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It is not the consumer’s duty to read the water meter

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Yesterday’s judgement in a case where Ekurhuleni municipality failed for approximately 5.5 years to take actual readings of a water meter, billing on estimated readings, is a victory for consumers battling against bullying municipalities.

The plaintiff, Argent, argued that it was not liable for charges for water that were older than three years at the date that the inflated bill finally arrived in 2015 on the basis that these charges had already prescribed by the time the bill was presented to it.

The municipality argued, in response, that:

  • Firstly, because the consumer made payments each month during the period in question for the estimated charges, that this constituted an acknowledgement of its debt for the large bill presented years later based on actual readings (it lost on this point); and

  • Secondly, that the water charges older than three years included in the big bill in 2015 had not prescribed because prescription can only start running when the municipality actually bills the client, and not before that (it lost on this point too).

This is a victory for property owners against errant municipalities, as the judgment sets a precedent on the following very important principles of law. We quote/paraphrase from the judgment:

  • A consumer who receives a bill for municipal charges for electricity or water for any period older than three years cannot be held liable for the amounts older than three years, because they have prescribed. This is taken from the judgment read as a whole.
  • Prescription of charges more than three years old has not been interrupted (stopped) by payments made by a consumer of estimated charges during the period that the municipality was billing on estimates. A debtor cannot be considered to have acknowledged a debt of which it knows nothing, when either the details of the debt are particularly within the knowledge of the creditor, or only the creditor has the ability to quantify the debt (paras 18 and 19).

  • Prescription starts running not when the invoice is presented to the consumer, but rather when the municipality should have become aware of all of the facts that gave rise to its claim – one of those facts being the actual charge (as opposed to the estimated charge). The municipality could have taken actual readings at any time. It simply failed to. It thus could have become aware of the actual charge at any time. This means that prescription starts running when a municipality should have taken actual readings and billed the consumer on actual readings. Note that this judgment did not, unfortunately, say when a municipality should be taking actual readings – the judge specifically did not decide this issue and this has been left open for consideration in future (para 11).
  • However, the court did say that it is not the consumer’s duty to read meters and determine what its consumption is. The municipality is under a duty to take reasonable steps to collect what is due to it – this duty exists for the benefit of both the consumer and the municipality. The municipality has a duty to read the meters and invoice for consumption at its convenience but at reasonable intervals (paras 12 and 15).

  • Where there are no records of regular actual readings to assist in determining how much of a bill for several years has prescribed, it is appropriate to apply the industry standard – which is to average the consumption for the entire period out over all of the months in that period, and then use the average arrived at to calculate the consumer’s liability for the whole period by multiplying that average by 36 months (para 20).

The judge was quite scathing of the municipality’s contention that the court should show deference to the municipality, because of the responsibility of the municipality in providing services to consumers.


Words: Chantelle Gladwin, partner at Schindlers Attorneys

Chantelle Gladwin, partner at Schindlers Attorneys.

Chantelle Gladwin, partner at Schindlers Attorneys.

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7 COMMENTS
  • Wessel 16th February 2017

    The number on our water meter is not the number that appears on our bill….should we be concerned ? We live in Worcester in the Western Cape…
    Many Thanks
    Wessel Kleinhans

    • Heidi 20th February 2017

      Hi Wessel. Yes, you should be concerned as this means that you are being charged for someone else’s consumption. I would suggest that you take a photo of your meter and either send it to them via email or go to their offices for the accounts to be corrected.

  • Clifford 16th February 2017

    Same here. Municipality failed to take readings for 6 months. Six months later sent a bill of close to R8000 claiming they under-billed us for all those months. The normal monthly usage is about R1 800. Fortunately we pay every month. Do I have a case against the municipality?

    We live in Pinetown

    Clifford

  • PETER LIVANOS New Ventures Consulting and Services: the Municipal Debt Specialist 20th February 2017

    It is so disappointing that people have to continually approach the courts for help, when all the municipality has to do is follow its own by-laws… The principle is the same on our court matter we have taken to court where the Municipalities (Ekurhuleni and City of Tshwane) had actually taken a matter on appeal where we approached the courts for rescue, preventing the municipality from trying to hold a new or current owner for municipal debt that they previously failed to collect from previous owners up to 30 years ago.

    New Ventures Consulting and Services: the Municipal Debt Specialist

  • ROSEMARY JONKER 21st February 2017

    They do not know what they doing i am getting charged for a faulty meter that was there side for the past 2 years been to the council over 8 times and every time get promised they will sort the problem out nothing is sorted not sure what to do next been to the ombudsman as well now waiting if no luck by month end then i give up

  • Geof Kirby 21st February 2017

    Justice prevails. How would this affect SARS recent handing over for collection for alleged UIF debts going back to 2002 when they have done their level best to hide any possible notification of such debts. Figures are only available on application to SARS when it is known that there may be a problem. There is nothing on e-filing and they never made notifications under the manual system. In fact one document claims we are 100% up todate with our account. I think it’s plain bullying and thuggery by SARS. There are many small businesses affected by this traversty.

  • A lowery 5th May 2017

    Some 5 years ago our complex received an account from ekhurheleni for a water account for 30 yrs. the meter in question was put on site for the developer of the complex. During all this time it was unknown about , as we had another meter which was installed also when the complex was built for which we received a bill for every month. The unknown meter was suddenly discovered and read by the council for the first time and hence we revieced the 30 yr consumption account. After lawyers costs etc we still ended up paying a large portion as threats to cut the supply were given regularly. Any chance of a refund?

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