to supply , or is actually supplying , electricity ; or , if there is no occupier , the person who has entered into a current valid agreement with the Municipality for the supply of electricity to the premises ; or , if such a person does not exist or cannot be traced or has absconded or for whatever reason is not able to pay , the owner of the premises .”
A tenant -- as ‘ consumer ’ -- who moves onto a property after transfer can only be liable for electricity he or she has consumed at the property , and for the period he or she has been in occupation . It would be entirely unreasonable for a municipality to attempt to enforce a long-standing pre-existing electricity debt -- or indeed “ any debt ” as suggested in the editorial -- against a tenant who patently did not live at the property the time charges factually accrued , especially since the very existence of historical debt ought to have been raised by the municipality prior to the issuing of the clearance certificate . To argue otherwise does not accord with any rational purposive interpretation of the Systems Act .
In any event , even if the by-laws do , in fact , entitle a municipality to go after such a tenant for payment of historical debt , but the tenant had ‘ prudently ’ insisted on an indemnity clause , as advised in the article , the clause would not assist to overcome the municipality ’ s
claim . This is so because , whatever the true effect of section 118 might be , one cannot contract out of statutory liability . To put it another way , should the effect of the judgment be that tenants can be held liable for historical debt , an indemnity clause would be toothless and ineffective as legislation will always supersede such a contractual provision .
As to the broader effect of section 118 , I am inclined to favour the dissenting interpretation in Tshwane , succinctly stated by Zondi JA : “ If it had been intended that the security created by s118 ( 3 ) in favour of the municipality for the payment of its historical debt should continue to exist even beyond its sale . . . one would have expected the legislature to have used precise and definite language to give effect to that intention . And the fact that no such language occurs in s118 ( 3 ) is a strong argument in favour of the view that the common law rights of the owners – to obtain a clean title – who obtain transfer of the burdened property through a sale in execution were not taken away . In my view this is a sensible meaning of s 118 ( 3 ).”
RESOURCES
Marlon Shevelew and Associates
Developing Future Cities
2 – 3 November 2016 CTICC , Cape Town , South Africa
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