Judge allows 30 days for city’s legal advisor to state why he should not personally pay 20% of the costs, and for its attorneys and counsel to demonstrate why they should not be prohibited from recovering any fees for the case.
The City of Johannesburg (CoJ) and the lawyers and legal advisors it uses in disputes with its customers over alleged account arrears and the disconnection of utility services have been lambasted in a Johannesburg High Court judgment.
Acting Judge C Badenhorst referred in a judgment handed down on Monday to the “abuse of power resulting from robust yet unprincipled debt collection practices” by the CoJ.
He said the cases considered in his judgment “reveal the continued corrosive impact of unchecked power on the CoJ’s collective practices”.
“Additionally, it underscores how a specific group of lawyers, frequently retained by the CoJ, persistently pursue unmeritorious arguments, undeterred by the facts of the individual cases.
“This culminates in unnecessary High Court litigation for those few who can afford to seek relief, while many less fortunate customers no doubt remain at the mercy of an indifferent officialdom,” he said.
“Consequently, severe financial burdens and hardship are imposed on customers and ratepayers.”
Badenhorst said the CoJ must urgently address and rectify “this pernicious practice and its underlying causes to ensure a fair and just administrative process for all its customers and ratepayers”.
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‘Disturbing’
He said it is disturbing that despite the same disquiet having been expressed in no fewer than six recent judgments of court, “the city officials and their legal advisers (who are once again involved in the cases under consideration in this judgment) appear to treat this court’s concerns with disdain”.
The judgment related to four urgent applications enrolled for hearing in December that arose from the disconnection, or attempted or threatened disconnection, of customers’ utilities by the CoJ, City Power and Johannesburg Water despite the customers still being involved in a dispute with the CoJ.
One of the four matters was settled.
Judge Badenhorst considered the three remaining opposed applications in his judgment given the substantial similarities in the facts and legal principles involved in Erf 784 Robindale Five (Pty) Ltd Limited, Ordicode (Pty) Ltd and Hyde Park Gardens (Pty) Ltd versus the CoJ.
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Disconnections and threats
Erf 784 Robindale Five launched an urgent application on 22 November 2024 against the CoJ and Johannesburg Water for an order to immediately restore water supply to the property and for an interdict prohibiting them from disconnecting the electricity and/or water supply to the property pending the final determination of the dispute.
Ordicode applied for an urgent interdict against the CoJ and City Power to prevent them from terminating the electricity supply to its property at 85 Wolmarans Street in Johannesburg, pending the resolution of the disputes in a previous but unresolved “main” application it launched on 3 August 2023.
The property contains an eight storey building that accommodates a business on the ground floor and 106 apartments on the remaining seven floors that are occupied by about 200 students.
Ordicode further applied for an order that, in the event of the termination of utility services in breach of a court order, it be allowed to appoint its own professional contractors to reconnect services at CoJ’s costs.
Hyde Park Gardens launched an urgent application on 25 November 2024 to declare the CoJ and City Power to be in contempt of an order of the court granted on 8 July 2020, the imposition of a fine of R500 000 for contempt and for the CoJ and City Power to be ordered to immediately restore electricity supply to its Shell business premises at 99 Winnie Madikizela Drive in Hyde Park.
It further applied to interdict the CoJ and City Power and any of its employees, agents and/or contractors from further disconnecting the electricity supply to the property pending the final outcome of the action proceedings in this court under another case.
Rulings
Badenhorst ruled that Erf 784 and Ordicode were entitled to the relief they applied for and a punitive order is justified in these two matters.
However, the CoJ and Johannesburg Water were given 30 days to issue summons against Erf 784 for the disputed arrears of R139 586.65 in line with its November 2024 tax invoice, failing which Erf 784 is entitled to approach the court for a declaration that the disputed arrears amount has prescribed.
Badenhorst ruled the contempt of the previous order obtained by Hyde Park Gardens had been established on a balance of probabilities.
He said the repeated and prolonged instances of non-compliance with the court order may be regarded as aggravating factors but stressed the urgent motion court is not the appropriate forum to determine sanctions or accountability in this matter.
He issued an order that enforces the existing order.
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Disregard for the law
Badenhorst said the flaws in the CoJ’s answering affidavits and arguments are common to all three matters and included hearsay, a failure to deal squarely with the facts, and shortcomings in the presentation of argument.
He referred to the supplementary judgment in another CoJ billing dispute case by Judge Roland Sutherland, the deputy judge president of the Gauteng High Court in Johannesburg.
Badenhorst said it is alarming that despite two previous judgments and at least three other decisions of the court – which contained explicit warnings against repeating the same unacceptable conduct and directed the CoJ to bring this criticism to the attention of the mayor, city manager, head of revenue collection and chief legal advisor – the grave concerns expressed by Sutherland in the March and April 2024 decisions “appear to have been disregarded”.
“This attitude demonstrates a troubling indifference to accountability and oversight, coupled with a marked disregard for the authority of the court,” he said.
Turning to the sanction, Badenhorst said he would be remiss in his duty if he did not take further action in respect of the repeated failings demonstrated by the legal representatives and CoJ legal advisor Tuwani Ngwana and the associated entities identified in his judgment.
“I echo the profound concerns articulated by the Deputy Judge President … regarding the intrinsic dysfunctionality within the City of Johannesburg’s administration, especially in disputes of this nature.
“It is imperative for the CoJ to take decisive remedial action. The customers and ratepayers of CoJ deserve nothing less,” he said.
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Before any sanction is imposed …
Badenhorst said before any sanction is imposed for the apparent failure by the CoJ’s legal representatives and Ngwana to heed the many warnings of the court and for persisting in a pattern of submitting inadequately prepared papers and unmeritorious arguments at the expense of the city’s ratepayers, it is necessary to afford them an opportunity to make representations to the court.
He invited:
- The attorneys and counsel who represented the CoJ and City Power to file representations within 30 days of publication of his order demonstrating why they should not be prohibited from charging or recovering any fees from the CoJ, City Power or Johannesburg Water for work performed in respect of the matters decided in this judgment.
- Ngwana to file representations within 30 days of publication of the order demonstrating why he should not be personally ordered to pay 20% of the costs incurred by the CoJ and City Power in the three matters because of his failure to heed the Deputy Judge President’s warning in a previous case.
Badenhorst warned that if such representations are not filed in a timely manner, or if they are deemed unpersuasive, supplementary orders will be issued.
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Insistence that criticisms be heard
Badenhorst further ordered that his judgment, as well as six other judgments that are similarly critical of the administration of the CoJ, must be brought to the attention of the CoJ executive mayor, city manager, head of revenue collection, chief legal advisor, and the CEOs of City Power and Johannesburg Water.
He invited these officials, within 30 days, to respond to the:
- Finding of contempt of court in the Hyde Park matter;
- Flaws in the answering affidavits and arguments common to all three matters as described in his judgment; and
- Criticism expressed in the six previous decisions of the court he listed.
“Any response, or lack thereof, will be duly considered when determining an appropriate sanction for contempt, addressing the outstanding order for costs in the Hyde Park matter, and assessing the necessity for further remedial action at higher levels of the governmental hierarchy,” he said.
Comment was requested from the CoJ on the judgment but a response has not yet been received.
This article was republished from Moneyweb. Read the original here.
