocrisy: Pot, kettle, black
Louw said there is another reason why a punitive cost order is justified in this matter and referred to the Robindale Five (Pty) Ltd v City of Johannesburg Metropolitan Municipality judgment by Acting Judge C Badenhorst, which referred to the “continued abuse of power with unflinching resolve” of the CoJ.
He said in three matters served before the court, the deponent to the answering affidavits was Ngwana, who was also the deponent to the CoJ’s answering affidavit in this matter.
Louw said Ngwana states that: “The facts deposed to hereunder are known to me through the documents and information which I have access to under the municipality’s system and also in discussion with the colleagues employed by the department such as City Power together with their sub-contractors”.
He said Ngwana further states that: “My authority to depose to this affidavit emanates from my employment with the municipality and on consideration of the records relating to the applicant [Geranium Mansions] consumer account under which services are supplied and on discussions with the officials employed by the municipality’s departments.”
ALSO READ: City Power has no lawful tariffs but cuts power supply
Louw said these “colleagues and officials are neither identified nor did they file affidavits confirming Mr Ngwana’s allegations”.
He also referred to a judgment by Judge Roland Sutherland, deputy judge president of the Gauteng High Court in Johannesburg, in another CoJ billing dispute case.
Sutherland, among other things, said the practise of requiring a legal advisor to depose to the affidavits “is both a clue to the cause of the debacle and a manifestation of the city’s reckless attitude” and that it should be self-evident that the city’s legal advisor has no personal knowledge of the accounting because he can never be more than a conduit.
“The practice of a legal advisor being a deponent to facts of which he has no personal knowledge must stop,” he said.
ALSO READ: City Power achieves unqualified audit, hits 75% of targets
Judge Louw acknowledged that Ngwana stated in the answering affidavit that the facts deposed to are known to him through documents and information “which I have access to under the municipality’s system”.
But Louw said it is not stated in the answering affidavit who the colleagues and officials are from whom Ngwana obtained knowledge of the facts deposed to by him.
He added that despite Judge Sutherland’s recent stern warning, the CoJ and City Power have persisted in the manner objected to in that judgment.
He said Ngwana states further in the answering affidavit that Geranium Mansions does not make payment of the consumed services and “it seeks to continue to consume without making payment, simply for profit reasons”.
Louw said Geranium Mansions does in fact appear to make at least part payment of “consumed services” for the November and December 2024 invoices, and no factual basis is set out “insofar as the alleged ‘profit’ is concerned”.
“For all these reasons, a punitive cost order is, in my view, justified in this matter.”
ALSO READ: City Power disconnects 120 homes for bypassing prepaid meters
Louw said he intended to take a similar approach to the one adopted by the court in the two previous cases regarding Ngwana’s conduct.
“Mr Ngwana is invited to make representations within 20 court days of the publication of this order in which he offers reasons why he should not personally be ordered to pay 20% of the costs incurred in this application, failing which a supplementary order to that effect will be made.”
Louw interdicted and restrained the CoJ and City Power from terminating the supply of electricity to Units 1 to 17 of Geranium Mansions, pending the resolution of the disputes in the main application.
However, he said this interdict does not affect the CoJ and City Power’s right to terminate the municipal supply to the property in respect of amounts accruing from municipal consumption at the property after the date of this order and falling outside the ambit of the disputes in the main application.
This article was republished from Moneyweb. Read the original here.
Download our app
