This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules 1971.
The applicant, a local authority is obliged by the law to provide certain services to residents of the City of Bulawayo which services include the provision of road maintenance, refuse collection, and water and sewer services.
The respondent is a resident of the City of Bulawayo and is the registered owner of a certain immovable property otherwise known as Number 58A Robert Mugabe Way, Bulawayo.
In fulfillment of its legal obligations, the applicant provided the services stated above to the respondent and raised service charges amounting to US$20,126=40.
The respondent failed and/or refused to pay the above mentioned service charges and the applicant issued a summons on 10 December 2013 claiming:
(a) Payment of $20,126=40 being the total service charge due and payable;
(b) Interest a tempore morae, at the prescribed rate, from the 30th day of January 2011 to the date of payment;
(c) Costs of suit.
The summons was served on the respondent on 13 December 2013 and it entered appearance to defend on 17 December 2013. On 10 January 2014, the respondent's legal practitioners requested for further particulars as follows:
“To enable the defendant to plead, plaintiff should supply the following particulars;
1. It is alleged in para 3 of plaintiff's declaration that it provided services to defendant, and, as such, is entitled to levy; rates; road levy; water, and other services; of the $20,126=40, how much is for:
(i) Rates;
(ii) Road levy;
(iii) Water; and
(iv) Other services.
2. The said sum is $20,126=40 is for which period (sic), a full itemized breakdown is requested.
3. The claimed sum is said to have a component of rates:
(a) How much is the monthly rates in respective of the property;
(b) Since the rates are a percentage of the value of the property, how much is the property valued at.”
The applicant supplied its further particulars on 18 March 2014 as follows:
“Plaintiff replies to defendant's request for further particulars as follows:
1. Ad paragraph 1 thereof
(i) The charges vary from month to month but charges are calculated as shown from Annexure “A” hereto which represent the charges for 30th November 2013 totalling $770=36 and for 31st December 2013 in the sum of $699=27.
(ii) For the period 30th January 2011 to the 30th November 2013 amounting to $20 215=50. See Annexure “B” hereto”.
2. Ad paragraph 2 thereof
See Annexure “B” hereto.
3. Ad paragraph 3 thereof
(a) $500 see Annexure “A” hereto.
(b) Land valued at $393,500 and improvements valued at $65,000. See Annexure 'A' hereto.”
The respondent, who was supposed to have filed his plea on or before 3 April 2014 in terms of the Rules of this Court, failed to do so.
The applicant applied for summary judgement on 17 April 2014 on the ground that the respondent has no bona fide defence and that the appearance to defend, and the request for further particulars, were nothing more than ways of buying time.
The application was vigorously opposed on the following grounds:
1. Wilful Disregard of the Law
The submission here is that the present application ought to be dismissed for want of compliance with the peremptory provisions of section 279 and 281 of the Urban Councils Act (hereinafter called the Act). Section 281 reads:
“Legal proceedings for recovery of rates
No legal proceedings for the recovery of rates shall be instituted against any person referred to –
(a) In subsection 2 of section two hundred and seventy-nine unless the council has complied with that subsection and the owner has failed, within fourteen days, to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein; or
(b) In subsection (3) of section two hundred and seventy nine unless he has failed, within thirty days, to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein, subject to the maximum amount provided for in that subsection.”
Section 279 of the Urban Councils Act states:
“Liability to pay rates
1. The person who is the owner of any property on the date on which any rate fixed and levied by the council becomes due and payable shall be primarily liable for that rate.
2. If, on the date on which a rate becomes due and payable, the owner primarily liable has failed to pay that rate, a demand in writing may be served on him requiring him to pay the amount stated therein within fourteen days of the service of the demand.
3. If the owner primarily liable for a rate fails to comply with the demand referred to in subsection (2) then any person who, at any time during the period in respect of which such rate was fixed and levied –
(a) Is the occupier of the property concerned, shall, if a demand in writing is served on him by the council, be liable for such rate together with any other unpaid rates in respect of such property, not exceeding the amount of any rent in respect of such property due by him but not yet paid at the time of the demand and shall thereafter continue to pay such rents to the council until the amount of the unpaid rates has been paid off;
(b) As agent or otherwise, receives any rent in respect of such property, shall, if a demand in writing is served on him by the council, be liable for such rate, together with any other unpaid rates in respect of that property, not exceeding the amount of any such rent paid to him subsequent to that demand, subject to the deduction by the agent of commission due to him for the collection of that rent.
(c) The persons referred to in paragraphs (a) and (b) of subsection (3) shall be liable for the rates to the amount specified therein jointly and severally with each and with the owner primarily liable.
4….,.”
The crisp point made by the respondent is that, in terms of these provisions, it was incumbent upon the applicant to serve the respondent with a demand, in writing, requiring it to settle its dues within (14) fourteen days from the date of such demand.
It was further contended that these provisions are peremptory in that the applicant cannot institute legal proceedings before serving the owner with the demand giving him fourteen (14) days to comply.
In casu, since such a demand has not been issued by the applicant, it has failed to comply with the law and the proceedings are a nullity, so the argument goes.
The respondent relied on:
(a) MAXWELL: Interpretation of Statutes (7th ed)…,.
(b) Nkisimane & Others v Santam Insurance Co. Ltd 1978 (2) SA 430 (A)…,.
The respondent's first proposed line of defence is that the applicant's messenger, one Kevin Adams, lied under oath that a letter required to be served upon the respondent in terms of section 279 and 281 of the Urban Councils Act was served on the respondent when in fact no such letter was served.
It was further submitted that the respondent has since filed a police report against the messenger for perjury.
The respondent believed that the letter was prepared merely as an afterthought after the summons had already been issued and after the applicant had realized that the failure to comply with the Urban Councils Act was fatal to its case. This fact, according to the respondent, is supported by the fact that the letter is not signed and there is no acknowledgment of receipt by the respondent.
The applicant's submission was that Kevin Adams did not lie at all and therefore the dirty hands principle does not apply.
As regards the argument that Trishul does not exist, the applicant submitted that this does not make sense because the Deputy Sheriff served a summons on 13 December 2013 at the same place on a manager called Trishul. After the summons was served on Trishul, the respondent entered an appearance to defend. This means the respondent saw the summons.
In my view, it is not a mere coincidence that Kevin Adams and the Deputy Sheriff would visit the same place, on different dates, and claim to have seen the same person if that person did not exist.
Clearly, the Deputy Sheriff did not lie because the respondent acted on the document that was served on 13 December 2013. Earlier, on 14 November 2013, Kevin Adams had delivered a letter to a Mr Trishul at the same premises.
For these reasons, l find that the dirty hands principle cannot be sustained as there is no evidence that Kevin Adams lied.